Faber v Savery

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Inniss, C.J.
• Judgment Date: 08 September 1971
• Neutral Citation: BZ 1971 CA 1
• Date: 08 September 1971

Court of Appeal

Inniss, C.J.

Faber

and

Savery

Mr. D. Courtenay for Appellant

The Respondent, Mr. Sabino Savery, in person

The Ag. Director of Public Prosecutions, Mr. E. M. Johnson, as amicus curiae.

Practice and Procedure - Appeal — Grounds of Appeal

Criminal law - Appeal vs Conviction — Assault

Criminal law - Defences — Mistake

Constitutional Law - Legislation — Sovereignty

Statute - Interpretation — Aerodromes Ordinance, Cap. 183

Statute - Interpretation — Subordinate Legislation — Stanley Field Airport Regulations

Facts: Appeal — Power of Appeal Court acting under s. 133 Supreme Court of Judicature Ordinance to consider question of sentence where sentence not included in grounds of appeal — Power of Court to award a nominal punishment where an honest mistake of law has been made and the offence of which the offender has been convicted is a trivial one — Matters to be considered by court — Whether sympathetic circumstances present

Facts: Appellant convicted of assault upon respondent contrary to s. 41, Criminal Code. Appeal Court referred appellant to Cap. 183 Aerodromes Ordinance. Whether instructions given by Minister to appellant constituted a lawful authority to appellant to carry them out — Whether any provision of title VI, Part I of Criminal Code relating to justification for the use of force would be applicable in a case of this kind — Whether appellant could avail himself of such justification, if any.

Facts: Whether appellant in attempting to control the movements of the respondent made a mistake of fact or law in believing that he had the authority to act as he acted. Finding that appellant believed that he was acting at all times under lawful instructions and that his mistake was a mistake of law.

Facts: Legislation enacted to control and regulate administration of Stanley Field Airport — Change of name of Airport — Whether legislation applied to airport now renamed

Facts: Intention of legislature — “Expressio unius est exclusio alterius” — Aerodromes Ordinance, Cap. 183, and Stanley Field Regulations — Legislature enacted legislation prescribing manner in which Crown land used for the purposes of an aerodrome was to be controlled, and by whom such use should be controlled. Appellant assaulted respondent while acting on order of someone other than person named in legislation to control use of Aerodrome — Whether appellant acted with lawful authority in conformity with legislation.

Facts: Appellant convicted of assaulting respondent at Belize International Airport, which was formerly named The Stanley Field Airport — Whether the Stanley Field Airport regulations applied to the Belize International Airport

Held: That there was no ground for ordering that matter of sentence be gone into before the court — Sentence affirmed.

Held: Appellant had no lawful authority conferred on him to prevent respondent going out to aircraft and therefore there was no justification for his assaulting the respondent for that purpose — Conviction and sentence affirmed. Appeal dismissed.

Held: Maxim “Ignorantia juris non excusat” applied — appellant rightly convicted of charge of unlawful assault — Appeal dismissed.

Held: Legislation in force was act of sovereign legislature and was enacted to deal with a particular subject, and whilst such legislation was in force, it was the law on that subject.

Held: Where the legislature of Belize had enacted legislation dealing with a particular subject, the provisions of that legislation while in force were the law on that subject and they should be observed Conviction and Sentence affirmed — Appeal dismissed.

1 Before the Chief Justice.

2 This is an appeal against a decision of the Court of Summary Jurisdiction for the Belize Judicial District whereby the Defendant/Appellant Reginald Faber was convicted of the offence of unlawfully committing a common assault upon the Complainant/Respondent Sabino Savery contrary to Section 41 of the Criminal Code, Chapter 21 of the Laws of this Country, and ordered to pay a fine of $15.00 and $14.00 costs by the 29 ^th May, 1968: in default 21 days imprisonment with hard labour.

3 The evidence indicated that on Sunday 28 ^th April, 1968, a delegation representing the government of this country and including also the Leader of the Opposition, the National Independence Party, was due to return to this country by air from Washington.

4 The delegation were to be received at the intransit lounge which was ordinarily closed to all outgoing traffic except transit passengers.

5 At the airport to meet the Leader of the Opposition was the respondent, Mr. Sabino Savery, who was First Secretary of the National Independence Party. Also at the airport to meet the delegation was the appellant. Mr. Reginald Faber, who testified that he attended as a member of the Central Party Council of the Peoples United Party.

