TWO Tobago men who were previously successful in their malicious-prosecution lawsuit and were ordered to receive over $.8 million in compensation will not receive a cent, as the Court of Appeal has upheld a challenge by the State.
Instead, Keron Quamina, a snack vendor, and Malco Kent, a craft vendor, who were jointly charged with a 2008 murder, but later got off in the magistrates’ court, will have to pay $23,324 to the State in legal costs.
On Thursday, Justices of Appeal Gregory Smith and Mira Dean-Armorer overturned the June 2020 decision of then High Court judge Justice James Aboud, who faulted the police investigation of the November 26, 2008, murder of hardware owner, Billy Caesar. He found “malice” on the part of the charging officer, PC Eastman.
The charges against both men were dismissed in February 2011 at the Scarborough Magistrates Court. According to Aboud’s judgment, the prosecution’s case was based on a written statement of Kirk Thomas, a wanted man who never appeared before the magistrate, but who identified both men as Caesar’s killers.
Thomas had not been interviewed by Eastman and at the appeal, the State argued that Eastman received advice from the then acting Director of Public Prosecutions that there was sufficient information to charge both men, so the judge was “plainly wrong” to conclude that the police acted with malice.
Aboud said a prudent officer ought to have considered further investigations were needed because of Thomas’s “sketchy information.” Aboud said he was of the opinion that Eastman was prompted by improper and indirect motives in charging the two men and had no reasonable and probable cause to do so.
However, the Appeal Court judges said they disagreed with Aboud’s analysis and conclusions.
Kokaram, who delivered an oral summary of their decision, also said the judge was wrong to infer malice on the part of the charging officer. He said even if it was proven at the trial there was a lack of reasonable cause to arrest and charge, malice must be proven.
"The Achilles heel is malice in this case.”
He said the court could find no sinister motive on the part of the police officer to impute wrong.
“The fact that the police sought the advice of the DPP is evidence that would negate evidence of malice.”
He said while the police “acted sloppily” in their investigations, they did not do so maliciously.
"Sloppiness is different from malice,” he said.
He said the only inference that could be drawn from the evidence was that Eastman had properly discharged his duty by approaching the DPP for advice, since it was the practice in TT for the police to lay charges only after instructions from that office.
“There was no proof the officer was acting for some illegitimate or oblique motive in commencing this prosecution…There was no evidence the officer fabricated evidence to take to the DPP.
“Launching a weak case is not enough to say there was no reasonable cause or malice. (Because of) the fact that advice was sought, it would be difficult to prove malice, and this should have formed the backdrop for the judge to analyse, which he omitted to do.”
The State was represented by attorney Ebo Jones. Nera Narine represented Quamina and Kent at the appeal.
Aboud had ordered that each man should receive $350,000 in damages and Kent was to receive an additional $120,000 for loss of earnings and for his legal fees at the magistrates’ court, while Qumaina was expected to receive an additional $45,000 for loss of earnings.
With the Appeal Court overturning the judge’s decision, neither man will receive a payout.