Rea v Gibbs

• Jurisdiction: Cayman Islands
• Judge: (Harre, C.J.)
• Judgment Date: 05 July 1994
• Court: Grand Court (Cayman Islands)
• Date: 05 July 1994

Grand Court

(Harre, C.J.)

REA

and

GIBBS, COMMISSIONER OF POLICE and ATTORNEY GENERAL

R.D. Alberga, Q.C. and S.T. McCann for the plaintiff;

P. Lamontagne, Q.C. and I.F. Archie, Senior Crown Counsel, for the defendants.

Cases cited:

(1) Abbott v. Refuge Assur. Co. Ltd., [1962] 1 Q.B. 432; [1961] 3 All E.R. 1074, distinguished.

(2) Abrath v. North E. Ry. Co.ELR(1883), 11 Q.B.D. 440, dictum of Bowen, L.J. applied.

(3) Cedeno v. O”BrienUNK(1964), 7 W.I.R. 192.

(4) Conway v. Rimmer, [1968] A.C. 910; [1968] 1 All E.R. 874, dictum of Lord Reid applied.

(5) Cotton v. JamesENR(1830), 1 B. & Ad. 128; 109 E.R. 735.

(6) Elsee v. Smith(1822), 2 Chit. 304.

(7) G v. S, 1992–93 CILR 203, dictum of Georges J.A. applied.

(8) Gifford v. KelsonUNK(1943), 51 Man. R. 120.

(9) Glinski v. McIver, [1962] A.C. 726; [1962] 1 All E.R. 696, distinguished.

(10) Hope v. EveredELR(1886), 16 Q.B.D. 338.

(11) Hussien v. Chong Fook Kam, [1970] A.C. 942; [1969] 3 All E.R. 1626, dictum of Lord Devlin applied.

(12) Inland Rev. Commrs. v. Rossminster Ltd.ELR, [1980] A.C. 952; sub nom. R. v. Inland Rev. Commrs., ex p. Rossminster Ltd., [1979] 3 All E.R. 385; on appeal, [1980] A.C. 952; [1980] 1 All E.R. 80; (1979), 70 Cr. App. R. 157, applied.

(13) Lea v. CharringtonELR(1889), 23 Q.B.D. 272.

(14) R. v. McLean (D.), Grand Ct., Cr. App. No. 15 of 1979, unreported, applied.

(15) Reynolds v. Metropolitan Police Commr., [1985] Q.B. 881; [1984] 3 All E.R. 649; (1984), 80 Cr. App. R. 125, dictum of Waller, L.J. applied.

(16) Roy v. Prior, [1971] A.C. 470; [1970] 2 All E.R. 729.

(17) Taylor v. WillansENR(1831), 2 B. & Ad. 845; 109 E.R. 1357.

(18) Tempest v. Snowdon, [1952] 1 K.B. 130; [1952] 1 All E.R. 1.

(19) Wills v. Bowley, [1983] 1 A.C. 57; [1982] 2 All E.R. 654; (1982), 75 Cr. App. R. 164.

Legislation construed:

Misuse of Drugs Law (Second Revision) (Law 13 of 1973, revised 1985), s.16M as added by Misuse of Drugs (Amendment) Law, 1988 (Law 8 of 1988), s.6: The relevant terms of this section are set out at page 163, line 36 – page 164, line 20.

Criminal Law-drugs-investigation into drug trafficking-search warrants-in application under Misuse of Drugs Law (Second Revision), s.16M, police merely to have objectively reasonable grounds for suspicion, even if later proves unfounded-no necessity for prima facie case for conviction based on admissible evidence and legal advice-burden of proof on person alleging lack of reasonable grounds

Criminal Law-drugs-investigation into drug trafficking-search warrants-under Misuse of Drugs Law (Second Revision), s.16M, police to give oral testimony to satisfy judge of objectively reasonable cause for suspicion-no necessity for affidavit but evidence to be recorded-police entitled to secrecy over information and sources

Criminal Law-drugs-investigation into drug trafficking-search warrants-under Misuse of Drugs Law (Second Revision), s.16M, no need to specify materials sought in application or warrant

The plaintiff brought an action for damages against the defendants for maliciously and without reasonable cause obtaining a search warrant and/or for trespass and the illegal seizure of goods.

In 1985, the plaintiff became managing director of PHP (Cayman), which was part of an international banking group with headquarters in Amsterdam. In accordance with the terms of his contract, he obtained written permission to continue holding 50% of the shares in a local sports shop and to guarantee that company”s overdraft personally.

In September 1991, officials from the bank”s headquarters conducted an unexpected internal audit of PHP (Cayman) which revealed that the bank was heavily involved in the international cheque traffic of companies in which the plaintiff had a substantial interest and the plaintiff admitted that his outside interests had expanded into major operations involving several companies with an annual turnover nearing US$3m. He claimed that the bank had no formal role in the running of these companies.

