Kethyio Whitehurst v Fiona Miller

• Jurisdiction: Bermuda
• Judgment Date: 01 May 2017
• Neutral Citation: [2017] SC Bda 31 App
• Date: 01 May 2017
• Docket Number: APPELLATE JURISDICTION 2017: 10
• Court: Supreme Court (Bermuda)

[2017] SC (Bda) 31 App

In The Supreme Court of Bermuda

APPELLATE JURISDICTION 2017: 10

Kethyio Whitehurst

Appellant

and

Fiona Miller

Respondent

Mr. Arion Mapp, Christopher's, for the Appellants

Ms. Larissa Burgess, Office of the Director of Public Prosecutions, for the Respondent

Appeal against conviction in Magistrates' Court—violently resisting arrest—sufficiency of findings and reasons for decision—Criminal Jurisdiction and Procedure Act 2015, section 83(5)

(in Court) 1

Introductory

1 The Appellant was convicted on January 10, 2017 by the Magistrates' Court (Wor. Tyrone Chin) of one count of violently resisting arrest contrary to section 2(f) of the

Summary Offences Act 1926. This followed a trial at which he was acquitted of two other charges of doing grievous bodily harm and assault occasioning actual bodily harm respectively.

2 The initial sole ground of appeal was that the Learned Magistrate erred in ruling that there was a case to answer. This ground was clearly hopeless. On the morning of the hearing the Appellant's counsel filed an amended Notice of Appeal with the following new ground of appeal:

“ The Learned Trial Judge failed to comply with the requirements set out within section 83 of the Criminal Jurisdiction and Procedure Act 2015.”

The Decision of the Magistrates' Court

3 The Prosecution case relied primarily on the evidence of two Police Officers who testified that they approached the Appellant to question him at Dockyard about an assault after a female member of the public (who never gave a statement or gave evidence) identified the Appellant as the assailant. Because of the crowds of people and presence of supporters of the Appellant, they invited him to accompany them to the Police Station and only arrested him after he declined to attend voluntarily. He violently resisted this arrest.

4 Mr Mapp made a submission of no case to answer the essence of which was recorded in the Learned Magistrate's notes. The points raised were that (1) the Appellant had been unlawfully detained before he was arrested and (2) the officers did not have genuine grounds for suspecting the Appellant had committed an offence, and therefore he was entitled to resist what was subsequently an unlawful arrest. Ms Burgess' response was also recorded. She submitted that the cases relied upon on pre-arrest detention were distinguishable having regard to the facts in the present case where the Appellant was not actually deprived of his liberty. Further, there were good grounds for the officers to have delayed the arrest, which they genuinely believed was appropriate at an earlier point. The Ruling was as follows:

“ The Court having heard the arguments rules that there is a case to answer.”

5 The Appellant gave evidence in his own defence which potentially (but not very clearly) supported his case that he was effectively detained before he was formally arrested. When asked in his examination-in-chief “ why did you refuse to cooperate with the Police” he answered: “ First I had nothing to do with the matter. And when they first approached me they didn't tell me I was under arrest.” Under cross-examination he maintained the position that he should have been arrested from the outset but it appeared that the Officers were unsure and also asserted that he was grabbed first and then told he was being arrested afterwards. He also admitted that he resisted the arrest. He called a friend to support his case on the main charges who did not materially assist on the violently resisting arrest offence.

6 In his closing submissions, Mr Mapp invited the Court to consider in light of the Appellant's own evidence whether the Appellant had been unlawfully detained prior to his arrest based on the evidence of one of the Officers to the effect that before he was arrested and while he was being questioned, he did not consider the Appellant was free to go. The Court was referred to Spicer v Holt [1976] RTR 389, section 5 of the Constitution, Fraser Wood v DPP [2008] EWHC 1056 and R v Iqbal [2011] EWCA Crim 273, cases cited at the no case submission stage. He also queried the credibility of Officer Ward on the question of why he did not effect the arrest earlier if he had reasonable grounds to suspect the Appellant from the outset. The Crown's preceding closing submission was recorded as relying on the consistency and credibility of the Crown witnesses as proving the Prosecution case so that the Court could be satisfied of the Appellant's guilt.

7 The final Judgment on the charge which forms the subject of the present appeal read in its totality as follows:

“ The Court heard further evidence from PC Ward and PC Evelyn as to the Defendant when arrested that the Defendant violently resisted PC Evelyn while he was in the execution of his duty….The Court does find the Defendant guilty beyond reasonable doubt on Count 3 that when arrested the Defendant violently resisted while Pc Evelyn was acting in the execution of his duty.”

The duty to record findings and/or reasons for decisions

8 Section 83(5) provides as follows:

“ (5) The record of proceedings must include the magistrates' court's final judgment in writing, which will include—

• (a) the point or points for determination;

• ...