Rod Andrew Bethel v The Commissioner of Police
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 28 February 2019 |
| Date | 28 February 2019 |
| Docket Number | 2017/CLE/GEN/00825 |
| Court | Supreme Court (Bahamas) |
IN THE SUPREME COURT
COMMON LAW AND EQUITY DIVISION
The Hon. Madam Justice G. Diane Stewart
2017/CLE/GEN/00825
Mrs. Tanya Wright for the Plaintiff
Mr. Kirkland Mackey and Ms. Lukella Lindor for the First and Second Defendant
Civil Claim — Damages — Malicious Prosecution — Spite — Malice — III Will — Improper Motive — Right to a Fair Trial without delay — Article 20 (1) of the Constitution of The Bahamas — Breach — Right to Protection from deprivation of personal liberty — Compensatory Damages — Vindicatory Damages — Unlawful Arrest — False Imprisonment — Loss of use of vehicle — Loss of Reputation — Loss of Income — Loss of opportunity to sell/dispose of property — Loss of Property
By Amended Writ of Summons filed 17 th July 2017 the Plaintiff, Mr. Rod A. Bethel (the “Plaintiff”) sought exemplary and aggravated damages against the Commissioner of Police with responsibility of the Royal Bahamas Police Force (the “First Defendant”) for the torts of unlawful arrest and false imprisonment and against the First Defendant and the Attorney General (the “Second Defendant”) (collectively referred to as The Defendants”) for the tort of malicious prosecution.
The Plaintiff also sought damages for breach of his constitutional rights as a result of the delay in his prosecution and for the loss of the use of his vehicle which was seized allegedly to obtain evidence as a result of the allegations of the virtual complainant, Ms. Tamara Kemp (the “VC”) that he was present and did not nothing to stop Sgt. Sean Gibson (“Sgt. Gibson”) from sexually assaulting her outside of his vehicle in which they were all travelling when they left a party to purchase cranberry juice.
The Plaintiff and Sgt. Gibson were both acquitted at the end of the criminal trial after Hilton J directed the jury to return a not guilty verdict after acceding to the Plaintiff and Sgt. Gibson's ‘No Case to Answer’ submissions (the “Criminal Trial”).
The Plaintiff claimed that the entry and search of his home and seizure of his vehicle on 15 th November 2009 were unlawful, after obtaining a search warrant maliciously and without probable cause, for the offence of rape pursuant to s. 6 of the Sexual Offences and Domestic Violence Act 1991 (the “Offence”). He also claimed that he was unlawfully arrested by the First Defendant and falsely imprisoned for seventy two hours, then later charged with the offence on 9 th December 2009 and between that date and his acquittal on 6 th April 2017, the Defendants maliciously and without probable cause prosecuted him.
The Defendants, by their Defence raised a preliminary objection that the Plaintiff's claim for constitutional redress was an abuse of process and in violation of Article 28 (2) of the Constitution as other means of redress were available to the Plaintiff.
They denied that the police officers acted maliciously and without probable cause and pleaded that the police officers had reasonable cause to obtain a warrant for the arrest, entry and search of the Plaintiff's home based on a report made by the VC's mother on 15 th November, 2009, who reported that the Plaintiff along with another man had raped her daughter.
The Defendants denied that the Plaintiff was detained for 72 hours and averred that the Plaintiff was only detained for forty eight hours, as his arrest only commenced at 6:45 a.m. when he was taken from his home to Elizabeth Estates Police Station and then to the Central Detective Unit on 15 th November 2009 and ended on 17 th November, 2009. They also denied that he was not charged upon his release and confirmed that he was released pending further investigation.
They maintained that a thorough and proper investigation was conducted which led to a reasonable belief in charging the Plaintiff and consequently caused a Voluntary Bill of Indictment to be made against him. They added that the Plaintiff was treated fairly with dignity throughout his arrest and detention and denied that the subsequent prosecution was either malicious or without probable cause.
The Plaintiff averred that on 9 th December 2009, he along with Sgt. Gibson were charged in the Magistrate Court for the Offence. Thereafter, on 6 th March 2017 the Criminal Trial commenced and upon a No Case to Answer submission made on his behalf, Hilton J directed the jury to acquit him. He further testified that at 7:00 a.m. on 15 th November, 2009 officers along with Officer Collie of the First Defendant, without reasonable and probable cause attended his home at 5:00 a.m. with a search warrant that had been issued based on a complaint made against him with respect to the Offence.
