Irish v Barry

Overview | (1965) 8 WIR 177

Irish v Barry (1965) 8 WIR 177

COURT OF APPEAL OF TRINIDAD AND TOBAGO

WOODING CJ, MCSHINE AND PHILLIPS JJ A

25 FEBRUARY 1965

Malicious Prosecution — Plaintiff arrested and charged for larceny of a $5 note — Charge

dismissed by the magistrate at close of prosecution's case — Plaintiff a respected proprietor and to

knowledge of defendant, a man of good character — No evidence that prosecution was malicious.

False Imprisonment — Plaintiff arrested and charged for larceny — Reasonable cause to suspect

that plaintiff committed larceny set up in justification of arrest — Whether material in possession

of defendant sufficient to constitute reasonable cause.

At 5.10 pm on 7 October 1957, EM took her son to the Cumuto police station and reported to the

appellant (a corporal of police) that she went to work at 6 am on that day after giving her son a $5 note to

purchase some goods listed in an exercise book from one Tang Yuk's shop situate some six miles away

from her home. Because of a previous experience with her daughter she had before parting with the note

to her son written down its number– B2/4299/25–in the exercise book and this was shown to the

appellant. She stated further that the son placed the book and the note in his hip pocket and travelled to

Tang Yuk's shop by bicycle. He reached there at 9.10 am took out the book from his hip pocket and called

for the goods but when he searched for the note therein he could not find it. A friend, Martin, who was in

the shop at the time told the son that he had just seen the respondent pick up a $5 note from the floor of
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

the shop and when challenged the respondent admitted doing so but said it was his own money which he

had dropped. The son having confirmed this report, the appellant began inquiries thereinto.

He received information that before the son arrived at the shop, the respondent purchased cigarettes on

credit from Tang Yuk saying that he had with him only a $5 note which he did not wish to break because

he had it to pay a debt that he owed to one Thomas. The appellant interviewed Thomas and learnt from

him that the respondent had paid him that day with a $5 note and that Thomas had given it to his daughter

to buy goods at Tang Yuk's shop. The daughter confirmed that she did so about 6.30 pm.

The appellant then went to Tang Yuk's shop and asked to see his cash drawer with the day's takings. Upon

Tang Yuk doing so, the appellant saw about fourteen $5 notes therein. Among them he discovered the

note numbered B2/4299/25 and seized it. He next saw the respondent, told him of the report he was

inquiring into and cautioned him. In reply the respondent repeated what he had said when challenged in

the shop earlier that day, to wit, that he had picked up a $5 note from the floor of the shop but it was his

own that he had dropped. The respondent was a man of ripe age, a well-known and highly respected

proprietor in the district in which he lived and he was to the knowledge of the appellant a man of good

character. On these facts the appellant arrested and charged him for the larceny of the note. Without

calling upon the respondent, a magistrate dismissed the charge at the close of the case for the prosecution.

In an action against the appellant for malicious prosecution and false imprisonment the trial judge found

for the respondent on both issues and awarded him damages. On appeal,

Held: (i) on the claim for malicious prosecution the respondent failed to show that the prosecution was in the least

malicious and the decision of the judge in this respect should be set aside;

(ii) (WOODING CJ, dissenting): the appellant had reasonable grounds to

(1965) 8 WIR 177 at 178

suspect that the respondent had committed the felony of larceny and his arrest of the respondent was therefore justified.

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

Appeal allowed.

Cases referred to

Brown v Hawkes [1891] 2 QB 718, 60 LJQB 332, affd, [1891] 2 QB 725 , CA, 33 Digest (Repl) 408, 249

McArdle v Egan [1933] All ER Rep 611, 150 LT 412, 98 JP 103, 32 LGR 85, 30 Cox, CC 67, CA, 1st Digest Supp

Tempest v Snowden [1952] 1 All ER 1, [1952] 1 KB 130, 116 JP 28, [1951] 2 TLR 1201, 95 Sol Jo 817, CA, 33 Digest

(Repl) 431, 502

Glinski v McIver [1962] 1 All ER 696, [1962] AC 726, [1962] 2 WLR 832, 106 Sol Jo 261, HL, 33 Digest (Repl) 431,

504

Dallison v Caffery [1964] 2 All ER 610, [1965] 1 QB 348, [1964] 3 WLR 385, 108 Sol Jo 560, CA

Cedeno v O'Brien (1964), 7 WIR 192

Liversidge v Anderson [1941] 3 All ER 338, [1942] AC 206, 110 LJKB 724, 116 LT 1, 58 TLR 35, 85 Sol Jo 439, HL,

2nd Digest Supp

Dumbell v Roberts [1944] 1 All ER 326, 113 LJKB 185, 170 LT 227, 108 JP 139, 60 TLR 231, 42 LGR 111, CA, 2nd

Digest Supp

Hicks v Faulkner (1881), 8 QBD 167, 51 LJQB 268, 46 LT 127, 46 JP 420, 30 WR 545, DC, affd (1882), 46 LT 130, CA,

33 Digest (Repl) 388, 18

Herniman v Smith [1938] 1 All ER 1, [1938] AC 305, 107 LJKB 225, 82 Sol Jo 192, HL, 33 Digest (Repl) 428, 463

Davis v Gell [1925] VLR 89, 35 CLR 275, 31 Argus LR 49, 33 Digest (Repl) 436, *318

Johnstone v Sutton (1786), 1 Tem Rep 510, 99 ER 1225, Ex Ch, affd sub nom. Sutton v Johnstone (1787), 1 Tem Rep

784, 1 Bro Parl Cas 76, HL, 33 Digest (Repl) 386, 2

Ravenga v Macintosh (1824), 2 B & C 693, 4 Dow & Ry KB 187, 2 LJOSKB 137, 107 ER 541, previous proceedings,

sub nom Revenga v Macintosh, 1 C & P 204, NP, 33 Digest (Repl) 419, 379

Lister v Perryman (1870), LR 4 HL 521, 39 LJ Ex 177, 23 LT 269, 35 JP 4, 19 WR 9, HL, revsg SC sub nom Perryman v

Lister (1868), LR 3 Exch 197, Ex Ch, 33 Digest (Repl) 428, 456

Abath v North Eastern Railway Co (1883), 11 QBD 440, 52 LJQB 620, 49 LT 618, 47 JP 692, 32 WR 50, 15 Cox, CC

354, CA, affd (1886), 11 Ap Cas 247, HL, 33 Digest (Repl) 424, 425

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

Bank of New South Wales v Piper [1897] AC 383, 66 LJPC 73, 76 LT 572, 61 JP 660, 13 TLR 413, PC, 14 Digest (Repl)

32, 40

Chapman v Heslop (1853), 2 CLR 139, 2 WR 74, sub nom Heslop v Chapman, 23 LJQB 49, 18 Jur 348, Ex Ch, 33

Digest (Repl) 430, 497

Commonwealth Life Assurance Society Limited v Brain (1935), 53 CLR 342

R v Taylor, Weaver and Donovan (1928), 2 Cr App Rep 20, CCA, 182 Digest Supp

Dawson v Vansandau (1863), 11 WR 516, 33 Digest (Repl) 420, 388

Broughton v Jackson (1852), 18 QB 378 , 21 LJQB 265, 19 LTOS 88, 16 JP 550, 16 Jur 886, 118 ER 141, 43 Digest

449, 774

Appeal

Appeal by Cpl Daniel Irish against a judgment of DE LA BASTIDE J, whereby

(1965) 8 WIR 177 at 179

he entered judgment for the respondent Richard Barry on his claims against the appellant for malicious

prosecution and false imprisonment. The facts are stated in the judgement of WOODING CJ.

Hassanali (instructed by Crown Solicitor) Acting Solicitor-General for the appellant

A H Masson (instructed by A K Fitzpatrick) for the respondent

Cur adv vult

WOODING CJ. On 7 October 1957, the appellant arrested the respondent on a charge of the larceny of

$5 at the shop of Oswald Tang Yuk at Coryal in the ward of Tamana. He took him by car from his home

to the police station at Cumuto where he was detained until he obtained his release on bail about an hour

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

and a half later. The charge came on for hearing on 14 October 1957, in the magistrate's court at Sangre

Grande and was dismissed. Thereupon, the respondent brought proceedings claiming damages for

wrongful arrest, false imprisonment and malicious prosecution. The action was heard by DE LA BASTIDE J,

who determined all issues in his favour and awarded him damages in the global sum of $600 together with

his costs of suit. The appellant was dissatisfied and accordingly appealed.

In effect, the learned judge held that, in arresting the respondent when he did, the appellant acted

altogether too precipitately. In his view, the information then in the appellant's possession was not such as

should have moved “a reasonable, prudent, and cautious man” investigating a report of larceny to make an

arrest. So unwarranted was the arrest, in his opinion, that although he could find “no evidence that the

(appellant) acted from actual spite or hatred” he nevertheless held that “his motives must have been at

least indirect and improper”. Consequently, he found the prosecution malicious.

