Miller (Police Sergeant) v Augustus

• Jurisdiction: Bermuda
• Judgment Date: 24 April 2023
• Court: Supreme Court (Bermuda)
• Docket Number: Appellate Jurisdiction 2022 No 26

Between:

Fiona Miller (Police Sergeant)

Appellant

and

Taahir Augustus

Respondent

[2023] Bda LR 46

Appellate Jurisdiction 2022 No 26

In The Supreme Court of Bermuda

Appeal by Crown against sentence — Assault of police officer by coughing on him and stating he had COVID — Conditional discharge

The following case was referred to in the judgment:

Miller (Police Sergeant) v Almanzar and Reyes-Nunez [2016] Bda LR 19

Ms C Clarke for the Appellant

Mr J White for the Respondent

JUDGMENT of Subair Williams J

Introduction

1. This is the Crown's appeal against a sentence imposed on the Respondent in the Magistrates' Court by learned Magistrate, Ms Maxanne Anderson (now the Senior Magistrate), on Information 20TR01503/20CR00126 pursuant to section 4 of the Criminal Appeal Act 1952. This appeal concerns Counts 3 and 4 of the said Information. Count 3 alleged that the Respondent unlawfully assaulted PC 2309 Philgence by coughing on him and stating; “I have coronavirus” while PC Philgence was executing his legal duty by arresting the Respondent. A similar allegation arose on Count 4, save that it concerned another police officer, namely PC 2510 Noddings.

2. The Respondent pleaded not guilty to these offences and the matter proceeded to trial. It was not until after the Senior Magistrate ruled that there was a case to answer that the Responded changed his pleas and pleaded guilty to Counts 2, 3 and 4. (Count 2 was a charge of failing to comply with a demand made by a police officer for a sample of breath for analysis, contrary to section 35C(7) of the Road Traffic Act 1947 (“RTA”)). The Crown offered no evidence on Count 1 which was a charge for driving whilst impaired by alcohol or a drug, contrary to section 35AA of the RTA.

3. Having received those pleas and sentence reports, the Senior Magistrate imposed a conditional discharge in respect of Counts 3 and 4 pursuant to section 69 of the Criminal Code as read with section 70A(a)-(b). On Count 2, which is not the subject of this appeal, she fined the Respondent in the sum of $1,500.00 and disqualified him from all vehicles for a period of 18 months.

4. By Notice of Appeal filed on 1 August 2022, the Crown appealed the Senior Magistrate's decision to impose a conditional discharge the ground that the “Learned Magistrate erred in law in [sic] when she found it to be not contrary to the public to discharge the defendant.”

5. Having heard Counsel on their oral and written submissions I reserved judgment, which I now provide on the reasons set out below.

Summary of the Evidence at Trial

6. At approximately 6:00pm on 13 April 2020, Commander Mclaren Smith of the Bermuda Regiment was manning a vehicle checkpoint on Pomander Road by Alberfeldy Nursery in performance of his special duties shortly after the break-out of the COVID-19 Pandemic.

7. Commander Smith's evidence at trial was that he and his colleagues observed a bike heading into town from a westerly direction. The rider, the Respondent, was signalled to stop and did so. Commander Smith explained his role to the Respondent who was at a 4–5 foot distance from him. Commander Smith told the Court that the Respondent's bike was falling over while he was still sat on the seat; so he, Commander Smith, approached to provide support. However, the bike fell over with the Respondent underneath it.

8. Commander Smith assisted with the bike and detained the Respondent who had fallen asleep up until the point of police arrival. On the evidence of PC 2309 Vivian Philgence, the Respondent's eyes were glazed and his speech was slurred. She asked him if he been consuming alcohol, to which he replied; “yes”. The Respondent was subsequently arrested on suspicion of driving whilst impaired. Commander Smith said that he heard the Respondent state words to the effect that he was positive for the coronavirus and he observed him to be fake-coughing. PC Philgence placed a mask on the Respondent after he was handcuffed and he was placed in a police vehicle.

9. Commander Smith's evidence was that Mr Augustus was somewhat resisting by squirming and making jokes. Commander Smith then opened the door to the police vehicle and assisted by sitting the Respondent upwards and securing him in the vehicle with the seatbelt. He said the Respondent continued to feign coughing with his head between the seats. This prompted the police officers to cause him to sit back.

10. The Respondent was seated behind the front passenger seat behind PC Philgence. PC 2510 Noddings was the driver. PC Philgence stated in her evidence that the Respondent used the back of the front seat head-rest to remove the mask she placed on him. When directed to keep the mask on his face, the Respondent was uncooperative; so he was again asked to comply.

11. During the drive to Hamilton Police Station the Respondent coughed on three distinct occasions and he leaned forward to put his face in the front cabin area of the police car. There were no protective...