State wants to pay less compensation to man arrested on trumped-up charge

Barbara Gayle, Justice Coordinator

The government is challenging a Supreme Court award of $1 million for exemplary damages to a mechanic who was freed of a shooting-with-intent charge almost five years after a forensic swab of his hands revealed that he did not fire a gun at the time he was charged by the police.

Supreme Court Judge Carol Edwards had awarded 31-year-old Roderick Cunningham of Spanish Town, St Catherine, a total of $3.2 million with interest for general, exemplary and aggravated damages.

In making the award, Justice Edwards said agents of the State had committed an egregious wrong against Cunningham and the onus was on the State "to put systems, schemes and operational mechanisms in place to prevent their employees from acting in this manner".

While not challenging the ruling of the judge, the Office of the Attorney General is seeking to have the award for exemplary damages set aside on the grounds that Justice Edwards erred in law in concluding that an award for exemplary damages may be made in a claim for malicious prosecution.

Cunningham had sued The Attorney General, Superintendent Clifton Laing and Jamaica Defence Force corporal, Horace Fitzgerald, for malicious prosecution after he was charged despite the forensic evidence.

According to Cunningham, his life changed dramatically for the worse when about 8 p.m. on May 16, 2000 he was shot in the right leg while walking to visit his girlfriend in a lane off Jacques Road in the Mountain View Avenue area of St Andrew.

After he was shot, he managed to crawl into yard and a good Samaritan assisted him inside a house.

"While I was lying bleeding inside the house, the good Samaritan could only pray," said Cunningham in court documents. He fell into unconsciousness and when he awoke he saw Fitzgerald and other soldiers standing over him.

Cunningham said he was pulled from the house and through the lane until he was placed along with another man, who appeared to be dead, into the trunk of a police car and taken to the Kingston Public Hospital.

He said while he was at the hospital Laing came to see him and his hands were swabbed for gunpowder residue. He had surgery on May 17, 2000 and his right leg was amputated. Laing subsequently arrested and charged him with illegal possession of firearm, shooting with intent and wounding with intent. He spent five days in hospital and was handcuffed to the bed while he was under police guard.

On being discharged from hospital, he said he was locked up at the Elletson Road and Port Royal police stations for two weeks before being taken to the Gun Court on June 2, 2000.

While in custody at the police stations, he said he was in severe pain because the leg was not healed and was not properly dressed. According to Cunningham, he had to hop into court as he had no crutches. He was granted bail on condition that he report to the police station every day, and did so for more than 1,000 times.

He attended court on numerous occasions during a four-year-and-10-month period until the case was tried. The trial lasted for six days and police and soldiers testified that he was in possession of a rifle and fired at them. However, the swab results were negative for gunpowder residue and he was freed on March 16, 2005 on a no-case submission.

Cunningham then sued the State on the basis that the charges were falsely laid against him. He also sought exemplary and aggravated damages, and claimed that as a result of the acts by Laing and Fitzgerald he suffered humiliation, embarrassment and incurred additional expenses.

Justice Edwards, in awarding exemplary damages, pointed out that handcuffing Cunningham to the bed was oppressive and cruel. She said the continued prosecution of the charges in the face of negative swab results was arbitrary and high-handed.

"The failure to take him to court within a reasonable time to be considered for bail was unconstitutional and callous," she emphasised. According to Justice Edwards, the actions taken as a whole might be considered to be outrageous and extreme.

The judge said the higher the rank or greater the position of the wrongdoer, the greater should be the award because "the public has a greater expectation from persons who hold high office and supervisory positions which is tantamount to a fiduciary responsibility".

The Attorney General's Office has accepted that there was no reasonable and probable cause to prosecute Cunningham, but says it has to challenge the quantum of damages. The Office is also contending that the judge erred in holding that the higher the rank or position of the wrongdoer, the higher should be the award.

A date has not yet been set for the hearing of the Attorney General's appeal against the award for exemplary damages.