It is undoubtedly true that the selfsame circumstances showing that an arrest was without reasonable and

probable cause may be sufficient to establish malice on the part of the prosecutor. But such cases must, I

think, be rare in the case of a police prosecutor acting in the ordinary course of his normal duty. The

learned judge himself conceded that this case was “perhaps not very far from the borderline” and that it

might have “possibly been decided otherwise had the (appellant) proceeded by way of summons rather

than by means of a peremptory and ill-conceived arrest”. So saying seems to me perilously near to holding

that a prosecution which would not be malicious if commenced by summons may become so merely

because it was preceded by a too hasty or an ill-advised arrest. Any such notion should have been laid

finally and forever by the judgments in Brown v Hawkes ([1891] 2 QB 718, 60 LJQB 332, affd, [1891] 2

QB 725 , CA, 33 Digest (Repl) 408, 249). The answer to what was said by the learned judge and to the

supporting submissions by counsel for the respondent is, I think, to be found in the judgments of CAVE J, in

the Divisional Court and of the Court of Appeal. CAVE J, said ([1891] 2 QB at p 722):
'Malice, in its widest and vaguest sense, has been said to mean any wrong or indirect motive; and malice can be proved, either by
showing what the motive was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be
accounted for by imputing some wrong or indirect motive to the prosecutor. In this case I do not think that any particular wrong or
indirect motive was proved. It was said that the defendant was hasty and intemperate…. He may … have been hasty, both in his
conclusion that the plaintiff was guilty and in his proceedings; but hastiness in his conclusion as to the plaintiff's guilt, although it may
account for his coming to a wrong conclusion, does not show the presence of any indirect motive.'

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

The Court of Appeal were unanimously of the same view. To avoid repetition, I quote from one of the

judgments only, that of KAY LJ ([1891] 2 QB at p 722):

(1965) 8 WIR 177 at 180

'As I understand the argument for the plaintiff, it was said that the evidence to prove malice was that the defendant did not make proper
inquiry as to the facts of the case. If that is all, and if that evidence is sufficient, the result would be that the finding on the first question
put to the jury, that the defendant did not take proper care to inquire into the facts of the case, would, without more, determine the action
in favour of the plaintiff. That cannot be so, and when I look at the evidence (as I have done with care) to find what evidence there was
of sinister motive, I can find none on which the jury could reasonably find that the defendant was actuated by malice.'

I, too, have looked with care at the evidence in this case, and I, too, have been able to discover none on

which the learned judge could reasonably find that the appellant was actuated by any sinister or indirect or
improper motive. Whether he acted too precipitately or not–a question which will have to be examined

later–it is, I think, abundantly clear that he behaved towards the respondent with every civility and

respect, that he showed him every consideration and gave him every assistance, and that (whether

mistakenly or not) he acted honestly and in pursuance of what he conceived to have been his proper duty.

Accordingly, on the claim for malicious prosecution the respondent failed to show, and in my judgment

the learned judge should not on the evidence have held, that the prosecution was in the least malicious.

His decision in that respect should therefore be set aside.

I turn now to the claim for wrongful arrest and false imprisonment. As a police officer, the appellant has

the common law right to arrest without warrant any person whom he reasonably suspects to have
committed a felony, whether a felony has in fact been committed or not. This is confirmed by the power

conferred by s 20 (1) (a) of the Police Ordinance, Cap 11, No 1 [T], which makes it “lawful for a police

officer to arrest without a warrant any person whom he suspects upon reasonable grounds of having

committed a felony”. It is not in dispute that when he arrested the respondent he did so in purported

exercise of this right or power. The sole issue was whether at the time of the arrest he had reasonable

grounds for the suspicion which he undoubtedly entertained. The onus was on him to show that he had.

The appellant acted on information received. He had no personal knowledge of any of the relevant facts. It

is therefore essential to inquire what information he had at the time, whether it was such as justified him

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

in giving it credit, and whether the suspicion which it aroused was a reasonable suspicion: see McArdle v

Egan ([1933] All ER Rep 611, 150 LT 412, 98 JP 103, 32 LGR 85, 30 Cox, CC 67, CA, 1st Digest Supp),

per Lord WRIGHT ([1963] All ER at p 613). The decision whether a suspicion is such as will justify

effecting an arrest is sometimes a delicate one to make since, as Lord WRIGHT pointed out ([1963] All ER at

p 613):
'police officers, in determining whether or not to arrest, are not finally to decide the guilt or innocence of the
person arrested. Their functions are not judicial, but ministerial, and it may well be that if they hesitate too long
when they have a proper and sufficient ground of suspicion against an individual, they may lose an opportunity
of arresting him, because in many cases steps have to be taken at once in order to preserve evidence. I am not
saying that as in any way justifying hasty or ill -advised conduct. Far from that, but once there is what appears
to be a reasonable suspicion against a particular individual, the police officer is not bound, as I understand the
law, to hold his hand in order to make further inquiries if all that is involved is to make assurance doubly sure'.

It is accordingly of the first importance to appreciate the true significance of the phrase “proper and

sufficient ground of suspicion”. Manifestly from what Lord WRIGHT said, it is neither proper nor sufficient

if a police officer acts precipitately upon a bare suspicion hastily formed and not carefully examined.

(1965) 8 WIR 177 at 181

At the other end of the scale, it is equally manifest that he does not have to delay effecting an arrest

merely so that he may make assurance doubly sure. The phrase is generally accepted as meaning

substantially the same as “reasonable and probable cause” the want of which a plaintiff must prove in an

action for malicious prosecution. In consequence, there was considerable argument from the appellant for
the adoption of the objective test of which Lord DENNING has been a militant protagonist; see Tempest v

Snowden ([1952] 1 All ER 1, [1952] 1 KB 130, 116 JP 28, [1951] 2 TLR 1201, 95 Sol Jo 817, CA, 33

Digest (Repl) 431, 502); Glinski v McIver ([1962] 1 All ER 696, [1962] AC 726, [1962] 2 WLR 832, 106

Sol Jo 261, HL, 33 Digest (Repl) 431, 504); and Dallison v Caffery ([1964] 2 All ER 610, [1965] 1 QB

348, [1964] 3 WLR 385, 108 Sol Jo 560, CA). I incline to the view that the test applied was seldom

subjective and that the recent debate turned largely on the analysis of language. I do not propose to

examine the argument however. I decline to do so for two reasons.

First, as I understand the law, an arrest constitutes a trespass which the person arresting must justify on

pain of damages: if, as here, the justification relied upon is that he is a police officer and that he

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

reasonably suspected the person arrested to have committed a felony, both the common law and the Police

Ordinance [T] require him to show, and to show only, that at the time of making the arrest he did so

suspect and had reasonable grounds for so suspecting. In my judgment, there is no meaningful difference

between “suspects on reasonable grounds”, which is the phrase used in the Police Ordinance [T] and

which accurately sums up the common law requirement, and “have reason to suspect”, which is used in s

39 (1) of the Immigration (Restriction) Ordinance, Cap 20, No 2 [T], and which this court recently

interpreted in Cedeno v O'Brien ((1964), 7 WIR 192). In this connection, it may be of interest to observe

that in Liversidge v Anderson ([1941] 3 All ER 338, [1942] AC 206, 110 LJKB 724, 116 LT 1, 58 TLR

35, 85 Sol Jo 439, HL, 2nd Digest Supp) Lord ATKIN, when seeking to point the significance of the phrase

“reasonable cause to believe”, referred inter alia to the conditions upon the exercise of the power of arrest

on reasonable suspicion of felony and ended by saying ([1942] AC at pp 228-229):

'In all these cases it is obvious that the courts were dealing with an objective test to be proved before them by the defendant, and that
their pronouncements would be nonsense if the inquiry had only been whether the defendant believed that he had reasonable ground.'

Secondly, there can be on the facts of this case no doubt whatever of the appellant's honesty. He

investigated a report of larceny, he received certain information which appeared to be credible and which

aroused his suspicion, and he arrested the respondent on the faith of that information and on the strength

of that suspicion. Whether he was misguided or not, he was in my view unchallengeably honest.

Accordingly, the issue, and the only issue, is whether he acted reasonably or hastily and ill -advisedly–or,

put as originally phrased, whether he had proper and sufficient grounds of suspicion or as a reasonable,

prudent and cautious investigator he should have made further inquiries or examined the grounds of his

suspicion rather more carefully because the suspicion which he in fact entertained was not sufficiently

well-founded.

