Privy Council rules against ex-cop in malicious prosecution case

The content originally appeared on: Trinidad and Tobago Newsday

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A RETIRED police inspector who claimed he was framed by a senior police officer in 2004 for a crime has lost his appeal at the Privy Council.

Harridath Maharaj had appealed the decision of the Court of Appeal, which reversed a High Court judge’s award of $300,000 in compensation for malicious prosecution.

On March 4, 2004, Maharaj, while a serving police officer, was charged for illegal logging in a protected forest reserve by then-acting deputy Commissioner of Police Harold Phillip.

In November 2007, the charges against him were dismissed on a no-case submission. In October 2011, he filed a claim for malicious prosecution, raising what the Privy Council referred to as “very serious allegations” of fabrication of evidence, obtaining statements from witnesses by duress, deliberate breaches of police standing orders and an alleged attempt to cover up the illegal felling of trees by a Government minister.

Although these allegations were not pursued and trial judge Frank Seepersad, in May 2016, made no findings on them, he did rule Maharaj was maliciously prosecuted and held that the senior officer did not have sufficient evidence to lay the two charges. The judge awarded over $300,000 in compensation. The State appealed the ruling and in July 2020, Justices of Appeal Allan Mendonca, Mark Mohammed and Peter Rajkumar allowed the appeal, setting aside Seepersad’s judgment and dismissing Maharaj’s malicious prosecution claim.

The Court of Appeal reversed Seepersad’s decision on the grounds that he had made four material errors, focusing incorrectly, at times, on evidence led or not led at the magistrates’ court; elevated what he took to be glaring gaps and deficiencies in the evidence as proof of the absence of reasonable of probable cause; failed to appreciate the significance of circumstantial evidence and wrongly considering the onus was on the prosecution to prove Maharaj did not have the necessary permits to fell trees or remove timber when the law puts that onus on the defence. The Appeal Court had also ruled that malice had not been established.

Mohammed had delivered the unanimous ruling and the Privy Council, in its judgment on January 25, held the Appeal Court was “correct to find fundamental flaws in the approach of the judge.”

“The Board wishes to emphasise that nothing detracts from the acquittal of the appellant by the magistrate following the dismissal of the charges against him on an application of no case to answer.

“The issue is the entirely different one of whether ASP Phillip had reasonable and probable cause to bring the charges.

“The proper approach of an appellate court is determined by the nature of the decision under appeal.”

In their ruling, Lords Briggs, Kitchen, Burrows, Richards and Lady Rose held that an appellate court was entitled to interfere with a judge’s assessment where it identifies a flaw in the court’s reasoning and a misdirection of the relevant factors and evidence before it.

It was also for this reason, the Law Lords said, it was unnecessary for them to consider the issue of malice. However, they said they saw no reason to disagree with the Court of Appeal’s view that on the evidence, there was nothing to suggest an improper purpose in Phillip’s decision to charge Maharaj.

Maharaj was represented by Peter Carter, KC, Katie O’Raghallaigh, instructed by Freedom Law Chambers, led by former attorney general Anand Ramlogan, SC, while Robert Strang represented the State at the Privy Council.