Daran Neely v The Attorney General
| Jurisdiction | Bahamas |
| Judge | Winder, CJ |
| Judgment Date | 09 May 2023 |
| Docket Number | 2016/CLE/gen/00623 |
| Court | Supreme Court (Bahamas) |
Before Hon. Chief Justice Sir Ian R. Winder
2016/CLE/gen/00623
COMMONWEALTH OF THE BAHAMAS
IN THE SUPREME COURT
Common Law and Equity Division
Wayne Munroe KC and Krystian Butler for the Plaintiff
Keith Cargill for the Defendant
This is an unlawful arrest and false imprisonment claim brought by the Plaintiff arising out of the actions of officers of the Royal Bahamas Police Force. The Plaintiff alleges that he was unlawfully arrested while on bail and detained in police custody in December 2015 and February 2016. He seeks damages, aggravated damages, damages for breach of constitutional rights, interest and costs as a result thereof. The Attorney General has been sued as representative of the Crown pursuant to section 12 of the Crown Proceedings Act.
The Plaintiff is allegedly gang affiliated and “known” to the police. He has been charged with criminal offences in the past. In 2014, he was released on bail on conditions requiring him to be electronically monitored and to remain at his family home on Avocado Street in the Pinewood Gardens subdivision in the Southern District of New Providence.
According to the Plaintiff, the genesis of these proceedings is that:
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i) on 23 December 2015, he was arrested at his residence and taken to the South Beach Police Station and held in police custody without charge until 1 January 2016.
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ii) on or about 3 February 2016, he was arrested at his residence and taken to the South Beach Police Station and held in police custody without charge until 8 February 2016.
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iii) on both 23 December 2015 and 3 February 2016, he was arrested without any lawful justification; and
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iv) police officers made threats on his life and damaged his property.
It is common ground that police officers arrested the Plaintiff in December 2015 and in February 2016. However, the Defendant contends that: (i) the Plaintiff was arrested on 24 December 2015 and held in police custody until 26 December 2015; (ii) the Plaintiff was arrested on 3 February 2016 and held in police custody until 8 February 2016 after an extension was obtained from the Magistrate's Court; and (iii) the police officers that arrested the Plaintiff acted within the scope of their duties and upon information which amounted to reasonable and probable cause to arrest the Plaintiff.
Trial of the Plaintiff's claim took place before me on 26 March 2021. Earlier trial dates were vacated because the Defendant failed to comply with this Court's case management directions. Despite the fact that standard case management directions were given, trial took place without the Defendant providing discovery and, therefore, without the Defendant disclosing the full documentary record relating to the arrest and detention of the Plaintiff. Mr. Cargill explained that this was because the Defendant had difficulty getting information regarding events in February 2016 from the police. That explanation warrants little sympathy, however, given the lengthy lead up to trial.
The Plaintiff and his mother, Carolyn Neely (“Mrs. Neely”), gave evidence for the Plaintiff at trial. The Plaintiff's girlfriend, Sandy McPhee, and the Plaintiff's cousin, Renaldo Hepburn, filed witness statements but were not called by the Plaintiff to give evidence.
Detective Constable 2970 Carlos Johnson (“DC Johnson”), Inspector (formerly Sergeant 2283) Ricardo Hanna (“Inspector Hanna”) and Corporal 2694 Marvin Hepburn (“Corporal Hepburn”) gave evidence for the Defendant at trial.
The Plaintiff's witness statement filed on 28 June 2019 was admitted into evidence as his evidence-in-chief. The Plaintiff also identified two estimates for security cameras from a business called Security Systems dated 5 January 2016 and 10 February 2016; those estimates were admitted into evidence through him. The Plaintiff was subject to cross-examination but was not re-examined.
The Plaintiff said that, on 23 December 2015, he was at his residence in Pinewood Gardens, where he resides with his family, when he heard loud noises which appeared to be banging on his front gate and police officers shouting “open the f----- gate”. The police officers attempted to breach his gate with a maul. In so doing, they damaged the outside lock on the gate and dented it. The police officers also used a barbed-wire cutter to pull down installed barbed wires which were over the gate in an effort to clear a path to jump the gate.
