Citation: BS 1994 SC 56

Title: MERSON v. CARTWRIGHT ET AL

Country: Bahamas
Court: Supreme Court
Suit no.: No. 1131 0f 1987
Judge(s): Sawyer, J
Date: June 22, 1994
Subject: Constitutional law
Subsubject: Fundamental rights and freedoms - Article 17 (1) - Inhuman and degrading treatment or
punishment - Pratt and Morgan v. AG of Jamaica Privy Council Appeal No. 10 of 1993 considered.

A Appearances:
Mr. F.R.M. Smith with Ms. P. Bridgewater
and Mr. H.O. Tynes for the plaintiff
Ms. M. Bethell, with Ms. Judith Smith and
Mr. E. Turner for the defendant.

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withdrawn.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 [end of page 1] 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 [end of page 2] 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
Afatigue@ 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 [end of page 3] 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") (Athe first defendant") had given specific
instructions to the police officer in charge of both the Central Police Station ( ACPS") 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 [end of page 4]
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 [end of page 5]
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 police officers= favour, that there may well be many good reasons for requiring
any person who is present at any premises which is to be searched, to accompany the officers during the
search not least being the need for self-protection of the police officers themselves against allegations of
wrongdoing.
In this case, if the search warrant had been issued properly under section 12 of the Banks and
Trust Companies Regulation Act (Ch. 287) ("Ch. 287") the police officers would have had the power to
search not only the house but any person in it or who was entering or leaving it at the time [end of page
6] when they executed the warrant. This is on the assumption that section 12 of Ch. 237 is intra vires
Article 21 of the Constitution.
While in her bedroom, the first defendant searched through the plaintiff's clothing including her,
unmentionables and found some documents in that room but he still would not permit her to change out
of her bathing suit at that point.
It was apparently while they were in that room that the plaintiff exhibited what she described as
"bit of an attitude" and said that she would go to a police station the following day and take her passport
along.
She was subsequently arrested by the first defendant who also seized her passport.
By this time the plaintiff was obviously upset and she again asked to be permitted to change her
clothing. The first defendant told her she could have two minutes in the bathroom in which to change and
that if she was not out in that time, he, the first defendant, would kick the door down.
That threat had the effect of causing further stress to the plaintiff who was on medication for a
back problem and who had a tendency to hypoglaecaemia. One of the side effects of that medication
was diarrhea - which probably explains Mr. Tynes' evidence that when he saw her the following evening
she "stank".
The plaintiff said that the first defendant never, told her why he was placing her under arrest. The
first defendant Inspector Rahming and Cpl. Cash all say that he did tell her that she was under arrest for
breaches of Ch. 28'j however not in those express terms. However, I found the plaintiff =s evidence about
that more credible than that of the defence witnesses not only because of her demeanour but also
because if the first defendant knew at that time what he was arresting the plaintiff for, he should have
had no difficulty informing Mr. Tynes what she was arrested for. [end of page 7]
Further, the 1st defendant claimed to have found a cover sheet for a telefax message from the
plaintiff to her father while searching in her bedroom; yet at one point he also claimed that she did not
give her name when he first requested it. I was satisfied that the telefax cover sheet was not found by the
first defendant at the house but at C.I.D., the following day when the first defendant and others examined
the contents of the boxes of documents seized in the house.
The first defendant also claimed that the plaintiff was cautioned and made a statement to the
effect that she assisted her father in the operation of an illegal bank while at the house. Inspector
Rahming heard no such statement and he was present in the same location with the plaintiff as was the
first defendant. Even allowing for the lapse of over 6 years since the incident occurred, I was satisfied
that the first defendant was not telling the truth about; any alleged statement. In addition, his report dated
16th August, 1987 shows that he unsuccessfully attempted to interview the plaintiff later that same
afternoon (i.e. on the 13th August, 1987, while she was at Criminal Investigation Department before
being transferred to the CPS)
I was also satisfied that the first defendant did not tell the plaintiff what she was being arrested
for until Saturday, the 15th August, 198 7, more than 48 hours after she had been arrested. At that time,
when she had again been taken to Criminal Investigation Department, and in the presence of Mr. Tynes
who admitted to almost harrassing the police generally and the 1st defendant particularly, to find out why
the plaintiff had been arrested, the first defendant said that the plaintiff was charged with offences
contrary to section 3(1) and 3(3) of Ch. 287.
 There was one item of evidence which suggested that the [end of page 8] police may have told
the plaintiff the reason for her arrest prior to 15th August, 1987. That is an entry in the CPS diary for the
13th August, 1987 which says that the plaintiff had been brought to that station by the first defendant on
suspicion of operating "an illegal bank".
I was satisfied that even if the first defendant did inform the officer-in-charge of the CPS that that
is why the plaintiff was being held, the plaintiff had no knowledge of that. After the plaintiff had changed
into more appropriate clothing, crying all the while, she was "escorted" to the police vehicle by the first
defendant, inspector Rahming and Cpl. Cash. I accepted the plaintiff's evidence that two of those men
held her upper arms as they escorted her to the car even though they all denied it.
Before they left the house, the man who used to service the swimming pool for the plaintiff and
her father, came to the house and seeing the plaintiff's situation wanted to know what he was to do about
cleaning the pool. One of the police officers, said that he could not service the pool because they were
taking the plaintiff to "jail". He apparently made a joke of that statement because he was laughing when
he said it.
By this time, the plaintiff said and I accepted as accurate, that she was feeling humiliated, scared
and she was, crying because of all that had happened.
She also asked to be permitted to make arrangements for the welfare of the dogs but was not
permitted to do so.
While in the car on the way to CID she was taunted by the 1st defendant who asked her, "Why
are you crying little girl?" and when she told him it was because she had never been arrested before and
was scared, the 1st defendant laughed.
She was taken to CID at Peel Street, Freeport where she was made to sit on a bench for over an
hour at least before she was taken from there to CPS by the 1st defendant. [end of page 9]
It is to be noted that for all the time the plaintiff was in custody of the police she was never
guarded or escorted by any female officer.
At CPS, P.C. Pratt took the plaintiff's purse from her and placed it under his desk. That was
another matter on which all of the police officers' who gave evidence seemed to be unable to recall what
transpired and up to the close of the trial, the defendants had still not made discovery of the "lock -up"
register of the CPS in which the securing of the plaintiff's personal belongings should have been
recorded.
At CPS, the plaintiff was placed in an L-shaped cell block area ("the general cell") which had
three smaller "holes" - to borrow the name used by Mr. Turner - opening into it. The only ventilation into
the general cell was through a small hole in the solid door and the only ventilation into the "holes" were
through similar holes in their respective doors.
This was, of course the middle of August, 1987 which is normally one of the hottest months of
the year in The Bahamas when the humidity is also usually very high. The photographs exhibited during
the trial clearly show the small size of the general cell as well as the holes. However, the other openings
in the general cell which are shown on the photographs and the "holes". I was satisfied were either not in
existence in August, 1987, or if in existence, had been deliberately sealed shut, no doubt for security
reasons.
When the plaintiff was first placed in the general cell, she met two women and a man there. The
two women tried to comfort her. Those women had been eating some food and when they were taken out
of the cells some time afterwards, they simply left the boxes in which their food had been brought, in the
general cell.
The man who had been in that general cell when the plaintiff was first brought there was also
taken away later that same evening. [end of page 10]
The plaintiff was therefore in the general cell alone for a time. As she said herself, she was
feeling sorry for herself; she was hot and sweating and was nauseated by the stench in the general cell;
she was not permitted to use the bathroom when she first asked to do so. She was wretched indeed. One
bright spot was the visits of R/Sgt. Bain that evening. When the plaintiff complained; to him of being
thirsty, he left and returned bringing her two tins of soda which she was compelled to drink at once.
He appeared to have been able to enter the general cell while the plaintiff was there alone, and
he stood just inside the cell door while that door remained ajar.
Because of her weeping, the plaintiff had to remove her contact lenses and when she asked for
her handbag to get her medication and her glasses, her request was not only refused but she was told in
effect that she had better behave herself.
When she was eventually allowed to use the bathroom later, that night, there was standing water
on the floor, the water closet was blocked and had overflowed, there was no tissue and no water or soap
with which to wash her hands.
Still later that night, two juvenile males were placed in the general cell along with the plaintiff and
they told her that if she didn't "behave", while the police officers may not have beaten her they would
beat them. The plaintiff believed them because she had seen how the police had treated a man who had
snatched her mother's purse while they were on an earlier visit to The Bahamas. The juveniles also made
remarks about the possibility of her being raped by the police officers or by them. Those remarks made
her fear for her safety.
A friend of the plaintiff's had apparently heard about her plight and had brought a blanket and
pillow for her but she was not allowed to see the plaintiff.
She spent that night without sleeping for fear of a [end of page 11] perceived threat to her
personal safety and because of the uncomfortable nature of the accommodation.
It is to be noted that one of the police witnesses, who gave evidence to the effect that the two
juveniles were locked in separate "holes" - that is, they were not in the general cell with the plaintiff -
because they had been arrested for attacking each other, while another said they had been arrested for
something different.
I was satisfied that whatever the reason for the arrest of the juveniles, they normally should not
be looked up with adults of either gender and that they were never locked into any of the "holes". That
was said, in my view, because the police officers realized by the time of the trial at any rate, that it was
illegal to lock up male and female prisoners in the same cell.
In that regard, even P.C. 1295 Smith (who I found to be generally truthful) was no doubt;
rationalising the events of the 14th August, 1987 when he said that the plaintiff had been taken out of the
general cell while more than 10 male prisoners were in that cell because of the heat and other conditions.
If that were so there would have been no need to get the plaintiff from the cell when Mr. Tynes visited
her.
But to return to the night of 13th August, 1987; the plaintiff could not get comfortable on either of
the very narrow benches and later during the night the cockroaches which, no doubt, had been attracted
by the remains of the two women's food (mentioned earlier) made a nuisance of themselves by getting
even into the plaintiff's hair and trying to get into her mouth and ears.
While the two juveniles were taken out of the general cell at sometime during the following day,
they were replaced by more than 10 males only one of whom, a man with wet cement on his hands, was
placed in one of the holes where he continued to [end of page 12] create a disturbance until he was
taken out.
The 14th August, 1987 was a Friday with the result that a number of prisoners on remand were
brought to CPS from Nassau for appearance at the Magistrate's Court in Freeport and they were placed
in the general cell when they were not at Court.
Because of an apparent. shortage of manpower, the police officers on duty at CPS, that day were
unable to escort prisoners to and from the single bathroom dedicated to their use, as and when required.
This resulted in one prisoner (one of the juveniles) vomiting in the cell and one or more of the
others, defecating on the floor of the cell at the bottom part of the L-shaped general cell.
There was viva voce evidence to suggest that the cell block of CPS was cleaned at least twice
on 14th August, 1987, while the plaintiff was in custody at that station. However, the station's diary is
silent about that and I was informed by a defence witness from the witness-box that where the cells are
"fatigued" an entry would normally be made in the stations diary to that effect. In the absence of such an
entry and on Mr. Tynes and the plaintiff's evidence, I found as a fact that the general cell was never
cleaned while the plaintiff was incustody and the only attempt to do so was at her instigation towards the
end of her enforced, stay there late on the evening of 14th August, 1987 because she had asked her
friend who was subsequently allowed to see her, to bring some disinfectant and had asked the officer for
a broom, mop and pail.
As mentioned earlier, the conditions in the general cell at CPS that day were such that the officer
in charge ordered that no further prisoners be accepted from CID.
Sometimes during the morning of the 14th August, 1987, Mrs. Ingrid Tynes, a counsel and
attorney, went to the CPS to see the plaintiff but was told that she could not see her because [end of
page 13] of the 1st defendant's specific instructions to that effect. This she said was done in a hostile
manner.
It was only after one of the police officers telephoned Inspector Rahming at CID and was told
that the plaintiff should be allowed to see her attorney that Mr. Tynes was able to see her later that
evening.
In the meantime, a pregnant female was also locked into the cell along with the plaintiff and the
more than 10 males. The plaintiff got up and allowed her to sit in her stead.
According to the plaintiff she was not fed by the police while in custody at CPS although later
that day she received some food which her friend had brought for her.
The plaintiff's request to be allowed to make a telephone call to her father was denied.
When Mr. Tynes was allowed to see the plaintiff on the evening of 14th August, 1987, he said
that she was virtually hysterical (my words) and that he had to spend a great part of the time just trying to
get her to calm down and to get her to understand that he was on her side. He confirmed treat the room
in which he interviewed the plaintiff was traversed several times while they were there by police officers.
Mr. Tynes also said that when the door to the general cell was opened while he was waiting to
see the plaintiff he noticed two male figures just inside the door to the general cell, one of whom was
wearing "dreadlocks".
The police generally denied that there were any male prisoners in the general cell and thereby
inviting me to find that they behaved even more inhumanly by locking as many as three or more adult
males in each of the "holes" which can barely accommodate a single average-height male - especially at
the height of the summer.
Mr. Tynes also said that when he tried to find out on what charges the plaintiff was being held, he
was not, at [end of page 14] first, informed of any charges and he only learned what the charges were
late on 15th August, 1987.
Mr. Tynes reported the matter to the officer-in-charge of the Grand Bahama District at the time
and he persisted in his efforts to find out what were the charges on which the plaintiff was being held and
to ameliorate the conditions of her imprisonment without success as to the until 15th August, 1987, and
as to the second, late on the evening of 14th August, 1987.
The plaintiff, after being heartened a bit, apparently by the visits of Mr. Tynes and her friend,
requested cleaning utensils with which to clean up the general cell.
That work lead just begun when the 1st defendant came to CPS and took her away to what she
later realized was the APS.
Before leaving this narrative about the occurrences at CPS, it should be mentioned that while the
police officers say that the prisoners were fed, the diary does not reflect that fact nor that the plaintiff was
fed while there. All I have seen, suggests merely that breakfast was ordered.
At the APS, the plaintiff found the physical conditions of her imprisonment much improved
because she did not have to share a cell with so many other persons of either gender and it was cooler.
Also, the officer-in-charge of that station treated her with more Courtesy than she had previously at CPS.
Nevertheless, even there when she needed to use the bathroom, she was again escorted by a
male police officer and she had to leave the door to the bathroom ajar while she used it. Also there was
no light bulb in the bathroom.
The same instruction which the first defendant had given at the CPS not to allow anyone to see
the plaintiff and not to allow her to make any overseas calls was given to the officer-in-charge of the APS
so that when Mr. Tynes first tried to see the plaintiff at that station, he was not permitted to do so. [end of
page 15]
Mr. Tynes confirmed that following the plaintiff's, transfer to the APS she looked much better than
she had while at CPS.
The following day, i.e., the 15th August, 1987, the plaintiff was taken by the first defendant to CID
where she remained for several hours. The plaintiff and Mr. Tynes say that during that time Mr. Tynes
kept on trying to find out what the charges were on which the plaintiff had been arrested but was unable
to find out what they were until late in the evening of the 15th August, 1987 when the 1st defendant,
apparently after consulting then ASP Yearwood, told them she was charged with offences under s.3(1)
and 3(3) of Ch. 287.
The first defendant's report of 26th October, 1987, states that the plaintiff was charged with the
said offences at 3:30 p.m. after the expiry of 48 hours after her arrest but that she was not immediately
released from custody because she had difficulty meeting the bail conditions. This is pleaded in the
amended defence as well. But clearly that could not be so for C.I.D. diary for the period shows that Mr.
Tynes and the plaintiff were there from 5p .m. until 9p.m. and if the plaintiff was charged in Mr. Tynes'
presence as the first defendant later wrote, then it could not have been done at 3p.m. or shortly after.
While at C.I.D., the plaintiff was fingerprinted and photographed. She was "escorted" by Sgt.
McCoy who, in the witness-box denied having anything to do with the plaintiff on that day. However, Mr.
Tynes, who indicated that he was well-acquainted with Sgt. McCoy, confirmed the plaintiff's evidence that
when she returned from having her photographs and fingerprints taken, that she complained to Mr. Tynes
in the presence of Sgt. McCoy that he, McCoy, had called her a "fat a B b----" and a "hC". In addition, the
entries [end of page 16] in C.I.D.'s diary show that Sgt. McCoy was indeed on duty that the material time.
At first the police demanded a $2,000.00 cash bail from the plaintiff which they knew or ought to
have known would have been difficult, if not impossible, to raise late on a Saturday evening. Next they
asked for a local surety, well knowing that the plaintiff was a foreign visitor to Freeport.
As a result of all this, the plaintiff was not released on bail until some 57 hours after she was
arrested.
The first defendant, in his report dated 19th November 1987, said that the plaintiff was charged
around 3:30p.m. on 15th August in the presence of her lawyer, Mr. Tynes, and that she was only released
as late as she was in fact released because of her difficulty in meeting the conditions of bail (that is a
paraphrase of his report). It is to be noted that in his report dated 16th August, 1987 he had said she was
charged at APS.
