Mervin McKinney v R/Inspector 117 Pertin Moss

• Jurisdiction: Bahamas
• Judge: Winder, CJ
• Judgment Date: 20 June 2023
• Docket Number: 2020/CLE/gen/00389
• Court: Supreme Court (Bahamas)

BETWEEN

Mervin McKinney

Plaintiff

and

R/Inspector 117 Pertin Moss

First Defendant

and

The Commissioner of Police

Second Defendant

and

The Attorney General

Third Defendant

Before Hon. Chief Justice Sir Ian Winder

2020/CLE/gen/00389

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

Common Law and Equity Division

Appearances:

Byron Woodside for the Plaintiff

Randolph Dames for the Defendants

Winder, CJ

In this action, the Plaintiff (McKinney) claims injury and damage arising from an alleged assault which is said to have occurred on 29 August 2019.

Background

1 The nature of the McKinney's complaint is set out in paragraphs 1-11 of his Statement of Claim, which provides as follows:

• 1. The Plaintiff was born on the 11 ^th day of May, A.D., 2004 and at the material time, was an active 15 year old student attending the Government High School. He was physically fit and exercised regularly.

• 2. The 1 ^st Defendant is a Reserved Inspector of Police in the Royal Bahamas Police Force, the Agency of the Government of The Bahamas responsible for the enforcement of law and order.

• 3. The 2 ^nd Defendant is the Commissioner of Police who is charged with the superintendence, direction, control and discipline of the Royal Bahamas Police Force for The Commonwealth of The Bahamas of which the 1 ^st Defendant is a member.

• 4. The 3 ^rd Defendant is the Attorney General for The Commonwealth of The Bahamas.

• 5. On the 29 ^th day of August, A.D. 2019, the Plaintiff was walking with his friends on Reeves Street, Montell Heights on their way home. They were not interfering with anyone nor were they an annoyance to, hindrance to, hostile towards or walking in a manner to raise suspicion.

• 6. Without provocation, the 1 ^st Defendant who was about thirty (30) feet away from the Plaintiff and his friends charged towards them shouting “get from around here!”

• 7. The Plaintiff, believing that the 1 ^st Defendant was referring to someone else, did not respond or run away from the 1 ^st Defendant.

• 8. The Plaintiff subsequently realized that the 1 ^st Defendant was charging at him and tried to get away.

• 9. However, it was too late and the 1 ^st Defendant withdrew his police baton and struck the Plaintiff to his left side with full force. The Plaintiff heard something crack and ran a short distance away but was unable to go no further.

• 10. The Plaintiff felt excruciating pain below his waist and leaned against a nearby building. His friends helped him and he called his mother who immediately took him to the Princess Margaret Hospital. By this time, the pain had gotten much worst and the Plaintiff began to cry for immediate help and relief.

• 11. The Plaintiff was seen by doctor who ordered an x-ray of the area. The x- ray revealed that the Plaintiff suffered a broken Pelvis.

2 The Second Defendant is said to be vicariously responsible for the actions of the First Defendant (Moss). The Third Defendant is joined pursuant to the Crown Proceeding

Act.

3 The kernel of the Defence is to be found in paragraphs 7 thereof:

• 7. The First Defendant vehemently denies the assertions contained in Paragraph 6 of the Statement of Claim and say further in reply that:-

  • a) There is no police officer named “Pertin Moss” employed with the Royal Bahamas Police Force.

  • b) That there is however a Pertlin Moss employed with the Royal Bahamas Police Force.

  • c) That at the time of the alleged incident the First Defendant was an Assistant Superintendent of Police with the Royal Bahamas Police Force.

  • d) That at the time of the alleged incident the First Defendant was 71 years old and in no physical condition to charge at anybody.

  • e) At the time of the alleged incident Pertlin Moss was stationed at the Elizabeth Estates Police Station and therefore had no reason to be in the Montell Heights area which is not within the parameters of his station. That further the Montell Heights area is under the remit of the Grove Police Station.

  • f) The First Defendant was never, nor did he ever have any reason to be engaged in foot patrol in the Montell Heights area. That in fact the First Defendant has not engaged in foot parol duties for many years.

  • g) That the First Defendant does not carry a baton neither did he carry a baton on the date of the alleged incident. That further the First Defendant has not carried a baton since 1971 to present date.

  • h) The First Defendant vehemently denies being involved in the alleged incident and is shocked that the Plaintiff would name him in this action. That further he is totally unfamiliar with the Montell Heights area and can not (sic) recall ever being in the Montell Heights area, certainly not for police duties.

Evidence

4 At trial, McKinney gave evidence and called Johnathan Gardiner (Johnathan) and Latoya McKinney (Latoya) as witnesses in his case. Moss gave evidence on behalf of the Defendants.

McKinney's evidence

5 The witness statement of McKinney was filed on 13 September 2022 and admitted as his evidence-in-chief. He was subject to cross-examination.

6 McKinney said in his witness statement inter alia that:

i) at the material time he was an active 15 year old student enrolled at the Government High School participating in track and field.

ii) on 29 August 2019 he was walking with friends Joshua Charlton, Martin Burrows and Jonathan Gardiner on Reeves Street, Montel Heights.

iii) while walking he heard Joshua tell him to “watch out”. When he looked around a police officer in khaki uniform was right upon him. He had his hand raised with a baton in his hand.

iv) before he could get away the officer yelled “you all get from around here” and he forcefully hit him on his left side with the baton. He heard something crack and he tried to run. He felt tremendous pain which began to get worse and worse.

v) he called his mother and caught the bus to her to her work at Naomi Christie Center, Zion Blvd. He was taken to the hospital and seen by a doctor, who diagnosed him with a broken pelvis. He eventually underwent surgery to repair his broken pelvis.

vi) he was released from hospital after a month but was unable to complete school. He continues to feel pain as a result of the injury and is unable to perform activities which he enjoyed prior to the incident.

vi) the police officer who hit him was 5' 10”, average built, brown complexion and appeared to be 50 years of age. After he hit him, he saw him get into a white Nissan Murano four door jeep. While he was waiting on the bus the policeman came at them again. He wrote the license plate number down of his car which was AL5174 which he gave to his mother.

vii) on 6 January 2020 whilst he was headed towards the Princess Margaret Hospital he saw the same police officer in a black Nissan Murano with the same licence plate number and coming out of the police barracks on East Street.

7 In cross-examination, McKinney said or accepted inter alia that he was not on East Street when he saw the Moss on the 6 ^th January 2020 but on the corner of Shirley and Elizabeth Avenue.

Johnathan's evidence

8 Johnathan's witness statement was filed on 22 September 2022 and was admitted as his evidence-in-chief. He was subject to cross-examination.

9 Johnathan stated in his witness statement inter alia that:

i) at the material time he was a 15 year old...