Tokunbo cleared over breath test
A charge of failing to provide a breath test against a magistrate was dismissed yesterday after the judge ruled the police officer who arrested him was biased.
Cayman Islands magistrate Valdis Foldats found Khamisi Tokunbo's detention after a car crash was illegal because Colin Mill, the arresting officer, did not have “an honest subjective belief” that he had reasonable grounds to make the arrest.
Mr Foldats said Mr Mill's bias against Mr Tokunbo had tainted his investigation.
He added: “Pc Mill knew who the defendant was as soon as he arrived at the scene — his bias was already present and he was not going to let the defendant get away with ‘s**t'.”
Mr Tokunbo, 65, earlier denied the allegation that he refused a breath test when he was arrested after the crash in Paget on January 19.
Mr Tokunbo declined to comment after the verdict, but Charles Richardson, his lawyer, said the magistrate was “very pleased” by the result.
Mr Richardson said: “I think the most important question is why was it so important to spend so much money on a driving case against a sitting magistrate?
“The next big question is how do you have a case built entirely on bias and lies by a police officer? That should shake you to the core.
“This gentleman all but admitted that he was going to treat Mr Tokunbo differently because of who he was and the court found that was, in its own words, ‘jarring'.”
He added: “I wonder what Mr Mill is going to do now, because this judgment has effectively branded him as a dishonest police officer. He ruined his career on this case.”
A spokesman for the Bermuda Police Service said after the judgment: “The prosecution against Mr Tokunbo was brought about in consultation with the Department of Public Prosecutions based on the evidence presented following a crash in Paget on January 19 this year.
“This was a complicated case with many different factors to take into account, leading to the decision to present the matter to be heard in court.
“The BPS now respects the decision of the magistrate and will review the details of the judgment accordingly.”
Larry Mussenden, the Director of Public Prosecutions, said: “We are in the process of reviewing the written judgment.
“On the assessment of the evidence in the case file, this was a proper case to be put before the courts.”
Magistrates' Court earlier heard that police were called to the crash, near the public entrance to Elbow Beach, and found Mr Tokunbo's car “completely off the road” over an embankment.
Mr Tokunbo and his friend, Allen Robinson, were in the vehicle at the time of the crash.
Pc Mill spoke to Mr Tokunbo, from Warwick, who denied that he had been behind the wheel.
The officer testified that Mr Tokunbo appeared to be unsteady on his feet and John Jefferis, a witness at the scene, was recorded on body camera telling Pc Mill that he had pulled Mr Robinson from the passenger side of the crashed car.
Pc Mill was heard to tell the witness he did not want to let “someone like this get away with this s**t”.
He added: “You know me from a long time — if you can help me out, I can try to do what I gotta do with you.”
Pc Mill told the court he had meant he would process the matter quickly so Mr Jefferis, a taxi driver, could return to work.
Mr Tokunbo and Robinson, also from Warwick, were both charged with refusing a breath test.
Mr Tokunbo maintained his innocence and Robinson pleaded guilty to the offence in May.
He was fined $1,000 and disqualified from driving for 18 months by magistrate Craig Attridge.
Mark Diel, for the Crown, said the arrest and subsequent request for a breath sample from Mr Tokunbo were legal.
But Mr Richardson said Pc Mill held a bias against the magistrate “either because of his position, which he admitted, or his colour, which he will never admit”.
Mr Foldats said Pc Mill's comments to Mr Jefferis showed a clear bias against the defendant.
He added: “As a witness, Pc Mill was unresponsive, evasive, self-contradictory and disingenuous.
“Pc Mill's interaction with the main witness at the scene, Mr Jefferis, was unprofessional and disclosed the bias against the defendant in some sort of quid pro quo with Mr Jefferis.”
Mr Foldats said Pc Mill struggled to paint the conversation with Mr Jefferis as harmless on the stand.
He added: “I do not accept his explanations. Pc Mill's words speak for themselves.
“His bias against the defendant tainted his actions at the scene and his testimony before this court.”
Mr Foldats said he was also concerned about Pc Mill's use of his body camera, which he turned on and off during the investigation.
He said: “Police officers using bodycams at a crime scene should use those devices consistently throughout an incident.
“Selective use — either by not recording some events or not recording the audio of some events — raises the spectre of a selective and biased investigation.”
But he said the footage that was recorded contradicted Pc Mill's evidence that Mr Tokunbo appeared impaired at the scene.
Mr Foldats said: “The defendant appeared alert, responsive and co-operative throughout, despite having suffered injuries in the accident.
“As well, the footage revealed that the defendant stepped down from the edge on to the embankment without any difficulty.”
He also criticised Pc Mill's failure to examine the vehicle at the scene to verify Mr Jefferis's story that he had helped Mr Robinson from the crashed car.
Mr Foldats said: “It was a simple task that would have involved no skill, little effort and would take only seconds to accomplish.”
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