However, C.I.D.'s diary for that day shows that Mr. Tynes did not arrive at C.I.D. until 5p.m. and
that he left C.I.D. around 9p.m. that day. If he arrived at 5p.m. as the diary states and he left at 9p.m., he
could not have been present when according to the 1st defendant, the plaintiff was charged by the 1st
defendant yet the 1st defendant's reports state that he was present at that time.
After she was released on bail, the plaintiff had to appear at the Magistrate's Court in Freeport to
be arranged on 20th August, 1987. She pleaded not guilty to the charges and the case was adjourned
presumably for trial.
It appears that the charges on which she was arraigned before the Magistrate in Freeport are as
follows:-
"COUNT #1
Carrying on Banking Business Within the Commonwealth of the Bahamas Without a Valid
Licence: Contrary to Sections 3(1) and 3(3) of the Bank and Trust Companies Regulations Act,
1965.
Particulars Are:
That you sometime between April 24th, 1987 and August 10th, 1987, at Freeport, Grand
Bahama, being a Company incorporated in the Commonwealth of the Bahama, by the name of
Transcom B & T Ltd., did transact banking business from within the Commonwealth of the
Bahamas without a valid licence granted by the Minister authorising you to carry on such
business.
COUNT #2
Making a Representation in Letter Heads and Paper in a Manner That a Company Is Carrying on
Banking Business: Contrary To Sections 6 (1)(B) and 6(6) of the Bank and Trust Companies
Regulations Act, 1.965.
Particulars Are:
That you sometime between April 24th, 1987 and August 10th, 1987, at Freeport, Grand
Bahama, being a company incorporated in the Commonwealth of the Bahamas by the name of
Transcom B & T Ltd., did make representation in letter heads and paper of Transcom B & T Ltd.
in a manner that the said company is carrying on banking business from within the
Commonwealth of the Bahamas without the approval of the Minister.
COUNT #3
Making a Representation in letter Heads and Paper in a Manner That a Company Is Carrying on
Trust Business: Contrary To section 6(1)B and 6(6) of the Bank and Trust Company's Regulations
Act., 1965.
Particulars Are:
That you sometime between April 24th, 1987, and August 10th, 1987, at Freeport, Grand
Bahama, being a company incorporated in the Commonwealth of the Bahamas by the name of
Transcom B & T Ltd., did make representations in letter heads of Transcom B & T Ltd. in a
manner that the said company is carrying on trust business from within the Commonwealth of the
Bahamas without the approval of the Minister.
COUNT #4
Using the Word ' Bank' in the Description of a Company to Carry on Business from Within The
Commonwealth of the Bahamas: Contrary To Sections 6(1)A and 6(6) of the Bank and Trust [end
of page 18] Companies Regulations Act, 1965.
 Particulars Are:
That you sometime between April 24th, 1987, and August 10th, 1987, at Freeport, Grand
Bahama, being a company incorporated in the Commonwealth of the Bahamas by the name of
Transcom B & T Ltd., did make use of the word 'Bank' in the description of the said company to
carry on business from within the Commonwealth of the Bahamas without the approval of the
Minister."
That was done, presumably, pursuant to a fiat issued by the Attorney-General on 18th August,
1987 under section 13 of Ch. 287. That fiat read:-
"Office of the Attorney General
P.O. Box N-3007
Nassau, Bahamas
18th August, 1987.
FIAT
"I, Paul Lawrence Adderley, Attorney General of the Bahamas do hereby in accordance
with section 13 of the Banks and Trust Companies Regulation Act 1965 authorise that
proceedings be instituted against TAMARA CLARK MERSON for offences Committed under
section 6 of that Act.
And this Shall Be My Fiat
P. h. AdderIey
Attorney-General"
The plaintiff was subsequently arraigned before the Stipendiary and Circuit Magistrate sitting in
Court; No. 3 in Nassau on 1st September, 1987 on the following charges:- [end of page 19]
"COUNT #1.
Abetment to the Use of the Word 'Bank' in the Description of a Company to Carry on Business
from Within the Commonwealth of the Bahamas: Contrary to Section 86 (1) of Chapter 48,
Section 6(1) a and 6(6) of the Bank and Trust Companies Regulations Act, 1965.
Particulars Are:
That you sometime between July 12th, 1987 and August 13th, 1987, at Freeport, Grand
Bahama, did directly aid in the use of the word <Bank' in the description of a company Transcom
B & T Ltd. to carry on business from within the Commonwealth of the Bahamas without the
approval of the Minister.
COUNT #2
Abetment to the Use of the Word 'Trust' in the Description of a Company to Carry on Business
from Within the Commonwealth of the Bahamas: Contrary to Section 86(1) of Chapter 48,
Sections 6(1)A and 6(6) of the Bank and Trust Companies Regulations Act, 1965.
Particulars Are:
That you sometime between July 12th 1987, and August 13th, 1987, at Freeport, Grand
Bahama, did directly aid in the use of the word 'Trust' in the description of Transcom B & T Ltd. to
carry on business from within the Commonwealth of the Bahamas without the approval of the
Minister.
COUNT #3
Abetment in the Making of a Representation in Letter Head in a Manner That a Company Is
Carrying on Banking Business: Contrary to Section 86(1) of Chapter 48 and Sections (6)(1)B and
6(6) of the Bank and Trust Companies Regulations Act, 1965.
Particulars Are:
That you sometime between July 12th, 1987 and August 13th, 1987, at Freeport, Grand
Bahama., did directly aid in making a representation in a letter head of the company Transcom B
& T Ltd, in a manner that the said company is carrying on Banking Business from within the
Commonwealth of the Bahamas without the approval of the Minister.[end of page 20]
COUNT #4
Abetment in the Making of a Representation in a Letter Head in a Manner That a Company Is
Carrying on Trust Business: Contrary to Section 86(1) of Chapter 48 and Section 6(1)b and 6(6)
of the Bank and Trust Companies Regulations Act, 1965.
Particulars Are:
That you sometime between July 12th, 1987 and August 13th, 1987, at Freeport, Grand
Bahama, did directly aid in making a representation in a letter head of the Company Transcom B
& T Ltd. in a manner that the said company is carrying on Trust Business from within the
 Commonwealth of the Bahamas without the approval of the Minister.
That was presumably done under the authority of another fiat issued by the Attorney-General on
18th August, 1987. That second fiat read:-
"Office of the Attorney General
P.O. Box N-3007
Nassau, Bahamas
18th August, 1987.
FIAT
"I, Paul Lawrence Adderley, Attorney General of The Bahamas do hereby in accordance
with the proviso to subsection (4) of section 3 of The Magistrates Act (Chapter 6) authorise that
proceedings be instituted before a Stipendiary and Circuit Magistrate at Nassau against TAMARA
CLARK MERSON for offences committed under section 6 of The Banks and Trusts Companies
Regulations Act, 1965.
And this Shall Be My, Fiat
P. L. Adderley
Attorney-general
I shall return to the manner of charging the plaintiff when I deal with the issue of malicious
prosecution. The plaintiff again pleaded not guilty to the charges and the matter was apparently
adjourned to 28th December, 1987. On that date the plaintiff did not return because she said that her
father had died in the meantime and she was afraid to return to The Bahamas where she might again be
arrested by the police and subjected to similar treatment to that which she had already experienced.
A warrant of arrest was issued for her by the magistrate at Court No. 3 but it was not executed.
On 24th August, 198'7, Mr. Tynes made a formal complaint on the plaintiff =s behalf to the officer-
in-charge of the Grand Bahama district of the Royal Bahamas Police Force by a letter which reads:-
"Mr. Dencil Types
Officer In Charge
Grand Bahama District
Royal Bahamas Police Force
International Building
Freeport, Grand Bahama
Dear Mr. Tynes,
Re: Tamara Merson
"At the, request or Tamara Merson I am enclosing a copy of an account of her
incarceration by police officers at Freeport between the 13th August and 15th August, 1987.
I am of the opinion that Ms. Me.rson's arrest and detention were without a legal basis
and I shall shortly begin civil proceedings against the officers concerned.
I am also forwarding copies of Ms. Merson's account to the commissioner of Police and
the Director of Legal Affairs.
Yours sincerely,
TYNES & TYNES
Harvey O. Tynes
HOT/cc
cc. The Commissioner of Poilce
The Director of Legal Affairs.@ [end of page 22]
In so far as the defendants' position is that the plaintiff may have concocted any part of her
evidence, I allowed the enclosure to Mr. Tynes' letter to be introduced into evidence since it was written
shortly after the incident and had been forwarded to the police under cover of Mr. Tynes' letter of 24th
August, 1987.
What the plaintiff wrote in that "report" or aide memorie is clearly what she said in the
witness-box and if there were any differences between the two they were so minor as to be insignificant.
As a, result of that complaint, the police officers involved were apparently required to write
reports. Two of the 1st defendant's reports are dated subsequent to the date of Mr. Tynes' letter of 24th
August, 1987 and one prior to that is, the one dated 16th August, 1987.
In his report of 26th October, 1987, the 1st defendant wrote - . . ."to my knowledge, the subject
was treated with the utmost Courtesy until her release on bail". . . This was written by the very police
officer who gave specific instructions that the plaintiff was not allowed to see anyone or to make any
overseas telephone calls although he well knew that she had no family members within the jurisdiction.
Further, the 1st defendant, on his own evidence never went into the general cell at CPS nor into the
prisoners' bathroom at that station. Neither did the 1st defendant remain at CPS so as, to be able to
speak from his personal knowledge of what treatment the plaintiff received at his fellow police officers'
hands after he had committed her to their custody.
From his viva voce evidence and what he wrote in his report just mentioned, as well as the
evidence of the police diary, the evidence of other police officers as well as that of Mrs. Tynes, I found it
to be an irresistible inference [end of page 23] that the sole reason for the arrest of the plaintiff was to
force her father who had been named in the search warrant to return to The Bahamas to check on his
daughter's welfare - a Gestapo-type tactic if ever there was one.
On those facts, I found that the plaintiff had satisfied me that it was more probable than not that
she was arrested, imprisoned and prosecuted by the 1st defendant as alleged in her re -amended
statement of claim, all without any reasonable basis for his actions.
I turn -now to the law.
(A) Assault and Battery
In her re-amended statement of claim, the plaintiff alleges the following:-
"In arresting and subsequently detaining the plaintiff at the said residence, Central Police Station,
the Criminal Investigation Department and the Airport Police Station, the plaintiff was verbally
threatened and intimidated and was repeatedly touched thus constituting assaults and batteries
by the first defendant and/or other police officers from 3p.m. until the plaintiff was released as
aforesaid.
Particulars
(1) At the time of purportedly executing a search warrant at the said residence of the plaintiff
on the said August 13th, 1987, the first defendant and/or other police officers present,
approached the plaintiff in a threatening manner and forcibly touched the plaintiff's body
thereby preventing her from leaving a room within the said residence.
(2) Further, and also at the time of the purported execution of the said search warrant the
first defendant and/or other police officers present repeatedly and in a threatening
manner commanded the plaintiff to go into each room of the residence where a search
was being conducted and/or touched the plaintiff=s body as she walked from room to
room of the residence under duress.
(3) Upon purportedly arresting the plaintiff, the first defendant and/or other police [end of
page 24] officers present, assaulted and forcibly seized the plaintiff's body.
(4) While the plaintiff was walking into the bathroom of the said residence the first defendant
assaulted her by approaching her in a threatening manner and stating that if she
remained in the said bathroom for more than 2 minutes he would break the door down.
(5) Further, upon purportedly arresting the plaintiff, the first defendant and/or other police
officers present assaulted and forcibly touched the plaintiff's body as she entered the
police car.
(6) Upon arrival at the Central Police Station, Freeport, Grand Bahama, the first defendant
and/or other officers present, assaulted and forcibly touched the plaintiff's person as she
left the police vehicle.
(7) On the same date thereafter the first defendant and/or other police officers present
assaulted and forcibly touched the plaintiff's body, and placed her in a lock-up cell.
(8) Further, a police officer, upon being informed of the requests of the plaintiff for water and
her medication by another police officer, within an earshot of the police stated that >he
will not put up with any nonsense!= thereby causing the plaintiff to fear imminent violent
or offensive contact to her person.
(9) On or about August 14th, 1987 the first defendant and/or other police officers under the
direction and control of the first defendant assaulted and forcibly touched the plaintiff's
body removed her from the said lock-up cell and by a police car conveyed her from
Central Police Station to the Airport Police Station.
(10) Upon arrival at the said Airport Police Station, the first defendant and/or other police
officers under the direction and control of the first defendant assaulted and forcibly
touched the plaintiff's body and placed her in a lock-up cell at the said Airport Police
Station.
(11) On or about August 15th, 1987, the first defendant and/or other police officers under the
direction and control of the first defendant assaulted and forcibly touched the plaintiff's
 body, removed her from the lock-up cell at the Airport. [end of page 25] Police Station,
placed her in a police car and conveyed her to the Criminal Investigation Department of
the Police Force Officers ('C.I.D.').
(12) On or about August 15th, 1987 while at C.I.D. a police officer under the direction and
control of the first defendant assaulted and forcibly touched the plaintiff's hand and took
her fingerprints.
(13) On the same date, Sergeant McCoy, a police officer approached the plaintiff a (sic)
threatening manner, shouted at the plaintiff and verbally abused the plaintiff by calling
her a 'fat assed bitch', while escorting the plaintiff to have her photographs taken and
thereby caused the plaintiff to fear imminent violent and offensive contact to her person."
Whether or not there was any actionable assault and battery of the plaintiff by the police officers
depended on whether or not the arrest of the plaintiff without a warrant was justifiable in law and on the
facts. I have already dealt with the facts.
The power possessed by [police officers] to arrest without warrant, whether at common law for
suspicion of felony" [or under the Penal Code] "under statutes for various misdemeanours, provided
always they have reasonable grounds for their suspicion, is a valuable protection to the community; but
the power may easily be abused and become a danger to the community instead of a protection. The
protection of the public is safeguarded by the requirement, alike of the common law and, so far as I
know, of all statutes, that the [police officer] shall before arresting satisfy himself that there do in fact
exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called
on before acting to have
anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances
of the case ought to indicate to a sensible man is, without difficulty, [end of page 26] presently practicable
does rest on them; for to shut your eyes to the obvious is not to act reasonably. . ." See Dumbell v.
Roberts [1944] 1 All E.R. 327 at p. 329 A - B, per Scott, L.J.
At best, the police officers who were present when the plaintiff was arrested said that she was
arrested on suspicion of being involved in the operation of an illegal bank contrary to unspecified
provisions of the Banks and Trust Companies Regulation Act (Ch . 287) ("Ch. 237") .
The arrest was also sought to be justified by the 1st defendant on the basis of a telefax cover
sheet which the plaintiff had sent to her father in England and which the first defendant said had been
found among the papers in the plaintiff's bedroom. It may also have been that the police officers were
suggesting by their evidence to the effect that the plaintiff was not only shown the search warrant which
they were executing but she in fact appeared to them to have read it and that warrant referred to Ch.
287.
It may be convenient at this point to refer to the search warrant in detail.
The search warrant was issued on 12th August, 1987 by a Mr. Cecil Marche, a Justice of the
Peace who was apparently a Family Island Commissioner at the time (i.e. a lay magistrate).
As issued, that search warrant read as follows - the underlined portions being in typescript, the
dots representing spaces left for insertions and the remainder being the printed part of the form: - [end of
page 27]
ABAHAMA ISLANDS
GRAND BAHAMA
To any lawful Constable in the Island of
WHEREAS, it appears to me the undersigned ................ Esquire, one of Her Majesty=s
Justices of the Peace for the said Island of Grand Bahama .................... by the information on
oath of D/SGT.231 CARTWRIGHT that the following goods, to wit: Escrow agreements, and
other documents relating to Bank and Trust transactions of .............the said ...... were feloniously
stolen, taken and carried away from ........................and that the said D/SGT.231 CARTWRIGHT
hath reasonable cause to suspect and doth suspect that the said Escrow Agreements, documents
or part thereof, are................... concealed in the premises of George Clarke THESE are
therefore into the premises......................of the said GEORGE CLARKE at #541 Jamaica
Avenue Diaz Tribuani aforesaid, and therein diligently search for the said Escrow Agreements,
documents and if the same, or any part thereof, shall be found upon such search, that you bring
the Escrow Agreements, documents so found, also the body of the said George Clarke before
me, or some other of Her said Majesty=s Justices of the Peace for the said Islands to be disposed
of and death with according to law.
GIVEN under my hand and seal, at Freeport, Grand Bahama this 12th day of August in
 the year of our Lord one thousand nine hundred and eighty seven
(SEARCH WARRANT) Cecil Marche@ [end of page 28]
The printed part of the search warrant is clearly designed to accord with the provisions of section
66 of the Criminal Procedure Code Act (Ch. 84) ("the CPC") and as issued in this case was not amended
to bring it into conformity with section 12 of Ch. 287.
