Russell (Maxwell) v Attorney General for Jamaica and Corporal McDonald

• Jurisdiction: Jamaica
• Judge: Mangatal J:
• Judgment Date: 18 January 2008
• Judgment citation (vLex): [2008] 1 JJC 1801
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2006 HCV 4024
• Date: 18 January 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2006 HCV 4024

BETWEEN

MAXWELL RUSSELL

CLAIMANT

AND

THE ATTORNEY GENERAL FOR JAMAICA

1 ^ST DEFENDANT

AND

CORPORAL MCDONALD

2 ^ND DEFENDANT

FALSE IMPRISONMENT - Malicious prosecution - Trespass - Aggravated and exemplary damages

Mangatal J

1 This is a claim by the Claimant for damages for false imprisonment, malicious prosecution, trespass to the person-assault, aggravated and exemplary damages. In the Defence dated 1 ^st October 2007, the Defendants admit liability in relation to false imprisonment, malicious prosecution and assault, but put the Claimant to proof of his claim with regard to damages.

2 The Claimant describes the relevant events in his witness statement dated 20 ^th November 2007. On the 18 ^th November 2000 at about 7: 00 a.m. he was walking along Nelson Street in Buff Bay, Portland. He stopped and stood outside a supermarket. About five minutes later an unmarked car drove up to near where the Claimant was.

3 A man dressed in ordinary clothes like a civilian suddenly jumped out of the front passenger's seat. This man had a shot gun in his hand which he pointed at the Claimant, saying "don't move". It turns out that this man was the Second Defendant Corporal Mc Donald.

4 The Claimant states that he did not know this man before and the Second Defendant did not say who he was or identify himself to the Claimant as being a police officer. As soon as the Second Defendant spoke the Claimant ran off. In a split moment the Claimant heard an explosion followed by another. When the Claimant heard the second explosion he fell to the ground on the road surface. The Claimant lay face down and felt blood coming from his back. The Claimant then realized that he had been shot.

5 After a few minutes some of the other men in the car came and took the Claimant up and took him to the Buff Bay Hospital. The Claimant was subsequently taken to the Annotto Bay Hospital and eventually transferred to the Kingston Public Hospital. The Claimant says that he spent a total of ten days in hospital under police guard.

6 After this time the Claimant says that he was then taken to the Denham Town Police Station and then on to the Port Antonio Police Station for another two days in the lock up. Whilst the Claimant was imprisoned in the lock up he says that the wound had not healed and was very painful.

7 The Claimant was subsequently charged for assault at common law in Port Antonio. Corporal McDonald laid the charge against the Claimant whilst he was in custody in Port Antonio, alleging that the Claimant attacked him with a knife and in defending himself he had to shoot the Claimant.

8 The Claimant states that these allegations were false and untrue. The Claimant attended court at Buff Bay Resident Magistrate's Court on about five occasions. On the 19 ^th September 2001 the case was tried in Buff Bay's Resident Magistrate's Court. Corporal McDonald gave evidence after which the Claimant states that his Attorney-at-Law made a No Case submission which succeeded.

9 The impact of the bullet pitched the Claimant to the ground and he fell on the road while running from Corporal McDonald. As a result the Claimant sustained bruises to his chin, elbow, knees and hands. After he was released from custody the Claimant attended the Annotto Bay Hospital and the Out Patient Clinic at Kingston Public Hospital as the wound was not yet healed. The Claimant says that he still experiences sharp pains in his shoulder and the upper part of his back from time to time.

10 The Claimant had a police guard maintained around him while he was in hospital and he was handcuffed in view of several patients and visitors to the hospital ward. Some of the comments made by these people caused the Claimant embarrassment. During this time the Claimant was handcuffed to a bedrail and was extremely uncomfortable as his hand was in an awkward position and he could not lie down properly. Eventually his wrist became bruised.

11 The Claimant states that he was upset and depressed that after the policeman shot him in these circumstances, he still laid a charge and pursued the matter in court for several months. The Claimant was placed in a cell in Port Antonio with prisoners who were charged with offences before the Portland Circuit Court. They said the Claimant should not be in their company and beat the Claimant up in the cell. The Claimant was punched and kicked in his head, stomach, back and all over his body. He was rescued by an Inspector at the station.

12 Although in his witness statement the Claimant states that he lived at 7 Third Avenue, Buff Bay in the Parish of Portland, in cross-examination he stated that he was not at 7 Third Avenue at the time he gave the witness statement; he was then and was at the time of this Assessment being held at the lock-up at the General Penitentiary.

DAMAGES

13 The parties agreed special damages in the sum of $35,750.00. The medical report of Dr. Kevin Brown, Kingston Public Hospital, dated July 12, 2001, was also admitted in evidence by consent as exhibit one.

FALSE...