DEREK ACHONG

derek.achong@guardian.co.tt

A sol­dier has emerged vic­to­ri­ous fol­low­ing a decade long bat­tle with the State over be­ing wrong­ful­ly de­tained for a re­port­ed kid­nap­ping in­ves­ti­ga­tion.

De­liv­er­ing a writ­ten judg­ment yes­ter­day, three Law Lords of the Unit­ed King­dom-based Privy Coun­cil ruled that the lo­cal High Court and Court of Ap­peal got it wrong when they suc­ces­sive­ly re­ject­ed Lance Cor­po­ral Do­ri­an Be­taudi­er’s false im­pris­on­ment law­suit.

Ac­cord­ing to the ev­i­dence in the case, Be­taudi­er and a col­league were held by po­lice while dri­ving a De­fence Force ve­hi­cle in San Juan on Christ­mas Eve in 2005.

Be­taudi­er was found to be in pos­ses­sion of an en­ve­lope with $7,000 in cash, while his col­league had an il­le­gal firearm and am­mu­ni­tion.

While his col­league was charged with pos­ses­sion of the firearm, he was de­tained as part of a kid­nap­ping in­ves­ti­ga­tion be­fore be­ing re­leased with­out charge on Box­ing Day.

Be­taudi­er filed the case in 2009 and three years lat­er it was dis­missed by the High Court Judge and cur­rent Ap­peal Court Judge An­dre Des Vi­gnes, who ruled that the po­lice had rea­son­able and prob­a­ble cause to sus­pect that he had com­mit­ted an of­fence.

The Court of Ap­peal dis­missed Be­taudi­er’s ap­peal by ma­jor­i­ty de­ci­sion, with Ap­pel­late Judge Al­lan Men­don­ca dis­sent­ing.

In the ap­peal, the Privy Coun­cil re­ject­ed claims by the State that it could not in­ter­fere in the case as both lo­cal courts had made con­cur­rent find­ings of fact.

It stat­ed that the of­fi­cer, who ar­rest­ed the duo, could not have rea­son­able sus­pi­cion that Be­taudi­er was in­volv­ing in kid­nap­ping as the in­for­ma­tion, which led to their ar­rest, per­tained to the trans­porta­tion of il­le­gal firearms and am­mu­ni­tion.

“The of­fi­cer must have in mind facts which are ca­pa­ble of sup­port­ing a rea­son­able sus­pi­cion that a per­son has com­mit­ted an of­fence of the par­tic­u­lar kind, which the of­fi­cer has in mind,” the court said.

It al­so re­ject­ed claims that the of­fi­cer’s sus­pi­cion was based on a brief­ing he at­tend­ed re­gard­ing a wider in­ves­ti­ga­tion in­to sol­diers en­gag­ing in il­le­gal ac­tiv­i­ty, in­clud­ing kid­nap­ping.

“The fact that the ap­pel­lant was a sol­dier, one mem­ber of a very large group in T&T, gave no rea­son to sus­pect him of kid­nap­ping, com­mit­ted by sol­diers,” it said.

The ap­peal pan­el al­so stat­ed that al­though it would have been rea­son­able to de­tain Be­taudi­er on sus­pi­cion of firearm of­fences based on the il­le­gal weapon found on his col­league, the po­lice main­tained that he was held in re­la­tion to kid­nap­ping.

It al­so not­ed that he was not ques­tioned whether the large quan­ti­ty of cash that was found on him was the pro­ceeds of kid­nap­ping.

“The pos­ses­sion of the mon­ey there­fore re­mains in­suf­fi­cient for this pur­pose, even when con­sid­ered in con­junc­tion with oth­er ma­te­r­i­al,” it said.

Based on its find­ing that Be­taudi­er’s ar­rest was un­law­ful, the pan­el ruled that his sub­se­quent de­ten­tion was al­so il­le­gal.

De­spite the rul­ing, the pan­el did not as­sess the com­pen­sa­tion to be paid to Be­taudi­er, in­stead re­mit­ting the is­sue for a High Court Judge to de­cide.

Be­taudi­er was rep­re­sent­ed by Anand Be­har­ry­lal, QC, Joshua Hitchens, Sian McGib­bon, Ken­neth Thomp­son and Alvin Pariags­ingh while Tom Poole rep­re­sent­ed the State.