In Regina v. Inland Revenue Commissioners and Another ex parte Rossminster Ltd. and Others
[1980] A.C. 952, Lord Diplock, at p. 1008 dealt with the issue of search warrants under statutory
provisions thus:-
"What has to be disclosed upon the face of the search warrant depends upon the true
construction of the statute. The construing Court ought, no doubt, to remind itself, if reminder
should be necessary, that entering a man's house or office, searching it and seizing his goods
against his will are tortious acts against which he is entitled to the protection of the Court unless
the acts can be justified either at common law or under some statutory authority. So if the
statutory words relied upon as authorising the acts are ambiguous or obscure, a construction
should be placed upon them that is least restrictive of individual rights which would otherwise
enjoy the protection of the common law. But judges in performing their constitutional function of
expounding what words used by Parliament in legislation mean, must not be over-zealous to
search for ambiguities or obscurities in words, which on the face of them are plain, simply
because the members of the Court are out of sympathy with the policy to which the Act appears
to give effect."
In the circumstances of the search warrant excerpted above, there is no need, in my view, to
consider whether section 12 of Ch. 287 contains any ambiguity or obscurity because the warrant as
issued was misconceived. It appears to be an unhappy amalgam of a pro forma search warrant normally
issued under section 66 of the CPC authorising a search for stolen goods with the addition of inapposite
references to the provisions of Ch. 287.
In Anthony McDonald Fields v. Attorney General et al; (C.L. No. 64 of 1981) Georges, C.J. held
that a similar [end of page 29] search warrant could not be relied on as authorising the body search of an
arrested person.
It seemed to me that while section 12(1) and (2) of Ch.87 would allow a search warrant in respect
of named or identified premises as well as of persons in entering or leaving such premises, it does not
expressly authorise the arrest of any such persons under such a warrant.
Section 12 of Ch. 287, reads:-
"12. - (1) If a Justice or the Peace is satisfied by information can oath given by the
Inspector or by a person authorised under section 8(4) or this Act to assist the Inspector either -
(a) that a licence has been suspended; or
(b) that there is reasonable ground for suspecting that; an offence against this Act or
the Banks Act has been or is being committed and that evidence of the commission of
the offence is to be found at any premises specified in the information or in any vehicle,
vessel or aircraft so specified; or
(c) that any books, records, vouchers, documents, cash or securities which ought to
have been produced under section 8(3) of this Act; and have not been produced are to
be found at any such premises or in any such vehicle, vessel or aircraft,
he may grant a search warrant authorising the inspector or such person authorised under section
8(4) of this Act or any peace officer together with any other person named in the warrant and any
other peace officers, to enter the premises specified in the information or, as the case may be,
any premises upon which the vehicle, vessel or aircraft so specified may be, at any time within
one month from the date of the warrant, and to search the premises or, as the case may be, the
vehicle, vessel or aircraft.
(2) The person authorised by any such warrant as aforesaid to search any premises or any
vehicle, vessel or aircraft may search every person who is found in or whom he has reasonable
ground to believe to have recently left or to be about to enter [end of page 30] those premises or
that vehicle, vessel or aircraft, as the case may be, and may seize any books, records, vouchers,
documents, cash or securities found in the premises or in the vehicle, _vessel or aircraft which
he has reasonable ground for believing to be evidence of the commission of any offence against
this Act or the Banks Act or any such book records, vouchers, documents, cash or securities
found in the premises or in the vehicle, vessel or aircraft which he has reasonable ground for
believing ought to have been produced under section (3) of this Act:
 Provided that no female shall in pursuance of any warrant issued under this subsection, be
searched except by a female.
(3) Where by virtue of this section a person has any power, to enter any premises he may
use such force as is reasonably necessary for the purpose of exercising that power.
(4) Every person who shall obstruct the Inspector or any other person in the exercise of any
powers conferred on him by virtue of this section shall be guilty of an offence against this Act and
shall be liable on summary conviction to a fine not exceeding four hundred dollars or to
imprisonment for a term not exceeding three months or to both such fine and imprisonment."
In Regina v. Inland Revenue Commissioners and Another, ex parte Rossminster Ltd. and Others
cited above, Lord Diplock at p. 1009 said this:-
"All that the subsection expressly requires shall be specified in the warrant, are the address of
the premises to be searched and the name of the officer or officers of the board who are
authorised to search them. The premises need not be in the occupation of the person suspected
of the offence; they may be premises of some wholly innocent custodian or third party. The
matter is still at the investigatory stage; good grounds must exist for suspecting that a tax fraud
has beers committed, but as yet there is not sufficient evidence in a form admissible at a
criminal trial to prove it. The sole purpose of the search is to obtain such evidence."
With regard to the plaintiff, even if section 12 of [end of page 31] Ch.287 did authorise the arrest
of any person named in a search warrant issued under that section, the plaintiff was clearly not a person
so named.
Further, the 1st defendant admitted in evidence that when they went to the house to execute the
warrant they did not expect to meet the plaintiff there. However, in his report dated 26th October 1987
(i.e. after the formal complaint had been lodged) the first defendant wrote that he had received
information that the "operators of the bank" included, "a white male (paraplegic) a white female, said to
be obese, and another male. . ." This seemed to me to show that the first defendant was there trying to
justify his the arrest of the plaintiff without a warrant on the grounds that he had reasonable grounds to
suspect her of being one of the operators of the bank.
The warrant also suggested that the document for which the police officers were to search had in
fact been stolen by the plaintiff's father and Diaz Tribuani. No such allegation was ever made in the
evidence before me.
In his report dated 16th August, 1987, the 1st defendant wrote:-
"On our arrival at #541 Jamaica Avenue, at about 3:10pm, I went to the front door, knocked on
the same, and a female voice replied, 'who's that?', and I said Police, and the occupant, who I
later found to be Tamara Clarke Merson, said, 'Show me your badge to the window.', which I did
by showing her my Warrant Card, which resulted in her opening the front southern door. I then
identified my self to her along with D/Sgt. Rahming and D.C. Cash. I told her that I had a
Warrant to search the premises occupied by George Clarke and Diaz Tribuani, whom according
to the information I received, were operating an Illegal Bank."
"Banking business" is defined in section 2 of Ch. 287 as follows:- [end of page 32]
....A>banking business' means the business of receiving on current savings, deposit or other
similar account money which is repayable by cheque or order or other instructions and which
may be invested by way of advances to customers or otherwise;"'. . .
That definition is the same as that in section 2 of the Banks Act (Ch. 285) and the provisions of
section 12(1)(a) of Ch.287 are said to apply to similar matters arising under the Banks Act.
It should be noted that there was nothing in the first defendant's viva voce evidence or in his
report which suggest that Transcom B & T Ltd. ("the company") was in the business of accepting deposits
and paying them out by cheque as required by the definition of "banking" business in section 2 of Ch.
287 so as to constitute in law reasonable grounds for suspecting the plaintiff's father and Tribuani of the
operation of an illegal bank.
At p. 3 - 4 of the 1st defendant's report dated 16th August, 1987, he wrote:-
"A thorough examination of these documents revealed that the company, Trans Com. B & T Ltd.,
was incorporated on April 24th. 1987, and was registered under the number 34,037.
The direction of the company we named, as follows
Diaz Tribuani - A bank president of Montrose, California
George Clarke - A financial consultant of Burbank, and one of the objects of the company was to
lend money."
In our legal and capitalistic system, any adult of sound mind who has the financial resources to
do so, may lend his money - even at interest and on mortgage - to whomever he decides without
contravening the prohibition [end of page 33] in section 3 of Ch. 287 against operating a bank without
first obtaining a licence from the Minister of finance to do so. It therefore follows that unless there was
evidence that the company was also accepting deposits of money which to be repaid to the depositors as
required by section 2 of Ch. 287, there would have been no evidence of the operation of an illegal bank
on which the plaintiff's ether or Tribuani could have been arrested even assuming (but not deciding) that
it was an offence for which the police have the power to arrest without a warrant. A fortiori in the case of
the plaintiff who was not named in the warrant.
As regards the allegation that the plaintiff was involved in the operation of an illegal trust
business by the company, "trust business" is defined In section 2 of Ch. 287 as "the business of acting as
trustee, executor or administrator".
No viva voce evidence was given of any executed trust agreement between the company and
any other company or individual. The 1st defendant, in his report dated 16th August, 1987 mentioned
"trust and fiduciary agreements" at item No. 60. Whether those documents contained evidence to show
that the company was acting or intended to act as trustee executor or administrator for any other
company or person
is unclear.
The "evidence" on which the 1st defendant sought to justify his arrest of the plaintiff without a
warrant was the telefax cover sheet under which she forwarded certain documents to her father in
England and an alleged oral statement which he said she made at the house to the effect that she typed
loners and so on for the company. As mentioned earlier when dealing with the facts, Inspector Rahming,
who was also present when the search of the [end of page 34] plaintiff=s bedroom took place did not,
recall hearing any such statement being made by the plaintiff.
Further, in his report dated 16th August, 1987, the 1st defendant wrote that, "At 5.10p.m. on the
[13th August,1987] I attempted an interviews with [the plaintiff] but she did not respond". If the plaintiff had
been told what she was being arrested for and l hard already made an incriminating statement to the
effect that she was an aider and abettor of her father and Tribuani, then the need for any further interview
by the 1st defendant or any other police officer escapes me. The 1st defendant as well as other members
of the Police Force may need to be reminded of what Blake, J. (as he then was) said in the case of
Regina v. Leon Pinder in a ruling delivered on 29th October, 1980 where he was dealing with the
questioning of a suspect who had already been charged or told that he was going to be charged for a
sexual offence.
At p. 1 - 3 of the ruling, he said:-
There seems to be a notion on the part of a large number of police officers in this jurisdiction that
no criminal investigation is properly completed until a confession is obtained from an accused
person regardless of the circumstances in which it is obtained. The time has come to set this
fundamental misconception at rest.
The current Judges Rules of England came into effect in the United Kingdom on the 27th of
January 1964. Notwithstanding the pronouncements of a former Chief Justice of The Bahamas to
the effect that those Rules were made by the judges of a foreign jurisdiction and are not in force
in this country, I have come to an entirely different conclusion. The undisputed evidence is that
the Rules are in force and members of the police force of The Bahamas are required to observe
them.
The Judges Rules are not rules of law. They are rules drawn up for the guidance of
police officers. Where a statement has been obtained in circumstances not in accordance with
those rules, that statement is not made inadmissible if it is a voluntary statement. Nonetheless
the Court has a discretion to [end of page 35] refuse to admit the statement if the Court thinks
that there has been a breach of the rules. See Lord Goddard in R. v. May 1952, 36 Cr. Appeal
Reports 91 at p. 93. In R. v. Prager 1972, 56 Cr. Appeal Reports, p. 151, Lord Justice Edmund
Davies said:-
'Non-observance of the Rules may and a times does lead to the exclusion) of an alleged
confession but ultimately all turns on the judge' s decision as to whether breach or no
breach it has been shown to have been made voluntarily.'
The overall discretion of the Court to refuse to admit confessions made by persons in
custody to police officers is preserved by the proviso to Sec. 24 of The Bahamas Evidence Act
Cap. 42. The foundation for the exercise of this discretion is in part the Judges Rules. Rule 2 of
the Judges Rules provides that :-
 'As soon as a police officer has evidence which would afford reasonable grounds for
suspecting that a person has committed an offence, he shall caution that person or
cause him to be cautioned before putting to him any questions or further questions
relating to that offence. The caution shall be in the following; terms 'You are not obliged
to say anything unless you wish to do so but what you say may be put into writing and
given in evidence.=
Rule 111 is to the follow in effect:-
>(a) Where a person is charged with or informed that he may be prosecuted for an
offence he shall be cautioned in the following terms:-
'Do you wish to say anything? You are not obliged to say anything unless you
wish to do so but whatever you say will be taken down in writing and may be
given in evidence.' [end of page 36]
(b) It is only in exceptional cases that questions relating to the offence should be put
to the accused person after he has been charged or informed that he may be
prosecuted. Such questions may be put where they are necessary for the
purpose of preventing or minimising harm or loss to some other person or to the
public or for clearing up an ambiguity in a previous answer or statement.=
The Home Officer Circular which promulgates the Rules makes it crystal clear that when
a police officer who is making enquiry of any person about an offence has enough evidence to
prefer a charge against that person for the offence, he should without delay cause that person to
be charged or informed that he may be prosecuted for the offence. Obviously, such an officer
cannot postpone the performance of the duty to charge or so inform the accused in order to
procure a confession which may not otherwise have been forthcoming.
It follows from the above that a police officer is in breach of the spirit of the rules, or
letter of the rules when:-
(a) He has enough evidence to prefer a charge, but deliberately elects to post pone
preferring a charge, or to inform the accused that he may be prosecuted in order
to create an opportunity to question him in the hope of getting a confession.
(b) When he charges an accused person with an offence or informs him that he may
be prosecuted, but fails to administer the form of caution prescribed by Rule 111
(a). Be it noted that the caution in such a case is in two parts - 'Do you, wish to
say anything? You are not obliged to say anything unless you wish to do so....'
This form of caution emphatically brings it home to the mind of the person who is
charged or informed, that he may be prosecuted, that he has a right to refuse to say anything.
The reason is obvious. A person charged, or informed that he may be charged is in an entirely
different position [end of page 37] from a mere suspect. Such a person is already enmeshed or
about to be enmeshed in the net of the law, and he is not to be ensnared into committing himself
further unless he decides to do so, fully cognisant of his rights."
It seems to me that what was said in that case applies mutatis mutandis to the situation in this
case because the 1st defendant, on his evidence had already told the plaintiff what she was being
arrested for and when, according to him, she had already made an incriminating oral statement.
Since the arrest of the plaintiff could not have been justified under the search warrant, it followed
that if that arrest without a warrant could not be justified under the common law or some other statutory
power given to the police, then it would be an unlawful arrest. I therefore considered whether there was
any other power, either at common law or by any statute which would have enabled the police to arrest
the plaintiff without a warrant.
At common law, the police in The Bahamas have the same powers of arrest as a private citizen.
But the police have the added common law power to arrest without a warrant on reasonable suspicion
that a felony has been committed or where they reasonably believe that a breach of the peace is likely to
occur. Those common law powers are expressly preserved by section 30 of The Police Act (Ch.191)
("Ch.191"):-
"30 . - (1) The members of the Force shall have all powers, authorities, privileges and
advantages and be liable to such duties and responsibilities as constables and peace officers
now have or hereafter may be invested with, either by common law, or by virtue of any Act, or by
statute of Parliament of the United Kingdom now or hereafter to be in force within The Bahamas,
or as may be directed and imposed by any regulations made under this Act.
Provided that if any question shall [end of page 38] arise as to the right of any member of the
 Force to hold or execute his office, common reputation shall to all intents and purposes be
deemed and held sufficient evidence of such right, and it shall not be necessary to produce any
appointment, or any oath, affidavit or other documents or matter whatsoever to prove any
qualification in support of such right.
(2) A member of the Force shall perform such duties as the Commissioner may direct.

(3) Every police officer shall exercise such powers and perform such duties as are by law
conferred or imposed on police officers, and shall obey all lawful direction in respect of the,
execution of his office which he may from time to time receive from any competent authority.
(4) For the purposes of this Act and any other law, police officers shall be deemed to be
always on duty when required to act as such."
The main common law powers of police officers to arrest without a warrant were set out as a
series of propositions in the speech of Viscount Simons, L.C. in Christie v. Leachinsky [1947] A.C. 573 at
p. 587 - 589 as follows:-
"(1.) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other
crime, of a sort which does not require a warrant, he must in ordinary circumstances inform the
person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to
give a reason which is nod; the true reason. In other words a citizen is entitled to know on what
charge or on suspicion of what crime he is seized. (2.) If the citizen is not so informed but is
nevertheless seized, the policeman, apart from certain exceptions, is liable for false
imprisonment. (3.) The requirement that the person arrested should be informed of the reason
why he is seized naturally does not exist if the circumstances are such that he must know the
general nature of the alleged offence for which he as detained. (4.) The requirement that he
should be so Informed does not mean that technical or precise language need be used. [end of
page 39] The matter is a matter of substance and turns on the elementary proposition that in this
country a person is, prima facie, entitled to his freedom and is only required to submit to
restraints on his freedom if he knows is substance the reason why it is claimed that this restraint
should be imposed. (5.) The person arrested cannot complain that he has not been supplied with
the above information as and when he should be, if he himself produces the situation which
makes it practically impossible to inform him, e.g., by immediate 'counter-attack or by running
away. There may well be other exceptions to the general rule in addition to those I have
indicated, and the above propositions are not intended to constitute a formal or complete code,
but to indicate the general principles of our law on a very important matter. These principles
equally apply to private person who arrests on suspicion."
See also Ian Allen v. Commissioner of Police, Criminal Appeal No. 17 of 1974 per J . A. Smith, J .
With regard to the power to arrest without a warrant of persons reasonably suspected of having
committed a felony, it must be noted that "felony" is defined in s.4 of the Penal Code (Ch.77) (Athe Penal
Code") in this way:-
Afelony' means and includes any indictable offence on conviction for which a person can, without
proof, of his having been previously convicted of crime, be sentenced to death or to
imprisonment with hard labour for three years, or more, whether such offence be actually
prosecuted summarily or on indictment;"..
