White (Devon) v Lenworth Cammock and Attorney General

JurisdictionJamaica
JudgeStraw J
Judgment Date02 April 2009
Judgment citation (vLex)[2009] 4 JJC 0201
CourtSupreme Court (Jamaica)
Docket NumberCLAIM NO. HCV787/2006
Date02 April 2009
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. HCV787/2006
BETWEEN
DEVON WHITE
CLAIMANT
AND
LENWORTH CAMMOCK
1 ST DEFENDANT
AND
THE ATTORNEY GENERAL
2 ND DEFENDANT

False Imprisonment- Assault- Malicious Prosecution-Exemplary Damages

DAMAGES - False imprisonment - Assault - Malicious prosecution - Exemplary damages

Straw J
1

The claimant, Devon White, alleges that on June 1, 2000, he was shot three times by a police officer whom he has identified as Constable Lenworth Cammock of the Brown's Town Police Station. He was then thrown in a police jeep and taken to St. Ann's Bay (Hospital) and subsequently arrested and charged for the offences of Illegal Possession of Firearm, Illegal Possession of Ammunition, Shooting with Intent and Shop-breaking and Larceny.

2

He is suing the Attorney General (by virtue of the Crown Proceedings Act) for Assault, False Imprisonment, Malicious Prosecution and Exemplary and/or Aggravated Damages.

3

The Assault

4

In relation to the Tort of Assault, Doctor Kondisetti saw Mr. White at St. Ann's Bay Hospital in the early hours of June 1, 2000.

5

On examination the following injuries were noted:

  • 1. 1cm penetrating wound with powder burn (entry gunshot wound) to left upper arm from posterior aspect; bullet appeared to have lodged in the soft tissue.

  • 2. 2cm grazing abrasion with powder burn to the right flank of abdomen just below the costal margin, the posterior axillary line.

  • 3. 1cm penetrating wound with powder burn to the right flank just above right iliac bone (entry GSW). The abdomen, on examination was diffusely tender with generalized guarding suggestive of bowel perforation and contamination.

  • 4. Compound (open comminuted and unstable fracture to both bones of distal third of the left ankle, bone was seen protruding through an irregular laceration to the medial aspect of lower leg.

  • 5. Fracture of proximal right tibia with haemorthrosis of the right knee.

6

According to Dr. Kondisetti, injuries 1, 2 and 3 appeared to have been sustained as a result of gunshots, while injuries 4 and 5 appeared to have been as a result of a fall while in motion.

7

Torts of False Imprisonment and Malicious Prosecution

8

It is alleged that the police officers, maliciously and without reasonable cause, arrested the claimant and took him into custody at the St. Ann's Bay Hospital and thereafter, maliciously and without any reasonable or probable cause, preferred charges of Shooting with Intent, Illegal Possession of Firearm, Illegal Possession of Ammunition and Shopbreaking with Intent against the claimant.

9

He was kept at the St. Ann's Bay Hospital under police custody for 14 days and then transferred to Cornwall Regional Hospital, St. James, again under police custody, for a further 14 days. He was eventually discharged from the hospital on June 27, 2000 and taken to Brown's Town Police Station.

10

Mr. White states that he was taken there on a Wednesday and released on bail on the Saturday. In relation to the offences of Illegal Possession of Firearm and Ammunition and Shooting with Intent, the charges were dismissed against him in the High Court Division of the Gun Court on September 16, 2003.

11

No evidence has been led before this Court in relation to the offence of Shop-breaking and Larceny. It appears that he was never tried on this charge. The court considers and applies the reasoning of my brother, Brooks J, in Keith Bent et al vs Attorney General consolidated claims, B330/1998, B384/1998 and B385/1998.

12

In that case, Brooks J considered the effect of an adjournment sine die in relation to the tort of Malicious Prosecution and stated at page 8 of his judgment:

"...I am of the view that a prosecution which has been adjourned sine die and which has not been restored to the Court's list within a reasonable time, may be deemed abandoned by the prosecution and as such the prosecution deemed discontinued. There would therefore have been a determinant in favour of the person charged. "

13

The effect of the failure to prosecute the claimant on the charge of Shop-breaking and Larceny since 2000 lends itself to the view that the matter may be deemed abandoned.

14

The claimant also seeks to be awarded Exemplary and/or Aggravated Damages as a result of the oppressive, arbitrary and/or unconstitutional actions of the police officers involved which were motivated by malevolence against him.

15

The Evidence

16

The defence presented no evidence. The claimant was therefore the sole witness to the facts that resulted in his being shot and injured.

17

The claimant testified that on June 1, 2000, at about 5:00 a.m., he had just left his post as watchman at Container Meats, Top Road, Brown's Town. He was driving his Lada motor car along Top Road. He was alone. In his vehicle were goods such as rice, flour and sugar covered with a tarpaulin. He stated that he sells these goods from the trunk of his car at the Brown's Town Market. He had purchased all these goods previously and had the receipts in the car pocket.

