Rosales v Gibson

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Graham, J.
• Judgment Date: 25 November 1967
• Neutral Citation: BZ 1967 CA 1
• Date: 25 November 1967

Court of Appeal

Graham, J.

Rosales

and

Gibson

Appearances:

Mr. D. Lindo for appellant.

Mr. A.L. Staine, Solicitor General for the Respondent

Criminal law - Assault contrary to the Summary Jurisdiction (Offences) Ordinance, Chapter 23 — Appeal against conviction — Appeal dismissed.

1 This is an appeal by the defendant-appellant Adolphus Rosales against a decision of the Assistant Magistrate given on 22nd August, 1966 convicting him on a charge that “on the 28th day of June 1966 at Belize City in the Belize Judicial District (he) threw a missile, to wit, a pint bottle to the danger of Superintendent of Police, Ronald Watson, in Albert Street” contrary to section 4 (1) (xv) of the Summary Jurisdiction (Offences) Ordinance, Chapter 23 of the Laws of British Honduras.

2 It is unusual that the trial of a petty offence like this should raise so many matters for consideration as hereinafter appear, but a Court of Appeal must deal with a case as it finds it and in accordance with principles of law. The offence, to which the charge refers, reads as follows:–

“Every person who wantonly throws or discharges any stone or other missile to the damage or danger of any person or glass or window, tiles shingles or slate shall be guilty of a petty offence.”

3 The fasiculus of clauses, each creating a separate offence, which comprise section 4 of the Ordinance, seems to be derived in part from the Vagrancy Act 1824 and the Towns Police Clauses Act 1847 and the wording of the offence under the Ordinance is similar to that of the nineteenth clause of section 28 of the latter Act.

4 The first thing to be noted is that the charge as set out in the Summons on the record before the Magistrate omits the word “wantonly” which forms part of the section creating the offence. Section 22 (5) of the Summary Jurisdiction (Procedure) Ordinance (Chapter 24 of the Laws of British Honduras) like the proviso to section 1 of the Summary Jurisdiction Act 1848 (now Rule 77 of the Magistrates Court Rules 1952 England) provides that it is not necessary to state in a charge before a Magistrate all the essential elements of the offence. The authorities show, however, that, while this provision prevents the charge being dismissed on the ground only of such an omission and enables necessary amendments to be made, it does not operate to extinguish the words omitted as elements of the offence.

5 In practice it is often better to ensure that all the elements of the offence are mentioned in the charge at the outset, as this serves to remind all the parties and the Court of what must be proved in order to make out the offence. Unless, on a fair interpretation, it could be shown that this adverb “wantonly” is surplusage, then it remains incumbent on the prosecution to establish this element in the offence. In the absence of any authority that it is surplusage, and none has come to my notice, it appears both on principle and from cases pari passu that this word must be taken as denoting an element in the offence. Its meaning fell to be considered in the case of Clark v. Hoggins (1862) 142 E.R. 909 which was a case involving an offence under section 28 of the Towns Police Clauses act 1847. The Court gave effect to the adverb, said that “wantonly means not having reasonable cause” and indeed indicated that the kernel of that case was whether or not the act of the defendant appellant was done “wantonly”.

6 There are also several cases which show that where a statute provides that an act done to the danger of any person shall be an offence, it is not sufficient merely to prove the doing of the act; there must also be evidence to support a finding that someone was endangered, though it is not necessary to show that such person suffered actual harm. Lees v. Stone (1919) 88 L.J.K.B. 59; Hill v. Somerset (1887) J.P. 742.

7 When therefore a charge is brought under the section in question, it is necessary to show that a missile was thrown, that it was the defendant who threw it, that the defendant did so wantonly, that is, not having any reasonable cause; and that the throwing of the missile endangered someone. Of course it may be possible for the Magistrate to infer the wantonness and the endangering from the circumstances revealed by the evidence and these two elements may also be closely associated. But evidence there must be, from which to make such inference.