Clearly, in this case, none of the offences alleged to have been committed by the plaintiff
amounted to a felony so the police would have had no power to arrest her for any of those offences
without a warrant.
Also at common law, a police officer has the power to arrest, without a warrant, any person whom
he sees committing, as reasonable cause to believe, to be about to [end of page 40] cause a breach of
the peace. In this case, although the three police officers gave evidence that the plaintiff attempted to
close the door against the first defendant, none of them said that she was arrested for attempting to
obstruct the police in the execution of their search warrant or that they apprehended that she would
cause a breach of the peace. So the arrest of the plaintiff could not be justified on that basis.
Certain statutory provisions such as s.103 of the Penal Code, section 31 of Ch. 191 and section
118 of the Road Traffic Act (Ch. 204), to name a few, confer express powers of arrest without a warrant in
the circumstances described therein.
With regard to section 31 of Ch.191, as the 1st defendant had said at one point that the plaintiff
had at first refused to give her name, I considered whether the arrest may have been justified under, that
section. The section reads:-
 "Without prejudice to the powers conferred upon a police officer by any law, it shall be lawful for
any police officer, and for all persons whom he shall call to his ,assistance, to arrest without a
warrant any person who within view of any such police officer shall offend in any manner against
any law and who, when requested by such police officer so to do, refuses to give his name and
address or gives a name and address which such police officer has reason to believe is false."
At first glance, that section seems to give the police officer the power to arrest without a warrant
where any offence (not only a felony) is committed within his view correct if the person is requested by
the officer to give his correct name and address and refuses to do so or gives a name and address which
the officer reasonably believes to be false. [end of page 41]
However, it became clear to me that the 1st defendant did know the plaintiff's correct name and
address before he arrested her so that the arrest could not be justified under section 31 of Ch.191 and
despite the positive averment to that effect in the amended defence.
Having previously had to consider section 103 of the Penal Code, and on the facts in this case I
carne to the conclusion that the arrest of the plaintiff could not be justified under that provision.
For all those reasons, I came to the conclusion that the arrest of the plaintiff on the afternoon of
13th August, 1987 was unlawful with the result that any touching of the plaintiff by police officers
thereafter would amount to the tort of battery and anything said to her thereafter which caused her to
reasonably apprehend that she would be touched would amount to the tort of assault - see eg. Rawlings
v. Till and Another (1837) 3 M & W 28, 150 E.R. 1042.
I also found as a fact that one of the police officers who were at the house that afternoon,
grabbed the telephone from the plaintiff when she first went to the kitchen to call R/Sgt;. Bain and had
slammed it back into the cradle. This was before she was arrested. Nevertheless the force was not used
to effect a lawful arrest or for any other lawful purpose, in my view, that too amounted to assault and
battery.
The threat by the first defendant to kick down the bathroom door if the plaintiff did not, come out
within two minutes after entering it, amounted to an assault because the 1st defendant had both the
power and was sufficiently near to be able to carry out that threat.
Other instances of battery which I found proven were -
(1) the taking of the plaintiff's handbag by [end of page 42] P.C. Pratt at CPS;
(2) the taking of her fingerprints;
(3) the touching of the plaintiff in order to position her for the taking of photographs;
(4) when the police first entered the house and the plaintiff indicated she wished to go and
change her clothing, they prevented her from doing so end in the process "manhandled
her";
(5) when she way held by the police officer who escorted her whenever she went to the
bathroom which would have been at least 3 times - twice at CPS and once at APS;
(6) when she was escorted to and from having her photographs and fingerprints taken by
Sgt. McCoy.
Other instances of assault would be when the plaintiff asked to use the bathroom and was told in
effect that she had no right and she had better behave herself and when Sgt. McCoy called her a "fat
a...d b...." and referred to her as a "honky".
It was and still is my view that the plaintiff had proven that it was more probable than not that the
torts of assault and battery had been committed against her by the police.
(B) False Imprisonment
As is well known, this tort is committed whenever any person is deliberately incarcerated, against
his will, by any other person who has no legal justification for doing so. [end of page 43]
In Meering v. Grahame-White Aviation Co. Ltd. (1919) 122 L.T. 44 at p. 51 Duke, L.J., with whom
Atkin, L.J. agreed, said : -
"It is a matter of very great nicety to determine whether upon those facts here is sufficient to
warrant a verdict that the person complaining was imprisoned. What constitutes imprisonment
has been long ago defined. It is to be found in a work of very good authority in the application of
the common law - namely, 'Termes de la Ley' - in these words: >Imprisonment' is no other thing,
but the restraint of a man's liberty, whether it be in the open field, or in the stocks, or in the cage
in the streets' referring to now obsolete methods of imprisonment - 'or in a man's own house, as
well as in the common gaoler and in all the places the party so restrained is said t o be a prisoner
so long as he bath not his liberty freely to go at all times to all places whether he will without bail
or main, prise or otherwise."'
 See also Kuchenmeister v. Home Office [1958] 1 Q.B. 406 There is no dispute about how long
the plaintiff was actually in the custody of the police, i.e. some 56 or 57 hours before she was released
on bail late on the evening of 15th August, 1987.
As I had decided that the arrest of the plaintiff was unlawful and that unlawfulness continued, I
found that the tort of false imprisonment had been proven to the standard required.
Mr. Smith, as I understood him, submitted that even though the plaintiff' had been released on
bail on the evening of 15th August, 1987, as her liberty was thereafter still circumscribed by the terms of
the bail bond and as the criminal charges were then still pending against the plaintiff imprisonment
should be taken as extending well beyond the 57 hours that the plaintiff was in the actual custody of the
police. [end of page 44]
If it be accepted that a person who is on bail is still imprisoned because of the conditions of the
bail bond then that would mean, e.g., on the facts of this case, that the plaintiff would have been falsely
imprisoned from 13th August, 1987 until at least 11th March, 1994 when I gave judgment as to liability in
her favour.
It seemed to me that that cannot be so not only because once bail is granted and the necessary
paperwork completed, a prisoner is released from actual custody but also because on the facts before
me the plaintiff was even able to leave The Bahamas albeit without her passport.
In Syed Mahamad Yusuf-ud-Din v. The Secretary of State for India in Council (1903) 19 T.L.R.
496, the plaintiff who had been arrested on November 28th, 1895 under a warrant issued by a
magistrate and who had been released on bail on November 30th, 1885, sued the defendant for
damages for false imprisonment. That suit was dismissed by the Courts in India because the action was
time-barred and on appeal to the Privy Council it was accepted on behalf the plaintiff in that case that if
the imprisonment November 30th, 1895, his action was time barred.
It was apparently argued that the imprisonment lasted until the warrant of arrest was set aside on
August 3rd, 1897 because until then, the plaintiff was not a free man and he was even liable to be
actually, imprisoned through the action of his surety or by the intervention of the government.
In giving the judgment of their Lordships Board, Lord MacNaughten dealt with that issue at p.
499 in this way: -
..."All that might be very true. But the learned counsel for the appellant dial not cite any case in
support of their contention. The whole weight of authority was the other way. Nothing short of
actual detention and complete loss of freedom would support an action for false imprisonment.
[end of page 45]
The leading case on the subject was 'Bird v. Jones' [1845], 7 Q.B., 742), in which Justice
Coleridge, Williams, and Patterson differed from Chief Justice Denman. 'Some confusion,' said
Mr. Justice Coleridge, 'seems to me to arise from confounding imprisonment of the body with
mere loss of freedom; it is one part of the definition of freedom to be able to go withersoever one
pleases; but imprisonment is something more than the mere loss of this power; it includes the
notion of restraint within some limits defined by a will or power exterior to our own.' Mr. Justice
Williams spoke of imprisonment as being entire restraint, and Mr. Justice Patterson added,
'imprisonment is, as I apprehend, a total restraint of the liberty of the person for however short a
time, and not a partial obstruction of his will, whatever inconvenience it may bring on him.' The
old authorities cited in that case were to the same effect. In their Lordships' opinion it was
perfectly clear that the appellant's imprisonment did not last one moment after he was liberated
on bail. The very object of granting bail was to relieve him from imprisonment."
I respectfully adopt the above reasoning and therefore hold that the false imprisonment of the
plaintiff in this case ceased when she was finally released on bail on 15th August, 1987.
It is for those reasons that I found that the plaintiff had been falsely imprisoned by the 1st
defendant for 57 hours.
(C) Malicious Prosecution
In order to establish her claim for damages for malicious prosecution, the plaintiff was required to
prove, on a balance of probability: -
(1) that she was prosecuted by the defendants; (that is, that criminal charges were laid
against her which required her to appear before a magistrate to defend herself against
[end of page 46] those charges);
(2) that the trial of those criminal charges had been determined in her favour;
(3) that there was no reasonable and probable cause for the prosecution; and
(4) that the prosecution had been instituted from an improper motive.
 As to the (1) above, there is no dispute that a number of criminal charges were laid against the
plaintiff and that all of the charge sheets were signed by the 1st defendant. I therefore found that element
of the tort proven to the required standard without any difficulty.
With regard to the second element, I had somewhat more difficulty because the charges had not
yet been tried so it could not be said that the case had been determined in the plaintiff =s favour. However,
that issue was resolved when Mr. Turner, for the defendants, gave his undertaking that the criminal
charges against the plaintiff would be withdrawn because I assumed that that meant that the Attorney
General would enter a nolle prosequi in the shatter and I could therefore consider the charges as having
been disposed of.
While it is stated in Asection 48@, of the Criminal Procedure Code that the entry of a nolle
prosequi in a criminal matter "shall not operate as a bar to subsequent proceedings against an accused
person an account of the same facts.". I was conscious of the, decision by Georges, C.J. in the case of In
Re Carlos Tiberio Rubio Triana et al Criminal case No. 220/1989 in which he had decided that an order of
prohibition should issue to prevent a Stipendiary and Circuit Magistrate proceeding to hold a Preliminary
Inquiry in respect of the accused persons after a nolle prosequi had been entered in the previous
summary [end of page 47] trial of those same persons on the ground that to allow the second trial to
proceed would be oppressive of the accused persons. The offences with which the accused men in that
case were charged carried automatic sentences of imprisonment at that time.
Also Craig v. Hasell [1843] 4 Q.B. 481, 492, 114 All E.R. 980 is authority for the view that in
actions for malicious prosecution, it is sufficient to show that the criminal proceedings have been brought
to an end even if with the consent of the plaintiff and on terms. In that case, at p. 984 All E.R., Lord
Denman, C.J. said
"Much learning was employed in the argument; and several expressions drawn from particular
cases, which it would not be easy to make consistent in all .respects with each other. But we are
of opinion that there is fallacy in treating the inquisition of any part of the proceeding complained
of. The debt, though found by the jury on ex parte evidence, may perhaps have been a just and
true debt; and yet a party suing it out maliciously and with a view to annoy the plaintiff by ulterior
proceedings, and afterwards, with that object, praying an extent for securing that debt as if it was
in danger of being lost to the crown when he knew it not to be in danger, may produce
consequences injurious and even ruinous to the debtor, by this latter proceeding so well
calculated to affect his credit and bring demands upon him. The writ of extent is the grievance:
and all that the rule of law, in cases of malicious prosecution, requires is that the writ of extent
should be traced to its close; and that is done by skewing it discharged by the Court, though upon
an arrangement and by consent. It is by no means improbable that the crown may, in such a
case, be induced to accord its grace from a persuasion that the proceeding originated in malice.
Such a termination of the case negatives no fact essential to maintaining the action: and,
notwithstanding some language used in the case in Wilson (a), it is not necessary that either that
or any fact in the declaration should lead the Court to infer malicious motives this at least is
solely in the province of the jury.
The declaration being sufficient, the plea is clearly bad. Consistently with all the facts stated in it,
the writ of extent; may have been sued out by the defendant without any reasonable or probable
cause; and yet, if it [end of page 48] was, the facts stated do not justify the defendant in so
doing. The judgment must be for the plaintiff."
Further, as I mentioned during the trial, the issue of two fiats by the Attorney General in this case
was
similar to what occurred in the cash of Commissioner of Police vs. John Timothy Iliff & James Clifton
Hubbard,
Criminal Appeal No. 4 of 19811 (Supreme Court). In that case two fiats had been issued by the Attorney
General in respect of the Accused men. The first authorised the institution of criminal proceedings before
a Stipendiary and Circuit Magistrate in Freeport and the second purportedly authorised the transfer of the
proceedings to a Stipendiary and Circuit Magistrate in Nassau.
In addition, while the appeal in that case was pending, there vans a further application on behalf
of the Attorney General to Van Sertima, J. (Ag.) for an order by that judge to transfer the proceedings
from Grand Bahamas to Nassau which had been refused.
In those circumstances Adams, J. in a judgment delivered on 13th June, 1984, held: -
"By virtue of article 78(1) of the Constitution, 'The Attorney General shall have power in any case
in which he considers it desirable to do so (a) to institute and undertake criminal proceedings
 against any person before any Court in respect of any offence against the law of the Bahamas.'
"On the question of local jurisdiction within a Magisterial district the proviso to Asection 3@ of the
Magistrates Act, chapter 36 states that 'it shall be lawful for the Attorney General, if he thinks it
expedient so to do, to institute and also issue his fiat authorising any other person to institute,
any proceedings before a magistrate in respect of a matter which is cognisable by a magistrate
in another district and thereupon, and in the case of another person, on the production of such
fiat to the magistrate, the magistrate shall [end of page 49] have jurisdiction to deal with such
matter as aforesaid.'
The meaning of the word 'institute' is clarified in Asection 54@ of the Criminal Procedure Code
Act, 1968, Asubsection (1)@ of which stipulates that: -
>Criminal proceedings may be instituted either by the making of a complaint or by the
bringing before a magistrate of a person who has been arrested without a warrant.'
The respondents had pleaded 'not guilty' to the charges before the Freeport Magistrate and were
in jeopardy of conviction. Their trial had commenced.
The learned Solicitor General submitted that the Attorney General was not Instituting separate
proceedings in Freeport but was transferring the complaint to Nassau.
The power of a judge to order the transfer of proceedings from a particular Magistrate's Court to
any other Magistrate=s Court is to be found in Asection 47@ of the Criminal Procedure Code Act,
1968.
En passant it is noteworthy that after the learned magistrate made her ruling and before the
hearing of this appeal Van Sertima J. (Ag.) refused an application by way of motion by the
Commissioner of Police for an order to transfer the criminal proceedings from Freeport to
Nassau. The learned judge gave detailed reasons for his decision.
It must be observed that the word >institute' as used in the'' proviso of Asection 3@ of the
Magistrates Act has in relation to summary jurisdiction proceedings the same meaning as the
word 'institute' in Asection 54@ of the Criminal Procedure Code Act, 1968, and in article 78(1) of
the Constitution.
This word does not bear the same meaning as the verb 'transfer' in Asection 47@ of the Code.
In June 1981 a complaint was instituted at Freeport pursuant to the fiat issued by the Attorney
General. The proviso to Asection 3@ of the Magistrates Act did not authorise the Attorney General
to transfer the proceedings to New Providence.
Up to the time this appeal was argued the Freeport Magistrate had jurisdiction to try these
proceedings, which were still before him. Consequently, no other magistrate had jurisdiction to
deal with these charges. [end of page 50]
The fiat issued in December 1933 could not give the Magistrate in Nassau any jurisdiction."
I respectfully adopt what was there said by the learned judge as part of my own reasoning in this
case.
After dealing with the fact that, the second prosecution which had been instituted in Nassau was
statute-barred, Adams, J., continued:-
"The complaint was signed in Freeport by a different person from the person who signed the
complaint in Nassau but both complaints related to the identical offences. The result was that the
first respondent who alone appeared before the Nassau magistrate, was placed in jeopardy in
two different Magisterial jurisdictions at the same time for the same alleged offences. Such a
procedure was not only unfair but was also illegal."
In this case I would go so far as to say that the trial in this case was doomed to fail because of
the existence of 2 fiats in respect of the same matter and person before 2 separate magistrates of equal
jurisdiction.
I therefore found that the second element of' that tort had been proven.
As to the absence of reasonable and probable cause, I formed the view while the 1st defendant
was giving his evidence that he realized fairly early on that he had made a grave error when he arrested
the plaintiff without a warrant despite his oral insistence that at the time he thought he had reasonable
grounds for the arrest and that he therefore had to find some plausible reason for having done so. He
therefore consulted his superior officer and between them they came up with the offences with which tie
at first charged the plaintiff, i.e.. those under section 3(1) and 3(3) of Ch. 287. Clearly there was no
evidence [end of page 51] that the plaintiff had committed arty offence under either of those sub-sections
of Ch. 287. It was left to the Attorney-General's office to try to rectify what had thus far been done. They
did so by drafting the abetment charges under section 6 of Ch. 287.
 In Brood v. Ham (1839) 5 Bing N.C. 722 at 725, Tindal, C. J. said:-
"There must be a reasonable cause, such as would operate on the mind of a discrete man; there
must be a probable cause - such as would operate on the mind of a reasonable man; at all
events such as would operate on the mind of the party making the charge; otherwise there is no
probable cause for him. I cannot say that the defendant acted on probable cause, if the state of
facts way such to have no effect on his mind."