18

He alleges that he was experiencing some difficulty in starting the car as the battery had run down. As a result, he did not turn on the lights. There was enough 'juice' in the battery, however, to enable him to turn on the hazard lights. While he was attempting to 'clutch' start the car, he heard a car horn blowing. He stated that he signalled the driver to go around but that the vehicle made no attempt to pass him. He therefore put on the hazard lights and pulled to the left side as far as possible.

19

Mr. White further testified that he heard two loud explosions and became frightened. He looked behind to see who fired the shots and lost control of the car which hit the Anglican Church wall, spun around and stopped.

20

At this point, according to Mr. White, he jumped out of the vehicle with his hands in the air. The headlights of the vehicle were shining directly in his face and he saw a man with a gun pointed at him. He identified himself to this man.

21

The court did find it strange that he identifies himself to a man that he has not indicated that he recognized at all or as a police officer.

22

He testified that the man then shot him in his left foot and that he fell to the ground. The medical report does not support any gunshot injury to the left foot. The man with the gun then asks him if he did not hear him stopping him and then fires two more shots, one to his right side and one on his left upper arm. He again dropped to the ground. This man then kicks him in his side with his boots and asked him 'weh di gun deh?' At this point he looks up and recognizes the man is a police officer named Lenworth Cammock from the Brown's Town Police Station. He then enquires of Mr. Cammock why he shot him.

23

The court notes that, during this interchange, he speaks of seeing no other police officer.

24

He stated that he asked Mr. Cammock if he was not going to take him to the hospital and that Mr. Cammock said he was going to call for the jeep. He further stated that his foot was bleeding and the bone hanging out. He was also vomiting and his belly 'start swell up.' He testified that when the jeep came, he heard another man's voice and asked this man if he did not know him. The man then said to Mr. Cammock that he knew him and he should not shoot him again. At this stage, he is flung in the jeep by the police. According to Mr. White, he felt as if his other leg broke due to the force of the throw. He said he received the injury to the right leg when he was thrown into the van. He was taken to St. Ann's Bay Hospital and then blacked out. When he came to, he was in hospital. He was handcuffed to a bed and a policeman was standing guard.

25

It is quite clear that Mr. White only saw another or other police officers after he received the gun shot injuries.

  • 1. Was the claimant shot by the police officer?

    There is no issue as to whether Mr. White was shot by a police officer. He has stated it was Mr. Cammock and there is no evidence to the contrary.

  • 2. Has the claimant proven that the police were acting maliciously or without reasonable and probable cause when he was shot?

26

It was suggested to Mr. White that he was running from the police officer when he was shot. He denied this. It was suggested to him that he had taken the goods that was in his car from "Container Meats" and refused to stop his car when he was asked by the police. He denied this. He denied that the charge for shop-breaking was in relation to goods taken from Container Meats. He denied that he jumped out of the Lada and ran when he realized that the police were stopping him.

27

Ms. Archer submitted on behalf of the defendants that the claimant has not proved that the police officers were acting maliciously or without reasonable and probable cause.

28

She relies on Section 13 of the Constabulary Force Act which reads as follows:

"The duties of the police under this Act shall be to keep watch by day and by night, to preserve the peace, to detect crime, apprehend or swear before a Justice of the Peace, persons found committing any offence or whom they may reasonable suspect of having committed any offence..."

29

She submits that Mr. White's evidence is not credible and that the claimant was a fleeing felon, that the police gave chase and the shots sustained by the claimant were a result of the lawful attempt of the police to execute their duties.

30

She pointed the court to the following inconsistencies in the evidence:

31

Firstly, Mr. White states that he was shot in the left foot and fell to the ground.

32

The doctor's evidence does not support this. Secondly, Mr. White states that he came out of the vehicle with his hands up in the air whilst facing the police. However, the medical report of Dr. Kondisetti speaks to an entry gun shot wound to the left upper arm from the...

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2 cases
  • Robet Salmon v Elan Powell and Attorney General of Jamaica
    • Jamaica
    • Supreme Court (Jamaica)
    • 15 Febrero 2012
    ...damages it was submitted that the sum of one hundred thousand dollars ($100,000.00) would be appropriate based on the cases of Devon White v. Attorney General claim no. 2006HCV0787, delivered on April 2, 2009, Maxwell Russell v. Attorney General of Jamaica claim no. 2006HCV4024, delivered o......
  • Conrad Gregory Thompson v Attorney General for Jamaica
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    • Supreme Court (Jamaica)
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    ......These cases are: - (i) Devon White v The Attorney General (Claim no. HCV 787 of 2006 — delivered ......

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