On the true significance of “proper and sufficient grounds for suspicion” I have derived great assistance

from the judgment of SCOTT LJ, in Dumbell v Roberts ([1944] 1 All ER 326, 113 LJKB 185, 170 LT 227,

108 JP 139, 60 TLR 231, 42 LGR 111, CA, 2nd Digest Supp). I adopt, fully and without any reservation

whatever,his enunciation ([1944] 1 All ER at p 329) that the British principle a principle no less ours since

it is enshrined in our Constitution, the–

'principle of personal freedom, that every man should be presumed innocent until he is proved guilty, applies
also to the police function of arrest–in a very modified degree, it is true, but at least to the extent of requiring

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

them to be observant, receptive and open-minded and to notice any relevant circumstances which points either
way, either to innocence or to guilt. They may have to act on the spur of the moment and have no time to
reflect and be bound, therefore, to arrest to prevent escape; but where there is no danger of the person who has
ex hypothesi aroused their suspicion, that he probably

(1965) 8 WIR 177 at 182

is an offender attempting to escape, they should make all presently practicable inquiries from persons present
or immediately accessible who are likely to be able to answer their inquires forthwith. I am not suggesting a
duty on the police to try to prove innocence; that is not their function; but they should act on the assumption
that their prima facie suspicion may be ill-founded. That duty attaches particularly where slight delay does not
matter because there is no probability, in the circumstances of the arrest or intended arrest, of the suspected
person running away. The duty attaches, I think, simply because of the double-sided interest of the public in the
liberty of the individual as well as in the detection of crime.'

SCOTT LJ, was speaking in a case in which the plaintiff had been arrested and charged with being in
unlawful possession of certain goods within the meaning of s 207 (1) of the Liverpool Corporation Act,

1921 [U K], but most of his observations have a far wider significance. The right or power to arrest

without warrant ought never to be lightly used. Those who possess it ought, before exercising it, to be

observant, receptive, and open-minded, not hasty in jumping to conclusions on inadequate grounds.

Caution should be observed before depriving any person of his liberty, and more especially so when no

prejudice will result from any consequent delay. I am not in the least concerned, because I think it wholly

irrelevant, that further inquiry may have elicited no additional information or thrown no greater light on

the investigation in hand. What is important is that, in a case such as this, no person should exercise the

power of arrest unless he has proper and sufficient grounds of suspicion. If he does, then he is acting

hastily and/or ill-advisedly. In all cases, therefore, the facts, known personally and/or obtained on

information, ought carefully to be examined and the two questions separately posed and answered: (1) do

those facts warrant a suspicion that a felony has been committed, and (2) do they also warrant a suspicion

that the person whose arrest is contemplated committed it or was a party to its commission? I am

conscious that such questions may in some measure involve the consideration of other questions which

require some knowledge of the law but, as Lord RADCLIFFE said in Glinski v McIver ([1962] 1 All ER 696,

[1962] AC 726, [1962] 2 WLR 832, 106 Sol Jo 261, HL, 33 Digest (Repl) 431, 504) ([1962] AC at p

756):
'I do not see any complication in this, for an ordinary sensible man' (I would add, moreso a trained police
officer) “does have a general idea as to what these offences consist in; and if in a particular case an intending
prosecutor has no such idea or the offence in question is complicated or special, I take it that he would be
expected to suspend action until he had resorted to legal advice upon it.'

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

A similar view was expressed by DIPLOCK LJ, in Dallison v Coffery ([1964] 2 All ER 610, [1965] 1 QB

348, [1964] 3 WLR 385, 108 Sol Jo 560, CA), when he said that ([1964] 2 All ER at p 619):
'The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a
reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would
believe that there was reasonable and probable cause.'

And it should be observed that by “a reasonable man” is meant an “ordinarily prudent and cautious man”:

see per Lord DEVLIN in Glinski v McIver ([1962] 1 All ER 696, [1962] AC 726, [1962] 2 WLR 832, 106

Sol Jo 261, HL, 33 Digest (Repl) 431, 504) ([1962] AC at p 777).

What, then, were the grounds of suspicion on which the appellant arrested the respondent? As I have said,

he acted on information received, and I readily accept that it was such as justified him in giving it credit. It

was as follows. At or about 5.10 pm on 7 October 1957, Eleanor Meloney reported to him at the Cumuto

police station, where he was the senior police officer in charge, that she had that morning given to her son

Emmanuel a $5 note to buy her some

(1965) 8 WIR 177 at 183

goods and that he was thereafter to cook and bring her lunch to a quarry at which she was working. The

items to be bought were listed in an exercise book. She left for her work at or about 6 am, so that

Emmanuel had the money, and the book from then. She next saw him shortly after midday at the quarry

where he gave her “the sad news” that soon after arriving at or about 9.10 am at Tang Yuk's shop at

Coryal, which is six miles from the quarry, he took the book from his pocket, called for the goods, but

when he searched his hip pocket for the $5 note he could not find it. A friend, Martin Thomas, who was

with him in the shop there and then told Emmanuel that he had just seen the respondent pick up a $5 note

from the floor and, when instantly challenged, the respondent had admitted doing so but maintained that it

was his own money which he had dropped. Because of some previous loss of money which she had given

to her daughter to buy goods at a shop, she had written in another exercise book the number on the note–

B2/4299/15–and she showed this to the appellant as a means of its identification. Her son, Emmanuel

Meloney, confirmed this report.

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

The appellant began his inquiries at once. In the course of so doing, he went to the home of Wilson

Thomas at Coryal and learnt from him that the respondent had that day paid him with a $5 note for some

work he had previously done and that in turn he had given it to his daughter that afternoon to buy goods at

Tang Yuk's shop. She confirmed that she did so at or about 6.30 pm It should be mentioned here that early

that morning, before Meloney arrived at the shop, the respondent had bought cigarettes on credit, saying

to Tang Yuk that he had with him only a $5 note which he did not wish to break because he had it to pay

Thomas money that he owed him. This was confirmed by Tang Yuk when he gave his evidence -in-chief

before the magistrate. Obviously, therefore, some such information must have been given to the appellant

which caused him to go to Thomas' home to make the inquiries he did. Next, the appellant went to Tang

Yuk's shop, told him he was inquiring into the larceny of a $5 note and asked to see the money received

for that day's sales. A drawer with the day's takings was produced and in it were about fourteen $5 notes

including the one for which the appellant was looking. Its number was the same as had been noted in the

exercise book. He seized it and set out forthwith to the respondent's home. On arriving there, he told the

respondent of the reported larceny and that he was making inquiries. Also, he cautioned him. In answer,

the respondent repeated what he had said in the morning at Tang Yuk's shop, namely, that he had picked

up a $5 note from the floor but that it was his own which he had dropped. On that, and without more, the

appellant arrested him.

What did the information add up to then? The $5 note which Eleanor Meloney had given to her son about

6 am was some three hours later missed from his hip pocket where he had put it along with an exercise

book. Whenever or wherever or however it came to be lost, it must have been stolen either by a

pickpocket or by a finder who appropriated it. Someone therefore had committed a felony. The question

was–who? The note was found, more than nine hours after it was missed, together with thirteen others in

the till at Tang Yuk's shop. Someone had spent it there. But–who? The only apparent clue was that,

admittedly, the respondent had picked up a $5 note from the floor of the shop, at the back of where

Emmanuel Meloney was then standing, and that he did so at or about the same time as Meloney had taken

the exercise book from his hip pocket to call for his purchases. I accept that the thought would occur that

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

the note so picked up may have fallen from Meloney's pocket and that it got back to the shop via Wilson

Thomas and his daughter. But would that, without more, raise sufficient suspicion on which an ordinarily

prudent and cautious person would take positive action? I think not. Surely it should have been obvious

that, if the note may have fallen from

(1965) 8 WIR 177 at 184

Meloney's pocket through his taking out the exercise book while in the shop, it may likewise have done so

at any time during the three hours from when he got it to when he missed it. Or his pocket may have been

picked. Or he may have been careless in some other way.

Much has been canvassed about the steps which it may be assumed that Meloney took to avoid the loss of

the note between his receipt of it from his mother and his discovery three hours later that in fact he had

lost it. The reality is that the appellant never at any time suggested that he made any inquiry even so much

as to ascertain when, or how, Meloney could be certain that he last had it in his possession. Indeed, in the

proceedings before the magistrate it was left to defence counsel to endeavour to probe that question. I

refuse, therefore, to assume that the appellant made any, or any successful, effort to elucidate it. And,

without its being elucidated, the least little thought should have made the appellant realise that it was

totally unsafe to conclude that Meloney did not lose the note until he got to the shop.