See also Turner v. Ambler [1847] 10 Q.B. 252.
The only alleged bit of evidence or facts which the first defendant says he had was a telefax
cover sheet from the plaintiff to her father and an alleged oral statement which he alone heard her make
at the house.
In those circumstances, I was satisfied that the 1st defendant could not have had an honest
belief in the guilt of the plaintiff based upon a full conviction, founded on reasonable grounds of the
existence of a state of circumstances which, assuming them to be true, would reasonably lead, any,
ordinary prudent and cautious man, placed in the position of the 1st defendant, to the conclusion that the
person charged was probably guilty of the alleged offences. See e.g., Hicks v. Faulkner (1878) 8 Q.B.D.
167, 171; Herniman v. Smith [1938] A.C. 305; Glinski v. McIver [1962] A.C. 726 and Anthony McDonald
Fields' case cited earlier.
As to the issue of whether the prosecution was presented from any improper motive, as indicated
earlier, [end of page 52] I concluded on the evidence as a whole and that of the 1st defendant in
particular, that the preferment of the criminal charges was done solely to justify the unlawful arrest and
the false imprisonment in the circumstances described by the plaintiff.
I also found that even though the Attorney-General had given his fiats for the institution of the
prosecution in this case both of them were issued after the 1st defendant told the plaintiff she was
charged with various offences and they must have been based in part, at least, on the first defendant's
report of 16th August, 1987 and would gave been coloured by it. It follows that the fact that he first
defendant was "advised" as he said by A.S.P. Yearwood and by the Attorney-General cannot absolve him
as prosecutor from the legal effects of his own deliberate actions. He clearly acted without due
consideration of what he was about and as indicated earlier, the very fact of the length of time before he
could decide what charges to prefer against the plaintiff and that those charges were subsequently
changed by the Attorney-General showed that there was in fact a lack of reasonable and probable cause
for the prosecution.
(D) Breaches of the Plaintiff's Constitutional Rights (i) Under Article 17
Article 17 of the Constitution reads:-
"17. - (1) No person shall be subjected to torture or to inhuman or degrading treatment or
punishment.
(2) Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this Article to the extent that the law in question
authorises the infliction of any description of punishment that was lawful in the Bahama Islands
immediately before 10th July 1973." [end of page 53]
The plaintiff's complaint in this regard concerns the period from her first encounter with the three
police officers at the house on the afternoon of 13th August, 1987 to her release on the night of 15th
August, 1987. She did, in her aide memoire dated 18th August, 1987, commend a few of the police
officers with whom she came into contact during that period as having treated her humanely. Bearing
those exceptions in mind, the matters which, in my view the plaintiff relied on as showing that she was
treated inhumanly while in police custody are as follows:-
(1) At the house she was prevented at first from calling a friend - who happened to be a
police reservist working with C.I.D. for advice;
(2) she was not allowed by the police officers, at first, to change her clothing or to call
anyone after she was told that she was under arrest;
(3) when she was eventually allowed to change her clothing, she was told that if she was not
out of the bathroom in two minutes, the 1st defendant would kick the door down;
(4) she was not permitted to feed the dogs or make arrangements for them;
(5) she was not permitted to give any instructions to the man who came to service the
swimming-pool and he was told that the police officers were taking her "to jail";
(6) she was, later the same evening, locked up in the general cell at CPS with two other
females and a male prisoner without any form of segregation;
(7) she was not permitted to use the bathroom [end of page 54] when she asked to be
 allowed to do so at first and when she was eventually allowed to use the bathroom, there
was standing water on the floor, the water closet was blocked to overflowing and there
was no tissue nor water in the wash basin so that the could not perform any ablutions;
(8) she was not permitted to take her medication or to get her glasses from her handbag at
first;
(9) during the night of 13th to 14th August, 1987, the plaintiff shared the general cell with
two teenaged male prisoners who suggested to her that it was possible for her to be
raped either, by themselves or by the police officers - if she had been segregated from
them the suggestion which they made would not have been as plausible as it was while
they were there in the same cell;
(10) the general cell in which she spent the night was not regularly checked by the police
officers on duty so as to ensure her safety;
(11) the only ventilation into the general cell was through a small hole (approximately 3
inches in diameter) in the door;
(12) because of the stale food left in the general cell by the two female prisoners whom she
had met there, roaches climbed into her hair and tried to get into her mouth and ears
during the night and she therefore could not sleep. In addition, [end of page 55] the
single overhead light bulb was kept on all night and the 'bench' which she occupied was
too narrow for her to sleep on safely, let alone comfortably bearing in mind her extant
back problem;
(13) on 14th August, she was kept locked up in the general cell with up to 12 male prisoners
at any one time and one other female in what seemed to me to be very close quarters.
One or more of the male prisoners defecated on the floor at the bottom of the L-shaped
general cell while one of the juveniles vomited and some of the adult males smoked.
One of the adult males masturbated and another was placed in one of the 'holes' with
wet cement still clinging to his hands where he proceeded to create quite a din until the
police were forced to take him out;
(14) the plaintiff was not permitted to see Mrs. Tynes when the latter arrived at CPS on the
morning of 14th August, 1987 or to see her friend when she came there on the evening
of 13th August, 1987;
(15) Again, the plaintiff was not permitted to use the bathroom when she needed to do so
14th August, 1987;
(16) because the 14th August, 1987 was a hot day, the plaintiff (and no doubt, the other
occupants of the general cell) apparently took turns putting their faces to the hole in the
cell door to try to get some fresher air; [end of page 56]
(17) the general cell was not cleaned while the plaintiff was incarcerated there although just
before the first defendant came to move her to the APS that night and after she had
seen Mr. Tynes, she organised some of her cell-mates into a cleaning brigade;
(18) the plaintiff was not fed by the police while she was in custody;
(19) even at the APS, which was cleaner, the plaintiff was escorted by a male policeman
when she needed to use the bathroom; that officer, showed some sense of decency by
turning his back but the plaintiff had to leave the door open while she used the facilities;
(20) at C.I.D. on 15th August, 1987, she was called 'ill-names' by Sgt. McCoy and her racial
origin was referred to in denigrating terms;
(21) she was kept in custody for well over 48 hours before being charged and was only finally
released on bail late on 15th August, 1987.
In light of all those facts, which I found to have been proven to the standard required, I had no
difficulty in deciding that the plaintiff had been treated inhumanly. I bore in mind that the cases of Abbott
v. Attorney General of Trinidad and Tobago [1979] 1 W.L.R. 1342; Riley v. Attorney General of Jamaica
[1983] 1 A.C. 719 and Earl Pratt and Another v. Attorney General of Jamaica and Another Privy Council
Appeal (No. 10 of 1993) all dealt in some way with whether the mandatory statutory death penalty, if not
carried out timeously, would amount to cruel and [end of page 57] inhuman punishment. Those were
cases in which convicted persons who had presumably had a fair trial and all rights of appeal and
applications for clemency had been exhausted and where the persons had been convicted of one of the
most serious indictable charges which can be brought before the Courts of various common law
countries mentioned in the cases it was held to be inhuman after 5 years.
Here, the plaintiff, even if she had been lawfully arrested, was a person entitled to the benefit of
the now constitutional presumption of innocence and certainly not to be treated in the fashion in which
she was in fact
treated as if she were the most notorious of felons or worse.
In my view it is difficult to think of any circumstances in a supposedly civilised country which at
tree time was purporting itself to be moving towards a "First World" status in terms of financial
institutions which could be considered more inhuman that the circumstances so vividly described by the
plaintiff and which sties poigantly equated to the notorious "Black Hole of Calcutta"..
In my view, she is entitled to damages for the cruel and inhuman treatment she received at the
hands of the police generally and of the 1st defendant in particular.
(ii) Under Article 19(1)(c) and (d)
Article 19(1)(c) and (d) of the Constitution provides:-
"19. - (1) No person shall be deprived of his personal liberty save as may be authorised by law
in any of' the following cases -
(c) for the purpose of bringing him before a Court in execution of the order of Court;
(d) upon reasonable suspicion of his having committed, or of being about to commit,
a criminal offence;" [end of page 58]
The Bahamas, having inherited the long-standing British tradition of deep respect for the
personal liberty of every person under the protection of the sovereign (except an alien enemy) in Article
19 of the Constitution, lays down specific instances when that fundamental right may be interfered with
by persons acting as officers of the state (i.e. . the Government).
The arrest of the plaintiff could not have been justified under sub-paragraphs (1)(a) or (b) of the
Article although if there was evidence or if the search warrant was properly drawn, the arrest of the
plaintiff might possibly have been justified under Article 19(1)(c) or (d) or both of those sub-paragraphs.
As indicated earlier, there clearly was no evidence on which any reasonable suspicion by the 1st
defendant could have been based (even accepting that it need not be such evidence as would amount to
a prima facie case) nor was the search warrant an appropriate warrant for the arrest of the plaintiff.
It therefore follows that I found as a fact and on the law, that the plaintiff's rights under Article
19(1) had been infringed and that she is therefore entitled to damages for that breach of her
constitutional rights.
(iii) Under Article 19 (2)
Article 19(2) of the Constitution reads:-
"(2) Any person who is arrested or detained shall be informed as soon as is reasonably
practicable, in a language that he understands, of the reasons for his arrest or detention and
shall be permitted, at his own expense, to retain and instruct without delay a legal representative
of his own choice and to hold private communication with him; and in the case of a person who
has not attained the age of eighteen years he shall also be afforded a reasonable opportunity for
communication with his parent or guardian." (Emphasis added) [end of page 59]
It seems to me that the use of the phrases "shall be permitted@ and "instruct without delay" mean
that the police are to do nothing to impede an arrested person from consulting and instructing counsel of
the arrested person=s choice nor are they to intrude on any conversation, meeting or interview counsel
may wish to hold with his arrested client .
In this case, not only was it clear that the police officers at first completely denied the plaintiff her
right to consult counsel - she was not allowed to consult one before she left the house and the officers at
CPS was give instructions by the 1st defendant that she was not to see anyone and not to be allowed to
make any overseas telephone calls - but also when she did at last get a chance to speak with counsel,
Mr. Tynes, she and he were afforded no privacy for their meeting because of police officers having to
traverse the room where they met.
It follows then that she is entitled to damages for breach of her constitutional right under Article
19(2).
(iv) Under Article 19(3)
Article 19(3) of the constitution reads:
"(3) Any person who is arrested or detained in such a case as is mentioned in sub-paragraph
(1)(c) or (d) of this Article and who is not released shall be brought without undue delay before a
Court; and if any person arrested or detained in such a case as is mentioned in the said
sib-paragraph (1)(d) is not tried within a reasonable time he shall (without prejudice to any further
proceedings that may be brought against him) be released either unconditionally or upon
reasonable conditions, including a particular such conditions as are reasonably necessary to
 ensure that he appears at a later date for trial or for proceedings preliminary to trial.@
Even if the plaintiff had been arrested by the first defendant under either sub-paragraph (c) or (d)
of Article [end of page 60] 19(1) of the Constitution the above paragraph required her to be brought
"without undue delay" before a Court and to be informed of the offences for which she was bested.
The 1st defendant seemed to suggest by his viva voce evidence in one breath that the plaintiff
was not brought before a Court because the police were still investigating the matter and that when they
had completed those investigations no magistrate was sitting but at the same time he said that he knew
what the plaintiff was charged for on the day of her arrest. Both stories cannot be accurate.
The 1st defendant also appeared, in his viva voce evidence to be attempting to justify the
detention of the plaintiff up to 3:30p.m. on 15th August 1987 under section 17 of the CPC. That section
reads : -
"17. A peace officer making an arrest without a warrant, in exercise of any powers conferred
upon him by the Penal Code, the Police Act or any other law for the time being in force, shall,
without unnecessary delay and not later than forty-eight hours after such arrest, take or send the
person arrested before a magistrate appointed to preside in a Magistrate's Court having
jurisdiction in the case, unless the person arrested be earlier released on bail by a police officer
having power in that behalf under the provisions of section 32 of the Police Act."
The CPC was enacted after the 1963 Constitution came into force and Article 19(3) has been
included in the Constitution since 1963 in exactly the same words so that if there is any difference of
wording in section 17 of the CPC, then that section will either have to be conformed to the provisions of
Article 19(3) (since it is the successor of an earlier statutory provision in the Magistrate Act (Ch. 42)) or
be declared void.
Section 17 of the CPC uses the phrase "unnecessary delay" instead of the phrase "undue delay"
used in Article [end of page 61] 19(3) of the Constitution. In my view, the two phrases are synonymous.
They both mean that when a person has been arrested either under a warrant or on reasonable suspicion
that he/she has committed or is about to commit a crime, that person must be brought before a Court as
soon as possible; that is, as soon as the charge sheet or complaint can be drawn or made.
Where I think the first defendant, and no doubt others in his position may be in error is, that they
have interpreted the latter part of section 17 of the CPC as giving them the authority to detain a person
for up to 48 hours before they must charge them or set them free.
What I think section 17 of the CPC means is that if e.g., a person is arrested under a warrant or
on reasonable suspicion of having committed a serious crime on a dies non and it is not possible to find
a magistrate or J.P. before whom to bring them and if the matter is not one for which a senior police
officer may authorise the grant of bail, then if the person Is brought before a magistrate before the expiry
of 48 hours following his arrest, there would be no prima facie breach of his constitutional rights under
Article 19(3) of the Constitution.
What section 17 of the CPC cannot be taken to mean is that if a police officer arrests a person
without a warrant and ostensibly on reasonable suspicion of the person having committed a serious
offence in the middle of the week, they can then detain that person for the rest of the week without ever
once bringing that person before a Magistrate's Court or a magistrate.
In this regard, it must be pointed out that it is not unusual in complex fraud cases or other cases
involving allegations of serious commercial crime that the [end of page 62] investigations usually take
longer to complete than say the investigation of an offence of obstructing a police officer in the execution
of his duty because of the nature of the kind of transactions which may call for investigation.
Nevertheless, neither Article 19(3) of the Constitution nor section 17 of the CPC gives the police
the authority to detain a person, e.g., for questioning which may be permissible in some different legal
systems but not in a system based on the Westminster model of a constitutional democracy with the
fundamental rights provisions which are contained in the Constitution.
In other words, you cannot arrest a person "on suspicion" and then begin to look for facts or
grounds to justify that suspicion and in the meanwhile hold the person for 48 hours while you do so.
The only reasons for the delay in this case in my view was that the 1st defendant did not know on
what grounds he had arrested the plaintiff and having arrested her without any legal justification for doing
so, he could not have brought her before a Court on the 14th or 15th August, 1987 because he was then
still searching for reasons to justify her arrest.
In my view, in light of the mandatory language of Article 19(3) of the Constitution, it is not open
to the police, for example, to detain a person on suspicion if that person may have committed a criminal
offence and keep the person in custody for 48 hours before charging the person with any offence or let
them go after that time without charging them with any offence.
There is nothing in the law which precludes the police from investigating offences even during
the trial of such offences but they cannot have any power in normal [end of page 63] times to arrest and
detain any person for any period while they look to see if there is any evidence that the person may have
committed a criminal offence. The Courts have to consider the position at the time of arrest.
Indeed, since the law requires that they may arrest without a warrant, inter alia, on "reasonable
suspicion" that an offence has been committed by an accused person, when a person is arrested, they
must at that time, have reasonable grounds (which need not amount to prima facie proof) for suspecting
that an offence has been committed by that person. If that is done, in the majority of cases (I accept e.g.,
cases of persons arrested at sea in the Southeastern or Northwestern Bahamas) there would be no
reason why the arrested person could not be brought before a magistrate in much less than 48 hours
after arrest.
The period of 48 hours referred to in s.17 of the CPC marks the outer limit of the time for which a
person, lawfully arrested on e.g., reasonable suspicion of felony, may be detained by the police and only
where the actual circumstances of the case justify it.
Another aspect of Article 19(3) under which complaint is made in the fact that the 1st defendant,
as I have already found, did not inform the plaintiff of the reason for her arrest until the evening of 15th
August, 1987. In my view it was clear that the plaintiff's rights under Article 19(3) of the Constitution had
been breached by the actions of the 1st defendant and the other police officers involved in this incident.
On the evidence, I was satisfied that the plaintiff had proven her case in respect of the breaches
of her constitutional rights under Article 19(3) of the Constitution and was entitled to damages therefor.
For all those reasons, I decided that judgment as to [end of page 64] liability on all of the matters
complained of by the plaintiff should be entered in the plaintiff's favour.
(E) Constitutionality of Section 38 of Ch. 191
Before dealing with the assessment of damages, there was a further matter which Mr. Smith
raised and that was the constitutionality of section 38 of Ch. 191.
Article 20(2)(a) of the Constitution provides:-
"20. - (2) Every person who is charged with a criminal offence -
(a) shall be presumed to be innocent until he is proved or has pleaded guilty;
Prior to 1963, the presumption of innocence referred to in that sub-paragraph was a matter of
evidence because section 84 of the Evidence Act stated that "the Court shall not presume, in the
absence of evidence, that any person has committed any crime."
