Therese Ho vs Lendl Simmons court ruling

Published: Trinidad Guardian
October 26, 2015 – guardian.co.tt

Sex EducationIn this claim the parties were engaged in a sexual relationship and during the course of same several photographs were taken by them, some of these photographs depicted the Claimant nude and two of the photographs depicted her engaged in fellatio with the Defendant (the photos). After their relationship ended some of the photos were allegedly shown to other persons and as a result the Claimant instituted the instant action and sought the following reliefs:

An Injunction restraining and/or prohibiting the Defendant whether by himself, his servants and/or agents or otherwise howsoever from disseminating and/or disclosing and/or using those confidential nude photographs of the Claimant which the Defendant has in his possession.

An Injunction restraining and/or prohibiting the Defendant whether by himself, his servants and/or agents from disseminating/disclosing/posting/uploading/publishing and/or causing to be further published/posted/uploaded/disseminated/ disclosed the said confidential nude photographs and/or any further material and/or any other photographs and/or videos of the Claimant whether by the internet/telephone/social media or howsoever otherwise which impeded with the Claimant’s private information and/or breach of her confidence.

An order that the Defendant do deliver up and/or destroy/discard all the photographs and other materials he possesses of the Claimant.

Damages for breach of confidence.

Aggravated Damages

An order that the attached nude photographs of the Claimant be destroyed by the Registrar.

Costs

Interest

Such further or other relief as the Honourable Court may think just in the circumstances.

At the trial, the parties were the only witnesses and their evidence is summarised as follows:

The Claimant’s case

The Claimant is a 24 year old mother of two and she stated that she had a dating relationship with the Defendant which commenced in March, 2013. At paragraph 8 of her witness statement she testified that she took nude photos of herself and sent same via WhatsApp to the Defendant’s phone for his private use when he was out of the country. She testified that she was aware that the Defendant was living with ‘Kabrina’ who was the mother of his daughter but she said the Defendant told her that it was just an arrangement of convenience. During the course of her involvement with the Defendant, the Claimant said that she took pictures of her engaged in fellatio with him. Eventually, she stated that she had concerns over the future of their relationship and ended it. Her evidence was that after the relationship ended she felt obligated on a moral level to inform Kabrina of her relations with the Defendant. This disclosure, she said, was met by a violent reaction from the Defendant and she asserted that the Defendant then distributed the photos to several persons close to her including the father of her youngest daughter (Kasi), her friends, as well as to some of his own friends. The purpose of this disclosure she says was to embarrass and shame her.

Annexed to her witness statement were a series of screen shots of messaged conversations that she says she had with the Defendant via their respective cell phones over WhatsApp and Viber as well as screen shots of messaged conversations between the Defendant and two of her friends, Danielle and Amanda (collectively called ‘the messages’). The messages formed part of her unagreed bundle of documents and they were incorporated into her witness statement. The Claimant’s evidence was that notwithstanding attempts by her and her friends to plead with the Defendant for him not to distribute the photos, the Defendant was intent on destroying her and did so by distributing them. As a consequence she was subjected to public ridicule and embarrassment and she suffered from suicidal thoughts and became frustrated as she had to live in shame.

The Claimant also testified that as a further consequence of the distribution of the photos she was also reassigned duties at work. During the course of her cross examination the authenticity of the messages which formed part of her evidence was not challenged. The Claimant was also not challenged in relation to the effect, which she said, the distribution of the photos had on her.

The Court found that she was an impressive witness. Her responses in cross examination were consistent with her evidence in chief and were very direct. The Claimant therefore engendered in the Court, an unshakable feeling that she was a witness of truth.

The Defendant’s case

The Defendant did not dispute that he had sexual relations with the Claimant but he denied that they were “in a relationship”. He said that at all times they were both involved with other persons, he with Kabrina and she with Kasi. He stated that he sent some of the photos to Kasi but that this was done only after the Claimant had shown some of the photos to Kabrina.

At paragraph 4 of his witness statement the Defendant said that two of the photos which depicted the act of fellatio were taken at the Claimant’s request. The thrust of his defence was that it was the Claimant who breached any confidentiality that existed in relation to the photos when she showed them to Kabrina and he said she did this as she wanted to disrupt his family life because he had ended the sexual relations that they enjoyed.

In cross examination, the Defendant said that he took the photos depicting the act of fellatio because he did not trust the Claimant and wanted to hold it over her head. This response was in direct contradiction to what he stated at paragraph 4 of his witness statement. He accepted that messages were in fact sent and exchanged between himself, the Claimant and her friends Danielle and Amanda and that the screen shots that were exhibited were accurately reflected. The Court noted that in the various messages, the Defendant never asserted that the Claimant had shown the photos to Kabrina, in fact he accused her of having spoken to Kabrina.

The Court was not impressed with this witness, his responses were not direct and there were substantial contradictions between his evidence in chief and his responses in cross examination.

The pleaded case before the Court was founded upon the common law concept of breach of confidence and the Court had to consider whether this concept could be applied to the instant facts.
Full Article : guardian.co.tt

2 Responses to “Therese Ho vs Lendl Simmons court ruling”


  • I thought the distribution of pornographic material in this country was a criminal offence. How come this person was allowed to distribute this without any consequence by the DPP or the police or both.

    The mind boggles.

  • The law never covers all situations that can and will be faced in life. One of the things that is important to understand and law professionals should always take into consideration is ‘the spirit of the law’. The spirit of the law means that an incident may not necessarily be specified by the written word of law. But by way of application to an article of law, it might become necessary to apply the case to that clause of law which deals with the coverage of such an incident. One of the things that should not be encouraged is mis-application of the law. One such law that is being contested in the courts, is the case of the election results of the September 7 election. The challenge is that the EBC does not have the authority to extend voting time (as they did on Sept 7, 2015). It is law that the EBC is the sole authority responsible for conducting the elections and administering the results. When nature intervenes and obstructs the orderly process carrying out such an undertaking, who shall we look to, to exercise to exercise rationality and common sense to arrive at the best solution the delay has caused? It is obvious that the law did not address the specific question of nature’s intervention and how it addresses a conclusion of its process. Since the exact wording for this may not be eminent, should we conclude that the EBC does not have the authority to regain time lost by the intervention of nature? If the EBC does not have that authority, who then is in the best position to recover time lost by the intervention of nature? This, to me is where common sense and the spirit of the law MUST prevail. The election is a ONE day process and nature has taken away some time for the process to be run smoothly. During that time of nature’s intervention, voters were not allowed to participate as they naturally would, had nature not disrupted the orderly process. Should the EBC hold its hand and wait to go to court for a ruling on how they should move forward on this matter before concluding the process, or should they just stop and end the process at the stated time, regardless of the circumstances that disrupted the process? It would seem that the relevant authority charged with the responsibility of voting should be able to exercise commonsense and the spirit of the law in order to bring an orderly process to an end. It is obvious that the loser in this process is looking to reject the will of the people in favor of exactness that was lacking when the law was drafted. Since there is no other authority to seek recourse on that given day of the incident, it would seem to me that the EBC applied the spirit of the law, expanded some lost time for voting and allowed the process to end without denying any one an opportunity to vote. That to me is an application of the spirit of the law.

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