Moreover, the respondent was a man of ripe age, a well -known proprietor and highly respected in the

district in which he lived. All his antecedents were in his favour. And the appellant knew this. In my

opinion, that was a fact which fell to be taken into account and, although I do not suggest that the

appellant should have been wholly deterred thereby, it should, I think, have made him pause. On the

information he had, the respondent had maintained from the beginning that the note which he picked up

was his and, being a man of reputed integrity, his assertion should not have been so summarily

disregarded. In so saying, I must not be misunderstood. I do not suggest that it was any part of the

appellant's duty “to resolve a conflict of evidence from apparently credible sources”: see per DIPLOCK LJ, in

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

Dallison v Caffery ([1964] 2 All ER 610, [1965] 1 QB 348, [1964] 3 WLR 385, 108 Sol Jo 560, CA)

([1964] 2 All ER at p 622). Here, there was no such conflict. The conflict, such as there was, was a

conflict between a conclusion deduced from equivocal facts and an affirmative statement about which

there could be no ambiguity. Moreover, the affirmative statement was by a man who was well known to

be creditworthy. Bearing in mind that, as SCOTT LJ, said in dumbell v Roberts ([1944] 1 All ER 326, 113

LJKB 185, 170 LT 227, 108 JP 139, 60 TLR 231, 42 LGR 111, CA, 2nd Digest Supp), the police “should

act on the assumption that their prima facie suspicion may be ill-founded”, the nature of the conflict was

such as to demand consideration whether the conclusion was as well-founded as it may at first have

seemed to be. But–that consideration was never given. Had it been, the appellant ought to have

appreciated that a vital link was missing from the chain of circumstantial evidence upon which he was

proceeding to act; that, however otherwise apparently strong circumstantial evidence may be thought to

be, it is a mere shambles, and quite unreliable, unless it points not to the possibility or even a probability,

but to the certainty of guilt; and that on the facts at his disposal it was hopeless to expect that any

magistrate would do other than the trial magistrate did, namely, acquit the respondent without calling

upon him to answer the charge.

I would, if I may, quote once again from the judgment of DIPLOCK L J, in Dallison v Caffery ([1964] 2 All

ER 610, [1965] 1 QB 348, [1964] 3 WLR 385, 108 Sol Jo 560, CA) ([1964] 2 All ER at pp 618-619):
'What was reasonable in connection with arrest and detention in the days of the parish constable, the stocks and
lock-up, and the justice sitting in his own justice room before there was an organised police force, prison
system or courts of summary jurisdiction, is not the same as what is reasonable today.'

The very different social conditions of today, the organization and training of the modern police force, the

wider appreciation by trained police officers of the essentials required in proof of an offence, the duty of

the police to act so as not without justification to deprive any person of his liberty even though they may

entertain an honest supposition of his guilt, the unblemished reputation

(1965) 8 WIR 177 at 185

of the aged respondent and the settled character of his residence in the district, all combine to show how

inadequately grounded and hastily formed the appellant's suspicions were. In a measure, the appellant

Page 13 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

would seem to admit this himself since, despite his oft-repeated protestations that the conclusion to which

his suspicions led him was the only one that could have been arrived at on the information which he had,

and which unquestionably he believed, he nevertheless twice conceded that if the respondent had

explained to him the facts as he knew them he might not have arrested him. The concession was made in

the context of his evidence that all the respondent had said when he cautioned him before his arrest was

that he knew nothing about the $5 note which had been reported stolen, but he was obliged to admit

that,when giving evidence in the magistrate's court just seven days after the incident, he had said that the

respondent told him: “I did take up $5 but it was mine. It fell in Tang Yuk's shop and I took it up.'

In my judgment, therefore, the learned judge was right in holding that the appellant's inquiries were

superficial and that no sufficient ground existed for the suspicion he entertained. Accordingly, while I

would allow his appeal on the claim for malicious prosecution, I would dismiss it on the claim for

wrongful arrest false imprisonment.

My brethren have taken a different view. Accordingly, it is unnecessary to consider the quantum of

damages which ought properly to be awarded or the incidence of the costs of this appeal. I regret that I

should find myself alone in supporting the view of the learned judge that there was inadequate

justification for the respondent's arrest. But, even though mine be a lone voice here, I must record my

protest against what I regard as hasty and incautious, albeit honest, conduct which resulted in depriving of

his liberty an innocent man who has lived a long, untarnished and honourable life as the appellant was at

all times fully aware.

McSHINE JA. The law in force in this territory does not differ from the English law and casts on the

plaintiff in an action for malicious prosecution the onus of proving that his prosecutor acted maliciously

and without reasonable and probable cause. On the facts of this case, my view is that that onus was not

discharged by the respondent. I find myself in complete agreement with the judgment that has just been

delivered by the learned chief justice on the claim for damages for malicious prosecution both in respect

of the reasons, and in respect of the conclusion.

Page 14 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

A claim in this case was also made for trespass and false imprisonment. An arrest involves a trespass, and

the appellant who is a police officer justifies his action of arresting the respondent without a warrant under

and by virtue of the Police Ordinance, Cap 11, No 1 [T], where by s 21 (1) it is provided that:
'it shall be lawful for any police officer to arrest without warrant–

(a) any person whom he suspects upon reasonable grounds of having committed a felony'.

The appellant on the information he received and after making inquiry, arrested and then charged the

respondent with larceny on 7 October 1957, of $5 the property of Emmanuel Meloney. The case was

dismissed on 14 October 1957, before a magistrate.

On the claim brought in the High Court for damages for “trespass to the person, wrongful arrest and false

imprisonment” the learned judge awarded to the respondent the sum of $600 which included damages for

malicious prosecution.

The question which therefore remains to be determined in this appeal is whether the appellant in making

the arrest had reasonable grounds for suspecting the respondent of having committed a felony.

(1965) 8 WIR 177 at 186

In Hicks v Faulkner ((1881), 8 QBD 167, 51 LJQB 268, 46 LT 127, 46 JP 420, 30 WR 545, DC, affd

(1882), 46 LT 130, CA, 33 Digest (Repl) 388, 18), HAWKINS J, put forward a definition of “reasonable and

probable cause” which later in Herniman v Smith ([1938] 1 All ER 1, [1938] AC 305, 107 LJKB 225, 82

Sol Jo 192, HL, 33 Digest (Repl) 428, 463) received the approval of the House of Lords. HAWKINS J, said

((1881), 8 QBD at p 171):

'I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a
full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which,
assuming them to be true would reasonably lead any ordinarily prudent and cautious man, placed in the
position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.'

For a fuller appreciation of this dictum one ought to read it as one with what the same learned judge later

said (ibid at p 173):

Page 15 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

'The question of reasonable and probable cause depends in all cases, not upon the actual existence, but upon the
reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the
course pursued in making the accusation complained of–no matter whether this belief arises out of the
recollection and memory of the accuser, or out of information furnished to him by another. It is not essential in
any case that facts should be established proper and fit and admissible as evidence to be submitted to the jury
upon an issue as to the actual guilt of the accused. The distinction between facts to establish actual guilt and
those required to establish a bona fide belief in guilt should never be lost sight of in considering such cases as
that I am now discussing. Many facts admissible to prove the latter, would be wholly inadmissible to prove the
former.'

That was a case of malicious prosecution, but it has been generally conceded that the factors and

considerations that go to establish reasonable and probable cause or conversely the want of it in an action

for malicious prosecution are substantially the same as those which go to prove or disprove reasonable

and probable cause in an action for wrongful arrest and false imprisonment. ISAACS ACJ, in Davis v Gell

([1925] VLR 89, 35 CLR 275, 31 Argus LR 49, 33 Digest (Repl) 436, *318), said (35 CLR at p 287):
'The ascertainment of this ultimate fact (reasonable and probable cause) depends as one would naturally expect,
in view of the object and policy of the law in protecting persons reasonable and bona fide pursuing their duty
on their right–not on the actual guilt of the plaintiff but (and quoting the words of HAWKINS J, in Hicks v
Faulkner ((1881), 8 QBD 167, 51 LJQB 268, 46 LT 127, 46 JP 420, 30 WR 545, DC, affd (1882), 46 LT 130,
CA, 33 Digest (Repl) 388, 18) 'upon the reasonable bona fide belief in the existence of such a state of things as
would amount to a justification of the course pursued…'.”

What was it that influenced the appellant to arrest the respondent when he did? This court must decide

whether the appellant had reasonable grounds for suspecting that a felony had been committed.

The appellant has stated grounds which actuated him in arriving at the decision to arrest. Hence the

question now is, were they reasonable grounds entitling him to suspect that the respondent had committed

a felony? The answer to this question must in the final analysis depend upon the facts of this case. The test

to be applied is whether the “ordinarily prudent and cautious man” placed in the same position as the

appellant was at the time of the arrest, would come to the conclusion that the respondent was probably

guilty of having committed the felony imputed.

Before coming to the facts of this case and evaluating therefrom the information which the appellant

possessed at the time of making the arrest complained of it is important that the position in law be not

misunderstood. The appellant did not have to decide upon the guilt or innocence of the respondent, all he

had to have was reasonable and probable cause for suspecting a felony to have been committed.

