Thu | Jun 29, 2017

Illegal arrest! Careless cops cost taxpayers almost $1 million as judge rules in favour of bank manager

Published:Sunday | September 21, 2014 | 9:00 AM

Barbara Gayle, Justice Coordinator

The high-handed, oppressive and reckless manner in which a senior police officer treated a bank manager, who was wrongfully detained on the night of February 20, 2008, has drawn strong condemnation from Supreme Court judge Marva McDonald Bishop.

In handing down judgment in favour of Delia Burke against the Government and Deputy Superintendent of Police Carol McKenzie last week, the judge reminded the police of their role in the society and warned that the court will take steps to deal with their misconduct.

"I, however, accept that the invasion of one's privacy by agents of the State in the sanctity of his or her home, especially at night, and to restrain that person's liberty without lawful authority, justification or excuse under such circumstances, is serious enough for the court to penalise such conduct and to take steps to deter such conduct in the future," said McDonald Bishop.

"The police should serve and protect and not seek to violate the rights of citizens, particularly in the sanctity of their homes, without good and justifiable reason, and to do so in a high-handed and oppressive manner," the judge said, as she made an award of $250,000 for exemplary damages.

It was the judge's finding that Burke was falsely imprisoned for a total of three hours at her home and at the police station, after McKenzie went to Burke's home and told her he had a report that a woman had fraudulently purchased goods from Phil's Hardware on Constant Spring Road, St Andrew.

HAD TO CALL LAWYER

Burke was awarded a total of $765,000 in damages for false imprisonment, trespass, aggravated damages, and exemplary damages with interest at three per cent. She was awarded special damages of $80,000 for legal expenses as she had to call her lawyer, Bert Samuels, to represent her when she was taken from her home to the Constant Spring Police Station.

Legal costs were awarded against the defendants, who were McKenzie and the attorney general.

Burke testified in court that her ordeal began about 9:30 p.m. on February 20, 2008. She said she had retired to bed when she was awakened by loud noises and loud shouts of "open up!"

She went to investigate and found police vehicles and members of the police force at her gate, with her premises surrounded by about 15 cops.

McKenzie, who was the commanding officer, was on the premises and he said he wanted to enter the house and look around. He also told her it would be necessary for her to accompany him to the police station, where she would be charged for the items on her premises.

According to Burke, she had purchased some material from Phil's Hardware and they were in her driveway and on her verandah. She produced the receipts for the goods and the debit card used to make the purchase, but McKenzie refused to look at them.

McKenzie produced no search warrant and Burke said she opened her front gate to prevent further embarrassment as onlookers and neighbours had gathered.

A policewoman was ordered to accompany her to her bedroom to change her nightwear. She was then placed in a police vehicle and taken to the police station. She then called Samuels, and when he came, he had discussions with McKenzie. She was released after McKenzie said she was the wrong person.

NOT AN ARRESTABLE OFFENCE

Attorney-at-law Aon Stewart, instructed by Knight, Junor & Samuels, who represented Burke, had argued that the defendants should be ordered to pay damages because Burke did not commit any arrestable offence.

McKenzie, in giving evidence, admitted that the claimant had shown him receipts, but he did not look at them because the lighting at the premises was bad. However, the judge said she rejected his explanation about the lighting and found he refused to look at the receipts because he had viewed Burke as the culprit.

The cop told the court that when they were at the police station, the intelligence officer, who had taken a photograph of the woman who was the suspect, told him that they had arrested the wrong person.

The judge found that McKenzie acted recklessly by not looking at the claimant's receipts from the outset and failed to seek verification of her identity and purchase, which he could have done before restraining her liberty.

"I find that the first defendant had no rational basis or reasonable grounds on which he could have honestly believed that the claimant was the person who had made the fraudulent purchase.

"On the totality of the evidence, I find that the first defendant, in the face of the claimant's insistence on her innocence with evidence to prove it, turned his back - or rather a blind eye - to potentially exculpatory evidence and, in so doing, acted without reasonable and/or probable cause," said the judge.

According to the judge, McKenzie acted without lawful justification or excuse in depriving Burke of her liberty.

barbara.gayle@gleanerjm.com