The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

SEVEN police officers may have been carrying out a “personal vendetta” when they dragged a man off his job at a pharmacy six years ago, beat him, and swore to “f* him right up until he talked” about an alleged police stabbing, an appellate judge has suggested.

Appellate Justice Sir Michael Barnett, in a written ruling, said Michael Russell’s record of interview contained no investigation of the police stabbing claim, thus suggesting the officers were not acting in their official capacity when they “brutalised” him at a Lowe’s Pharmacy location in 2012.

Justice Barnett said it appeared the investigation was “limited to the incident at Lowe’s”. This possibility, along with other legal reasons, led the appellate court to order a “factual inquiry” into whether the seven officers were in fact acting as police officers or acting on a “complete frolic of their own carrying out a personal vendetta” against Russell while arresting him.

And in doing so, Sir Michael, along with appellate president Sir Hartman Longley and appellate Justice Stella Crane-Scott, allowed Russell’s appeal of Supreme Court Justice Ian Winder’s decision to strike out his court action against the seven officers on the grounds it was statute barred and thus an “abuse of the process of the court”.

According to the Court of Appeal ruling, Russell alleges in his statement of claim that on August 29, 2012, seven officers in plain clothes took him from Lowe’s Pharmacy’s on Soldier Road, where he was working at the time.

The officers allegedly involved are Constables 3072 Teron McPhee and 2020 Reginald Knowles; Corporal’s 2053 Brian Moss, 2185 Jermaine Seymour, 1477 Dominic McKinney and Detective Corporal 2571 Dion Brown; and Detective Superintendent L. Bevans.

The officers are listed as the third through ninth respondents, while the Attorney General and the Commissioner of Police are listed as the first and second respondents, respectively.

Russel claimed the officers told him he “like to stab police” and proceeded to “brutalize him in a most outrageous manner”, punching and slapping him before dragging him outside and stomping and kicking him.

While this was happening, Russell claims he adamantly maintained his innocence that the officers had the wrong man. Nonetheless, he was taken to the police station and en route was told the officers were going to “f* him right up until he talked”.

While at the station, Russell claimed the police brutality continued.

Eventually, Russell was arraigned in the Magistrate’s Court and charged with causing grievous bodily harm and resisting arrest. However, those charges were dropped on June 18, 2013.

Russell commenced the action in question on March 20, 2015, some two and a half years after the incident in question. The defendants in the complaint were the seven officers in question, the Attorney General, pursuant to the Crown Proceeding’s Act, and the Commissioner of Police due to him being “vicariously liable” for the actions of the police.

However, the respondents, having entered an appearance, immediately applied to strike out the action for being “frivolous, vexatious, and an abuse of process of the court” as the cause of actions pleaded in Russell’s claim were statute barred under the provisions of section 12 of the Limitation Act.

The action was heard on January 27, 2016 and on April 8 of that year Justice Winder acceded to the respondents’ application and struck out the action.

Russell tried to escape the provisions of section 12 of the Limitations Act by pleading the officers were being sued both as police officers and in their personal capacity, and that section 12 did not apply to actions against the officers in their personal capacity.

However, Justice Winder ruled that as Russell’s action was statute barred, it was “therefore frivolous and vexatious and an abuse of the process of the Court.”

Nonetheless, the appellate judges found Russell’s case “may not be as straightforward” as Justice Winder suggested, adding since his ruling in April 2016, the “jurisprudence with respect to public authority limitation has been more clearly elucidated by the Privy Council”.

They ultimately ruled Russell’s claims warrant “a full trial and a complete ascertainment of the facts and the law with respect to the facts as ascertained.”

“In our judgement, there should be a factual inquiry as to whether the third through ninth respondents when purporting to arrest the appellant were in fact acting as police officers or whether, for the purposes of section 12, they were acting on a complete frolic of their own carrying out a personal vendetta,” Sir Michael said.

“It should be noted that in the record of interview that the police held of the appellant there was no investigation of the initial allegation of ‘stabbing the police’. The investigation appears to be limited to the incident at Lowe’s on Soldier Road. This may suggest that they were not acting in their capacity as police officers when they brutalized the appellant at his workplace.”

The appellate judges ruled the matter should be remitted to the Supreme Court for a “full trial”. Costs were awarded to Russell both in the Supreme Court and the Court of Appeal, to be taxed if not agreed.