Omar Archer Sr. v The Commissioner of Police
| Jurisdiction | Bahamas |
| Judge | Madam Senior Justice Deborah Fraser |
| Judgment Date | 09 February 2024 |
| Docket Number | 2019/CLE/gen/00394 |
| Court | Supreme Court (Bahamas) |
and
Her Ladyship The Honourable Madam Senior Justice Deborah Fraser
2019/CLE/gen/00394
IN THE SUPREME COURT
COMMON LAW AND EQUITY DIVISION
Law of Torts — Assault and Battery — Malicious Prosecution — False Imprisonment — Personal Injury — Unlawful Arrest — Fundamental Constitutional Rights — Articles 15, 17, 19, 20 and 28 of the Constitution — Special Damages — General Damages — Exemplary/Punitive Damages — Vindicatory Damages — Aggravated Damages — Compensatory Damages — Evidence — Standard and Burden of Proof — Cross-Examination — Uncontroverted Evidence
Ms. Raven Rolle for the Claimant
Mr. Kirkland Mackey and Mr. Randolph Dames for the Defendants
This is the trial of an action brought by the Claimant, Mr. Omar Archer Sr. (“ Mr. Archer”) alleging unlawful arrest, false imprisonment, assault and battery, malicious prosecution, breaches of constitutional rights, and personal injury, against the Commissioner of Police (“ COP”) and the Attorney General of the Commonwealth of The Bahamas (“ AG” and collectively the “ Defendants”). He requests various forms of damages for acts allegedly done by officers of the Royal Bahamas Police Force (“ RBPF”).
Mr. Archer is a citizen of The Commonwealth of The Bahamas.
The First Defendant is the Commissioner of Police, an office responsible for the oversight and management of all protocols, policies and mandates regarding the conduct and discharge of duties/functions of members of the RBPF.
The Second Defendant is the Attorney General of the Commonwealth of The Bahamas, whose function is to oversee, review and provide advice, as well as bring and defend any actions in all matters regarding the law and legal policies for the Government of The Bahamas. The office is sued as representing the Government of The Bahamas and its executive branches.
On 07 April 2018, it is alleged that officers of the RBPF wrongfully arrested Mr. Archer at an event at Smuggler's Square (“ Event”). Mr. Archer further alleges that on that same day during the Event, he was verbally threatened, intimidated and physically assaulted by police officers during the course of their employ. He claims that Officer 2989 Corporal Barr (“ Corporal Barr”) was one of the officers who physically assaulted him and who was intoxicated at the time of the incident. He further claims that Corporal Barr hurled a stream of expletives towards him before forcibly and violently grabbing him by his jacket and punching him in the head, stomach and face.
Mr. Archer also alleges that Constable Thurston physically assaulted and used expletives towards him.
He further alleges that on 07 April 2018, after the alleged assault and battery, he was wrongfully detained for several hours by members of the RBPF.
During his incarceration, Mr. Archer claims that he requested an ambulance in order for his leg to be examined. Medics arrived on the scene and transported him to Princess Margaret Hospital. According to Mr. Archer's pleadings, he allegedly sustained a fractured fibula and tibia to his right leg due to the assault and battery of the police officers.
Mr. Archer also claims he was tortured, treated inhumanely and subjected to degrading treatment and punishment by members of the RBPF.
Mr. Archer further claims that on 12 April 2018, he was maliciously and without probable cause charged and formerly arraigned before a Magistrate with disorderly behavior, resisting arrest, use of obscene language and assaulting a police officer. The trial is alleged to have occurred on 09 May 2018 and was subsequently dismissed for want of prosecution on 07 March 2019.
Due to the alleged foregoing events, Mr. Archer brought an action by Generally indorsed Writ of Summons filed on 27 March 2019 and by Statement of Claim filed on 26 February 2020 against the Defendants for inter alia, battery and assault, unlawful arrest, malicious prosecution, false imprisonment, personal injury and breach of his constitutional rights. He claims the following reliefs:
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“ 1. General, exemplary, punitive and aggravated damages;
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2. Special damages;
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3. Compensatory and vindicatory damages under the Constitution by action under the inherent jurisdiction of the Court, by Article 15 and Article 28 of the Constitution;
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4. Such other remedies or relief under the Common Law and/or Chapter 3 of the Constitution as the Plaintiff may be entitled to;
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5. Interest;
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6. Costs; and
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7. Such further or other relief as the Court may deem just.”
The Defendants filed their Defence on 14 September 2020 denying all allegations made by Mr. Archer and put him to strict proof. They also raise a preliminary objection regarding Mr. Archer's constitutional relief claims. I will address this further in my judgment.
