Supreme Court
Action No. 1 of 1980
21st July, 1980
Staine, C.J.

Inferior Court Appeal - Magistrate binding over a Police Officer to keep peace and be of good behaviour - Whether a police officer, acting in the name of the Sovereign, can be bound over - Magistrate's order discharged.

J U D G M E N T

The facts of this case are very simple, and the evidence is without complications.

The Complainant a Woman Police Constable, had a sister named Franzine Baptist. According to the evidence of the Complainant, on a day in January of this year, her sister Franzine returned home, and told her that the Defendant, who was a neighbour, and another girl, had just called her "whoring Franzine."

The Complainant said that about 15 minutes later, after her sister had told her this, she saw the Defendant passing on the street where they lived, going in the direction of Defendant's home. The Complainant said she approached the Defendant, and remonstrated with her, telling her to discontinue the behaviour, whereupon the Defendant commenced to utter some indecent words.

The Complainant said she thereupon arrested the Defendant, and a struggle then ensued between them. The Complainant was trying to overpower the Defendant in order to escort her to the Police Station and in the struggle the Defendant kicked her on the left breast.

Franzine Baptist also gave evidence, and it appears that her testimony, in some respects, conflicted with the evidence of the Complainant. But it appears she is a person of tender years, as is the Defendant, and appeared to be nervous in the witness stand.

It appears also that when the Complainant was cross examined by the Solicitor for the Defendant, the cross examination being lengthy, she appears at one stage to have become annoyed, and told the Court she did not know her mother's name.

Corporal 223 Guzman deposed to having received a telephone call from the Complainant and responding, he and the Complainant went to the home of the Defendant, and escorted her to the Police Station. There she was formally charged with using indecent words, resisting arrest, and causing harm.

The Defendant in giving evidence, denied committing any of the charges, and said it was the Complainant who attacked her and tore off her blouse. She admitted that although she was a neighbour of Franzine, they were enemies and did not get on well with each other.

Defendant's sister Eleanor Flowers, in the main, gave evidence, which supported the story of the Defendant. She said she was in her kitchen when the incident started and she witnessed the incident.

The Complainant's mother was summoned and gave evidence. Eileen Sanchez said that that morning when she reached home, she met the Complainant struggling with the Defendant in front of the Defendant's gate, and the Complainant had the Defendant held around the neck. She said she did not know how the incident started but on arrival, advised both to behave themselves. She asked her daughter the Complainant what happened and she told her she was going to arrest the Defendant.

On this evidence the learned Magistrate found the Defendant guilty of using indecent words, and acquitted her of the other charges. He also bound over both the Complainant and Defendant to keep the peace and be of good behaviour for a period of six months, in default the sum of $50.00.

The Magistrate appears to have arrived at his conclusions by a strained or strange process of reasoning, which is open to severe criticism.

In summing up the case the learned Magistrate commented that he acquitted the Defendant of the charge of causing harm because he believed that the Defendant (in kicking WPC Goff on the left breast) was acting in self defence, as up to that time the Defendant had not been arrested. In relation to the charge of resisting arrest, the learned Magistrate reasoned that the Complainant's mother had stated that when she got to the scene, the incident was almost finished. So he acquitted the Defendant of that charge.

The learned Magistrate has also submitted in writing, his remarks regarding his decision in this case. I regard these remarks as taking the place of a Magistrate's reasons for his decision when a Defendant lodges Notice of Appeal in a case he has adjudicated upon. However, I have not regarded this document as being in any sense, material upon which I could make definitive pronouncements. Nevertheless, this document, embodying the remarks of the learned Magistrate, is instructive even within the limitations outlined, as indicating how the Magistrate's mind was working.

The Magistrate said that after considering all the evidence presented on both sides he formed the opinion that the Complainant "most likely" without justification, initiated the circumstances leading to the charge of harm being placed on the Defendant.

By employing the words "most likely" the Magistrate seems to have entertained a doubt, and if this was so, it was right to resolve such a doubt in favour of the Defendant, and acquit her of the charge of causing harm. However, to express that doubt in the manner the Magistrate has done, is open to criticism. It would have been preferable for the Magistrate to say positively that he was unsure of the evidence on the charge of causing harm, so he was acquitting the Defendant of that charge. The standard of proof in criminal matters is proof beyond reasonable doubt, whereas the words "most likely" appear analogous to "on the balance of probabilities," the standard of proof in civil proceedings. To introduce such a phrase in criminal proceedings gives the impression that the Magistrate could not make up his mind as to liability and used guess work.

