2000/214
5 pages.
ROYAL COURT
(Samedi Division)
3rd November, 2000
Before: M.C .St.J. Birt, Esq., Deputy Bailiff,
assisted by Jurats Rumfitt and Allo
Gary Andrew Rabet
-v-
Attorney General
Magistrate's Court Appeal
Appeal against conviction on 27th June, 2000, on a not guilty plea to:-
1 count of resisting police officers in the execution of their duty; and
1 count of refusing to leave licensed premises, contrary to Article 17(3) of the Licensing (Jersey) Law 1974, as amended.
Appeal dismissed.
Advocate W. Grace for the Appellant
Advocate C. Yates for the Attorney General
JUDGMENT
THE DEPUTY BAILIFF:
1. The appellant appeals against a decision of the Magistrate on the 27th June. On that occasion the Magistrate convicted him of two offences; namely refusing to quit licensed premises contrary to Article 17(3) of the Licensing (Jersey) Law 1974, and resisting police officers in the execution of their duties. At the same time he was acquitted of certain other offences.
2. In essence, the prosecution case was as follows: The manageress of The Star and Tipsy Toad Public House, St Peter, Mrs Pauline Dryhurst, stated that the appellant was barred from the Public House, but she saw him there on 11th February. She asked him to leave several times but he did not. He became agitated and aggressive towards her. She told him she would telephone the police. She then went up to her husband who was ill upstairs, and he telephoned the police at her request. When she returned downstairs she again asked the appellant to leave but he did not. Shortly afterwards two honorary police officers arrived and just before that the appellant left the public house.
3. There was then an incident outside. The appellant was spoken to first by honorary police officers. He complained about being barred from the premises. He was quite aggressive and agitated but the situation appeared to be under control. Shortly afterwards the States police arrived. They spoke to the appellant; he became more aggressive and started swearing. He was warned that he would be arrested if he continued swearing. He did continue and was arrested for being drunk and disorderly. When the States Police attempted to put handcuffs on him, he resisted by holding his arms out straight in front of him, making it difficult to get the handcuffs on. There was a struggle, during which the tie and cravat of two of the States police officers came off before he was handcuffed.
4. The appellant's version of events was quite different. Although he accepted that there was a question as to whether he had been barred from the public house, Mrs Dryhurst had not specifically asked him to leave that evening, or otherwise he would have done so. Nor did he resist arrest by the police officers. When the police attempted to put the handcuffs on him it hurt him and caused him pain. He reacted instinctively to avoid the pain by straightening his arm.
5. We remind ourselves of the test to be applied on an appeal as taken from A.G. -v- Little (12th September, 1994):-
"The ground of appeal is that the Learned Magistrate's decision is not one to which he could reasonably have come in the circumstances. The ground of appeal embodies the legal test for this court. It is not for us to substitute our own view for the view arrived at by the Magistrate. The Magistrate saw and heard the witnesses, and he had the opportunity to observe their demeanour as they gave evidence before him. Our task is to examine the evidence in order to ascertain whether there was evidence upon which the Magistrate could reasonably rely in reaching the conclusion at which he arrived."
6. Mr Grace has raised a number of grounds of appeal. We will consider them each, but not necessarily in quite the same order as he raised them.
7. First, he complained that Centenier Gollop read from his statement when giving evidence. This appears to have been established shortly after he commenced giving evidence. Mr Grace accepted in the court below and accepts again today that he cannot point to any prejudice, in that the matters which the centenier had dealt with thus far were uncontroversial. However, Mr Grace's concern is that other witnesses might, unknown to him, have been reading from their statements when giving evidence. We have to say that there is no evidence to support this and we think there is nothing in this point.
8. Secondly, he asserts that, even if the prosecution evidence in relation to the incident outside the public house is correct, there was no resistance. Assuming, as he says must be the case, that one is dealing simply with a straightening of the arms in order to make it difficult to put on handcuffs, that does not amount to resistance for the purposes of the offence. Neither counsel were able to refer us to any authority on this point but Mr Grace referred us to the Collins Concise English Dictionary where "resist" is defined as meaning "to oppose, refuse to accept or comply with". He also referred us to the definition of "passive resistance" as including "refusing to co-operate".
