Prosecutor does not have to pay $450,000 in damages to “Cuba Street Kisser”

A man nicknamed the “Cuba Street Kisser” was denied $450,000 in damages by the Court of Appeals after accepting an appeal by the Attorney General.

On Thursday, the court overturned a Supreme Court ruling that had awarded Daniel Clinton Fitzgerald, who had been diagnosed with severe mental health problems, damages for an unfair verdict.

Fitzgerald forced himself on an unknown woman in Cuba Street, Wellington in 2016; this was the latest of several similar crimes.

The subsequent sexual assault charge was his third violation of the three-strikes rule of the Sentencing Act, which came into effect in 2010, and accordingly the judge at the time imposed the maximum sentence of seven years in prison.

Fitzgerald appealed unsuccessfully to the same court and then again, this time successfully, to the Supreme Court, which ruled that the seven-year prison sentence was a disproportionately harsh punishment.

The three-strikes rule, abolished by the Labour government in 2022, included a clause that the maximum sentence should not be imposed if it was too harsh for the crime.

Fitzgerald was sentenced to six months in prison, which he had already served by that time.

He then filed a claim for damages against the public prosecutor's office because the sentence was too high, and in the Supreme Court, Judge Rebecca Ellis ruled that he had been imprisoned for too long, at around 44 months (3.6 years).

She also ruled that it was the prosecutor's fault for bringing the sexual assault charge and that he should have pleaded for conviction on a different charge. She therefore awarded Fitzgerald $450,000 in damages, plus interest.

The Attorney General filed an appeal in 2023, and the court granted that appeal on Thursday.

In their ruling, appeal judges Mark Cooper, Forrest Miller and Brendan Brown said the prosecutor was not responsible for violating Fitzgerald's rights. Rather, the ruling was the responsibility of the judge, the late Simon France, and for that reason the prosecution was not obliged to pay these damages.

“As it turned out, the error was on the part of the judge, who did not acknowledge that he had the authority to impose a lesser sentence,” the ruling states.

It was found that Fitzgerald “should be compensated for spending too long in prison,” but “effectiveness [of damages] is normally assessed by reference to the impact of a particular remedy on the public authority responsible for the infringement.”

“Compensation is not necessary to ensure that prosecutors and judges [the law] which was adopted by the Supreme Court … Nor is there anything the Attorney General, who would be held liable and represents the executive, could do, consistent with the institutional independence of the judiciary, to ensure future compliance by the judges.”