Attorney General of Trinidad and Tobago v Harridath Maharaj (Trinidad and Tobago)

In a malicious prosecution claim, reasonable and probable cause is assessed on the information available when charges were brought, together with information that appropriate further inquiries would have revealed. The prosecutor need not believe the case will succeed; it is enough that the material discloses a proper case to put before the court. Direct evidence is unnecessary. Circumstantial evidence must be assessed cumulatively and with care, including exculpatory material. Appellate interference with a trial judge’s assessment requires an error of principle, material omission or an unreasonable conclusion. A prosecutor is generally not required to resolve conflicting witness accounts or investigate unsupported alternative allegations before charging.

The appellant, a serving police officer, was charged under the Forests Act with felling trees and removing timber without permits. The charges were dismissed by a magistrate on a submission of no case to answer. The appellant then brought a malicious prosecution claim against the Attorney General, alleging failures and improprieties in the investigation and decision to prosecute.

Seepersad J found for the appellant and awarded damages. The Court of Appeal allowed the Attorney General’s appeal, set aside that judgment and dismissed the action. The central issues before the Privy Council were whether the prosecutor had reasonable and probable cause and whether the Court of Appeal had adopted the correct approach to the trial judge’s assessment.

1. Disposition. The Privy Council dismissed the appeal. The magistrate’s dismissal of the criminal charges did not determine whether the prosecutor had reasonable and probable cause to bring them.
2. Applicable principles. A claimant in criminal malicious prosecution must establish initiation of the charge, favourable termination, absence of reasonable and probable cause, malice and damage. Absence of reasonable and probable cause and malice are separate but cumulative requirements. Reasonable and probable cause has subjective and objective aspects. The prosecutor must believe there is a proper case to bring, but need not believe that the prosecution will succeed. It is sufficient that the material discloses a proper case to lay before the court, as explained in Willers v Joyce ([2016] UKSC 43; [2018] AC 779) and Stuart v Attorney General of Trinidad and Tobago ([2022] UKPC 53; [2023] 4 WLR 21).
3. Appellate review. The approach in Beacon Insurance Co Ltd v Maharaj Bookstore Ltd ([2014] UKPC 21; [2014] 4 All ER 418) applies to findings of fact concerning motives and subjective beliefs. In relation to the evaluative assessment of reasonable and probable cause, an appellate court may interfere for an error of principle or an identifiable flaw in reasoning, including a material misdirection, failure to consider relevant evidence or a conclusion that no reasonable court could reach. A different view of the evidence alone is insufficient. The Board applied the approach stated in In re Sprintroom Ltd ([2019] EWCA Civ 932; [2019] 2 BCLC 617).
4. Assessment of the evidence. The trial judge assessed the case piecemeal and placed undue weight on evidence as it emerged at the Magistrates’ Court and on his own assessment of witnesses. The relevant question was what information was available to the prosecutor when the charges were brought, including the results of further inquiries that were appropriate in the circumstances. A prosecutor is generally not required to choose between apparently credible but conflicting accounts unless the evidence overall provides no reasonable and probable cause.
5. Result on reasonable and probable cause. Direct evidence was unnecessary. The totality of the circumstantial evidence, assessed cumulatively and with appropriate caution, including evidence favourable to the appellant, provided reasonable and probable grounds for both charges. The trial judge also overlooked evidence in the trial bundle, gave undue weight to unsupported allegations of political corruption and treated ordinary changes in investigating personnel as suspicious without evidential basis. The Court of Appeal was therefore entitled to set aside his decision.
6. Permits and malice. The trial judge was wrong to treat the prosecution as bearing the burden of proving that the appellant lacked the requisite permits under the Forests Act. The central question was whether he was involved in felling the trees and removing the timber. It was unnecessary to determine malice, although the Board saw no reason to disagree with the Court of Appeal that the evidence disclosed no improper purpose.

• Privy Council: Appeal dismissed: [2024] UKPC 1.
• Court of Appeal of the Republic of Trinidad and Tobago: On 1 July 2020, the appeal was allowed, the judgment below was set aside and the malicious prosecution action was dismissed.
• High Court of Trinidad and Tobago: On 15 March 2016, Seepersad J found for the appellant and awarded aggravated, exemplary and special damages.