Jersey Unreported Judgments

2001/115

ROYAL COURT

(Samedi Division)

21^st May 2001

Eric Charles Luggar

-v-

The Attorney General

Magistrate's Court Appeal

Application against a conviction on 5^th February 2001 in the Magistrate's Court on 1 count of causing a breach of the peace. 

Appeal allowed.

The Appellant on his own behalf.

Advocate C. Yates for the Attorney General.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 5th February 2001 the appellant was convicted in the Magistrates Court of one offence of causing a breach of the peace and he now appeals against that conviction.  The incident in question took place in Gloucester Street, near the Opera House,  as long ago as 2nd May 2000.

2.        The evidence from all the witnesses before the Magistrate's Court was consistent in suggesting that the trouble started in the Gloucester Vaults public house, where a number of members of the 147 Pool Team were playing pool.  It would seem that the victim, Edwin Paddington, who was not a member of the team, was in the pub and had consumed a fair amount of drink.  He was making derogatory remarks about a number of the players' skills and was generally making a nuisance of himself.  Some of those remarks were aimed at the appellant who was a member of the team and was amongst those playing that evening.  Towards closing time, the appellant and Mr.Paddington left the Gloucester Vaults and the incident in question took place a short distance from the entrance to the pub.

3.         We would summarise the evidence very briefly as follows.  The first witness was a Michael Quinn, who was a member of the pool team.  He said that, as they left,  Mr Paddington pushed the appellant;  he then challenged the appellant along the lines of; 'me and you now, get rid of that cue' - that was a reference to the appellant's pool cue which he was carrying.  Mr. Quinn took the cue off the appellant.  The appellant and Mr Paddington then walked up the road;  they were shouting at each other and arguing.  The next thing he saw was Mr Paddington banging his head on the ground as he fell over.  Mr. Quinn did not see what caused it. 

4.        The next witness was a Mr. James Cofield, who was a member of a rival pool team, which had been playing in St. Aubin's that evening.  They took a taxi back and,  as they approached the Gloucester Vaults down Gloucester Street, he saw the appellant punch Mr. Paddington on the jaw and Mr. Paddington fell to the ground.  It  is fair to say that a number of the other witnesses asserted that the taxi was not in view at the time Mr. Paddington was struck, but only came up afterwards.  Certainly we should point out that although the prosecution had originally laid a charge of assault against the appellant, that had been withdrawn on the day and the only charge he faced was that of causing a breach of the peace.

5.        The appellant gave evidence and said that Mr. Paddington was the aggressor.  He had pushed into the appellant as they left the Gloucester Vaults and had challenged him.  He had tried to get the appellant's cue, but the appellant had then let Mr. Quinn take the cue.  The appellant  had walked up the road;  Mr Paddington had followed him.  He had told Mr. Paddington to go away and leave him alone.  He accepted that he may have shouted these remarks.  Then he saw Mr. Paddington come towards him;  he had his left hand up.  The appellant thought that he was about to be attacked and he gave Mr. Paddington a hard shove with his right hand, which caused Mr. Paddington to fall down as a result.

6.        Mr. Paul Richardson was another member of the team playing pool in the Gloucester Vaults.  He did not hear any verbal altercation between the parties,  but he said that Mr. Paddington seemed to turn towards the appellant who pushed him with one hand in the area around the jaw and the neck, which caused Mr. Paddington to fall to the ground.

7.         Finally, Mr. Gary Cook, who was another member of the team,  saw a little scuffle and some pushing and shoving.  They were pushing each other and the appellant pushed Mr. Paddington, with  the result that he fell to the ground. 

8.        The Relief Magistrate held that the test of whether a person had caused a breach of the peace was objective.  In giving his decision he said as follows; 'I am absolutely sure that exiting from the Gloucester Vaults were two men who were engaging in a scuffle. There was pushing and shoving and there was shouting and it was after, or around closing time at night and I have to decide whether that objectively, in the case of this defendant, was a breach of the peace and I don't have any difficulty in deciding really that it was, but it's a question of degree and I find that the breach of the peace was at the low end of breaches of the peace.' 

9.        This approach of the Relief Magistrate was confirmed when one looks at the exchanges between defence counsel and the Relief Magistrate during defence counsel's closing submissions.  During those submissions the Relief Magistrate queried the relevance of self defence in view of the fact that the charge of assault had been dropped.  He referred to the fact that the test for breach of the peace was purely objective. 

10.      For the purposes of this appeal, we are willing to take the definition of conduct likely to cause a breach of the peace as that given by Magistrate Sowden himself, in the case of Attorney General-v-Freeman (1994) JLR 29 at page 38, when he said;

"The offence has clearly been used as a way of maintaining order and decency and of enabling the police to carry out their duty of preserving public order.  Conduct calculated to provoke a breach of the peace usually bears this character, because it is likely to create alarm and annoyance and so lead to a disturbance by the person alarmed and annoyed.  It is not necessary to show that a person intended to provoke a disturbance, it is enough that his conduct was such that the court regarded it as objectively calculated to do so.  Conduct in private can constitute a breach of the peace, if it is calculated to result in public disturbance."

11.      We are, of course, dealing here with an offence of causing a breach of the peace, not acting in a manner likely to cause a breach of the peace.  Nevertheless, we agree that it is not necessary that the accused should intend to cause a breach of the peace, if the Court is objectively satisfied that he has done so.  But, he must still have caused a breach of the peace and that is where the question of self defence, or questions of what was said, may be relevant.  Let us take an example of a man who attacks a defendant with a weapon, in the street, shouting as he does so.  The defendant shouts as loudly as he can at  the attacker asking him to stop.  He says that several times in an emphatic manner.  The attacker ignores this and continues to attack.  The defendant then punches the attacker in lawful self defence and there is quite a fight, before the attacker is disarmed.  In one sense the defendant has been shouting at another man and they have then become involved in a fight.  There has undoubtedly been a breach of the peace and the defendant has been involved.  But when the court looks at what the defendant has actually said and done, it cannot be right to say that he has caused a breach of the peace.  The breach of the peace was caused by the attacker.  All the defendant did in that case was to shout to the attacker to desist and he only became involved in a physical altercation by way of lawful self-defence.

12.       In this prosecution the appellant's case was that he shouted at Mr. Paddington in order to tell him to desist and his only involvement in the physical altercation was by way of self defence.  If that was the case, or might have been the case, he was entitled to be acquitted.  The difficulty is that the Relief Magistrate did not consider these matters.  He took the view that because the appellant shouted at Mr. Paddington and because he was involved in the physical altercation, that was sufficient to say that he had caused a breach of the peace.  The Relief Magistrate said that all he had to decide was whether, objectively, there had been a breach of the peace.  We accept that he was entitled to find that there had been a breach of the peace, but we do not accept that he applied the correct test in deciding whether the defendant had caused a breach of the peace and that is the offence with which he was charged. 

13.      In the circumstances, the Relief Magistrate having applied an incorrect test, we must allow the appeal.  The question then is whether to send this matter back for a re-trial.  As we have said, the offence took place as long ago as May, 2000;  it is not a particularly serious offence.  We think that in the circumstances it would not be right to send this matter back for a re-trial, which would be heard so long after the original offence and we, therefore, do not do so.  We therefore allow the appeal and quash the conviction.

14.      Mr. Luggar you will have your costs here and in the court below.

Authorities

AG-v-Freeman (1994) JLR 29

Archbold (2001 Ed'n): para 29-55.