None of the Parties filed a Statement of Facts and Issues. Based on my review of the pleadings, the issues can be distilled as follows:
Mr. Archer
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A) Whether the conduct of Corporal Barr and/or Constable Thurston amounts to Assault and Battery?
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B) Whether Mr. Archer's arrest and/or detention on 07 April 2018 were/was unlawful?
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C) Whether the Defendants are liable for malicious prosecution?
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D) Whether Mr. Archer suffered any personal injury?
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E) Whether Mr. Archer's constitutional rights have been infringed due to the conduct of the RBPF?
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F) Whether Mr. Archer is entitled to any damages?
On 30 March 2023, Mr. Archer filed his Witness Statement (“ Archer WS”) which stood as his evidence-in-chief at trial. It provides that: (i) on 06 April 2018, he arrived at the Event where he remained, with family members accompanying him, until his unlawful arrest by a police officer at 2am on 07 April 2018; (ii) while on the stage on the Event, Mr. Archer asked one of the disc jockeys for a microphone, but was told that he could not have it and would not allow Mr. Archer to us it; (iii) Mr. Archer asked the disc jockey why and was told that he simply did not want Mr. Archer on the microphone. He and the disc jockey had an exchange of words, but eventually Mr. Archer came off stage and returned to his family; (iv) Mr. Archer noticed three officers drinking liquor and grew concerned because he believed that they were performing their duties as members of the Police Staff Association and should not be openly drinking at the Event while on duty; (v) he spoke with “Terrible T” (an event promoter) and asked him if he knew the disc jockey who refused to give Mr. Archer the microphone, which he responded in the affirmative and said his name was Sanchez; (vi) he noticed that Sanchez was speaking with a police officer who Mr. Archer later learned was Corporal Barr; (vii) he noticed that Sanchez pointed towards him while speaking to Corporal Barr and was shouting expletives; and (viii) Corporal Barr then came up to Mr. Archer and, hurled expletives towards him, snatched Mr. Archer by his jacket and punched him in the mouth.
The Archer WS also provides that: (i) Corporal Barr unstrapped his gun (which was on his person) and hurled more expletives at Mr. Archer while holding the handle of the gun; (ii) Mr. Archer then attempted to grab Corporal Barr's hand to stop him from drawing the weapon and discharging it in Mr. Archer's direction as he knew the officer was already drinking earlier that night; (ii) Constable Thurston then charged at Mr. Archer and pulled Mr. Archer to the ground; (iii) Mr. Archer was still holding Corporal Barr's wrist, so they both fell when Constable Thurston charged at Mr. Archer; (iv) Mr. Archer stood up, was verbally attacked by Officer Thurston (who used expletives) and was violently removed from the venue by a group of officers; (v) Mr. Archer told them he had a “bad leg” due to an injury suffered 3 years ago; (vi) Mr. Archer's leg recently healed after it started swelling in December 2017 (though no reason for the swelling was stated in the witness statement); and (vii) Corporal Barr then used more expletives towards Mr. Archer and kicked him twice in his bad leg which caused immediate pain throughout Mr. Archer's entire body.
The Archer WS further stated that: (i) officers (no specific names were mentioned) repeatedly punched Mr. Archer in the head, stomach and face; (ii) Corporal Barr struck him extremely hard in his “bad leg”, despite already being attacked by other officers; (iii) His sister, Chinyere, then came to Mr. Archer and informed him that she was punched by Corporal Barr; (iii) Mr. Archer stated there was video footage of the officers' behavior moments ago (though the video footage is not in evidence before this Court); and (vi) Mr. Archer was eventually placed in a holding cell and asked for his foot to be examined as he was experiencing pain.
The Archer WS also provides that: (i) he was transported to the Princess Margaret Hospital; (ii) an X-ray (which is not in evidence before this Court) revealed that Mr. Archer had a fractured fibula and tibia;(iii) Mr. Archer's leg was placed into a cast (though no photos of his leg in a cast was placed into evidence); and after a few hours, Mr. Archer left the hospital and was placed back into a cell; and (vi) Mr. Archer was eventually released from custody and states that he still experiences pain in his right leg.
On 05 April 2023, Corporal Barr filed a Witness Statement (“ Barr WS”), which stood as his evidence-in-chief. The Barr WS provides that: (i) on 06 April 2018, he reported for duty at a Police Staff Association Private Engagement at Smugglers Square in the area of Pirates of Nassau, George Street; (ii) he was stationed there with Constable Thurston and detailed to make and keep secure a restricted area,...
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