Bromby and Bromby v Cox (Police Constable)

• Jurisdiction: Bermuda
• Judgment Date: 10 March 2006
• Date: 10 March 2006
• Docket Number: Appellate Jurisdiction 2005 No. 29
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Bell, J

Appellate Jurisdiction 2005 No. 29

BETWEEN:

Peter Frederick Bromby

John Mark Bromby

Appellants

and

Angela Cox (Police Constable)

Respondent

Mr R Horseman for the Appellants

Mr O Vaucrosson for the Respondent

The following cases were referred to in the judgment:

Formanchuk v RBDLR [2004] Bda LR 24

Richardson v Commissioner of PoliceBDLR [1998] Bda LR 75

Plant v SimmonsBDLR [1986] Bda LR 35

Bean v CoxBDLR [2003] Bda LR 61

Criminal Code, s. 314

Summary Offences Act 1926, s. 12

Appeal against conviction of unlawful assault and uttering threatening words — Magistrate's findings as to evidence — Blocked access to beach — Provocation defence

JUDGMENT of Bell, J

Background

1. In this matter the Appellants Peter Bromby and John Bromby appeal against findings of the learned magistrate made on 18 May 2005 that both Appellants were guilty of charges of unlawful assault contrary to section 314 of the Criminal Code, and uttering threatening words, contrary to section 12 of the Summary Offences Act 1926. Although the Appellants were given an absolute discharge in respect of the findings of guilt, they have appealed those finding in accordance with the provisions of section 69 (2) of the Criminal Code Amendment Act 2001.

2. The incident which led to the charges against the Appellants and their conviction in respect of those charges occurred on 16 May 2004, at a beach close to East Shore Road in Sandys Parish. The complainant in the case, Henry Talbot, owned property which adjoined the beach. The Appellants owned adjoining property and had a right of way to the beach. On the day in question, Mr Talbot had caused an excavator to be taken to the beach, and the operator of that excavator, Earl Waldron, was in the process of moving large boulders to the boundary of Mr. Talbot's property. The Appellants' concern was that the boulders were being placed on their right of way so as to block access to the beach. When the Appellants were notified that there was an excavator on the beach moving boulders, they went together down to the beach. Before going down to the beach, John Bromby had asked someone to call the police. John Bromby then took a hoe handle with him, and Peter Bromby took a piece of pipe.

3. When the Appellants arrived at the beach, they immediately approached Mr Waldron, who was operating the excavator. Mr Waldron's evidence was that he shut off the machine and got out. There is no dispute in regard to this aspect of matters, but thereafter the different witnesses gave very different versions of events, and it is therefore necessary to review these in turn and identify the material evidence of each of the witnesses.

Mr Waldron's Evidence

4. Having turned off the excavator, Mr Waldron described John Bromby and Peter Bromby as both shouting at him and threatening him. He said that they were threatening to beat him up or kill him, and were waving sticks and pipes. He said that he tried to explain to them that he was only doing his job, and that if they had anything to say they should say it to his boss, who was Mr Talbot. He then walked off to call Mr Talbot, but in fact Mr Talbot was already on his way down. The Appellants followed behind Mr Waldron and there was then a confrontation between the Appellants and Mr Talbot.

5. Mr Waldron described the Appellants at this stage as ‘still shouting and screaming’ and said that they had ‘sticks and pipes in their hands’. He said they started threatening to beat up Mr Talbot and to kill him, pushing him back so that he could not leave the beach. Mr Waldron said that at one point Mr Talbot ‘got hit with the pipe in his stomach’, and he then identified Peter Bromby as the person who had hit Mr Talbot, saying that he had a pipe, and John Bromby had a stick. At this point the marine police arrived.

6. In cross-examination, Mr Waldron described the stick (carried by John Bromby) as being like a broom stick, rather than a hoe handle, and said that the Appellants did wave sticks at him. He disagreed that John Bromby had the hoe handle behind him. He confirmed that he, Mr Waldron, had made a complaint to the police about being threatened and said that Mr Talbot had not made a complaint to the police at that time. He conceded that, technically, Mr Talbot ‘put a roof over his head’. It was no doubt being suggested that Mr. Waldron's testimony was influenced by his employment by Mr. Talbot.

