Lynden Saunders v Jeron Thompson, Sr

• Jurisdiction: Bahamas
• Judge: Charles Snr. J
• Judgment Date: 28 September 2022
• Court: Supreme Court (Bahamas)
• Docket Number: 2019/CLE/gen/00522

Between

Lynden Saunders

Plaintiff

and

Jeron Thompson, Sr.

First Defendant

and

Jamekco Thompson

Second Defendant

and

The Attorney General of the Commonwealth of the Bahamas

Third Defendant

BS 2022 SC 148

Before:

The Honourable Madam Senior Justice Indra H. Charles

2019/CLE/gen/00522

IN THE SUPREME COURT

COMMON LAW AND EQUITY DIVISION

Civil — Unlawful arrest — Reasonable suspicion — Power to arrest without warrant — Assault and battery — False Imprisonment — Breach of constitutional right — Malicious prosecution — Injury to reputation — Damages — Compensatory — Aggravated — Exemplary

The Plaintiff commenced this action against the Defendant police officers and the Attorney General after an incident in which he alleged that the officers used excessive force in arresting him. He contended that his arrest and detention were unlawful, as none of the offences for which they claim he was arrested were arrestable offences. The Plaintiff also alleged assault and battery for the incident. He further pleaded infringement of his right not to be arbitrarily arrested and detained pursuant to Article 19 of the Constitution. He alleged malicious prosecution for charges of which he was acquitted in the Magistrate's Court and damages to reputation caused by a video recording of a portion of the incident, which was circulated on the internet.

The Plaintiff claims special damages in the amount of $11,120.00, aggravated damages, exemplary damages, damages for breaches of his constitutional rights under Article 19, damages for assault, battery and false imprisonment and damages for malicious prosecution.

The Defendants denied liability for all of the causes of action averred by the Plaintiff. They asserted that the constitutional redress is an abuse of the Court's process and a violation of the Article 28(2) proviso, as other means of redress were available. They further contended that the officers acted reasonably by stopping the Plaintiff because he committed a traffic offence and that the force used was necessary because the Plaintiff was uncooperative.

HELD: finding that the Plaintiff was assaulted, battered and unlawfully imprisoned and therefore his constitutional right under Article 19 was breached, but finding that he was not maliciously prosecuted and is not entitled to damages for injury to reputation, the Plaintiff is entitled to special damages in the amount of $8,000.00, compensatory damages for assault, battery and false imprisonment in the amount of $80,000.00, damages for breach of his constitutional right of $15,000.00, interest at the statutory rate of 6.25% from the date of the filing of the Writ of Summons to the date of payment and costs agreed in the amount of $35,000.

• 1. Section 11 of the Criminal Procedure Code Act confers upon police officers the authority to use all means necessary to effect an arrest where the subject forcibly resists the endeavour to arrest him. That provision, however, is subject to a proviso that it does not give the police officer the right to justify the use of force greater than that which is reasonable in the circumstances to apprehend the offender.

• 2. In determining whether the police officers possessed the authority to arrest and detain the Plaintiff, the question is whether the offence was an arrestable offence

• 3. By virtue of the Plaintiff's imprisonment being unlawful, his constitutional right not to be arbitrarily arrested and detained was infringed.

• 4. An award for breach of constitutional damages and exemplary damages is duplicitous: Ousman Bojang v The Hon. Carl Bethel (In his capacity as Attorney General), The Hon. Brent Symonette (in his capacity as Minister of Immigration), Willliam Pratt (In his capacity as Director of Immigration) and Peter Joseph (In his capacity as Officer in Charge of Carmichael Detention Centre) 2017/CLE/gen/01166 and Takitota v Attorney General & Ors [2009] UKPC 11 applied.

• 5. As aggravating factors such as the injury to feelings, humiliation, pain and inconvenience of the incident have been accounted for in the compensatory award, an award for aggravated damages would be duplicitous: Ousman Bojang v The Hon. Carl Bethel (In his capacity as Attorney General), The Hon. Brent Symonette (in his capacity as Minister of Immigration), Willliam Pratt (In his capacity as Director of Immigration) and Peter Joseph (In his capacity as Officer in Charge of Carmichael Detention Centre) 2017/CLE/gen/01166 applied.