The bank”s serious concern, however, induced it to authorize an independent audit of the plaintiff”s companies by an international firm of accountants at its own expense. It also arranged for the plaintiff to visit Amsterdam for further discussions.

In the event, the audit revealed nothing procedurally untoward but, while the plaintiff was still in Amsterdam, the first defendant laid three

informations before a Judge of the Grand Court in support of applications for search warrants under the Misuse of Drugs Law (Second Revision), s.16M. Each information stated that there were reasonable grounds for suspecting that the plaintiff had carried on or benefited from drug trafficking, particularized the premises to which the applications related and attempted to specify the material sought.

The judge who heard the applications made no notes of the evidence put before him but issued warrants to search a company”s premises, the offices of PHP (Cayman) and the plaintiff”s residence. The warrants purported to specify the material sought but did not correspond with the informations in this respect.

They were executed in the presence of officials from the bank”s headquarters and various articles were removed by the police from the premises searched. The plaintiff was still absent and had no knowledge of any of these developments. At the Amsterdam meeting, he was told that he could either resign or be dismissed and he accepted dismissal.

On his return to Cayman, he made attempts to discover the grounds for suspecting him of drug trafficking but the defendants refused to reveal them (and maintained their silence throughout the present proceedings, with the first defendant not giving evidence). The plaintiff commenced the present proceedings claiming damages for the tort of maliciously and without reasonable cause obtaining a warrant and/or trespass and the unlawful seizure of property.

The plaintiff submitted that (a) the court should infer that the defendants had obtained the search warrants maliciously and without reasonable cause since (i) they had not taken legal advice prior to making the application; (ii) no supporting affidavits were sworn for the application; and (iii) despite making no claim for public interest immunity or privilege, the defendants had failed to challenge the plaintiff”s assertion of innocence and this was conduct which could be related back to the event as evidence of malice or lack of reasonable cause; (b) the searchers had been trespassing since the warrants were invalidated by the failure of (i) the material described in the informations to correspond with the warrants; and (ii) the descriptions to relate to specific materials; and (c) there had been some illegal seizure of material not described in the warrants.

The defendants submitted in reply that (a) the court should infer that they had had an objectively reasonable cause to suspect the plaintiff, as required by s.16M, since (i) the judge who issued the warrants had been convinced that they satisfied the test; (ii) they were not required to obtain legal advice prior to the application or to challenge the plaintiff”s assertion of innocence because they were merely concerned with suspicion and not with proof; (iii) where drug offences were being investigated the police were entitled to maintain secrecy over their information and sources and, accordingly, the absence of documentary evidence and the first defendant”s failure to give evidence at the trial was not evidence of malice or lack of reasonable cause; and (b) that part of the plaintiff”s action claiming

trespass and illegal seizure must fail since under the Misuse of Drugs Law (Second Revision), s.16M there was no requirement that the materials sought be specified in either the application or the warrant.

Held, dismissing the suit:

(1) It was not necessary for the first defendant to have had a prima facie case for conviction based on admissible evidence or to have taken legal advice prior to making his application for a search warrant under the Misuse of Drugs Law (Second Revision), s.16M. He was merely required to have had objectively reasonable grounds for suspecting the plaintiff of carrying on or benefiting from drug trafficking, based on admissible or inadmissible evidence, which a later inquiry might well reveal to be unfounded. The onus was on the plaintiff to prove that there were no reasonable grounds (page 168, line 24 – page 170, line 26; page 171, lines 13–18;page 172, line 28 – page 174, line 8; page 178, lines 12–24;page 178, line 34 – page 179, line 3).

(2) The plaintiff had not discharged that burden of proof since the court was not prepared to infer that the first defendant had had no objectively reasonable cause to suspect him of carrying on or benefiting from drug trafficking since: (a) the judge who issued the warrants had been satisfied that such cause had been shown; and (b) where drug offences were being investigated the police were entitled to maintain secrecy over their information and sources and, accordingly, the lack of documentary evidence and the defendants” refusal to reveal the grounds, even at the trial, could not be treated as retrospective evidence of malice or lack of reasonable cause. Consequently, this part of the plaintiff”s action would fail (page 175, line 4 – page 178, line 7; page 178, lines 25–33;page 179, lines 4–9;page 179, lines 30–32).

(3) The failure of the judge to take notes at the application undermined the protection which the judicial procedure for scrutinizing applications for warrants should provide-but the defendants were not to blame for this omission. There was no legal requirement that a police officer meeting a s.16M application should swear an affidavit but oral testimony should be given to satisfy the judge that objectively reasonable grounds existed and justice demanded that this evidence be recorded, though its disclosure might be resisted...