Inferior Court
Appeal No. 8 of 1981
3rd November, 1981.
Alcantara, J., OBE

Mr. H. Elrington for the Appellant
Mr. G. Gandhi for the Respondent

Criminal Law - Appeal from Inferior Court against conviction and sentence - Section 4(1) (42) of the Summary Jurisdiction Ordinance, Cap. 23 - What constitute the offence of Loitering contrary to section 4(1) (42) - Meaning of 'Loitering'.

J U D G M E N T

This is an appeal from the Inferior Court for the Belize Judicial District. The appellant was convicted and sentenced on the 30th day of June 1981 by the learned Magistrate for the offence of Loitering, contrary to section 4(1)(42) of the Summary Jurisdiction Ordinance, Chapter 23 of the Laws of Belize.

A fine of $40 and $1 cost was imposed.

From the said conviction the appellant now appeals to this Court and his grounds of appeal are that:

(1) The learned Magistrate erred in law that he placed the burden of proof on the Appellant/Defendant.

(2) The decision of the learned Magistrate was against the weight of the evidence.

The particulars of offence before the learned Magistrate were as follows: -

For that you the said Angel Andrews on the 18th day of March, 1981 at Belize City in the Belize Judicial District loitered on the Supreme Court steps situated on Regent Street and did not quietly move away when desired so to do by Cpl. No.5 George Arthurs.

I think it would be helpful to set out the provisions of section 4(l)(42) of the Summary Jurisdiction Ordinance before I review the evidence that was adduced in the Court below. The provision reads:

"Every person who loiters or carouses in any street or public place or in any open space of ground in the immediate neighbourhood of such street or public place or in or about any shop or store and does not quietly leave or move away when desired so to do by any police constable or by the owner of such shop or store, shall be guilty of a petty offence."

The facts of this are very simple and straight forward. On the morning of Wednesday, the 18th March, 1981, at about 10 a.m. the appellant was on the steps of the Supreme Court building reading what he described as a proclamation to a crowd of about 30 to 40 persons who were gathered round the steps. Cpl. Arthurs of the Police Force went up to him and asked him politely to move away quietly. The appellant refused and continued to read his proclamation. There was another request to move and another refusal. The appellant was thereupon arrested for loitering and taken to Police Station, where he was subsequently charged.

Counsel for the appellant has argued that the appellant was arrested before the Police ascertained whether the appellant was lawfully or unlawfully on the steps of the Supreme Court. In other words the appellant might have had a licence to do what he was doing, but this was neither ascertained nor later proved in the Inferior Court. There was no duty on the appellant to prove that he had a licence or authority. The burden of proof is on the Crown.

Counsel for the Crown with his usual industry has cited to me a number of authorities, which I list hereunder:

Black's Law Dictionary 5th Edition, page 849
Words and Phrases Judicially Defined, 2nd Edition, page 177
Webster's International Dictionary
Ewens 50 C.A.R. 171
Oliver 39 C.A.R. 137
Edwards 59 C.A.R. 213

His argument is that in the context of the Belize legislation to loiter means "to remain in a public place without a lawful purpose and not to move away when so requested to do" and that the burden of proving whether the purpose was lawful or not falls on the defendant.

I find that under Section 4(l)(42) of the Summary Jurisdiction Ordinance there are three ingredients which the Prosecution must prove in this particular case. First, whether the steps of the Supreme Court was a public place. Secondly, that there was a loitering, and thirdly that the defendant did not move when so requested.

There is no doubt that there was a refusal to move away quietly when desired so to do by Cpl. Arthurs. There is no dispute on this point.

Similarly there is no dispute that the steps of the Supreme Court is a public place. The learned Magistrate, without evidence being given, took judicial notice that the Supreme Court is a public place. I agree with him, but it is a public place where members of the public having business to transact in the Supreme Court, not necessarily legal business, have the right to enter and make use of the premises and curtilage. It is not open to other members of the public. Such other member would require a licence. The licence can be an express one or an implied one, the latter covers the persons who congregate on the steps during certain festivities or ceremonies.

Was there a "loitering"? Loitering is not defined in the Ordinance. Like many other words this word can have several meanings, according to the subject matter to which it is applied. In the context of Section 4(1)(42) am I compelled to place on it a meaning other than the ordinary dictionary meaning? The answer is no. The Concise Oxford Dictionary gives it the following meaning: " to linger on the way, hang about, travel indolently and with frequent pauses."

The facts of this case lead one to the conclusion that the appellant was doing exactly the opposite to loitering. He was neither lingering nor hanging about. He was reading a Proclamation. Whether he had a right to do so is a different matter. There are other sections in the Summary Jurisdiction Ordinance which might have been made use of if it was thought necessary to remove the appellant from the steps of the Supreme Court, but not this one, as there was no 'loitering' on my interpretation of the law.

Having arrived at this decision I find it unnecessary to deal with the question of burden of proof, although it appears to me that this particular provision is not one which casts any duty on the Defence. Similarly, it is unnecessary to decide whether the appellant had a legal right to do what he did, although it appears to me that the appellant was a trespasser on the steps of the Supreme Court. However, a trespasser is not always or necessarily a criminal.

I allow the appeal.

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