• 6. It does not follow from Mr. Saunders acquittal of the charges that the prosecution was malicious. It is merely a starting point for proving malicious prosecution. The criminal standard of proof to be discharged by the prosecution in a criminal trial is a high one (beyond reasonable doubt). As such, the failure to discharge this high burden is not probative to showing malicious intention or an absence of reasonable or probable cause for such proceedings. Further, the evidence of the officers was supportive of the charges, as their evidence before and during that trial was that Mr. Saunders assaulted the officers and resisted arrest: Rod Andrew v The Commissioner of Police 2017/CLE/gen/00825 applied; Trevor Williamson v The Attorney General of Trinidad and Tobago [2014] UKPC 29 applied.

• 7. Injury to reputation is not, itself, a cause of action. It is a head of damages that is common to a defamation cause of action.

Appearances:

Mr. Raphael Moxey of Mackay & Moxey for the Plaintiff

Mr. Rashied Edgecombe of the Attorney General Chambers for the Defendants

Charles Snr. J

Introduction

1 One bright Monday morning in September 2018, a young man was riding his motorcycle in a westward direction on Prince Charles Drive near Beatrice Avenue when he encountered a traffic accident. He was heading to his workplace. In order to bypass the traffic accident which was blocking the westbound lanes, he decided to ride along a portion of the sidewalk. In doing so, he was stopped by the Second Defendant (“Corporal Thompson”) and asked to dismount his motorcycle. He may not have followed the instructions given by Corporal Thompson. To be succinct, a physical altercation ensued and the young man (‘Mr. Saunders”) was injured.

2 He now sues the Defendants claiming damages for assault and battery, false imprisonment, malicious prosecution, special damages in the sum of $11,120, aggravated damages, exemplary damages, damages for breach of his constitutional rights under Article 19(1) and 19(2) of the Constitution, damages for injuries suffered as a result of publication of his image on the World Wide Web, compensation under Article 19(4), interest and costs.

3 The Defendants denied liability for all of the causes of action averred by Mr. Saunders. They asserted that the constitutional redress is an abuse of the Court's process and a violation of the Article 28(2) proviso, as other means of redress were available. They further contended that the officers acted reasonably and justifiably by stopping Mr. Saunders because he committed a traffic offence and that the force used was necessary because Mr. Saunders was uncooperative and belligerent.

4 With respect to the alleged damage to reputation, the Defendants contended that the video recording was not contemptuous, but was instead made in an effort to cover the officers from liability by showing Mr. Saunders's uncooperative and volatile behaviour. Further, they stated that the video could not be defamatory, as its publication was never intended and there was no malice.

Background facts

5 On 17 September 2018, at about 7:45 a.m., the First Defendant (Inspector Thompson”) and Corporal Thompson were investigating a traffic accident on Prince Charles Drive near Beatrice Avenue. As they were investigating the accident, Corporal Thompson observed Mr. Saunders riding his motorcycle on the sidewalk. As a result, Mr. Saunders was beckoned to stop and dismount the motorcycle.

6 Apparently Mr. Saunders was not following instructions so the officers removed him from the motorcycle.

7 After a physical altercation between the officers and Mr. Saunders (their respective accounts are strikingly divergent), the officers arrested Mr. Saunders and took him into police custody.

8 Inspector Thompson instructed Corporal Thompson to record a portion of the physical struggle for future reference and in order to protect themselves. The video did not capture the entire incident.

9 Mr. Saunders stood trial in the Magistrate's Court for the following charges: two (2) counts of assaulting a police officer and one (1) count of resisting arrest. He was acquitted of all charges.

The evidence

10 Mr. Saunders was the sole witness to testify on his behalf. Inspector Thompson, Corporal Thompson and Corporal Brian Roache gave evidence on behalf of the Defendants. The video recording of the incident along with its transcript and the transcript of the criminal trial in the Magistrate's Court were also part of the evidence.

Lynden Saunders

11 Mr. Saunders' evidence in chief is contained in a Witness Statement filed on 5 August 2021. He testified that he was riding his motorcycle along the pavement but dismounted it as soon as he was told to do so by the police officers. Inspector Thompson approached him and kicked his motorcycle to the ground.

12 Mr. Saunders said that when the officers asked for his driver's licence, he said that he did not have one. They told him that they would hold his motorcycle at the police station and that he would have to walk or catch the bus to work. He said that he was not aware that he was under arrest and, as he began to walk away, Inspector Thompson shouted to him that he could not leave so he returned to where his motorcycle was. Inspector Thompson then came up to his face in an aggressive manner and held his hand in a position as if he was about to hit him. Mr. Saunders stated that he said “ You cannot hit me because I have not done...