Page 16 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

(1965) 8 WIR 177 at 187

Lord DENNING in Glinski v McIver ([1962] 1 All ER 696, [1962] AC 726, [1962] 2 WLR 832, 106 Sol Jo

261, HL, 33 Digest (Repl) 431, 504) at the beginning of his speech clarifies the use of the word “guilty” in

the definition of HAWKINS J, when he said ([1962] AC at pp 758-759):

'The word 'guilty' is apt to be misleading. It suggests that, in order to have reasonable and probable cause, a
man who brings a prosecution, be he a police officer or a private individual, must, at his peril, believe in the
guilt of the accused. That he must be sure of it, as a jury must, before they convict. Whereas in truth he has
only to be satisfied that there is a proper case to lay before the court, or in the words of Lord MANSFIELD, that
there is a probable cause 'to bring the [accused] to a fair and impartial trial': see Johnstone v Sutton ((1786), 1
Tem Rep 510, 99 ER 1225, Ex Ch, affd sub nom Sutton v Johnstone (1787), 1 Tem Rep 784, 1 Bro Parl Cas
76, HL, 33 Digest (Repl) 386, 2) (1 Term Rep at p 547). After all, he cannot judge whether the witnesses are
telling the truth. He cannot know what defence the accused may set up. Guilt or innocence is for the tribunal
and not for him. Test it this way: Suppose he seeks legal advice before laying the charge. His counsel can only
advise him whether the evidence is sufficient to justify a prosecution. He cannot pronounce upon guilt or
innocence. Nevertheless, the advice of counsel, if honestly sought and honestly acted upon, affords a good
protection: see Revenga v Mackintosh ((1824), 2 B & C 693, 4 Dow & Ry KB 187, 2 LJOSKB 137, 107 ER
541, previous proceedings, sub nom Revenga v Macintosh, 1 C & P 204, NP, 33 Digest (Repl) 419, 379) (22 B
& C at p 697), by BAYLEY J So also with a police officer. He is concerned to bring to trial every man who
should be put on trial, but he is not concerned to convict him. He is no more concerned to convict a man than is
counsel for the prosecution. He can leave that to the jury. It is for them to believe in his guilt, not for the police
officer. Were it otherwise, it would mean that every acquittal would be a rebuff to the police officer. It would
be a black mark against him, and a hindrance to promotion. So much so that he might to tempted to 'improve'
the evidence so as to secure a conviction. No, the truth is that a police officer is only concerned to see that there
is a case proper to be laid before the court.'

With those principles in mind I turn to a consideration of the facts in this case. Shortly after five o'clock of

the evening of 7 October 1957, Eleanor Meloney made a report to the appellant, a corporal of police, to

the effect that she had entrusted a $5 note to her son Emmanuel Meloney to buy some shop goods in order

to prepare and bring lunch for her at her work. She also informed the appellant that she had recorded the

serial number of that note (B2/4299/25) in a copy book at her home.

Emmanuel Meloney reported to the appellant that he had lost the $5 note which his mother had given him

to make purchases at the local shop. He also said that when he went to pay for the goods he had ordered

he missed the $5 note. Emmanuel Meloney also informed the appellant that Martin Thomas had told him

that he had seen the respondent pick up a $5 note from the floor in the shop, but when challenged claimed

that the note he picked up was his, and it had fallen from his cigarette tin. The appellant then went on

inquiries, and in consequence of what he had been told interviewed Wilson Thomas and Oswald Tang

Page 17 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

Yuk. Besides the direct information which the appellant obtained from the Meloneys who made the report

and Wilson Thomas and Oswald Tang Yuk whom he interviewed, the appellant had the further

information which Emmanuel Meloney had given him that “Martin Thomas who had gone to shop with

him, told him (Emmanuel) in the [respondent's] presence that he had seen the [respondent] taking up the

$5 note”. Before the arrest of the respondent, Martin Thomas also told the appellant what he had seen

happen at the shop on that morning.

Thus it emerges that at the time of the arrest the appellant had gathered from the reports and from his

inquiries that on the morning of 7 October 1957, Emmanuel Meloney on being about to pay for goods he

had called for in Tang Yuk's shop discovered that the $5 which had been given him by his mother to

(1965) 8 WIR 177 at 188

pay for shop goods, was missing. Whilst Emmanuel Meloney searched his hip pocket for the money

Martin Thomas saw the respondent pick up “the” $5 note. I fully appreciate that Martin Thomas did not

say that he saw the $5 note fall from Emmanuel Meloney for that would have been real cause and would

perhaps have established the larceny of the $5. The appellant also had this information that the note

picked up by the respondent had been on the floor about 6 ft from the respondent whilst that note “was

about 2 ft to 18 ins behind Meloney at the time”. It was gathered from Wilson Thomas that on the same

day the respondent had paid him for work done with a $5 note. This $5 note had been given by Wilson

Thomas to his daughter Sylvia Augustus to make some purchases at Tang Yuk's shop. At the shop

amongst some fourteen $5 notes in the till was a note B2/4299/25, a number which corresponded to that

given by Eleanor Meloney. On being told of the report the respondent said that it was his note that had

fallen from him and he had picked it up. The respondent was then arrested and taken into custody where

he remained until his bail was taken approximately 11/2 hours later.

On this state of the information the question is whether the appellant had reasonable grounds for

Page 18 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

suspecting that a felony had been committed and having such grounds, was justified in arresting the

respondent when he did?

It is quite easy to argue after the event that there was always the possibility that it was true when the

respondent said that it was his note. Possibilities of innocence must nearly always exist whenever a person

is charged with committing an offence. And of course it would be presumed that a person so accused

would be likely to make denial. But while a police officer must exercise some judgment he is not however

called upon to act judicially. It might be asked, was the appellant too easily satisfied by what he had been

told? Is a police officer required to conceive of every possibility, as distinct from drawing reasonable

inferences, before he may act, and can it reasonably be said, assuming the rest of his information gives

cause for suspicion, that he has acted without reasonable and probable cause if he did not inquire into

some possibility? I think not.

Much depends on the circumstances for even where a person might have made a further inquiry and did

not do so, “it does not follow that because it would be very reasonable to make further inquiry, it is not

reasonable to act without doing so”, per BRAMWELL B, in Perryman v Lister ((1870), LR 4 HL 521, 39 LJ Ex

177, 23 LT 269, 35 JP 4, 19 WR 9, HL, revsg SC sub nom Perryman v Lister (1868), LR 3 Exch 197, Ex

Ch, 33 Digest (Repl) 428, 456) ((1868), LR 3 Ex at p 202).

In dealing with a similar consideration, viscount SIMONDS in Glinski v McIver ([1962] 1 All ER 696, [1962]

AC 726, [1962] 2 WLR 832, 106 Sol Jo 261, HL, 33 Digest (Repl) 431, 504) said ([1962] AC at p 745):
'A question is sometimes raised whether the prosecutor has acted with too great haste or zeal and failed to
ascertain by inquiries that he might have made facts that would have altered his opinion upon the guilt of the
accused. Upon this matter it is not possible to generalise, but I would accept as a guiding principle what Lord
ATKIN said in Herniman v Smith ([1938] 1 All ER 1, [1938] AC 305, 107 LJKB 225, 82 Sol Jo 192, HL, 33
Digest (Repl) 428, 463) that 'it is not required of any prosecutor that he must have tested every possible
relevant fact before he takes action. His duty is not to ascertain whether there is a defence but to ascertain
whether there is reasonable and probable cause for a prosecution'. Nor can the risk be ignored that in the case
of more complicated crimes, and particularly perhaps of conspiracies inquiries may put one or more of the
criminals on the alert.'

Page 19 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

What the law really requires is that the prosecutor have reasonable grounds for his suspicion and where he

has made an arrest to be able to justify at common law or under the Police Ordinance [T] the trespass to

the person inherent in the arrest in answer to a claim for damages.

The learned judge in this case thought that the appellant acted with “startling rapidity” and jumped to his

conclusion to arrest after making what appeared

(1965) 8 WIR 177 at 189

to the learned judge “at least to be inquiries of a rather superficial and sketchy nature”. I agree that police

officers “should make all presently practicable inquiries from persons present or immediately accessible

who are likely to be able to answer their inquiries forthwith”, per SCOTT LJ, in Dumbell v Roberts ([1944] 1

All ER 326, 113 LJKB 185, 170 LT 227, 108 JP 139, 60 TLR 231, 42 LGR 111, CA, 2nd Digest Supp)

([1944] 1 All ER at p 329), and I agree also with what the learned Lord Justice went on immediately to

say:
'I am not suggesting a duty on the police to try to prove innocence; that is not their function; but they should act
on the assumption that their prima facie suspicion may be ill-founded.'

