Ms. Tamara Merson, an American visitor to Freeport in 1987 is having her final say in Court before the Privy Council on June 7.
The Privy Council is set to hear her appeal from the Bahamas Court of Appeal which in October 2001 reduced her damages from $300,000, awarded by the then Chief Justice Dame Joan Sawyer in June 1994, to $200,000.
At the Supreme Court and Court of Appeal, Ms. Merson was represented by Frederick Smith, Harvey Tynes, Q.C.and Ms. Pleasant Bridgewater.
At the Court of Appeal, Milton Evans and Patrick Mackey acted for the Attorney General.
Mr. Smith and Ms. Merson are travelling to London and Mr. Smith will be presenting her case before the Privy Council. The Attorney General has instructed Charles Russell LLP to argue the case on behalf of the Government of the Bahamas.
This is a case of significant precedent-setting importance in determining whether Courts in the Bahamas can also award damages for breach of constitutional rights as well as common law damages in the torts of assault, battery, false imprisonment and malicious prosecution.
Prior to the Court of Appeal’s decision in Tynes vs Barr, and Merson vs Drexel Cartwright and the Attorney General, the Courts had awarded damages both for common law torts and for constitutional relief. Since the Tynes and Merson appeal decisions, no awards for constitutional damages have been made in The Bahamas.
Ms. Merson had been awarded $90,000 for damages for assault, battery and false imprisonment and $90,000 for malicious prosecution. A further $100,000 was awarded for breaches of her constitutional rights to bail, for unlawful detention and inhuman and degrading treatment under Article 17 of the Constitution.
The Attorney General appealed the Chief Justice’s award on the basis that, firstly, the two sums of $90,000 were far too high and that there should not have been a separate award of her constitutional rights.
The Court of appeal dismissed the Attorney General’s Appeal holding that both awards of $90,000 totalling $180,000 were neither too high nor too low.
The Court of Appeal did however strike down the $100,000 award for breach of her constitutional rights, principally on the basis that there seemed to have been a duplication in damages and that there was no right to separate constitutional relief.
Ms. Merson, a United States citizen, then a teacher 29-years-old, was visiting her father in Freeport when Sgt. Drexel Cartwright, (later promoted to Inspector), executed a search warrant at the residence of her father who was a paraplegic and diabetic and whom she was taking care of. The father (who was away) was suspected of conducting an illegal banking operation. He was not present. After the search, the police arrested Ms. Merson and held her for three days so that she could not contact her father.
The Chief Justice found the following facts proved and that therefore she had been treated in an inhumane and degrading fashion.
She was not allowed to change her clothing or to call anyone for assistance after her arrest. She was taunted and teased by the police. She was at first locked up at Central Police Station with a female and two male prisoners without being separated. She was not permitted to use the bathroom for some time. When she eventually was allowed to use the bathroom, it was in a disgusting state. She was not permitted to take her medication and during the first night at the jail, had to share the cell with two men who threatened to rape her.
The cell was not checked by the police during the night. The cell only had one hole in the door for ventilation. This was during the month of August 1987 and the cell was described as the black hole of Calcutta.
Because of the unsanitary condition of the cell, roaches climbed into her hair and mouth during the night. There was no space to rest because the benches were so small.
During the next day, Friday, August 14, 1987, she was kept in a general cell area with 12 other male prisoners. The jail was so busy that day prisoners could not be let out to use the toilet and prisoners defecated and vomited in the cell area. One of the inmates masturbated in front of Ms. Merson and there was general mayhem and confusion throughout the day.
Ms. Merson was denied her right to see counsel, Mrs. Harvey Tynes, until later that evening.
The only way that the persons could ” get air was to take turns putting their mouths to the hole in the door for fresh air “. The general cell area was not clean and Ms. Merson was not fed by the police while in custody.
She was eventually transferred to the airport police station but even then when she used the toilet the door was left open and she was watched over by a male policeman.
She was taunted and teased about her racial origin and referred to in denigrating terms.
She was kept in custody more than 48 hours and unlawfully denied bail.
Source: The Nassau Guardian
