Merson v Cartwright et Al

CourtSupreme Court (Bahamas)
Judgment Date22 June 1994
Docket NumberNo. 1131 0f 1987
Date22 June 1994

Supreme Court

Sawyer, J

No. 1131 0f 1987

Cartwright et al

Mr. F.R. M. Smith with Ms. P. Bridgewate$cb r$and Mr. H.O. Tynes for the plaintiff

Ms. M. Bethell, with Ms. Judith Smith and

Mr. E. Turner for the defendant.

Tort - Assault and Battery — In executing the search warrant the officer approached plaintiff in a threatening manner — Plaintiffs' arrest not justifiable — Plaintiff not told within a reasonable time the nature of the offence for which she was arrested — Christie v. Leachinsky [1947] A.C 573 applied.


Sawyer, J.: On 11th March, 1994, on the 10th day of the trial, after the closing speeches, I announced that judgment would be entered in favour of the plaintiff as to liability in respect of the torts of assault and battery, false imprisonment and malicious prosecution. (In respect of the last named tort, I did so because Mr. Turner gave an undertaking to have the pending charges against the plaintiff withdrawn. That undertaking was kept by the entry of a nolle prosequi by the second defendant, on the 14th day of May, 1994)


At that time I also indicated that judgment would be entered for the plaintiff for breaches of her constitutional rights under Articles 17, 19(1), 19(2) and 19(3) of the Constitution.


I promised to give my reasons in writing for that decision later and to decide the issue of damages. This I now do; but before doing so, I wish to preface my findings on the facts, especially, with some general observations.


This is the second case of its kind to be tried before me in the space of six weeks. A third such case was not proceeded with at the request of the plaintiff in that case.


In a society like the Bahamian society in the last decade of the twentieth century, a great dual of importance has been, and is being, placed on the need to keep crime under reasonable control. This necessarily means that members of the police force are required to act as their country's first line of defence against would-be law-breakers.


It has always been, and is now recognised that such a task is never an easy one and that it must be performed day and night. It is sometimes carried out in dangerous situations and many times without the society showing any appreciation for the good hard work which the majority of police officers have to do.


In order to ensure that the police are equipped mentally as well as in other ways to combat I crime, it is the responsibility of the executive, of which they are a part, to put in place adequate systems of training and management, as well as sufficient personnel and equipment to get the job done.


As part of their empowerment, the police are given, by the common law as well as by many statutes, powers of arrest without warrant over and above similar powers which every citizen of full age and mental capacity posses.


In exercising those powers, the society requires its police officers to display at least a modicum of its own sense of values in dealing with arrested persons. Any failure on the part of a single police officer to adhere to that standard leads to widespread allegations of police brutality to such an extent that in many cases, where such allegations are made, even if ill-founded and even if the trial judge admits any alleged confession, if such confession is the only evidence against the accused person, he or she often will be acquitted even if he/she is in fact guilty. If he or she is in fact innocent it would raise even more serious questions.


It is therefore doubly disturbing when police officers of the rank of Sergeant and be-low (at the relevant time) are found not only to have acted outside the law they have sworn to uphold and enforce but when their sworn evidence is found by a tribunal of fact to be less than credible. Nevertheless, that is what, not without a great deal of consideration, I found in relation to the majority of the police officers who gave evidence in this case.


I except from that general statement, Sgt. (now Inspector) Rahming, R/Sgt. 94 Bain and Police Constables 701 Woodside and 1295 Smith. Even those 4 police officers, I found, were at least mistaken about certain parts of their evidence—e.g., Constables 1295 Smith and 701 Woodside spoke of the General cell area of the Central Police Station in Freeport, Grand Bahama as having been fatigued, (i.e. cleaned) twice on the 14th August while the plaintiff was in custody there. But there is no mention of that in the diary for that day. Indeed, from the numbers of prisoners who were let in and out of the general call of that station on that day coupled with the fact that the officer-in-charge of the station found it necessary to order that they were not to accept any further prisoners from C.I.D. suggests that it was not feasible to (fatigue) the general cell. There is also a note in that diary that one of the male prisoners (a juvenile) vomited in the cell but there's no record that it was cleaned up, or when it was cleaned up.


