The Commissioner of Police v Rod Andrew Bethel
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Roy Jones, JA |
| Judgment Date | 10 March 2022 |
| Neutral Citation | BS 2022 CA 39 |
| Docket Number | SCCivApp. & CAIS No. 59 of 2021 |
| Court | Court of Appeal (Bahamas) |
and
The Honourable Mr. Justice Isaacs, JA
The Honourable Mr. Justice Jones, JA
The Honourable Mr. Justice Evans, JA
SCCivApp. & CAIS No. 59 of 2021
IN THE COURT OF APPEAL
Civil Appeal — Unlawful Arrest — False Imprisonment — Malicious Prosecution — Breach of Constitutional Rights-Whether there is sufficient evidence to establish Loss of Income-Whether Loss of Income considered General or Special Damages
On the 14 th November 2009, the respondent Rod Bethel, along with Sean Gibson were present at a party in which the complainant, Tamara Kemp, was in also in attendance. On the 15 th November 2009, a complaint of rape was made against the respondent and Gibson by Kemp. Based on the complaint, Bethel's home was searched, his vehicle was seized and he was subsequently arrested. On the 9 th December 2009, the respondent and Gibson were charged jointly in the Magistrate Court for the offence of rape. At the trial in the Supreme Court on 6 th March 2017, the trial judge acquitted the respondent. Following the acquittal, the respondent sued the appellants in the Supreme Court for exemplary and aggravated damages for unlawful arrest and false imprisonment and malicious prosecution. The respondent also sought damages for contravention of his constitutional rights. On the 19 th March 2021, the judge found that the first appellant unlawfully arrested and falsely imprisoned the respondent and that the second appellant maliciously prosecuted the respondent. The judge also found that the first appellant breached the respondent's constitutional rights. The judge awarded the respondent $767,000.00 in damages for breaches of the torts and constitutional infringements. On the 27 th April 2021, the appellants appealed this ruling on the grounds that the judge misdirected herself in holding that, inter alia, the respondent Bethel was falsely imprisoned, unlawfully arrested, maliciously prosecuted and that his constitutional rights had been breached. On 24 th September 2021, the respondent cross appealed requesting that, inter alia, exemplary and/or aggravated damages be awarded. On 3 rd November 2021, after hearing the arguments, the Court reserved its decision.
Held: We dismiss the appellants' appeal as to liability on grounds 1–4 and we allow the appeal in part regarding damages on grounds 5 and 6 disallowing the sum of $600,000 awarded for loss of pretrial earnings (special damages). In addition, we dismiss the respondent's cross appeal. As we allowed the appeal in part, we order each party to bear their own costs of the appeal. As the appellants prevailed on the cross-appeal, we make the usual order for costs to the appellants to be agreed or taxed.
An appellate court is reluctant to interfere with an award of damages by a trial judge, unless it takes the view that the judge considered was mistaken in applying the law or the award was manifestly unacceptable given the facts of the case. We cannot say that the judge was wrong in principle or that it did not entitle her to come to the conclusions that she came to on the facts on the grounds of unlawful arrest, false imprisonment and malicious prosecution.
The deprivation of the liberty of any person must be justified. Where a statute provides powers of arrest and detention and the person given the powers exceed or do not comply, they are liable to an action in trespass. Although the judge requested the appellants to produce the search warrant and statement of the complainant, they failed to comply without any credible explanation. This entitled the judge to find unlawful arrest and false imprisonment sufficiently proved on the evidence. The judge cannot be faulted for her findings of fact here.
In the claim for malicious prosecution, the second appellant had a written statement, which made no allegation of rape against the respondent when they charged him, nor was there an allegation of aiding and abetting counselling or procuring the offence of rape. If there were inconsistencies in the statements, the proper thing to do would have been to allow the complainant to explain the differences. In case management, the judge ordered the production of the statements of the complainant into court. The appellants failed to do so. These matters ought to have put the appellants on notice for a thorough review before proceeding with a prosecution. Therefore, it was appropriate for the judge to consider the failure of the appellants to provide the initial report to the police by the complainant together with the identity of the officer receiving the report as supporting evidence of malice. This entitled the judge to find malicious prosecution sufficiently proved on the evidence.
The judge failed to consider that the respondent's pleadings did not support the $600,000.00 in damages for loss of income awarded by the judge. It is settled law that loss of pre-trial earnings can be accurately determined and are special damages. That being so, the claim for loss of income should have been specifically pleaded and proved by the respondent.