Had that position remained, the statement of Scott, L.J., in Dumbell v. Roberts cited above, at p.
330 that -
"There is a minor matter which l think calls for comment. There is, I believe, no statutory
sanction for the practice disclosed in the evidence in the present case of the police taking finger
prints of a person under a charge before he is convicted or, even committed for trial. Such
treatment is inconsistent with our British presumption of innocence until proof of guilt; and it is
natural for- it to be regarded as a slur on a man's character. Without free consent it involves
trespass to the person; and, following upon an unjustifiable arrest, it may become an element in
the false imprisonment and then, if found on the facts to be a consequence of the arrest, it may
properly be taken into account on the assessment of damages. In the present case the plaintiff
had, before action brought, been informed officially that the prints, etc., had been destroyed. It
was, therefore, wrong for him to ask in the second prayer, of the statement of claim, for specific
relief, although the real blame for that may rest on the plaintiff's [end of page 65] lawyers rather
than on the plaintiff. But be that as it may, if it be a common practice to take finger prints before
committal or summary sentence, I venture to think that it deserves consideration by the Home
Secretary in consultation with the Lord Chancellor.
would be persuasive authority for the proposition that Parliament would have corrected the
problem mentioned by the learned Lord Justice in that case by the enactment of the forerunner of what is
now section 38 of Ch. 191.
In the later case of Callis v. Gunn [1964] 1 Q.B. 495 (which was decided after the enactment of
the Criminal Justice Act, 1948 and the Magistrate's Courts Act 1952 (England), Lord Parker, C.J., in
giving the judgment of the Court of Appeal at p.502 referred to the passage in Dumbell v. Roberts which I
have just quoted and then continued:-
"It is to be observed in the first place that none of the other Lords Justices, Goddard L.J. or
Luxmoore L.J., referred to that matter at all. For my part I cannot read that as an authority for
 saying that the fingerprint evidence should be excluded unless what Scott L.J. calls 'free consent'
is proved if that involves the giving of a caution.
In my judgment fingerprint evidence taken in these circumstances is admissible in law subject to
this overriding discretion. That discretion, as I understand it, would certainly be exercised by
excluding the evidence if there was any suggestion of it having been obtained oppressively by
false representations, by a trick, by threats, by bribes, anything of that sort. But in the present
case it is to be observed that whatever the defendant knew about the law and his rights, the
police never misrepresented it to him. True, they did not give any caution. As I have said, it was
quite unnecessary to give any caution. There is no suggestion here that they conveyed to him
that he had accede to the request. If that had been done there might be a clear case for
excluding the evidence."
In my view, the Criminal Justice Act, 1948 and the Magistrate's Courts Act, 1952 had given [end
of page 66] the necessary statutory authority for the taking of fingerprints of accused persons in England
and as it had been the lack of such authority which had led Scott, L.J. to make the statement which I
have quoted above, the decision in Callis v. Gunn is I respectfully find, quite correct.
However, whatever may be the position in English law nowadays, regarding the taking of
fingerprints and photographs of persons lawfully arrested by the police, the position in The Bahamas has
been made constitutionally different for we have elevated the evidential presumption of innocence into a
fundamental right which can only be altered if the provisions of Articles 514(3)(b) of the Constitution are
followed and which is, of course subject to the exceptions contained in the subsequent paragraphs of
Article 20 especially sub-paragraph (11) thereof.
The validity of section 38 of Ch. 191 will therefore have to be determined in light of Articles 2
and 20(2)(a) of the Constitution.
Section 38 of Ch. 191 reads:-
"38. - (1) It shall be lawful for any gazetted police officer or any other police officer who is
authorised by the Commissioner to take and record for the purposes of identification the
measurements, photographs, fingerprint and palmprint impressions of all persons who may from
time be in lawful custody.
Provided that if such measurements, photographs, fingerprint and palmprint impressions are
taken of a person who has not previously been convicted of any criminal offence and criminal
proceedings are not instituted against such person or such person is discharged or, acquitted by
a Court, all records relating to such measurements, photographs, fingerprint and palmprint
impressions shall forthwith be destroyed.
(2) Any person who shad refuse [end of page 67] to submit to the taking and recording of
his measurements, photographs, fingerprint or palmprint impressions shall be taken before a
magistrate who, on being satisfied that such a person is in lawful custody, shall make such order
as he thinks fit authorising a police officer to take measurements, photographs, fingerprint and
palmprint impressions of such person."
That provision, in a generally similar form, was part of the statute laws of The Bahamas before
7th January, 1963 and it was therefore an "existing law" for the purposes of the 1963, 1969 and 1973
constitutions.
By section 4(1) and 4(6) of The Bahamas Independence Order-in-Council 1973 ("the
Independence Order") it is provided that:-
"4. - (1) Subject to the provisions of this section, the existing laws shall be construed with such
modifications, adaptations, qualifications and exceptions as may be necessary to bring them into
conformity with the Bahamas Independence Act 1973(b) and this Order...
(6) In this section 'existing law= means any law having effect as part of the law of the
Bahama Islands immediately before the appointed day (including any law made before the
appointed day and coming into operation on or after that day)."
That section requires section 38 of Ch. 191 and any other existing law to be modified by a
statutory instrument like the Existing Laws Amendment Order, 1974 (Extraordinary Gazette dated 9/7/94)
(AELAO") so as to bring the existing laws into conformity with the constitution.
No such order was made in respect of section 38 although the ELAO contains extensive
references to what is now Ch. 191.
In Kanda v. Government of Malaya [1962] 2 W.L.R. 1153 at p. 1158 - 1159, Lord Denning, in
delivering the judgment of the Privy Council in a case from Malaya said (omitting the irrelevant words):-
"It appears to their Lordships that, [end of page 68] in view of the conflict between the existing
 law and the provisions of the Constitution the Yang di-Pertuan Agong could himself have made
modifications in the existing law within the first two years after Merdeka Day. (The attention of
their Lordships was drawn to modifications he had made in the existing law relating to the railway
service and the prison service.) But the Yang di-Pertuan Agong did not make , any modifications
in the powers of the ... and it is too late for him now to do so. In these circumstances, their
Lordships think it is necessary for the Court to do so under article 162(6). In a conflict of this kind
between the existing law and the Constitution, the Constitution must prevail. The Court must
apply the existing law with such modifications as may be necessary to bring it into accord with
the Constitution."
In that case, it is to be noted that the Malaya constitution, in Article 162(6) and (7) provided that-
"(6) Any Court or tribunal applying the provision of any existing law (which has not been
modified on or after Merdeka Day under this article or otherwise) may apply it with such
modifications as may be necessary to bring it into accord with the provisions of this Constitution.
(7) In this article 'modification= includes amendment, adaptation, and repeal."
While there is no exact counterpart to Article 162(6) and (7) of the Malaya constitution in the
constitution, Article 30 of the Constitution provides as follows:-
"30. -(1) Subject to paragraph (3) of this Article, nothing contained in or done under the authority
of any written law shall be held to be inconsistent with or in contravention of any provision of
Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question -
(a) is a law (in this Article referred to as 'an existing law') that was enacted or made
before 10th July 1973 and has continued to be part of the law of The Bahamas
at all times since that day; [end of page 69]
(b) repeals and re-enacts an existing law without alteration; or
(c) alters an existing law and does not thereby render that law inconsistent with any
provision of the said Articles 16 to 27 (inclusive) in a manner in which, or to an
extent to which, it was not previously so inconsistent.
(2) In sub-paragraph (1)(c) of this Article the reference to altering an existing law
includes references to repealing it and re-enacting it with modifications or making different
provisions in lieu thereof, and to modifying it; and in paragraph (1) of this Article 'written law'
includes any instrument having the force of law and in this paragraph and the said paragraph (1)
references to the repeal and re-enactment of an existing law shall be construed accordingly.
(3) This Article does not apply to any regulation or other instrument having legislative
effect made, or to any executive act done, after 9th July 1973 ,under the authority of an such law
as is mentioned in paragraph 1 of this Article."
Paragraph 3 of Article 30 of the Constitution was considered by Potter, J. in the case of Glen
Bowe et al v. Commissioner of Police, Magistrate Appeal No. 40 of 1977. In delivering his judgment on
29th September 1978, at p. 8, the learned judge held:-
"It is where the provision of the existing law could be used as the authority for constitutional or
unconstitutional executive acts, and the provision is not severable, that Article 30 comes into
play. It preserves the law despite the Constitution, but only permits us use for constitutional
purposes.
Were it not for Article 30, Section 230(33) of the Code might well have suffered the fate of being
declared unconstitutional that befell a similar provision of the statute law of another State relating
to public meetings in Chief of Police v. Powell, Etc. (1968) 12 W.I.R. 03." [end of page 70]
Further, Article 2 of the Constitution provides:-
"2. This Constitution is the supreme law of the Commonwealth of The Bahamas and, subject to
the provisions of this Constitution, if any other law is inconsistent with this Constitution, this
Constitution, shall prevail and the other law shall, to the extent of the inconsistency, be void."
If Article 2 of the Constitution is to bear the natural meaning which the words of that Article
suggest it ought to bear, then even an existing law would not be saved from a declaration of invalidity if
its salvation would have the effect of allowing the existing law to override any of the entrenched or
fundamental rights provisions of the Constitution.
Insofar, therefore, as section 38 of Ch. 191, appears to give the police power to take photographs
and fingerprints of any person who is lawfully in their custody without their free consent and prior to such
person having been either summarily convicted of an offence or at least committed to the Supreme
Court for trial for the alleged commission of an offence, that section would appear to be inconsistent with
Article 20(2)(a) of the Constitution and bearing in mind the dicta of Scott, L.J., in Dumbell v. Roberts cited
earlier, would normally fall to be declared void.
Even if section 38 of Ch. 191 is seen as having been saved from a declaration of invalidity by
the provisions of Article 30(1) of the Constitution, such saving cannot be accorded to any actions by the
police - a part of the executive - if their actions are done in contravention of, e.g., Article 20(2)(a) of the
Constitution.
It was because of those kinds of considerations that [end of page 71] that I indicated in the
Tynes' case that section 38 of Ch.191 may be unconstitutional.
In the event, if section 38 of Ch. 191 is saved by Article 30(1) of the Constitution, Article 30(3)
requires that it be applied in such a way as not to infringe any of the other provisions of the Constitution
so that if a person lawfully arrested by the police does not give his free consent to having his photograph
or fingerprints taken by them, then only a Court of competent jurisdiction order them to be taken on
reasonable cause being shown or else after summary conviction or after committal to the Supreme Court
for trial. Further, if the arrest is unlawful then the taking of photographs and or fingerprints and the taking
of information for the Criminal Record Office's "descriptive forms" would be both illegal and
unconstitutional.
In this case, as in the Tynes' case, I order that all descriptive forms and any and all copies
thereof whether computerised or not, any and all photographs, including the negatives thereof, and any
and all copies of every fingerprint form in relation to the plaintiff be delivered to the plaintiff's attorney for
destruction or be destroyed in the plaintiff's presence at her request.
Assessment of Damages
In her re-amended statement of claim filed on 10th March, 1994, the plaintiff claims:-
"(1)(i) Damages - Damages for false imprisonment;
(2)(ii) Exemplary Damages - Damages for assaults and batteries;
(3) Damages for detinue;
(4) Special Damages in the sum of $6,594.00; [end of page 72]
(5) Aggravated Damages;
(6) Exemplary Damages;
(7) Damages for breaches of her fundamental rights under Articles 17, 19(1), 19(2), 19(3)
and 27 of The Constitution;
(8) Compensation under Article 19(4) of The Constitution;
(9) Interest on each of the foregoing pursuant to statute;
(10) Costs on a full indemnity and solicitor and own client basis certified fit for 3 counsel; and
(11) Such further and other relief as to the Court may seem just.
(12) Damages for malicious prosecution.
(13) General damages."
The total figure for special damages was changed on the final day of the trial because it was at
that time that the plaintiff was able to say how much it in fact cost her to stay in The Bahamas for the
duration of this trial.
The total for special damages should now read $10,060.00 being made up as follows:-
A1. Attorneys fees for obtaining plaintiff's
release from custody:
$2,500.00
2. Air fare to Nassau from Antigua
Antigua August 1987 for Magistrate Court
Appearance:
500.00
3. Hotel, taxi, taxes and miscellaneous
expenses for 2 days - August 28th and 29th,
1987:

300.00
4. Telephone calls and telefaxes to
Counsel from California:

170.00
5. Cost of air fare, taxes, hotel and
for Appearance:
 2,690.00
TOTAL:
$6,594.00 [end of page 73]
6. Loss of income as an Attorney for travelling
to The Bahamas, meeting with counsel and
preparing for trial; number of days unknown;
amount to be inserted on the last day
of trial: $
1,900.00
TOTAL:
$10,060.00"
I accept that the law is that special damages must not only be specially pleaded but must be
strictly proved.
In this case, I accepted the plaintiff's evidence as to how much it cost her to obtain her release
on bail in 1987, and as to how much it cost her to return to Nassau from Antigua in August 1987 for her
appearance before the Magistrate's Court in Nassau and for her accommodation in Nassau during that
visit. The figures for telephone calls and telefaxed messages by the plaintiff to her counsel from
California in preparation for this case of $170.00 does not appear to me to be unreasonable or excessive
and so I accepted that figure as having been proven.
With regard to the figure of $2,690.00 as the cost of airfare, taxes and hotel accommodation
while she was here for this trial, I also accepted her evidence as to that figure and found it proven. As to
her loss of earnings for the 10 days of the trial while she was absent from her job in California her salary
at $190.00 per day did not seem to me to be high. However, the plaintiff did say that she had taken her
vacation to come to Nassau for the trial and presumably that means paid vacation leave since she is
employed by the State of California. Applying the presumption that the law of California is the same as
the law of The Bahamas in regard to that matter, I could not say that I was satisfied that the plaintiff had
proven that she lost $1,900.00 in salary during the tune she was [end of page 74] in The Bahamas.
I therefore disallow that sum.
A figure of $8,160.00 is therefore awarded by way of special damages.
As indicated earlier, I have found that the plaintiff has proven her case as to the commission of
the torts of assault and battery, false imprisonment and malicious prosecution as well as breaches of her
constitutional rights under Articles 17 and 19(1), (2) and (3) of the Constitution by way of damages since
it cannot be said that what happened to her fell within the de minimis principle.
In the case of the torts of false imprisonment and malicious prosecution damages are "at large"
so is the assessment of damages for the breach of her constitutional rights since Article 19(4) does not
set any limit on the amount of damages which can be awarded for such breaches.
In Dumbell v. Roberts cited above, Scott, L.J. at p.329 - 330 said this with regard to the
assessment of damages in the circumstances of that case:-
"For that reason, just as it is of importance that no one should be arrested by the police except
on grounds which in the particular circumstances of the arrest really justify the entertainment of a
reasonable suspicion, so also it is in the public interest that sufficient damages should follow in
such a case in order to give reality to the protection afforded by the law. Personal freedom
depends upon the enforcement of personal rights; and the primary personal right, apart from
habeas corpus, is the common law right of action for damages for trespass to the person, which
is called 'false imprisonment' just because it is for a trespass which has not involved interference
with personal freedom. By the common law there is no fixed measure of damages for such an
interference when unjustifiable because the damages are at large, and in so far as they represent
the disapproval of the law - historically of a jury - for improper interference with personal freedom
they may be 'punitive' or 'exemplary,' given by way of punishment of [end of page 75] the
defendant or as a deterrent example, and then are not limited to compensation for the plaintiff's
loss. The more highhanded and less reasonable the detention is, the larger may be the damages;
and, conversely, the more nearly reasonable the defendant may have acted and the nearer he
may have got to justification on reasonable grounds for the suspicion on which he arrested, the
smaller will be the proper assessment."
Where damages are "at large" it means that there is in fact no actual yardstick by which they can
be measured and where a jury has to decide such an issue, it cannot normally be interfered with by an
appellate tribunal. Where however, a judge, sitting as the tribunal of fact and of law has to assess
damages which are said to be "at large@ and must under rule 44 of the 1961 Rules of the Supreme Court
(which is saved by Order 81 of the 1976 Rules of the Supreme Court) give reasons for his decision, a
higher Court may find it easier to see whether an error of fact or law has been made and therefore easier
to interfere with that assessment if no reasonable tribunal, faced with the facts which were before the
judge of first instance would have assessed damages at as low or as high a figure as the judge of first
instance in fact did.
In Margaret Demerieux v. Attorney General of Barbados, a decision of the Supreme Court of
Barbados given by D.A. Williams, J. on February 10th, 1982, the plaintiff a university lecturer, was
awarded $15,000.00 in damages in a case in which the Court found that her behaviour before a
magistrate would have provided "ample grounds@ for proceedings for contempt and where the learned
magistrate purported to commit her to a mental hospital where she remained from " 3.30p.m. on 4th
November to 2p.m. on 7th November". In that ease the learned judge distinguished the facts in Maharaj
v. Attorney General of [end of page 76] Trinidad and Tobago [1977] 1 All E.R. 411 and awarded a lower
figure for damages for false imprisonment than had been awarded in the Marahaj's case.
