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Three-year delay holds up former cop’s appeal

Published:Sunday | August 23, 2020 | 12:25 AMBarbara Gayle - Contributor
He said the matter was traumatising for him because for six years he had to wait for his fate to be decided.
He said the matter was traumatising for him because for six years he had to wait for his fate to be decided.

Although former policeman Austin Cunningham was given a four-month suspended sentence in 2017, he is insistent on bringing his case before the Court of Appeal. However, he is frustrated by the fact that for the past three years he has been unable to get the notes of evidence from the St James Parish Court.

As a result, he recently engaged the services of attorney-at-law Hugh Wildman to fight his legal battle in the Constitutional Court.

“This is a clear breach of Cunningham’s constitutional rights to have his appeal determined within a reasonable time,” Wildman told The Sunday Gleaner last week, and he is seeking to have his client’s conviction quashed on those grounds.

Cunningham was a constable attached to the Freeport Traffic Department in St James when, in August 2010, a motorist accused him of soliciting money to release a motor vehicle.

Cunningham explained that he and another policeman were doing spot checks in Montego Bay when he signalled a motorist to stop. He asked the driver for his licence but he did not have it. The driver had photocopies of documents for the motor vehicle, which were not readable. The driver promised to produce the motor vehicle documents and his driver’s licence and left to get them.

The motor vehicle was taken to the police station and Cunningham told the station guard that if the driver produced the relevant documents, the keys for the motor vehicle were in the drawer in the patrol office.

Two days later, Cunningham said his superior officers informed him of the allegation that the motorist had made, that he had instructed a civilian to collect money from him.

He denied the allegations but was subsequently arrested, charged and convicted.

The trial commenced in 2011 and lasted until his conviction in 2017.

He said the matter was traumatising for him because for six years he had to wait for his fate to be decided.


Cunningham complained that he did not get a fair trial and that the parish judge erred in convicting him of the offence of soliciting. He was sentenced to four months which was suspended for one year. This meant that if Cunningham was found guilty of any offence within the year, he would have to serve the four-month prison sentence.

He was suspended from duties and his salary stopped. He said the case has left him in financial ruins, and he even lost his house because he could not afford the mortgage payments.

He also noted that the grades of his children, who were in high school, fell because there were times he could not send them to school. He shared that when his mother, who he used to provide for, heard of his suspension from work, she suffered a stroke and never recovered.

Cunningham, who would have retired from the Jamaica Constabulary Force in the next three and a half years, said he was very worried about the situation and was interested in his case moving forward.

“The non-production of the notes of evidence has prevented me from having my conviction and sentence reviewed by the Court of Appeal,” Cunningham stated.

Wildman said that in a claim filed this month, Cunningham was seeking a declaration that the purported conviction and sentence by the parish judge of the charge of soliciting under the Corruption Prevention Act was a breach of Cunningham’s constitutional rights guaranteed under the Charter of Fundamental Rights and Freedom.

Declarations are also being sought that the failure of the judge to produce the notes of evidence and the failure of the clerk of courts to forward the record of the case, together with the notes of evidence, to the Registrar of the Court of Appeal, amounted to breaches of Cunningham’s constitutional rights.

The court will also be asked to find that the three-year delay in Cunningham’s appeal being pursued was also a breach of his constitutional rights, therefore, an order should be granted quashing the conviction and sentence.