Matadai Roopnarine v Attorney General of Trinidad and Tobago (Trinidad and Tobago)

To establish malicious prosecution, a claimant must prove prosecution, a favourable ending, absence of reasonable and probable cause, malice and damage, on the balance of probabilities. Absence of reasonable and probable cause generally requires evidence of the circumstances in which the prosecution was instituted and the information known to the prosecutor. Innocence or discontinuance alone is insufficient. Where a defendant elects to call no evidence, adverse inferences may be drawn only if the claimant has adduced evidence reasonably calling for an answer. The existence of reasonable and probable cause is an evaluative judgment, so an appeal is not automatically barred by the restraint applicable to concurrent primary factual findings.

The appellant was charged with conspiracy offences concerning the alleged forgery of bail documents. The prosecution was discontinued after several years. He brought a malicious prosecution claim against the Attorney General, alleging fabricated or insufficient evidence and malice.

At trial, the respondent successfully submitted no case to answer after electing to call no evidence, and the claim was dismissed. The Court of Appeal of Trinidad and Tobago dismissed the appeal by majority. The central issues before the Board were whether the appellant had adduced sufficient evidence of absence of reasonable and probable cause and whether malice could be inferred.

Appeal dismissed. Lord Hamblen gave the judgment of the Board.

1. Elements of the tort. Malicious prosecution requires proof of five elements: prosecution by the defendant; termination in the claimant’s favour; absence of reasonable and probable cause; malice; and damage. Each must be proved on the balance of probabilities. Reasonable and probable cause means an honest belief, based on reasonable grounds, that there is a proper case to lay before the court: Stuart v Attorney General of Trinidad and Tobago [2022] UKPC 53; Glinski v McIver [1962] AC 726.
2. Proof of absence of cause. The claimant must generally identify the circumstances in which the prosecution was instituted and the nature of the information on which the prosecutor acted. Evidence that the claimant was innocent, or that the known facts ultimately failed to establish criminal liability, is insufficient without evidence directed to the prosecutor’s information: Abrath v North Eastern Railway Co (1883) 11 QBD 440; Glinski v McIver [1962] AC 726.
3. No-case submissions. A defendant should generally be required to elect to call no evidence before a civil no-case submission is entertained. Following that election, the case is decided on the evidence already before the court. An adverse inference is available only where the claimant has adduced some evidence reasonably calling for an answer, although weak evidence may sometimes suffice: Boyce v Wyatt Engineering [2001] EWCA Civ 692; Benham Ltd v Kythria Investments Ltd [2003] EWCA Civ 1794; Efobi v Royal Mail Group Ltd [2021] UKSC 33.
4. Application. The appellant’s evidence concerned his own conduct, arrest, detention and protestations of innocence. It did not properly address the statements, forensic material, official evidence and other information said to have been available to the police. There was therefore no prima facie case on the key issue. Gibbs v Rea [1998] AC 786 was distinguishable because the plaintiff’s case there called for an answer and exceptional circumstances supported an inference from silence. Since absence of reasonable and probable cause was not established, malice could not be inferred. The Board expressed a provisional view that the State should bear the costs of the appeal.

1. Privy Council: Appeal dismissed on 27 July 2023.
2. Court of Appeal of the Republic of Trinidad and Tobago: Appeal dismissed on 20 October 2021 by Pemberton and Lucky JJA, with Smith JA dissenting.
3. High Court: Harris J dismissed the malicious prosecution claim after allowing the respondent’s submission of no case to answer.