7. In re-examination, Mr Waldron confirmed that he had seen Mr Talbot being hit, and carried on to say that Mr Talbot had been hit by Peter Bromby, with a pipe. However, Mr Waldron had obviously then been invited to identify Peter Bromby, and was unable to do this, saying first that he was the one on the left, then that he was the one on the right, and saying then that he did not know. This was despite the fact that he had earlier said that that he had seen the Brombys before, on TV, and had later come to recognise them as Peter and John Bromby.

Mr Talbot's Evidence

8. Mr Talbot described how he had three workmen on the site on the day in question, and that Mr Waldron was operating his machine, picking up boulders on the beach which he said had come down during hurricane Fabian, and moving them to the boundary. When he returned to the site during the morning, he saw the Appellants coming down the hill through the bush on to the northern side of the beach. He said that Peter Bromby had a piece of pipe and John Bromby had a piece of lumber, a two by two.

9. Mr Talbot said that he had walked towards the Brombys to ask what was the problem. He said that they were both speaking together, saying the same thing, which was that they wanted the boulders moved because they had a right of way. He said they were heated and that the tone of their voices was hostile, and that he did not reply and was going to walk away. At that point, he said ‘the stick and pipe were in their hands’. He said that Peter Bromby then said to him that he was not going anywhere, and that if he did so he (Peter Bromby) would lay him out there. Mr Talbot took that to mean that the Appellants were serious, and said that John Bromby then said as much. He then said that they started hitting, with John Bromby on one side and Peter Bromby on the other, but described this as being ‘like in slapping, pushing sort of thing’.

10. Mr Talbot said that there were further threats and that Peter Bromby said to him that he would kill him right there if he didn't move the boulders, and that he felt threatened and that they were serious. John Bromby had turned to a young lady (unidentified, but presumably Ms Lima) asking her to take pictures, and he said that at this point Peter Bromby had taken his pipe and had jabbed him in the groin or stomach area. He reacted by moving away.

11. At this point the marine police arrived, and shortly afterwards other police arrived. Mr Talbot said that he had had a conversation with WPC DeSilva, but had then walked away because he believed she was talking to John Bromby. When she had told him not to do so, he had ignored her, in consequence of which he had been handcuffed and led away. He said he received a bruise in the stomach/groin area, and identified who was who of the two Appellants, who were of course well known to him.

12. In cross-examination, Mr Talbot said that he had been to the police station to see WPC DeSilva three days later, but that she had not been there. He had gone again, with his lawyer, but said that each time he went she was not there. Eventually he typed out his own statement and gave it PS Tucker. He said his complaint to the police on 16 May 2004 was that the Brombys had weapons but the police were putting him in handcuffs, and said he told the police what had happened, namely ‘they attacked me and came on the property’.

13. In relation to what it was that Mr Talbot did or did not tell the police in relation to any injuries, the record reads (page 24):

‘I did not tell Tucker I had no injuries (when he asked me on the 19^th). We did not have time (to show Tucker injuries). He said it was her (DeSilva's) case.’

14. Mr Talbot complained that the police ‘were behaving same way’, and complained that it was ‘a prejudice situation’, reiterating that the Brombys had been there ‘with sticks and pipes’.

15. That was the case for the Crown. For the defence, evidence was given by three police officers, the two Appellants, Roslyn Lima and D J Simons. Again, I will go through their evidence in turn.

PS Tucker's Evidence

16. PS Tucker was then an acting sergeant at Somerset Police Station, and described how WPC DeSilva had reason to arrest Mr Talbot for being obstructive and belligerent, describing him as ‘very uncooperative’. He said that Mr Talbot did not make any criminal complaint to him on 16 May 2004, that the first time that he had heard that was three days later at Somerset Police Station, when he had spoken with him, and PS Tucker also said in terms that on that day (19 May), Mr. Talbot had informed him that he did not sustain any injuries as a result of the assault on 16 May.

17. Perhaps surprisingly, in view of the Appellants' admissions that they were holding respectively a stick and a pipe, PS Tucker said that he did not notice the Appellants holding ‘sticks or pipe’ and said that he could not recall if he was close by then.

PC Watson's Evidence

18. PC Watson was the Marine Department police officer, and described how when he arrived ‘a heated discussion was taking place’. He said that Mr Talbot appeared to him to be ‘the loudest, most gesticulative’ of the three. He said that he asked all three to calm down and tried to resolve matters, that Mr Talbot had in fact calmed down, but had then become belligerent, and when warned by WPC DeSilva had become infuriated, in consequence of which he had been arrested and placed in handcuffs. PC Watson said that Mr Talbot had made no criminal complaint...