In Field's case mentioned earlier, Georges, C.J., awarded the plaintiff a total of $9,000.00 in
general damages for the torts of assault involved in the unlawful search, arrest, false imprisonment and
malicious prosecution of the plaintiff even though he also found that there were aggravating factors in
that case. But he did not consider that the circumstances there warranted exemplary damages.
In that case there was no suggestion that the plaintiff in that case had been dealt with in the
same way as the plaintiff in this case and there may even have been some valid reason for his arrest. He
was not locked up for any considerable period, and certainly not in the kind of situation in which the
plaintiff, in this case found herself at the CPS nor did the Police refuse to permit him to consult counsel
nor was he imprisoned with persons of the opposite gender in virtually unsupervised circumstances
overnight.
In the case of Attorney General of St. Christopher, Nevis and Anguilla v. John Joseph Reynolds
[1980] A.C. 637, the Privy Council refused to interfere where the Court of Appeal for those islands had
increased an award of $5000.00 in damages awarded by the trial judge to $18,000.00. At p. 662 of the
report, Lord Salmon in delivering the judgment of the Privy Council said this:-
"The Court of Appeal came to the unanimous conclusion that, taking everything, into account,
the sum of $5,000 awarded at first instance was wholly inadequate, and they raised that sum to
$18,000. It is not the usual practice of their Lordships' Board to interfere with the quantum of
damages assessed by the Court of Appeal in cases of this kind, save in exceptional
circumstances Their Lordships cannot find anything on the [end of page 77] facts of the present
case which could justify them in interfering with the damages of $18,000 as assessed by the
Court of Appeal."
In that case the plaintiff, a retired inspector of police, had sued for damages under s.6(1) of the
Constitution for having been unlawfully detained under a purported declaration of a state of emergency
from June 11th 1967 until August 10th, 1967. The detention of the plaintiff in that case was also found to
be in Ahumiliating and unsanitary conditions".
In Jah Singh v. Toong Fong Omnibus Co. Ltd. [1964] 3 All E.R. 925 at 927 E - G, Lord Morris of
Borth-y-Gest, in delivering the judgment of the Privy Council said:-
"In appeals comparable in nature to the present one it must be recognised, as was said by Lord
Somervell in Lim Joo Chiang v. Lim Siew Choo (1), that the burden on an appellant who invites
interference with a figure that has commended itself to two Courts is indeed a heavy one. In
deciding this appeal, their lordships think that three considerations may be had in mind: (i) that
the law as to factors which must be weighed and taken into account in assessing damages is in
general the same as the law in England; (ii) that the principles governing and defining the
approach of an appellate Court that is invited to hold that damages should be increased or
reduced are the same as those of the law in England, and (iii) that to the extent to which regard
should be had to the range of awards in other cases which are comparable, such cases should as
a rule be those which have been determined in the same jurisdiction or in a neighbouring locality
where similar social, economic and industrial conditions exist."
In this case damages, apart from the special damages which I already dealt with, are being
sought for non-pecuniary loss.
In Ley v. Hamilton (1953) 153 L.T. 384, at p.386 (a case concerning defamation) Lord Atkin
seemed to assume that damages are awarded in such cases for Athe insult [end of page 78] offered or
the pain of a false accusation". This would apply equally to the tort of malicious prosecution.
 In McCarey v. Associated Newspapers [1965] 2 Q.B. 86 Pearson, L.J. said that a plaintiff's
damages may also include natural injury to his feelings, "the natural grief and distress which he may
have felt at having been spoken of in defamatory terms, and if there has been any kind of high-handed,
oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and
suffering caused by the defamation and constitute injury to the plaintiff's pride and self -confidence, those
are proper elements to be taken into account in a case where the damages are at large" - see also
Fielding v. Variety Incorporated [1967] 2 Q.B. 841.
As indicated above, the plaintiff in this case seeks damages not only on a compensatory basis
nor even only beacing in mind the aggravating features which the facts, as I have already found them
show but also damages on an exemplary basis; that is to show the defendants that "tort does not pay.@
In Rookes v. Barnard [1964] A.C. 1129, at p. 1221, Lord Devlin said:
"Exemplary damages are essentially different from ordinary damages. The object of damages in
the usual sense of the term is to compensate. The object of exemplary damages is to punish and
deter. It may well be thought that this confuses the civil and criminal functions of the law; and
indeed, so far as I know the idea of exemplary damages is peculiar to English law. There is not
any decision of this House approving an award of exemplary damages and your Lordships
therefore have to consider whether it is open to the House to remove an anomaly from the law of
England.
It must be remembered that in many cases of tort damages are at large, that is to say, the award
is not limited to the pecuniary loss that can be specifically proved. In the present case, for
example, and leaving aside any question of exemplary [end of page 79] or aggravated damages,
the appellant's damages would not necessarily be confined to those which he would obtain in an
action for wrongful dismissal. He can invite the jury to look at all the circumstances, the
inconveniences caused to him by the change o f job and the unhappiness maybe by a change of
livelihood. In such a case as this, it is quite proper without any departure from the compensatory
principle to award a round sum based on the pecuniary loss proved.
Moreover, it is very well established that in cases where the damages are at large the jury (or the
judge if the award is left to him) can take into account the motives and conduct of the defendant
where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the
manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity
and pride. These are matters which the jury can take into account in assessing the appropriate
compensation. Indeed, when one examines the cases in which large damages have been
awarded for conduct of this sort, it is not at all easy to say whether the idea of compensation or
the idea of punishment hay prevailed."
In the later case of Broome v. Cassell & Co. Ltd. [1972] A.C. 1027 at p. 1071 - 1074 in which
Rookes v. Bernard was expressly confirmed to be the law of England, Lord Hailsham of St. Marylebone,
L.C., in dealing with the subjective element in damages said:-
"In actions of defamation and in any other actions where damages for loss of reputation are
involved, the principle of restitutio in integrun has necessarily an even more highly subjective
element. Such actions involve a money award which may put the plaintiff in a purely financial
sense in a much stronger position then he was before the wrong. Not merely can he recover the
estimated sum of his past and future losses, but, in case the libel, driven underground, emerges
from its lurking place at some future date, he must be able to point to a sum awarded by a jury
sufficient to convince a bystander of the baselessness of the charge. As Windeyer J. well said in
Uren v. John Fairfax & Sons Pty. Ltd., 171 C.L.R. 115, 150: [end of page 80]
'It seems to me that, properly speaking, a man defamed does not get compensation for
his damaged reputation. He gets damages because he was injured in his reputation, that
is simply because he was in two ways - as a vindication of the plaintiff to the public and
as consolation to him for a wrong done. Compensation is here a solatium rather than a
monetary recompense for harm measurable in money.'
This is why it is not necessarily fair to compare awards of damages in this field with damages for
personal injuries. Quite obviously, the award must include factors for injury to the feelings, the
anxiety and uncertainty undergone .in the litigation, the absence of apology, or the reaffirmation
of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the
plaintiff himself may enter into the matter, where he has provoked the libel, or where perhaps he
has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at
by any purely objective computation. This is what is meant when the damages in defamation are
described as being 'at large'. In a sense, too, these damages are of their nature punitive or
exemplary in the loose sense in which the terms were used before 1964, because they inflict an
added burden on the defendant proportionate to his conduct, just as they can be reduced if the
defendant has behaved well - as for instance by a handsome apology - or the plaintiff badly, as
for instance by provoking the defendant, or defaming him in return. In all such cases it must be
appropriate to say with Lord Esher M.R. in Praed v. Graham, 24 Q.B.D. 53, 55:
'...in actions libel ...the jury in assessing damages are entitled to look at the whole
conduct of the defendant' (I would personally add >and of the plaintiff') 'from the time the
libel was published down to the time they give their verdict. They may consider what his
conduct has been before action, after action; and in Court during the trial.'
It is this too which explains the almost indiscriminate use of 'at large' 'aggravated,' 'exemplary'
and 'punitive' before Rookes v. [end of page 81] Bernard. To quote again from Professor
McCormick's work, it was originally only in America that the distinction between 'aggravated'
damages (which take into account the defendant's bad conduct for compensating the plaintiff's
Injured feelings) and 'punitive' or 'exemplary' damage was really drawn. My own view is that in
no English cases and perhaps even in no statue where the word >exemplary= or >punitive= or
>aggravated= occurs before 1964 can one be absolutely sure that there is no element of confusion
between the two elements in damages. It was not until Lord Devlin's speech in Rookes v.
Bernard that the expressions 'aggravated' on the one hand, and 'punitive' or 'exemplary,' on the
other, acquired separate and mutually exclusive meanings as terms of art in English law.
The next point to notice is that it has always been a principle of English law that the award of
damages when awarded must be a single lump sum in respect of each separate cause of action.
Of course, where part of the damage can be precisely calculated, it is possible to isolate part of it
in the same cause of action. It Is also possible and desirable to isolate different sums of
damages receivable in respect of different torts, as was done here in respect of the proof copies .
But I must say I view with some distrust the arbitrary subdivision of different elements of general
damages for the same tort as was done in Loudon v. Ryder [1953] 2 Q.B, 202, and even, subject
to what I say later, what was expressly approved by Lord Devlin in Rookes v Bernard [1964] A.C.
1129, 1228 for the laudable purpose of avoiding a new trial. In cases where the award of general
damages contains a subjective element, I do not believe it is desirable or even possible simply to
add separate sums together for different parts of the subjective element, especially where, as
was done by agreement in this case, the subjective element relates under different heads to the
same factor, in this case the bad conduct of the defendant. I would think with Lord Atkin in Ley v.
Hamilton, 153 L.T. 384, 386: 'The 'punitive' element is not something which is or can' (italics
mine) 'be added to some known factor which is non-punitive,' or in the words of Windeyer J. in
Uren v. Fairfax & Sons Pty. Ltd., 117 C.L.R. 118 , 150:
'The variety of the matters which, it has been held, may be considered in assessing damages for
defamation must in many cases mean that the amount of a verdict is the product of a mixture of
inextricable considerations.' (Italics again mine.) [end of page 82]
In other words the whole process of assessing damages where they are 'at large= is essentially a
matter of impression and not addition. When exemplary damages are involved, and even
though, in theory at least, it may be possible to winnow out the purely punitive element, the
dangers of double counting by a jury or a judge are so great that, even to avoid a new trial, I
would have though the dangers usually outweighed the advantages. Indeed, though it must be
wholly illegitimate to speculate in such a matter, the thought crossed my mind more than once
during the hearing that it may even have happened in this case.
This brings me to the question of terminology. It has been more than once pointed out the
language of damages is more than usually confused. For instance, the term 'special damage' is
used in more than one sense to denominate actual past losses precisely calculated (as in a
personal injuries action), or 'material damage actually suffered' as in describing the factor
necessary to give rise to the cause of action in cases, including cases of slander, actionable only
on proof of 'special damage.' If it is not too deeply embedded in our legal language, I would like
to see 'special damage' dropped as a term of art in its latter sense and some phrase like 'material
loss' substituted. But a similar ambiguity occurs in action of defamation, the expressions 'at
large,' 'punitive,' 'aggravated,' 'retributory,' 'vindictive' and 'exemplary' having been used, as I
have pointed out, in inextricable confusion.
In my view it is desirable to drop the use of the phrase 'vindictive' damages altogether, despite
 its use by the county Court judge in Williams v. Settle [1960] 1 W.L.R. 1072. Even when a purely
punitive element is involved, vindictiveness is not a good motive for awarding punishment. In
awarding 'aggravated' damages the natural indignation of the Court at the injury inflicted on the
plaintiff is a perfectly legitimate motive in making a generous rather than a more moderate award
to provide an adequate solatium. But that is because the injury to the plaintiff is actually greater
and, as the result of the conduct exciting the indignation, demands a more generous solatium.
Likewise the use of 'retributory' is objectionable because it is ambiguous. It can be used to cover
both aggravated damages to compensate the plaintiff and punitive or exemplary damages purely
to punish the defendant or hold him up as an example. [end of page 83]
As between 'punitive' or 'exemplary,' one should, I would suppose; choose one to the exclusion of
the other, since it is never wise to use two quite interchangeable terms to denote the same thing.
Speaking for myself, I prefer 'exemplary,' not because 'punitive' is necessarily inaccurate, but
'exemplary' better expresses the policy of the law as expressed in the cases. It is intended to
teach the defendant and others that 'tort does not pay' by demonstrating what consequences the
law inflicts rather than simply to make the defendant suffer an extra penalty for what he has
done, although that does, of course, precisely describe its effect.
The expression 'at large' should be used in general to cover all cases where awards of damages
may include elements for loss of reputation, injured feelings, bad or good conduct by either party,
or punishment, and where in consequence no precise limit can be set in extent. It would be
convenient if, as the appellants' counsel did at the hearing, it could be extended to include
damages for pain and suffering or loss of amenity. Lord Devlin uses the term in this sense
Rookes v. Bernard [1964 ] A.C. 1129, 1221, when he defines the phrase as meaning all cases
where 'the award is not limited to the pecuniary loss that can be specifically proved.' But I
suspect that he was there guilty of neologism. If I am wrong, it is a convenient use and should be
repeated.
Finally, it is worth pointing out, though I doubt if a change of terminology is desirable or
necessary, that there is danger in hypostatising 'compensatory,' 'punitive,' 'exemplary' or
'aggravated' damages at all. The epithets are all elements or considerations which may, but with
the exception of the first need not, be taken into account in assessing a single sum. They are not
separate heads to be added mathematically to one another."
As to whether this is an appropriate case for the award of aggravated or exemplary damages, I
accept Mr. Smith's submission that the facts of this case fell precisely within the first category of cases
referred to by Lord Devlin in Rookes v. Bernard cited above, at p.1225 - 1227 in which the assessment of
damages on exemplary basis would be permissible. His Lordship said:-
"These authorities convince me of two things. First, that your Lordships could [end of page 84]
not, without a complete disregard of precedent, and indeed of statute, now arrive at a
determination that refused altogether to recognise the exemplary principle. Secondly, that there
are certain categories of cases in which an award of exemplary damages can serve a useful
purpose in vindicating the strength of the law and thus affording a practical justification for
admitting into the civil law a principle which ought logically to belong to the criminal. I propose to
state what these two categories are; and I propose also to state three general considerations
which, in my opinion, should always be borne in mind when awards of exemplary damages are
being made. I am well aware that what I am about to say will, if accepted, impose limits not
hitherto expressed on such awards and that there is powerful, though not compelling, authority
for allowing them a wider range. I shall not, therefore, conclude what I have to say on the general
principles of law without returning to the authorities and making it clear to what extent I have
rejected the guidance they may be said to afford.
The first category is oppressive, arbitrary or unconstitutional action by the servants of the
government. I should not extend this category - I say this with particular reference to the facts of
this case - to oppressive action by private corporations or individuals. Where one man is more
powerful than another, it is inevitable that he will try to use his power to gain his ends; and if his
power is much greater than the other's, he might, perhaps, be said to be using it oppressively. If
he uses his power illegally, he must of course pay for his illegality in the ordinary way; but he is
not to be punished simply because he is the more powerful. In the case of the government it is
different, for the servants of the government are also the servants of the people and the use of
their power must always be subordinate to their duty of service. It is true that there is something
repugnant about a big man bullying a small man and, very likely, the bullying will be a source of
 humiliation that makes the case one for aggravated damages, but it is not, in my opinion,
punishable by damages.
Cases in the second category re those in which the defendant's conduct has been calculated by
him to make a profit for himself which may well exceed the compensation payable to the plaintiff.
I have quoted the dictum of Erle C.J. in Bell v. Midland Railway Co. Maule J. in Williams v. Currie
suggests the same thing; and so does Martin B. in an obiter dictum in Crouch v. Great Northern
Railway Co. It is a factor also [end of page 85] that is taken into account in damages for libel;
one man should not be allowed to sell another man's reputation for profit. Where a defendant
with a cynical disregard for a plaintiff's rights has calculated that the money to be made out of his
wrongdoing will probably show that it cannot be broken with impunity. This category is not
confined to moneymaking in the strict sense. It extends to cases in which the defendant is
seeking to gain at the expense of the plaintiff some object - perhaps some property which he
covets - which either he could not obtain at all or not obtain except at a price greater than he
wants to put down. Exemplary damages can properly be awarded whenever it is necessary to
teach a wrongdoer that tort does not pay.
To these two categories which are established as part of the common law there must of course
be added any category in which exemplary damages are expressly authorised by statute."
In their amended defence filed on 15th March, 1994, with regard to the matters relied on by the
plaintiff as seating that the award of damages should include an exemplary element, the defendants
pleaded as follows:-
"27. In regard to paragraph 28 of the amended statement of claim, the defendants state as
follows:
(i) In respect of paragraph (b) the defendants, in the introduction to their legal
submissions, have sought to explain and clarify the reason why the trial was
conducted by them in the manner in which it has been conducted. The
defendants never sought to deny liability; the plaintiff was simply required to
prove her case.
(ii) In respect of paragraph (c) the defendants say that appropriate apologies will be
made to the plaintiff.