8 Unfortunately there is nothing in the record of this case to show whether the Magistrate's mind ever adverted to the need for proof, that the act was done “wantonly”. The omission, which was not remedied by amendment, seems to have persisted throughout the case. Unless the defendant was convicted on the basis that an endangering act attributed to him was done wantonly, that is to say, if no one bothered to think about the element of wantonness, then he may have been convicted of an offence unknown to the law of this territory. The point was not taken before the Magistrate nor was it a ground of appeal.

9 The subject matter of the case is quite simple and the contention of the prosecution appears sufficiently from the statement of the charge already mentioned. Two witnesses gave evidence for the prosecution, the Superintendent of Police, Mr. Ronald Watson and Sergeant Oliver Gibson. Though it is not easy to extract, with certainty, his findings of fact from the document in which the Magistrate gives his reasons for judgement, it would appear that he convicted the appellant on the basis that it was the appellant who threw a pint bottle an the direction of Mr. Watson. The Magistrate's “Reasons for Judgement” are attached as an appendix hereto.

10 The incident took place in the early morning (about 12.10 a.m.) of 28th June 1966 on Albert Street, Belize City where it seems a crowd of people in groups had assembled and a police riot squad was on duty. Sergeant Gibson testified that he saw someone with a white long sleeved shirt who was the appellant throw a pint bottle in the direction of Mr. Watson. There were three or four people where the defendant was standing. The bottle did not appear to be thrown with much force but it dropped about two feet in front of Mr. Watson. Sergeant Gibson went and arrested the appellant. The appellant said that it was not he who had thrown the pint. Gibson further testified that “the crowd was going on disorderly, throwing pints, stone and making a lot of noise.”

11 The grounds of the appeal as stated are that:

• “(1) The decision was unreasonable.

• (2) The decision could not be supported having regard to the evidence.

• (3) The decision was such that the Inferior Court viewing the circumstances reasonably could not properly have so decided.”

12 Consideration of these grounds of appeal involves a consideration of the evidence given before the magistrate. Subject to any relevant statute, and so far as they are applicable to local circumstances, the rules and principles of the Common law of England relating to evidence are part of the law of this territory, and they apply to all causes and matters in all courts of justice whether before a judge, magistrate or any other person duly authorised to take evidence. (Sections 3 and 4 of the Evidence Ordinance, Chapter 18 of the Laws of — British Honduras).

13 These grounds of appeal are based upon Section 130 (h) (j) of the Supreme Court of Judicature Ordinance Chapter 5 of the Laws of this territory the wording of which follows the original wording of Section 4 (1) of the Criminal Appeal Act 1907 in providing that the verdict of a jury, the tribunal of fact, may be “set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.” Decisions on appeals brought under that Act are therefore relevant as showing how these words have been interpreted and applied.

14 Notwithstanding the power vested in a court of appeal under this provision, where, as in the instant case, the appeal is really against a finding of fact, for an appellant to succeed it is not sufficient merely to show that the case against him was a very weak one. R. v. McNair 2 Cr. App. R.2. Nor is it enough that the Court of appeal itself feels some doubt as to the correctness of the verdict. The appellant must go further and show that under all the circumstances of the case the verdict is unsatisfactory. A court of appeal does not lightly interfere with decision of a Magistrate when that decision turns upon findings of fact. For these reasons therefore, as the Magistrate has stated in his reasons for judgement that having heard both sides and taking the demeanour of the witnesses into consideration he did not believe the witnesses for the defence I do not in the circumstances of this case propose to review their evidence. The appeal will therefore be considered on the evidence for the prosecution.

15 There was abundant evidence from which the magistrate could find that a missile was thrown, and it has already been pointed out that there is nothing in the record to show whether or not the magistrate ever considered the element of wantonness. It remains therefore to consider the evidence on the ingredient of endangering as alleged and the evidence as to identity.

16 Now as to the former of these, though the Magistrate has indicated that his conclusion was that the accused threw the missile, nowhere does he say anything to show that he considered the necessity for the prosecution to prove that Mr. Watson was endangering as alleged and that he was satisfied as to such proof. Notwithstanding the argument of the learned Solicitor General in Support of the Magistrate's decision it seems to me that what I must consider primarily on this point is what the Magistrate himself has written. In this case, bearing in mind that Sergeant Gibson said that “the bottle didn't appear to be thrown with much force” the question whether the missile was thrown to the...