Couple tasered by police in Fremantle could miss out on $1.1 million in damages after appeal
After being quick to condemn police this week in the wake of a scathing report into the tasering of a driver in Fremantle, Western Australia’s Attorney-General has backed legal action which could leave two other taser victims financially ruined.
Robert Cunningham and Catherine Atoms were awarded more than $1.1 million in damages — to be paid by the police officers and the WA Government — by District Court Judge Felicity Davis in December 2016.
They have spent hundreds of thousands of dollars on legal fees and medical bills since they were tasered after a night out in Fremantle in November 2008.
Their legal struggles over the past decade have left the couple suffering post-traumatic stress disorder and physical injuries, but they are still waiting for their damages payments.
Catherine Atoms and Robert Cunningham were awarded damages for false imprisonment and assault. (ABC News: Manny Tesconi)
One reason for the delay is that the WA Government is appealing against the damages decision of Justice Davis, which will be heard by the WA Supreme Court of Appeal next month.
But in an attack on how police investigate misconduct within the police force, Attorney-General John Quigley told the WA Parliament that he would ask the State Solicitor to consider whether criminal or disciplinary offences were committed by the three police officers.
He also suggested that taxpayers would pay Mr Cunningham and Ms Atoms’ damages.
“When that finding came out with a $1.1 million damages award that the taxpayers will ultimately have to pick up — I note it is under appeal, but the taxpayers are obviously going to have to foot the bill — the Police Department’s response on that occasion was that those people had been fully investigated and that, despite the judge’s findings against them, had been cleared,” he said.
In the District Court case, the police officers and the WA Government took the position that they acted lawfully and fairly.
But Justice Davis found the three officers — Glenn Caldwell, Peter Clark and Simon Traynor — each acted maliciously and, along with the WA Government, were liable to pay damages.
Appeal argues Government’s liability
It could be difficult for the couple to receive damages from the police officers involved.
Court documents from last year said the three police officers were impecunious — meaning they had little or no money — while their appeal fell apart after they failed to pay security for their costs.
At the same time, the WA Government has appealed Justice Davis’s finding on the basis that it is not liable to pay the damages because, in a change from its earlier position, the officers acted maliciously.
Under section 137 of the Police Act, if officers have been malicious or corrupt, they are personally liable.
There is also discretion within the Act for the Treasurer to pay the damages if Mr Cunningham and Ms Atoms are unlikely to receive them.
But the couple could miss out if the WA Government is successful in its appeal and the Treasurer chooses not to exercise their discretion.
In a written response, Mr Quigley said the Government had not appealed Dr Cunningham or Ms Atom’s entitlement to damages or the amount of damages awarded.