(iii) In respect of paragraph (d) the defendants wish only to state that they are
surprised by the statement made and contained in the latter part of the said
paragraph.
(iv) In respect of sub-paragraph (e) the defendants make no submissions. [end of
page 86]
(v) Save and except that the defendants admit that they applied for security for
costs on 7th September, 1992 and that the said application was dismissed with
costs to the plaintiff, the defendants deny that the application for security for
costs; was made in bad faith or with knowledge that the plaintiff's claim was
indefensible. The defendants admit, however, that by the time the said
application was heard they had realised that the plaintiff's chances of success,
with respect to the matters then pleaded, were reasonably good.
(vi) The defendants specifically deny that in contempt of the order of the Court made
on the 17th day of December, 1992, they intentionally or wilfully failed to file a
List of Documents for inspection by the plaintiff. They admit that contrary to the
requirement of the said order, the List of Documents was not filed. This however,
was due to an oversight and there never was or could have been any intentional
or deliberate flouting of an Order of this Honourable Court. Indeed the
defendants' failure to file the List of Documents was known by counsel for the
plaintiff and both counsel agreed not to hold up the progress of the trial in order
to facilitate the filing of the defendants' List of Documents. Counsel for the
plaintiff was thus prepared to proceed to trial 'without the said List of Documents
being filed.
(vii) The defendants vehemently and categorically deny sub-paragraph (h) of the
amended statement of claim and say that at all times they sought to comply
expeditiously with all requests made by the plaintiff.
(viii) Save and except that certain documents were produced piecemeal to the
plaintiff which said circumstances was occasioned by the imminency of the trial,
 by the difficulty of communicating with the authorities in Freeport and the
distance between Freeport and Nassau, the defendants once more vehemently
and categorically deny the allegations made in paragraph (ii).
(ix) The defendants specifically deny the allegations made and contained in
paragraphs (j) to (k) and although admitting that the Court made the order on the
4th March, 1994, say that it was always their intention to produce all relevant
and material documents to the plaintiff and to the Court. The defendants have
the highest respect for the plaintiff's rights, the Rule of Law and the Constitution
and will content at the hearing of this matter that nothing done by them can
reasonably he construed [end of page 87]
It appears from the document that the defendants do not take the view that this was one of those
kinds of civil actions which could have been settled out of Court by, e.g., the offer of an apology coupled
with the withdrawal of the criminal charges and at least an offer to make amends by way of reasonable
compensation. It would also appear that by that pleading it is to be inferred that this Court ought not to
take into account in assessing damages, the conduct of the defendants individually as well as collectively
in their defence. However, it is to be noted that even after admitting that the plaintiff had been wrongfully
arrested and wrongfully denied her constitutional right to consult an attorney, the first defendant insisted
that in the circumstances as they occurred on 13th August, 1987, he felt that he had acted quite properly
thereby belying any suggestion that he would be willing to make even a Astingy@ apology let alone a
handsome one.
Further, by paragraphs 7, 8, and 10 of the amended defence, the defendants' attempt to justify
the manner in which the 1st defendant's gained entry to the house and to rationalise his unlawful seizure
of the plaintiff's passport.
Paragraphs 12, 13, 14 and 15 are also denials of material averments in the statement of claim
which called for decision by the Court and therefore for evidence to be elicited from the witnesses. Yet
they claim that they were not denying the plaintiff's allegations but only requiring her to "prove her case".
In addition, a number of witnesses for the defence were called, examined-in-chief and
cross-examined personally in order to show that some portions, if not all, of the plaintiff =s evidence was
not to be believed.
No apology had been made to the plaintiff by any of the defendants by the time this case was
closed and the [end of page 88] pleading that they intended to do so is no consolation to the plaintiff who
has had the threat of intended prosecution hanging over her like the proverbial sword of damocles since
August, 1987.
In this case, I have already set out in my findings on the fact most, if not all, of the material
factors to be borne in mind in assessing damages. But the quantum to be awarded is always a difficult
matter particularly bearing in mind the subjective considerations. In Huckle v. Money (1763) Loft 1 the
plaintiff Awas a journeyman printer who had been taken into custody in the course of the raid on the North
Briton. The issue of liability having already been decided the only question was as to damages and the
jury gave him ,300. A new trial was asked for on the ground that this figure was 'most outrageous'.' The
plaintiff was employed at a weekly wage of one guinea; he had been in custody for only about six hours
and had been used 'very civilly by treating him with beef 'steaks and beer.' It seems improbable that his
feelings of wounded pride and dignity would have needed much further assuagement; and indeed the
Lord Chief Justice said that >the personal injury done to him was very small, so that if the jury had been
confined by their oath to consider mere personal injury only, perhaps ,20 damages would have been
thought sufficient...' But they had done right in giving exemplary damages. The award was upheld."
The figure of ,300 in 1763 would by reference to inflation alone amount to a tremendous sum of
money in today's currency.
Of course, if I were to follow what I believe is the early Bahamian cultural appreciation for all
"things American@ I would almost certainly have accepted Mr. Smith's suggestion that I award damages
in a global figure of [end of page 89] $2,000,000.00 because just recently in the Rodney King civil case in
California, U.S.A., a jury awarded the plaintiff (who had a prior criminal record) but who had been
wrongfully arrested and beaten by a number of police officers some US$3.8 million dollars in damages;
the difference between the sum suggested by Mr. Smith and awarded by the jury in the Rodney King
case being accounted for by the fact that the plaintiff in this case did not complain of actually being
beaten. However, I am bound by the law as laid down by the Bahamas Court of Appeal in their recent
decision, not to follow United State's precedents in assessing damages and by the decision in Jah
Singh's case to look at similar cases decided either in The Bahamas itself or in the region or, as Georges
C.J. suggested, at cases from e.g., Bermuda and Cayman which have a similar economic and social
background to The Bahamas and in the absence of any of those to look at English cases.
In Broome v. Cassell cited earlier, Lord Hailsham L.C. thought the sum of ,25,000 by way of
exemplary damages might have been considered high, however he somewhat reluctantly, refused to
interfere with that figure. That was over 22 years ago and the protagonists there were a private citizen
and a publishing company - not a government agency and not the ultimate power of the State ranged
against a single person. [end of page 90]
Apart, from the factual differences between this case and the cases from the region and Field's
case mentioned earlier, it must be recalled that all of those cases have been decided some time ago -
Field's case being the most recent in point of time and being from the same jurisdiction. However, even
since that time, "as we all to our dismay have discovered, there has been a considerable change in the
purchasing power of money" - see e.g., Hambidge v. Harrison [1972] 1 L1. Rep. 572 at p. 577.
Inflation is a fact of life in The Bahamas and has been for some years now. There is nothing to
indicate when that rate will stabilise or decrease and that is a factor which I must bear in mind when
considering the amount of damages assessed in Field's case in 1986 as compared with the
circumstances of this case.
In my view, the plaintiff is entitled to damages to compensate her for the wrongs done to her by
officers of the crown (the State) and the factors to be taken into account in assessing those damages
should include an amount for the humiliation, i.e. the injury to the plaintiff's dignity and pride which she
endured as well as the unsanitary conditions in which she was incarcerated at CPS. In addition, she is
entitled to be compensated for the loss of her personal liberty, the mental and physical suffering, the fear
induced by the implicit threats, e.g., by the police officers at CPS who told her that he " would not put up
with any nonsense" from the plaintiff, the oral abuse by Sgt. McCoy as well as the humiliation of having
to use the prisoners' bathroom in the presence of male police officers both at CPS and at APS even if
their backs were turned.
In addition, the plaintiff who has since studied for, and been admitted to the Bar in California,
U.S.A. was kept [end of page 91] in communicado from her family members, had her passport seized
and retained by the police without any legal or moral justification and they knew that she was a visitor to
The Bahamas at the time.
Since the police officers involved in this incident were all servants of the State, acting, or
purporting to act in their official capacities in dealing with the plaintiff, and since, in my view the conduct
of the 1st defendant, Sgt. McCoy and Officer Pratt at CPS in particular, was high-handed, and the way in
which the defence was conducted, e.g., by the attempt to the very end, to justify the arrest and detention
of the plaintiff and the attempt to justify the seizure of the plaintiff's passport on the ground that she had
refused to give her name to the 1st defendant, the fact that liability has never been conceded in respect
of the torts of false imprisonment, assault and battery or malicious prosecution, nor has any genuine
apology been offered, I can only view the conduct of the 1st defendant in particular as high -handed and
outrageous. Furthermore, that conduct showed an extreme disregard for rule of law and the rights of the
plaintiff to the protection of the law. I therefore hold that the damages awarded in this case should include
a reasonable sum by way of exemplary damages.
Lister v. Romford Ice and Cold Storage Co [1957] A.C. 555 et seq at p. 573 per Viscount
Simonds, exercises a restraining influence in the assessment of damages in this cases, since the 2nd
defendant or the State has the power to recoup any sum which they may have to pay out to the plaintiff
from the 1st defendant.
In this case, however, the Attorney-General's office at any rate was actually involved in the
preferment of the two sets of criminal charges against the plaintiff so that [end of page 92] with regard to
the tort of malicious prosecution, I take the view that both defendants are equally responsible for the
damages arising from that tort.
In Broome v. Cassell & Co. cited above, at p. 1063 Lord Hailsham, after referring to the
judgments of Lord Denning, M.R. and Salmon, L.J. in that case when it was before Court of Appeal as to
whether there should be a single award or two, said this:-
"With respect to both judgments which, as will be seen, are arguably not quite consistent with
one another, I think the effect of the law is exactly the opposite and that awards of punitive
damages in respect of joint publications should reflect only the lowest figure for which any of
them can be held liable. This seems to me to flow inexorably both from the principle that only
one sum may be awarded in a single proceeding for a joint tort, and from the authorities which
were cited to us by Mr. Parker in detail in the course of his argument. Mr. Parker referred us to
 Heydon's Case (1612) 11 Co. Rep. 5a; Clark v. Newsan (1847) Exch. 131; Bill v. Goodchild
(1771) 5 Burr. 2790; Dawson v. M'Clelland [1899] 2 Ir. R. 486; Greenlands Ltd. v. Wilmshurst and
London Association for Protection of Trade [1913] 3 K.B. 507, especially at p.521; Smith v.
Streatfeild [1913] 3 K.B. 764, 769; Chapman v. Lord Ellesmere [1932] 2 K.B. 431, 471 per
Slesser L.J.; Dougherty v. Chandler (1946) 46 N.S.W.S.R. 370; Egger v. Viscount Chelmsford
[1965] 1 Q.B. 248, 262 and to Gatley on Libel and Slander, 6th ed. (1967), p. 606, para 1390. I
think that the inescapable conclusion to be drawn from these authorities is that only one sum can
be awarded by way of exemplary damages where the plaintiff elects to sue more than one
defendant in the same action in respect of the same publication, and that this sum must
represent the highest common factor, that is, the lowest sum for which any of the defendants can
be held liable on this score."
In my view, the tort of malicious prosecution is akin to the tort of defamation in the effect it is
likely to have on a person's reputation, the mental anguish likely [end of page 93] to be cause by the
malicious preferment of criminal charges against a person or even quasi-criminal charges which those in
this case may be likened, the fact that the effects may be for more widespread and less capable of any
real cure because the extent of the Ainjury@ to reputation is not liable to be precisely known at any point in
time.
As pointed out in the Tynes= case, in a consent judgment, before Thorne J., recently damages in
the sum of $150,000.00 were accepted with an apology for the single tort of defamation committed
against two counsel.
This case is also distinguishable on its facts from the Tynes case, e.g. in the Tynes= case, the
plaintiff was falsely imprisoned for, at most, three hours, here it was for 57 hours. In that case, the
plaintiff was subjected to two humiliating body searches, here there were none. Mr. Tynes was
imprisoned in the APS, New Providence and he was not forced to share a cell with any other person let
alone as many as 12 persons of the opposite gender. In the Tynes= case the prosecution was blatantly
malicious here it is not as obviously blatant. Also, it is generally mental anguish than imprisonment in
one=s own country so that the circumstances of the imprisonment of the plaintiff most probably caused
her even greater mental anguish than Mr. Tynes would have experienced even though he too feared that
he would be separated from family if he was not released on bail.
In this case not only was the plaintiff imprisoned in a country not her own, she was also denied,
at first at any rate, the consolation of seeing the friend she had made here. She must have felt
completely abandoned or at least completely cut-off from everyone for whom she cared.
At the time of Mr. Tynes= arrest, he was actually [end of page 94] preparing for a trial and his
arrest took place in the presence of his client. Hence, while the plaintiff's work was not as directly
affected by her arrest, the manner in which she was treated by the police in the presence of the pool
maintenance man, was probably just as embarrassing and injurious to her sense of dignity and
self-confidence as the public humiliation to which Mr. Tynes was exposed in the presence of his client.
It is for those reasons that the figures at which I assess damages in this case may bear some
relation to the figures in that case.
In this case, while the plaintiff is now an attorney, she was in 1987, a school teacher and she
certainly would have been adversely affected in her job if she was convicted or if the charges were
generally known in California. The criminal charges were not disposed of by the Court, however, because
she refused, for the reasons she gave, to return to stand her trial. I will take that into account in
mitigation of damages.
In British Transport Commission v. Gourley [1956] A.C. 185, [1956] 2 W.L.R. 41, the House of
Lords decided, among other things, that a successful plaintiff's statutory liability to pay income tax is to
be taken into account in the assessment of damages. While there is no income tax in The Bahamas,
properly so called, I have little doubt that income tax is eligible from the plaintiff's income in the State of
California. However, as one sovereign nation does not normally enforce the tax laws of another nation
within its territory, I did not think that I could take the plaintiff =s liability to income tax under the laws of
California into consideration in the assessment of damages in this case.
I should add, for completeness, that I have in fact read all of the authorities cited in the case and
the [end of page 95] omission of references to some of them is purely in the interests of economy of
time.
For the torts of assault and battery and false imprisonment I assess damages in the sum of
$90,000.00. For the tort of malicious prosecution I assess damages in the sum of $90,000.00. For the
glaring breaches of the plaintiff=s constitutional rights. I assess damages in the sum of $100,000.00.
 There will accordingly be judgment for the plaintiff in the sum of $288,160.00 - i.e.
$ 8,160.00 - special damages
+ 90,000.00 - damages for assault, battery and false imprisonment
+ 90,000.00 - damages for malicious prosecution
+ 100,000.00 - breaches of plaintiff's constitutional rights
Before leaving this judgment, I wish to record my gratitude to counsel on both sides for their
patience with my laborious note-taking of the evidence by hand in what I was told is a very important
constitutional case and which I tried to record as accurately as possible the gist of question and answer
as well as submissions on the law.
I have also been grateful for the assistance I was provided by counsel for the plaintiff in
summarising the facts of the case and for the authorities on the law which were provided.
Finally, it will be recalled that I indicated that three of the four police officers who were witnesses
for the defence whom I found to be more truthful than the others, are the only police officers named in
this case who have not been promoted since this incident - apart from Sgt. McCoy. It is hoped that their
efforts to be faithful to the oaths as witnesses which had the effect of undermining [end of page 96] the
case for the defence, will not be used against them by the powers that be. Some persons may think that
because persons are members of a "disciplined force" that means that they must adopt the attitude of
blindly obeying any order of a superior officer even if such orders are morally as well as legally and
constitutionally wrong.
Superior orders cannot be used as a cloak for wrong-doing nor will they constitute any defence to
proven acts of wrong-doing although in appropriate circumstances they may be viewed as mitigation if
they are not clearly immoral or illegal and unconstitutional.
Mr. Smith asked that in awarding costs I should certify the case as fit for three counsel and
should award costs on a solicitor and own client basis.
In Smith v. Buller (1875) L.R. 19 Eq. at p. 475, Malins, V.-C. said.-
A >It is of great importance to litigants who are unsuccessful that they should not be oppressed by
having to pay an executive amount of costs. The costs chargeable under a taxation between
party and party are all that are necessary to enable the adverse party to conduct the litigation,
and no more. Any charges merely for conducting litigation more conveniently may be called
luxuries, and must be paid by the party incurring them.' "
Although the firm of Tynes & Tynes were counsel of record at the outset of this case in 1987,
there was a notice of change of attorney showing Mr. Smith's firm to be the plaintiff's new attorney and
Mr. Tynes was called as a witness for the plaintiff. However, no objection was raised at the trial on behalf
of the defendants to Mr. Tynes subsequently taking part in the trial as counsel, so even though it is
unusual for a person to appear in the same trial in a dual capacity, T make no ruling as to that. However,
no [end of page 97] authority was cited which suggested that the Court can or cannot certify a case as fit
for (3) three as opposed to two counsel and the defendants were represented by (3) three counsel.
I would therefore certify this matter as fit for (3) three counsel.
I will not, however, award costs on a solicitor and own client basis but rather on a party and party
basis as the element of exemplary damages has already taken into account the need of bringing home to
the defendants that Atort does not pay".
In the result, for the reasons already given, judgment will be entered for the plaintiff in the sum of
$288,160.00 with costs to be taxed if not agreed. Certified fit for three counsel.
Issue as to interest prior to date of judgment is reserved.