He further averred that the search of his home and subsequent arrest was conducted by six uniformed police officers and also that there were two police vans present which contained fifteen to twenty members of the Flying Squad who were dressed in full combat uniform and armed with high powered weapons.
The Plaintiff stated that the Offence stemmed from a party which he, Sgt. Gibson and the VC attended along with other family members and friends during the evening of the 14 th November 2009 and through to the early hours of 15 th November 2009. The VC had consumed alcohol and smoked marijuana which caused her to pass out and lose control of her bowels and he and Sgt. Gibson had to assist her.
At the Criminal Trial the Plaintiff learnt that the VC along with her mother and her boyfriend attended the Wulff Road Police Station on the morning of 15 th November 2009 and that the VC's Mother, who was not present during the alleged act made the complaint to the officers. He added that he was unaware of the details of the complaint, as they were not disclosed during the Criminal Trial and that the VC's Mother did not make a complaint against him. Accordingly, at the time the search was conducted on his home there was no formal complaint made against him by the VC.
The Plaintiff added that at about 12:15 p.m. on 15 th November, 2009, only after the officers had searched his home, detained his vehicle and arrested him, did the VC make a complaint to a doctor at the Princess Margaret Hospital (“PMH”). By her complaint, the VC stated that she believed that she had been raped by a person, who was not the Plaintiff, whom she specifically named in her statement. However, she was uncertain whether the Offence did in fact happen.
While at PMH the VC had also spoken to an officer of the First Defendant but did not complete her statement until she returned to the Central Detective Unit and in that statement she also did not name the Plaintiff. Therefore, the officers knew that there was no complaint made against him by the VC when he was arrested and detained. They also knew that there was no complaint by the VC even after the Plaintiff stated that he did not rape her and despite this he was further detained for seventy two hours before being released.
When his vehicle was seized and searched by the Defendants, the Plaintiff was informed that it was as a result of an investigation but it was swabbed in connection with the Offence. At the trial and upon hearing the testimony of Sgt. Miller, he became aware that no further evidence had been taken from his car and that no further investigation was conducted which meant that the retention of his vehicle by the Defendants was unlawful and in breach of his constitutional right to protection from the deprivation of his property.
On 9 th December, 2009, the day he and Sgt. Gibson were charged, the Defendants were in possession of the statements of the witnesses which had been taken from 17 th November, 2009 and which never made a direct allegation against him. No further evidence was obtained or considered before charging him in December. The Plaintiff maintained that if there was a reasonable belief that he had committed the offence he would have been charged immediately and not released. On 7 th December, 2009, ASP Marcel Hamilton-Sands, the lead investigator in his matter (“ASP Hamilton-Sands”) saw him at CDU and was surprised that he was being charged as that was not her recommendation to charge him.
The Plaintiff then stated that ASP Hamilton-Sands suggested that Sgt. Gibson should try to speak with the then Commissioner, Mr. Ellison Greenslade. The Plaintiff additionally stated that during his preliminary inquiry, the Defendants continuously requested adjournments as they were awaiting DNA results, even though no sample had been taken from him.
Under cross examination, the Plaintiff confirmed that in his interview he had stated that the VC, while in his vehicle, requested that he pull up so that she could smoke her backwood, to which he agreed. She then got out of the car with her cellular phone which she had been listening to, rested the phone on the top of the car and went to the front of the car and started to smoke. He continued that a few minutes later she started to look faint and then held her stomach as if she was going to vomit while she was leaning on the front side of the car. He further stated that it also appeared as if she was going to fall which caused Sgt. Gibson to get out of the car and helped her by catching her and taking her back to the car. She however, got back out of the car again as she had stated that she wanted to use the bathroom.
The Plaintiff continued that he got out of the car and noticed that she had urinated on herself and was mumbling and he remembered thinking to himself that she was really drunk and that thereafter she went and sat in the back seat of the car which prompted him to question whether or not she was alright. Both he and Sgt. Gibson then got into his vehicle and returned to the party where the VC...
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