Supreme Court
Inferior Court Appeal No. 6 of 1981
2nd October, 1981.
Alcantara, J.

Mr. D. R. Lindo, for the Appellant
Mr. G. Gandhi, for the Respondent

Inferior Court Appeal against conviction - Magistrate misapplying the law and taking into consideration irrelevant matters - Magistrate misdirecting himself as to onus of proof - Magistrate making a conviction under a wrong law - Whether conviction could be saved by Appeal Court (Supreme Court) substituting its own verdict under Section 139(1) of Supreme Court Ordinance - Discretion of the court of substitute its own verdict - Court refusing to exercise discretion.

J U D G M E N T

This is an appeal from the Inferior Court of the Belize Judicial District. The Appellant was convicted of wantonly throwing a missile, to wit, a stone to the danger of P.C. Anthony on the 17th March, 1981, contrary to section 4 (1)(xv) of the Summary Jurisdiction Ordinance. He was convicted on the 5th June, 1981 and fined $45.

The Appellant now appeals on the following grounds:

1. The Magistrate took extraneous matters into consideration.

2. The decision was based on a wrong principle.

3. The decision is unreasonable and cannot be supported having regard to the evidence.

4. The decision was erroneous in point of law inasmuch as the Magistrate wrongly applied section 58 of Chapter 24.

   (a) the complaint was based on Chapter 23; the Defendant was found guilty under Chapter 21, and

   (b) the offence as contained in the complaint does not include the commission of the offence found by the Magistrate.

In the Court below P.C. Anthony gave evidence that on the 17th March, 1981 he was patrolling in a landrover with Sgt. Segura as the result of a civil disturbance. The vehicle stopped, Anthony got out. He said he saw the Appellant throw a stone towards him and that the stone hit him on his right foot. Thereupon he went up to the Appellant and arrested him.

The only other witness was the Appellant himself who denies ever throwing a stone, and alleges that he was wrongly arrested and certainly not in the place where P.C. Anthony says he was arrested.

I think it is proper for me to read the Reasons for Decision of the Magistrate in full:

"In this case there is only one witness for the prosecution and the Defendant's version of what happened on 17th March, 1981. The Defendant giving sworn testimony did not impress me as a truthful witness. He was caught twice in cross-examination about the time he took from his work at the pier to the fire-burn where he said he was picked up by the police. He said he took 1½ hours also taking refreshment. Moreover, he said he worked 5 years at the pier at Yarborough and the pier only there about 2 years. Observing Defendant demeanor in witness box, I did not believe his evidence and therefore I found him guilty of an assault upon P.C. Tony Anthony. Vide sec. 58 of Chap. 24 which states every complaint shall be deemed divisible, etc.

As I believe the version given by P.C. Anthony in the witness box, that he saw Defendant stone him and P.C. Anthony went right over and arrested Defendant."

Counsel for the Appellant has referred me to two cases:

Lloyd Alfred v. Nicholas Burgos Criminal Appeal 8/1980
Adolphus Rosales v. Oliver Gibson Supreme Court 1967

I think that the two main points of Counsel for the Appellant are (i) that the Magistrate placed too much emphasis on whether he believed the Appellant or not rather than on whether the Prosecution had proved their case beyond any reasonable doubt, and (ii) the misapplication of section 58 of the Summary Procedure Ordinance.

Counsel for Respondent concedes that section 58 was wrongly applied when the Appellant was convicted by the learned Magistrate of common assault. However, he says that I have powers under section 139 (1) Supreme Court Ordinance to remedy this defect by bringing a verdict of wantonly throwing a missile, as there was sufficient evidence for this offence.

Referring to the learned Magistrate's Reasons for Decision he admits that the learned Magistrate did place too much emphasis saying he disbelieved the Appellant, but he did say he believed the informant P.C. Anthony.

I have read Rosales v. Gibson and I agree with it.

The learned Magistrate's reason that "observing the Defendant demeanour in the witness box, I did not believe his evidence" followed by "and therefore I found him guilty of an assault upon P.C. Anthony" is a fatal misdirection as to onus of proof. This misdirection is not cured by saying that he believed P.C. Anthony in the witness box.

In the Reasons for Decision there are two misdirections. Section 58 and the onus of proof.

I have however reviewed the evidence as a whole and I cannot say with certainty that the learned Magistrate arrived at the right decision by convicting. In any case I am not disposed to exercise my powers under section 139 (1) of the Supreme Court Ordinance to substitute a verdict. I allow the appeal.

Appeal allowed.

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