9. We are quite satisfied that, assuming the appellant straightened his arms so as to make it difficult for the police to arrest him by putting on handcuffs, he was resisting arrest. We draw particular comfort from the definition that he was refusing to accept or comply with the arrest.
10. Thirdly, Mr Grace questions the lawfulness of the arrest. All parties are agreed that the appellant had consumed alcohol, though Mr Grace relies upon the evidence of the honorary police to the effect that the appellant was not drunk at the time of the incident outside the public house. For example, Centenier Le Brun said: "I'm not going to say he was drunk but Mr Rabet had certainly had a few to drink; he was under the influence of alcohol." Centenier Gollop said that he did not regard the appellant as being drunk. The States Police gave evidence that the appellant was unsteady on his feet, his eyes were glazed, and his speech was slurred and generally gave evidence of intoxication. The Magistrate concluded that the arrest was lawful. He concluded that there were reasonable grounds for the police officers to be of the view that the appellant was drunk and disorderly even though, as the Magistrate found, the appellant was not proven beyond reasonable doubt to be drunk once all the evidence was heard and he acquitted him of the charge of being drunk and disorderly. In our judgment there was ample evidence upon which the Magistrate could properly come to the conclusion that the arrest was lawful.
11. Fourthly, Mr Grace says that even if the prosecution evidence as to what happened inside the public house is accepted, there was no refusal or failure to leave licensed premises when requested. It is to be recalled that Mrs Dryhurst said that she had made repeated requests; she had told the appellant that she was going to call the police if he did not leave; she had gone upstairs to ask her husband to telephone the police and he had done so; she had come downstairs and again asked the defendant to leave, but he had not done so. Assuming that evidence to be accepted, there was, undoubtedly, ample evidence of a refusal or failure to leave licensed premises when requested to do so.
12. Fifthly, Mr Grace complained of a material non-disclosure of a document by the prosecution. The document in question had come to light since the hearing before the Magistrate's Court, although the Centenier had tried to produce it then but the Magistrate had refused leave to him to do so. This document is a record from the radio control room at Police Headquarters and shows that the telephone call from Mr Dryhurst to Police Headquarters complaining of the appellant's not having left the premises when requested to do so, was made at 10.47.pm. Mr Grace accepts that he cannot point to any strong prejudice as a result of the non-disclosure of this document but he says that timing was material in the case and that this document would have shown that the evidence of at least one of the police officers as to timing was clearly wrong, namely WPC Chevalier.
13. We accept that the document should have been disclosed, but an appeal on such a basis is allowed only if the Court is satisfied that there has or may have been prejudice to the appellant as a result. We are quite satisfied that, far from there being any prejudice, the appellant probably benefited by this document not being before the Court. The defendant's case was that he arrived at 10.20.pm. in the public house and left by 10.30.pm. He was therefore inside for a very short time and he relied upon this in support of his assertion that he had not refused or failed to leave the premises. The document suggests that in fact he had been in there much longer because it was only at 10.47.pm. that the call to the police was made by Mr. Dryhurst. We are quite satisfied that no prejudice was caused by this non-disclosure.
14. Finally we come to Mr Grace's general point which I can perhaps best express as being that the Magistrate paid insufficient attention to the conflicts of evidence, particularly between the States and Honorary Police, and that he should therefore have given the appellant the benefit of the doubt. He has taken us through the conflicts which he alleges. We do not propose to address them in detail. We have considered them but, at the end of the day, the evidence comes to this: In respect of the charge of refusing or failing to leave licensed premises the Magistrate saw and heard Mrs Dryhurst. He described her as a good witness. In our judgment he was entitled to accept her evidence. In relation to the charge of resisting arrest there was evidence from a number of Honorary and States Police Officers to the effect that the resistance by the appellant, in the form of straightening his arms so as to make it difficult to put on the handcuffs, had preceded the attempt to put the handcuffs on. It is to be recalled that the appellant's version, of course, is that he only straightened his arms after the police had tried to put handcuffs on because this caused him pain in the process. In our judgment, it was a matter for the Magistrate to decide whose evidence he believed. We conclude that there was ample evidence on which he could be satisfied to the relevant standard so that he accepted the prosecution evidence. In the circumstances we dismiss this appeal.
Authorities
Little -v- A.G. (12th September, 1994) Jersey Unreported.
David Corker: "Disclosure in Criminal Proceedings": page 1 et seq.; page 123 et seq.