In the instant case the learned judge did not in his judgment point out any factors which would show that

if the appellant had stayed to examine them or the inferences that could be drawn from them his decision

to arrest must have been altered. Looking as carefully and closely as I can at the factual situation as it
obtained at the time of the arrest of the respondent I cannot discover what other “presently practicable”

inquiry could have been made by the appellant or what other persons “were immediately accessible and

likely to be able to answer inquiry”. There was no one named by the Meloneys whom the appellant failed

to interview and make inquiry of and there was no factor mentioned in answer to inquiry made by the

appellant that by justice and reason must have compelled further investigation. For instance, if inquiry had

disclosed that somebody had seen the $5 note fall from the respondent and the appellant failed to make all

diligent inquiry into this, there would be justification for saying that patently the appellant had acted

hastily, precipitately, and without thorough inquiry. The learned judge merely points to mere possibilities,

such as that it was possible for the note to have fallen from the respondent. This was said by the

Page 20 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

respondent to the appellant, but no way was suggested by which it could have been tested. The respondent

did not add anything to the statement that the $5 note was his. The question was not whether the appellant

might have obtained surer grounds for his belief or suspicion, but whether the facts brought to his

knowledge furnished reasonable and probable cause for his suspicion. The appellant in such

circumstances was not called upon to decide whether truth lay in the respondent's claim to ownership.

There was nothing said at any time before the arrest or for that matter at all which would suggest that the

creditworthiness of the persons who had given information to the appellant was to be regarded as in any

way inferior to that attaching to the respondent himself. There was also the possibility as the learned judge

realised, that Emmanuel Meloney could have lost the note before he reached Tang Yuk's shop, and that a

finder could have spent it at the shop.

Two considerations arise from this situation, firstly, if the note picked up by the respondent was truly the

note belonging to Emmanuel Meloney and found its way to the shop via Wilson Thomas and Sylvia

Augustus as it was possible to have done then a felony would have been committed. So also if Emmanuel

Meloney had lost it away from the shop and a finder had spent it there.

Secondly, the circumstances related to the appellant in my view gave ground for suspicion that not only

that a felony had been committed but more likely than not to have been committed by the respondent. It

can reasonably be assumed that the appellant questioned Emmanuel Meloney as to the circumstances of

his loss. From the evidence of Emmanuel Meloney it is to be gathered that he placed the copy -book with

the money to pay for the goods in his left hip pocket, his own money being placed in his right hip pocket.

The real possibilities are that if he had lost the money or had been pickpocketed away from the shop, the

copy-book would also have disappeared. Against that the probability is that in taking the copy-book out of

his pocket at the shop to give his order the note could there have fallen from the book or

(1965) 8 WIR 177 at 190

that pocket. I must confess I cannot see what further inquiry the appellant ought to have made with a view

Page 21 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

to establishing either the truth of the respondent's claim to the note or as to whether a finder paid it in at

the shop.

This was no complicated or special case such as Sgt McIver had to deal with against Christopher Glinski,

in which it was alleged that he was a participant in a fraudulent conspiracy, this was a straightforward

case of simple larceny depending largely upon the credibility of the informants and the respondent and the

inference to be drawn from all the circumstances. The respondent was not the most inexperienced police

officer for at the material time he was the SPO in charge of the Cumuto police station and throughout

acted in the belief in the circumstances reported to and inquired into by him. In short, he acted honestly

throughout. I think he honestly believed the case he put before the magistrate. On this point the authorities

give some guidance for where the prosecutor is not himself personally involved but makes the charge on

information given to him by others, “the issue”, says Lord DENNING in Glinski v McIver ([1962] 1 All ER

696, [1962] AC 726, [1962] 2 WLR 832, 106 Sol Jo 261, HL, 33 Digest (Repl) 431, 504) ([1962] AC at p

761), “appears simple. If the information was believed by him to be trustworthy, there was good cause for

the prosecution. If it was known by him to be untrustworthy and not fit to be believed, there was no cause

for it.'

The learned judge seems in my view to have been unduly influenced by the fact of the acquittal of the

respondent before the magistrate when he says that “the magistrate without even calling on Barry,

peremptorily dismissed the charge of larceny”. This was not quite so as the record would suggest but the

fact however of dismissal does not necessarily contribute to the proof of want of reasonable suspicion (see

again, the passage quoted from the speech of Lord DENNING (supra)). In this case the difficulty was in

establishing the identity of the note. The circumstances related to the appellant were that Emmanuel

Meloney had the copy-book with the money in the same pocket, he took the book from his pocket and

called for his goods, and on looking for the $5 note to pay for the goods it was not to be found; just at

about that time the respondent was seen picking up a $5 note from the floor close to and at the back of

Emmanuel Meloney. The number of the note Emmanuel Meloney missed was ascertainable, a note

bearing that same number was found in the till of Tang Yuk's shop. It was known that the respondent had

Page 22 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

paid Wilson Thomas that day for work with a $5 note and that Sylvia Augustus the daughter of Thomas

Wilson was given that note to make purchases at the shop. In my view it was eminently reasonable at that

stage for the appellant to have reasonably suspected that the respondent had committed a felony.

It is urged that when the respondent told the appellant that it was his note, from the hitherto unblemished

character which the respondent bore and that known to the appellant, his word ought to have outweighed

any adverse inference to his honesty. It must be first remembered that the appellant is not in law called

upon to determine guilt or innocence before he acts; and secondly there is no authority for saying that

good character must outweigh a reasonable inference drawn from the circumstances. It is not enough to

say either that only direct evidence can or ought to displace the word of a person of good character, for the

simple reason that then there would be real cause for the prosecution.

Hence I am not unduly moved by the acquittal of the respondent for his character thereby still remains

unblemished. See Abrath v North Eastern Railway Co ((1883), 11 QBD 440, 52 LJQB 620, 49 LT 618, 47

JP 692, 32 WR 50, 15 Cox, CC 354, CA, affd (1886), 11 Ap Cas 247, HL, 33 Digest (Repl) 424, 425).
'If a man is guilty”, said ISAACS ACJ, in Davis v Gell ([1925] VLR 89, 35 CLR 275, 31 Argus LR 49, 33 Digest (Repl) 436, * 318) (35
CLR at p 288), “there is 'real cause' for indicting him, and the minor 'reasonable and probable cause' does not really arise because the
greater includes the less. This is illustrated by Bank of New South Wales v Piper ([1897] AC 383, 66 LJPC 73, 76 LT 572, 61 JP 660, 13
TLR 413, PC, 14 Digest (Repl) 32, 40). See also Heslop v Chapman ((1853), 2 CLR 139, 2 WR 74, sub nom Heslop v Chapman, 23
LJQB 49, 18 Jur 348, Ex Ch, 33 Digest (Repl) 430, 497).

(1965) 8 WIR 177 at 191

The respondent who was an elderly man of unblemished character was known to the appellant who

testified that he bore him not the slightest ill-feeling or ill-will and indeed as we all hold in this court that

he did not act maliciously. It has been urged that the appellant knowing the age and antecedents of the

respondent ought to have been more prudent and cautious and ought not to have arrested the respondent

when he did. I have already said that in my view the appellant informed himself of the facts as fully as he

might and that there was no further inquiry which the appellant ought necessarily in prudence and in

caution to have made before the arrest. It is not required of a prosecutor that he test the full strength of the

Page 23 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

defence; he is concerned only with the question whether there is a case fit to be tried. As DIXON J (as he

then was), put it, the prosecutor must believe that:

'the probability of the accused's guilt is such that upon general grounds of justice a charge against him is
warranted': Commonwealth Life Assurance Society Limited v Brain ((1935), 53 CLR 342) (53 CLR at p 382).

I do not for a moment detract from the supposition that in times of stress and brushes with the law some

heed and notice must be taken of the good character of a man and should evoke some caution when

challenge is contemplated to his honesty and integrity. But the value of a hitherto unblemished character

is much more properly and forcibly to be noticed in mitigation of a penalty where such a person has made

himself subject to one. But I am also mindful of the fact that persons who have hitherto borne good

characters have been convicted of crimes. The respondent is human and could have erred for the first
time. In brief, whilst character, good or bad, “ought to be treated as having some weight although not very

great weight” it cannot be decisive of the issue. See McArdle v Egan ([1933] All ER Rep 611, 150 LT

412, 98 JP 103, 32 LGR 85, 30 Cox, CC 67, CA, 1st Digest Supp).

In the circumstances of this case I think it was the duty of the appellant to have acted as he did, for to have

done otherwise would have been to prejudge the issue of guilt or innocence which by law he is not

required to do. I think so more especially since in my view and on the totality of the material before him

there was sufficient reasonable and probable grounds for his suspicion that a felony had been committed.

In my view on 7 October 1957, on the basis of the facts and on the face of the statements made by persons
of undoubted credibility, and notwithstanding the ipsc dixit of the respondent there were reasonable

grounds for suspecting the respondent to have committed a felony, and the claim brought by the

respondent ought to have been dismissed. It is imperative for me to say finally and as vehemently as I can

that I have due regard for the liberty of the subject which is not to be interfered with lightly, and whilst

this is so regard must also be had to the detection and apprehension of an offender or one who can

reasonably and honestly be suspected of having committed an offence. Thus if the police have reasonable

grounds for acting and do not they fail in their duty. If and when they do act on reasonable grounds they

ought not to be blamed and mulcted in damages if it turns out they are wrong. It is a matter of some

disquiet to me that thus I have arrived at an opposite conclusion to that of the learned President of this

court, but I should allow this appeal with costs.