6 On arriving at the airport the appellant was instructed by the Hon. Hector Silva, at that time Minister of Public Utilities and Communications, that “strangers would not be allowed except members of the Belize City Council and members of the National Assembly and other officials to go out to the aircraft.” Mr. Silva testified that he did not consider Mr. Savery an official. The appellant passed these instructions on to two marshals of the People's United Party who were present.

7 Having issued these instructions to the appellant Mr. Silva proceeded to invite the respondent (Mr. Savery), Senator Brooks, Mr. Rolando Perdomo, and one or two ladies he didn't know into the intransit lounge because they might wish to meet their leader who formed part of the delegation. After that, according to Mr. Silva, Mr. Savery was an authorised person to pass and “had every right to go out there” (presumably meaning “out of the aircraft”). Unfortunately Mr. Silva omitted to inform the appellant that Mr. Savery had been added to the list of those authorised to go out to the aircraft.

8 In consequence when the aircraft arrived and the respondent left the intransit lounge to go out to it, the appellant, flanked on either side by the two marshals of the People's United Party, stopped him by holding out his hand and told him he had instructions that he, Mr. Savery, was not to pass. When the respondent tried to side-step the appellant, the latter pushed the respondent on his chest with his hands in which he had a round black stick about 18 inches long, and said “You are not going to pass”. The respondent again tried to pass and the appellant again pushed the respondent in the chest with the little black stick in his hands. According to the respondent, Mr. Faber was annoyed because he had to resist as he, Mr. Savery intended to pass. He, Mr. Savery, was raving mad about it.

9 The respondent, with the aid of a police constable, gave a demonstration of how the appellant pushed him but the magistrate did not include in the record any description of this demonstration. However, on the application of the respondent, the court took evidence from the magistrate as to the nature of the demonstration. From this it appeared that the appellant had held the stick in his hands by its two ends and pushed it forward with a quick motion so that it came into contact with the respondent (represented in the demonstration by the police constable) “severely, hard”, causing the respondent to retreat backwards involuntarily.

10 Eventually, through the intervention of the Chief Civil Aviation Officer and the then Commissioner of Police, the respondent was allowed to go out to the aircraft.

11 Apart from Mr. Savery, four witnesses gave evidence for the prosecution. Of these Mr. Albert Arzu Mayor of Stann Creek Town said he saw the appellant pushing the respondent back by the chest with his hand. The respondent was backing him the witness, and he did not see anything else. He enquired what was happening and Mr. Faber said that he could pass but not Mr. Savery: so he passed.

12 According to the witness Miss Diaz, when the plane arrived everybody that was in the lounge went out, Mr. Savery, Mrs. Pike, Mr. Arzu, Mr. Perdomo and herself. Mr. Savery was behind herself and Mrs. Pike. Then the appellant barred Mr. Savery's way and pushed him, telling him that he had been given orders that he should not go up to the plane. The appellant pushed Mr. Savery with his hands in which he had something like a club. Appellant's attitude showed he was indignant, the way he was agitating.

13 A.I.P Terence Clarke spoke of seeing the appellant with some other men whose name he didn't know as though surrounding the respondent. The appellant had his two hands up with a piece of stick in one. With both hands the appellant was pushing Mr. Savery backwards towards the intransit lounge.

14 The respondent then asked the witness to make that man leave him alone and at the same time tried to shift his position to get by to proceed to the plane when he was again stopped by the appellant in the same way. Witness said he was trying to be a peacemaker but appellant would not agree with him and answered him very loudly.

15 Mr. Balderamos the Chief Civil Aviation Officer said that he saw Mr. Savery trying to pass Mr. Faber first on the one side and then on the other and on each occasion he saw Mr. Faber stop him. Witness went on and stopped. Then he heard some excitement of people talking, looked around, and saw the respondent again attempt to pass the appellant. Sgt. Clarke was there and witness asked what was the problem Mr. Arzu said it was the Party Secretary. Witness then replied “The point is whether he has permission to be out there where the others are”. Witness spoke with the Commissioner of Police and then returned and said that the respondent had permission to go out there”. Witness said that he saw appellant stop Mr. Savery several times but did not see him push Mr. Savery. He agreed, however, that there were times when he did...