Having observed the witnesses for the plaintiff and for the defendants very carefully, listened to everything they said and having read and re-read the relevant parts of the police diaries which were exhibited in this case I found the version of the facts as related by the plaintiff and her witnesses to be far more credible than that related by some of the defence witnesses, some of whom appeared too willing to say anything which they thought would sound convincing even if a small child would understand that what they were saying could not possibly be accurate.


Indeed, some of the entries in the various police diaries (only portions of which were eventually exhibited because those were all the defence deigned to discover) tended to corroborate the plaintiff's evidence about the conditions in the general cell-block area of the Central Police Station. In addition, they corroborate the fact that Sgt. Cartwriglnt (now “Inspector”) ((the first defendant”) had given specific instructions to the police officer in charge of both the Central Police Station ((CPS”) and the Airport Police Station (“APS”) at Freeport International Airport not to allow the plaintiff make any overseas calls or to see anyone.


Even though Mr. Tynes said that at the end of the day on 15th August, 1987, he had become emotionally involved in the plaintiff's cause, his evidence as well as that of Mrs. Tynes confirms the plaintiff's evidence that she was not allowed to make any overseas calls and, that at first Mrs. Tynes was not allowed to visit her at the CPS nor Mr. Tynes at the APS at first. It also confirms that she did not have any real privacy when she had first spoken to Mr. Tynes at CPS.


The Facts


In July, 1987, the plaintiff, who was then a 29 year old school-teacher from California, United States of America, came to Freeport with her father, a diabetic and paraplegic who needed a wheelchair for mobility and who needed special help with his personal hygiene as well as someone to ensure that he received his medication arid meals on time.


They lived in a house, situate at No. 241, Jamaica Avenue, Freeport, (“the house”).


The plaintiff's father, (since deceased) had a friend named Diaz Tribuani who also apparently used to frequent the house.


On Thursday, 13th August, 1987, the plaintiff was at the house alone; her father was out of the country (in England) at the time as was Mr. Tribuani.


The plaintiff had been relaxing by the swimming pool when she heard what she described as a loud banging on the front door. She went to see who it was and looked out of a window which was near the door. She also asked who was there and was informed by the first defendant that it was the police and that she was to open the door.


The plaintiff asked to see some identification and was shown the police “badge” (presumably his warrant card).


The plaintiff then opened the front door slightly keeping it between herself and the three police officers because she was only wearing only a bathing suit at the time.


She says that the policemen then pushed the door open. The 1 st defendant says in effect, that she tried to close the door after she had read the search warrant which he showed her at the door.


In this respect, as in other respects, where the evidence of the plaintiff and that of a defence witness conflicted, I accepted the evidence of the plaintiff in preference to that, of the conflicting defence witness's evidence.


After the police entered the house (to use a neutral term) the plaintiff was told that they had a search warrant and was shown that warrant but she apparently did not read it completely or, having read it, could not understand its import. She then tried to use the telephone in the kitchen but one of the policemen took it from her and slammed it onto its cradle.


She then asked to make a call to R/Sgt. Bain and was permitted to do so by the first defendant. She was advised by Sgt. Bain to let the police search the house. At that point she had not yet been arrested but the police were acting as if she had been.


The plaintiff explained to the policemen that she was just visiting The Bahamas and had no authority to consent to their search of the house. The plaintiff also said that she had no idea what the policemen were searching for or what was going on.


She had asked to be allowed to put on some more formal clothing but this request was refused and when tried to leave the foyer to do so, she was “manhandled” by the police.


An examination of the purported search warrant is instructive but it will be more convenient to examine its contents when I come to deal with the torts of assault and battery.


The 1st defendant, the plaintiff, says, commanded her to accompany the police officers as they went from room to room in the house in their search.


I assumed, in the...

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