Page 24 of 32
 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

PHILLIPS JA. As regards the respondent's claim for damages for malicious prosecution, it was

practically conceded by counsel for the respondent that this could not be supported, and I am in complete

agreement with the learned President that there was no evidence “on which the trial judge could

reasonably find that the appellant was actuated by any sinister or indirect or improper motive,… and that

(whether mistakenly or not), the appellant acted honestly and in pursuance of what he conceived to have

been his proper duty”. I accordingly concur that the appeal must be allowed so far as the claim in respect

of malicious prosecution is concerned.

(1965) 8 WIR 177 at 192

The issue of false imprisonment has been rather more difficult to determine and I have bestowed on it the

most anxious consideration. Having arrived at a conclusion that differs from that of the learned trial judge

and of the President, I consider it necessary to state briefly the reasons for my decision.

The sole and crucial question for determination, as I see it, is whether the appellant had reasonable cause

for suspecting that the $5 note which the respondent admittedly took up from the floor of Tang Yuk's shop

had fallen from the pocket of Emmanuel Meloney. It is, in my opinion, absolutely essential to bear in

mind that it was not the function of the appellant to make a final determination of the issue of the

respondent's guilt or innocence, which was eventually resolved in his favour by the magistrate.

In this connection I can do no better than quote the following extract from the judgment of Lord WRIGHT in

McArdle v Egan ([1933] All ER Rep 611, 150 LT 412, 98 JP 103, 32 LGR 85, 30 Cox, CC 67, CA, 1st

Digest Supp) ([1933] All ER Rep at p 613):

'It is, no doubt, very important that the liberty of the subject should be preserved from undue interference, and
in this case the charge has been withdrawn and it is not suggested that he was guilty of the
offence. On the other hand, it has got to be remembered that, in the public interest, it is very important
that police officers should be protected in the reasonable and proper execution of their duty; they should not be
hampered or terrified by being unfairly criticised if they act on a reasonable suspicion. Although the amount
here is very small, I think the question of principle is very important. It has to be remembered that police
officers, in determining whether or not to arrest, are not finally to decide the guilt or innocence of the person
arrested. Their functions are not judicial, but ministerial, and it may well be that if they hesitate too long when

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

they have a proper and sufficient ground of suspicion against an individual, they may lose an opportunity of
arresting him, because in many cases steps have to be taken at once in order to preserve evidence. I am not
saying that as in any way justifying hasty or ill-advised conduct. Far from that, but once there is what appears
to be a reasonable suspicion against a particular individual, the police officer is not bound, as I understand the
law, to hold his hand in order to make further inquiries if all that is involved is to make assurance doubly sure.'

To the same intent are the following observations made in the House of Lords in Glinski v McIver ([1962]

1 All ER 696, [1962] AC 726, [1962] 2 WLR 832, 106 Sol Jo 261, HL, 33 Digest (Repl) 431, 504)–a case

of a claim for malicious prosecution Viscount SIMONDS stated ([1962] 1 All ER at p 701):
'I must refer to one more matter before I return to the facts. A question is sometimes raised whether the
prosecutor has acted with too great haste or zeal and failed to ascertain by inquiries that he might have made
facts that would have altered his opinion on the guilt of the accused. On this matter it is not possible to
generalise but I would accept as a guiding principle what Lord ATKIN said in Herniman v Smith, that it is the
duty of a prosecutor not to find out whether there is a possible defence but whether there is a reasonable and
probable cause for prosecution.'

In considering the question of reasonable and probable cause the trial judge placed great reliance on the

well-known definition stated by HAWKINS J, in Hicks v Faulkner ((1881), 8 QBD 167, 51 LJQB 268, 46 LT

127, 46 JP 420, 30 WR 545, DC, affd (1882), 46 LT 130, CA, 33 Digest (Repl) 388, 18) ((1878) 8 QBD at

p 171), which received the approval of the House of Lords in Herniman v Smith ([1938] 1 All ER 1,

[1938] AC 305, 107 LJKB 225, 82 Sol Jo 192, HL, 33 Digest (Repl) 428, 463), where Lord ATKIN stated

([1938] 1 All ER at p 8):

'I know of no better statement of the issue than that in the words of HAWKINS J, in Hicks v Faulkner. 'I should
define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full
conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming
them to be true, would reasonably lead

(1965) 8 WIR 177 at 193

any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person
charged was probably guilty of the crime imputed'.'

In Glinski v McIver ([1962] 1 All ER 696, [1962] AC 726, [1962] 2 WLR 832, 106 Sol Jo 261, HL, 33

Digest (Repl) 431, 504) this definition fell under review by the House of Lords, and Lord DENNING made

certain comments which, despite the difference in the incidence of the onus of proof of the element of

reasonable and probable cause in actions for false imprisonment and malicious prosecution are, in my

judgment, eminently applicable to the circumstances of the present case. The learned lord of appeal said

([1962] 1 All ER at pp 709-710):

'My Lords, in Hicks v Faulkner, HAWKINS J, put forward a definition of 'reasonable and probable cause' which
later received the approval of this House. He defined it as an 'honest belief…in the guilt of the accused' and
proceeded to detail its constituent elements. The definition was appropriate enough there. It was, I suspect,
tailor-made to fit the measurements of that exceptional case. It may fit other outsize measurements too. But

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

experience has shown that it does not fit the ordinary run of cases. It is a mistake to treat it as a touchstone. It
cannot serve as a substitute for the rule of law which says that, in order to succeed in an action for malicious
prosecution, the plaintiff must prove to the satisfaction of the judge that, at the time when the charge was made,
there was an absence of reasonable and probable cause for the prosecution. Let me give some of the reasons
which show how careful the judge must be before he puts to the jury the question: 'Did the defendant honestly
believe that the accused was guilty?'

In the first place the word 'guilty' is apt to be misleading. It suggests that, in order to have reasonable and
probable cause, a man who brings a prosecution, be he a police officer or a private individual, must, at his peril,
believe in the guilt of the accused. That he must be sure of it, as a jury must, before they convict. Whereas in
truth he has only to be satisfied that there is a proper case to lay before the court, or in the words of Lord
MANSFIELD that there is a probable cause 'to bring the accused to a fair and impartial trial', see Johnstone v
Sutton. After all, he cannot judge whether the witnesses are telling the truth. He cannot know what defences the
accused may set up. Guilt or innocence is for the tribunal and not for him… No, the truth is that a police officer
is only concerned to see that there is a case proper to be laid before the court.'

With these preliminary remarks I now turn to consider the materials which the appellant had before him
before arresting the respondent. It may be stated here, parenthetically, that there has been no suggestion

that the appellant was not entitled to treat the information he had received as being trustworthy. Those

materials may be summarised as follows:

Emmanuel Meloney had left his home riding his bicycle to go to Tang Yuk's shop for the purpose of

purchasing some goods. For that purpose he had received from his mother a $5 note, bearing serial

number B2/4299/25, which he put into his left hip pocket. He had in the same pocket a copy-book in

which a list of the goods had been written. After his arrival at the shop he took the copy-book out of his

pocket and began calling for the goods. He then discovered that the $5 note was missing and was

informed by his cousin, one Martin Thomas, who was present, that he, Thomas, had just seen the

respondent pick up a $5 note from a spot on the floor close to and behind Meloney. When challenged the

respondent immediately admitted having picked up a $5 note from the floor, but claimed that it was his

and that it had fallen from him. Thomas confirmed that he had seen the respondent pick up the note from

the floor. Neither he nor Meloney had seen the note fall from Meloney's pocket. No one was able

positively to identify the note which the respondent picked

(1965) 8 WIR 177 at 194

up as being the note with which Meloney had left his home. Whenever and wherever it had been lost, this

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

note was recovered amongst several others in the cash till of Tang Yuk's shop some hours later on the

same day. There was no evidence as to how it actually came to be there. The appellant's inquiries,

however, had established a possible way in which it might have arrived there consistently with the guilt of

the respondent. His investigations had revealed that after leaving the shop with the $5 note which he had

picked up from the floor, the respondent had given it to one Wilson Thomas by way of payment for some

work done for him by Thomas. Thomas in turn had handed it to his daughter who had purchased some

goods with it from Tang Yuk's shop.

It should be stated at the outset that I cannot accept the finding of the learned trial judge that the

respondent's inquiries were of a rather superficial and sketchy nature. It seems to me that all the persons

who could throw some light on the matter were interviewed by the appellant, and I am at a loss to see

what further inquiries he could have made. The crucial question, therefore, is: Can it be said that the facts

disclosed by the appellant's inquiries were such as to satisfy the test suggested by Lord DENNING in Glinski v

McIver ([1962] 1 All ER 696, [1962] AC 726, [1962] 2 WLR 832, 106 Sol Jo 261, HL, 33 Digest (Repl)

431, 504), namely: were they such as to establish the foundation for a case that was proper to be laid

before the court for determination? In my judgment, an affirmative answer to this question would provide

the appellant with justification for the arrest of the respondent.