Regarding the claim for exemplary damages, a judge must be careful to ensure that there is no double recovery between “basic” and “aggravated” damages for assault, false imprisonment, and malicious prosecution by the police. The authorities make it clear that there should be no award unless it is satisfied that the judge did not meet the punitive or exemplary element within the figure given as compensatory damages. We cannot say that the judge was wrong in principle or that it did not entitle her to come to the conclusions that she came to on the facts in not awarding exemplary or aggravated damages.
Abrath v North-Eastern Railway Co (1886) 11 App. Cas. 247
Attorney General of Jamaica and Superintendent Clinton Laing et al v Roderick Cunningham [2020] JMCA Civ 34
Christie v Leachinsky [1947] A.C. 573
Glinski v. Mclver [1962] A.C. 726
Heeralall v. Hack Bros. (Construction) Co. Ltd (1977) 25 WIR 117, 124
Joan Enetha Butler v The Attorney General [2021] 1 BHS J. No. 5
Juman v The Attorney General of Trinidad and Tobago [2017] UKPC 3
Owen Thomas v Constable Foster and the Attorney General of Jamaica [2006] CLT 095 of 1999
Perestrello e Companhia Lda v United Paint Co Ltd [1969] 1 WLR 570
Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065
Sean Gibson v. The Commissioner of Police Cri/con/516/2016
Takitota v. The Attorney General and others [2009] UKPC 11
Trevor Williamson (Appellant) v The Attorney General of Trinidad and Tobago [2014] UKPC 29
Weldon v Home Office [1990] 3 WLR 465
W/Con 2305 Sweeting, The Commissioner of Police, The Attorney General vs. Atisha Tinker & Omar McPhee SCCivApp No. 50 of 2009
Mr. Kirkland Mackey, with Ms. Raquel Whyms and Ms Karine MacVean, Counsel for Appellants
Ms. Tanya Wright, Counsel for Respondent
Judgment delivered by The Hon . Mr. Justice Roy Jones, JA
Rod Bethel (“the respondent”) brought an action before Stewart J, (“the judge”) in the Supreme Court against the Commissioner of Police (“the first appellant”) for exemplary and aggravated damages for unlawful arrest and false imprisonment and the Attorney General of the Bahamas (“the second appellant”) for malicious prosecution. The respondent also sought damages for contravention of his constitutional rights arising from the delay in his prosecution and for loss of the use of his vehicle, which was confiscated by the police.
At the end of the trial, the judge made two findings. First, that the first appellant unlawfully arrested, and falsely imprisoned, the respondent. Second, that the second appellant maliciously prosecuted the respondent. The judge also found that the first appellant breached the respondent's constitutional rights. Arising from these findings, she awarded the respondent $767,000.00 in damages for breaches of the torts and constitutional infringements. The appellant has appealed this ruling by the judge.
On 14 th November 2009, the respondent, along with Sgt. Gibson (“Gibson”) was at a party in which Tamara Kemp (“the complainant”) along with other family members, was in attendance. The complainant drank alcohol and smoked marijuana, which caused her to pass out and lose control of her bowels. The respondent and Gibson tried to assist the complainant at the time.
On the 15 th of November 2009, the complainant reported that the respondent and Gibson raped her. On Sunday 15 th November 2009 at 5:50 a.m. Sgt. Collie (“Collie”) an officer of the first appellant, received information about a complaint of rape made against the respondent. Acting on this information, Collie prepared a search warrant and, together with other officers, visited the respondent's residence at Twynam Heights. The respondent answered the door and Collie identified himself as a police officer, informed the respondent of the complaint of rape made against him and arrested and cautioned him. The respondent denied the offence and Collie, together with the other officers, searched the premises. The officers found a charcoal grey phone on the right side of the glass near the back trunk of the respondent's car. The respondent being told of this denied knowledge of the phone in his car but said, “That's Tammy's phone.” They took the respondent to the Elizabeth Estates Police Station and placed him in custody. The police arrested and detained the respondent later that day at 1:00 p.m., seven hours after ASP Marcel Hamilton-Sands, the investigating officer, saw and spoke with the complainant Tamara Kemp about her complaint of rape.
On the 9 th of December 2009, officers of the first appellant charged the respondent and Gibson jointly in the Magistrate Court for the offence of rape. At the trial in the...
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