Again, in relation to the charge of resisting arrest, the Magistrate appears to have been muddled in thought. In his remarks he said, "I did not believe that the Defendant was arrested by the Complainant before or during the struggle. Defendant was probably arrested if at all only after the incident occurred so obviously the charge of resisting arrest, could not stand."

Again, with the use of words such as probably and if at all, the Magistrate appears to have introduced elements of uncertainty and doubt, and gives the impression of approaching the case from the wrong end, using wrong standards.

In a criminal prosecution, whether on indictment or in summary proceedings, the burden of proof is on the prosecution. The standard of proof is proof beyond a reasonable doubt. If this standard is not reached, the prosecution fails and the Magistrate should say so in positive terms. Words like "most likely" and "probably" border on doubt.

In this case the Magistrate appears not to have sufficiently considered that in a case of the nature of the one before him, he would have to act with even greater care, as the witnesses on both sides were related, and their evidence might therefore tend to be biased one way or another.

Again the Magistrate appears to have misunderstood the evidence of Eileen Sanchez. She had said that when she arrived and asked the Complainant what had happened the Complainant said she was going to arrest the Defendant. Eileen Sanchez had also said that when she arrived, the incident was almost finished. So the Magistrate found that at that stage the Defendant had not yet been arrested. However, the Magistrate may have misunderstood Eileen Sanchez when she said the Complainant told her she was going to arrest the Defendant. The Magistrate interpreted this to mean that the Complainant had not yet been arrested and acquitted the Defendant. But the Complainant had been asked what had happened and had replied she was going to arrest the Defendant. This could mean she had arrested the Defendant and was about to escort her to the Police Station, when the struggle had commenced. If the Magistrate did not view the evidence in this light, it is difficult to see why he convicted the Defendant of using indecent language (which according to the Complainant was the reason for the arrest). Unfortunately, the Magistrate has not stated why he convicted the Defendant of this charge.

The Magistrate bound over both the Complainant and Defendant to keep the peace and be of good behaviour. In doing so he purported to be acting under the provisions of Section 114 of Chapter 24 of the Laws - The Summary Jurisdiction (Procedure) Ordinance. But Section 114 must be read in conjunction with Section 113 in order to gather the true meaning of the former section. Section 113 commences "Whenever a complaint is made by any person against another ----." It appears to me that upon a proper construction of this section, it is referring to complaints by private persons in a personal capacity. It is not referring to a member of a body, such as the Police Force, which is set up to guard and keep the peace, and whose members are Peace Officers. Furthermore, all criminal prosecutions are commenced in the name of the Sovereign. This is more clearly seen in indictable offences where an indictment names the Queen as the Complainant. It is only as a matter of form and for convenience that the prosecution is in the name of a particular Police Officer. The officer is not acting in a personal capacity, but in the name of the Sovereign. So the Magistrate has no authority to bind over a Police Constable to keep the peace where the officer is acting in an official capacity.

It follows then that the learned Magistrate had no authority to bind over W.P.C. Goff to keep the peace and be of good behaviour. Accordingly, the Magistrate's order, in so far as it affects Woman Police Constable Goff, is discharged.

Before departing from this case, I would make one further comment. It is in the nature of an observation, and pertains not only to this case, but to others as well.

All too often, Police Officers commence proceedings by making an arrest, when the summoning of the Defendant would be just as efficacious. It is refreshing to note the instances when the process of summoning a Defendant is used. Arrest involves the deprivation of the citizen of his liberty of movement and nearly always immediately introduces the question of bail. The use of indecent words in a public place, is made a petty offence, by virtue of Section 4(1)(XI) of Chapter 23, and, on conviction, makes the person charged, liable to a fine not exceeding fifty dollars. This means that not even a Magistrate has the power to inflict custodial punishment, unless the fine is not paid within the time stipulated. Where, therefore, a Police Officer arrests for the commission of a purely petty offence, he is exercising a power which even a Magistrate does not have, arrest involves custody, and deprivation of a subject's liberty. The exercise of this power is open to question and may one day be challenged. So the sooner it is curtailed, so much the better for law enforcement.

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