The Plaintiff accepted that he had not adduced any photograph or video evidence of the alleged damage to his gate when this was put to him in cross-examination. The Plaintiff said that he did not have any pictures of the alleged damage because the police carried away his security cameras. The Plaintiff acknowledged that no family member had produced any photograph evidence to support his property damage claim but he made no effort to explain this.
The Plaintiff initially said that the police officers damaged his gate where they tried to breach it (i.e. where they were banging on it) and he could not recall if there was damage to the frame and strip of the gate. However, when asked in cross-examination about a quote for repairs from Johnson's Welding, the Plaintiff relied on the quote as evidence of the precise damage to his gate and confirmed that, as the quote suggested, the exact same repairs to the gate were required in December 2015 and February 2016. The Plaintiff denied Mr. Cargill's suggestion that the repairs were the result of “everyday opening and closing”.
Continuing to speak of events on 23 December 2015, the Plaintiff said that he and his family opened the gate for the police officers (he explained in cross-examination that the damage to the outside lock did not open the gate as there was an inside lock) and about five officers entered his yard and then his home. It was at this time, when the gate was opened, that the Plaintiff saw the maul and barbed-wire cutter used by the police.
According to the Plaintiff, once the officers entered his home, they told him to put on clothes and that he was “locked up”. They also told him that “it is the normal, some say murder others say normal routine”. The police officers took pictures of the Plaintiff and everyone in the house and questioned each of them as to their identities and why they were at the property. The police officers had their guns drawn and pointed. In addition to the police officers in his home, the Plaintiff heard other police officers on his roof, in his yard and in a neighbor's yard.
The Plaintiff said that the police officers that entered his home removed all of the security cameras and security footage at his residence (which captured the police arriving at his residence) and searched the rooms of his house.
The Plaintiff said that he and his cousin, Renaldo Hepburn, who was at his residence at the time, were arrested, taken into custody, booked at the South Beach Police Station and later transported to the Grove Police Station. The Plaintiff was released on the same day as his cousin and collected from the Central Detective Unit by his girlfriend. According to the Plaintiff, he and his cousin were never questioned or interviewed while in police custody. He slept on a concrete floor while in custody as there was no bedding.
The Plaintiff provided comparatively little detail regarding his arrest in February 2016.
According to the Plaintiff, during the evening of 3 February 2016, he was home in his room when he heard “a noise outside”. His mother informed him that it was the police. He told her “let them in, it's the regular”. They entered, he was arrested, and then he was first taken to the South Beach Police Station to be booked in and then to another police station where he was placed in a holding cell until he was released. He did not specify the date of his release in his evidence, though he did say he was released from the Central Detective Unit and allowed to charge his ankle monitoring device.
The Plaintiff was equivocal as to whether security cameras had been removed in February 2016. He initially could not recall whether he had replaced the cameras which he said the police took in December 2015 by February 2016. However, when shown the Security Systems invoice dated 10 February 2016 for security cameras, he asserted the police had taken his cameras. According to the Plaintiff, he used the security cameras for his own security and, once they were removed, he had to get them replaced to watch his surroundings.
In cross-examination, the Plaintiff said that he had been “continuously harassed” by the police since being released on bail in 2014 but he had only brought proceedings in relation to his arrest and detention in December 2015 and February 2016 as he “thought it was time” after the incidents. It was clear the Plaintiff had considerable exposure to the police, as he on a number of occasions used the words “every time” in his evidence when describing the actions of the police. The Plaintiff admitted he had been arrested by police more than twice between 2015 to 2020 but confirmed the ambit of his claim was limited to the arrests in December 2015 and February 2016.
The Plaintiff said in his witness statement that Anthony Ferguson and other police officers made numerous threats on his life and that, while at his house, police officers told him “I will soon die; they will kill me”; however, the timing of this latter incident was not clear from his evidence.
The Plaintiff disagreed with Mr. Cargill's suggestion that his witness statement was a fabrication. The Plaintiff also disagreed with the suggestion put to him that the true version of events in December 2015 was that the Police arrested him at his residence on 24 December...
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