It is true that the evidence tending to show that the note, the identity of which was in question, had fallen

from Meloney, was purely circumstantial. In my view, however, this fact is not in itself sufficient to

detract from its value, and in this connection I would refer to the well-known dictum of Lord HEWART CJ,

which is often quoted in the criminal courts, to the effect that it is no “derogation of evidence to say that it

is circumstantial” (R v Taylor, Weaver and Donovan ((1928), 2 Cr App Rep 20, CCA, 182 Digest Supp)).

What has to be considered in each case is the strength of the particular circumstances. In my judgment, in

the present case they were strong enough to support a reasonable inference that the $5 note had fallen

from Meloney; and I am therefore of opinion that they provided the foundation of a case that was fit to be

laid before the court.

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

It was contended by counsel for the respondent that there were other possible ways in which the $5 note

might have been lost, eg, it might have fallen or been extracted from Meloney's pocket while he was on

his way to the shop. So be it. It must be pointed out, however, that at the time of the arrest of the

respondent there was no actual evidence on which to found either of these suggestions.

On the other side of the scale it is necessary to weigh the fact that the respondent's allegation that the $5

note belonged to him and had fallen from him at a spot and at a moment when coincidentally a $5 note

might have fallen from Meloney's pocket, might have been a complete falsehood, despite the previously

good character of the respondent. All these were matters which, in my opinion, fell for final determination

by the magistrate and not by the appellant. It seems to me that the answer to counsel's submissions in this

regard is provided by the following words of Lord ATKIN in Herniman v Smith ([1938] 1 All ER at p 10):
'It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action.
His duty is not to ascertain whether there is a defence, but to ascertain whether there is reasonable and probable
cause for a prosecution.'

To a similar effect is the opinion of Lord DEVLIN stated in Glinski v McIver ([1962] 1 All ER 696, [1962]

AC 726, [1962] 2 WLR 832, 106 Sol Jo 261, HL, 33 Digest (Repl) 431, 504) ([1962] 1 All ER at p 715)

as follows:

(1965) 8 WIR 177 at 195

'The prosecutor has not got to test the full strength of the defence; he is concerned only with the question
whether there is a fit case to be tried.'

As to the difference between a case fit for prosecution and a case fit to be left to a jury, I quote the

following statement of Lord DEVLIN ((ibid), [1962] at p 715):

'I venture to think that there is a danger that a jury may be misled by a question in the form left to them in the
present case in which the word 'guilty' is used without any qualification. The defendant at the trial is usually
pressed, as he was in the present case, to declare that he no longer believed that the plaintiff was guilty. Where,
as here, the defence was not called on at the criminal trial and the only new factor for the defendant to weigh is
the trial judge's ruling that there was no case to go to the jury or no case on which it would be safe for them to
convict, the jury in the civil case may ask themselves whether that would be enough to cause an honest man to
change his belief. They may not appreciate unless they are carefully directed in the summing-up that there is a
substantial difference between a case that warrants the making of a charge and one that survives the test of
cross-examination with sufficient strength left in it to require consideration by a jury which is concerned only
with guilt beyond reasonable doubt.'

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

In Dawson v Vansandau ((1863), 11 WR 516, 33 Digest (Repl) 420, 388), it was held by COCKBURN C J,

CROMPTON and BLACKBURN JJ, that:

'in an action for malicious prosecution, reasonable and probable cause may be shown by evidence which would
make a prima facie case such as would justify a criminal charge, although it might be insufficient to convict;
and although it might require confirmation by further evidence not disclosed or discovered by the prosecutor
until after he had given the plaintiff into custody'.

In reference to the meaning of reasonable cause for arrest, the following statement appears in POLLOCK ON

TORTS (15th Edn), p 167:

'The only thing which can be certainly affirmed in general terms about the meaning of 'reasonable cause' in this
connection is that on the one hand a belief honestly entertained is not enough (the defendant must show 'facts
which would create a reasonable suspicion in the mind of a reasonable man', per Lord CAMPBELL CJ, in
Broughton v Jackson ((1852), 18 QB 378 , 21 LJQB 265, 19 LTOS 88, 16 JP 550, 16 Jur 886, 118 ER 141,
43 Digest 449, 774) ((1852), 18 QB at p 383); on the other hand, a man is not bound to wait until he is in
possession of such evidence as would be admissible and sufficient for prosecuting the offence to conviction, or
even of the best evidence which he might obtain by further inquiry. 'It does not follow that because it would be
very reasonable to make further inquiry, it is not reasonable to act without doing so.'

I consider it necessary to refer to one further matter. It is the question as to whether the appellant's

knowledge of the previously good character of the respondent should have made him pause before taking

the step of arresting the respondent. In dealing with this question the trial judge said:
'The accused Barry was undoubtedly an elderly man of good reputation and unimpeachable character well
known in the neighbourhood of Cumuto and Tamana. He was not without means and seemed to this court at
least to be hardly the type that would be even likely to steal $5 as alleged. The defendant knew him, having
actually been introduced to him by the district's probation officer, and that should also have caused him to
hesitate before peremptorily arresting him without careful and adequate inquiries.'

I have already stated my opinion that it is difficult to see what further inquiries could have been made into

what was after all a very narrow issue, viz: whether the $5 note admittedly picked up by the respondent
from the floor of

(1965) 8 WIR 177 at 196

Tang Yuk's shop had been inadvertently dropped by Emmanuel Meloney. With due respect to the learned

trial judge, I am of opinion that he placed undue emphasis on this question of the respondent's character. It

would appear that the judge was of the view that, even on the assumption that the appellant had not been

acquainted with the respondent, the latter's mere physical appearance should have so impressed the

appellant with his honesty that the appellant should necessarily have accepted his word that the $5 note in

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

question belonged to him. In my judgment, any such proposition is, as a matter of fundamental principle,

untenable in the circumstances of this case.

I have been unable to find much authority bearing upon the point under consideration. However, in

McArdle v Egan ([1933] All ER Rep 611, 150 LT 412, 98 JP 103, 32 LGR 85, 30 Cox, CC 67, CA, 1st

Digest Supp), Lord WRIGHT made certain observations in relation to how far the bad character of an arrested

person may affect the question of a police officer's justification for the arrest. They are as follows ([1933]

All ER at p 614):
'The other point is one which might raise a more important question of principle if it were necessary to go into
it in this case. The chief constable said in evidence: 'I knew by inference that he must have been convicted
more than once, and the report says “well-known Liverpool police”.' That point was ruled out by the learned
judge as irrelevant. It is not necessary in this case to express any decided view whether that ruling was or was
not right. I gather that the authorities are conflicting, and there may well be reasons why there should be a
certain hesitation to treat a man who has already been convicted too readily as liable to be guilty of a further
offence. What I should want to guard myself against would be to be thought to rule in any general way that
evidence of previous convictions of a man should be treated as entirely irrelevant for the purpose of guiding a
police official in his delicate decisions. I can conceive cases where an offence of a particular sort has been
committed and it is well known that a particular individual has committed other offences of that character, and
there are other strong circumstances pointing to the probability that he is the guilty man, and constituting a
ground of reasonable suspicion that he is the guilty man. It may well be that a man's special character in this
regard may be taken into account by a police official in his ministerial duty if his mind is just in the balance, or
it may be a matter which must receive some weight, although it may never be decisive on the question whether
he should be arrested or not. It may, however, be some help, and I think, without deciding it, probably it is a
matter which ought to be treated as having some weight, though not, perhaps, very great weight, if the
justification of a police constable in arresting a man for a felony is called into question.'

It seems to me that these expressions, which are mere obiter dicta, are applicable mutatis mutandis to the

reverse situation of a case, like the present, where the respondent was known to be of good character by
the appellant. In my judgment, this fact, while a factor to be taken into account, was not in the

circumstances of the present case such as should have made it obligatory on the appellant to refrain from

arresting the respondent.

I have accordingly come to the conclusion that the appellant had reasonable grounds to suspect and did

suspect that the respondent had committed the felony of larceny, and that his arrest of the respondent was

therefore justified. While I yield to no one in solicitude for the protection of the liberty of the subject, I

consider it essential not to lose sight of the principle stated by Lord WRIGHT in McArdle v Egan ([1933] All

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 Irish v Barry (1965) 8 WIR 177, (1965) 8 WIR 177

ER Rep 611, 150 LT 412, 98 JP 103, 32 LGR 85, 30 Cox, CC 67, CA, 1st Digest Supp), in words that

have already been referred to in this judgment. In my opinion, they can bear repetition:
'On the other hand, it has got to be remembered that, in the public interest, it is very important that police
officers should be protected in the reasonable

(1965) 8 WIR 177 at 197

and proper execution of their duty; they should not be hampered or terrified by being unfairly criticised if they
act on a reasonable suspicion.'

For these reasons I would allow the appeal with costs.

Appeal allowed.

End of Document

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