Whitehurst v Miller (Police Sergeant)

• Jurisdiction: Bermuda
• Judgment Date: 01 May 2017
• Date: 01 May 2017
• Docket Number: Appellate Jurisdiction 2017 No 10
• Court: Supreme Court (Bermuda)

[2017] Bda LR 41

In The Supreme Court of Bermuda

Appellate Jurisdiction 2017 No 10

Between:

Kethyio Whitehurst

Appellant

and

Fiona Miller (Police Sergeant)

Respondent

Mr A Mapp for the Appellant

Ms L Burgess for the Respondent

The following cases were referred to in the judgment:

Spicer v Holt [1976] RTR 389

Fraser Wood v DPP [2008] EWHC 1056

R v Iqbal [2011] EWCA Crim 273

Trott v R [2016] Bda LR 128

Violently resisting arrest — Appeal against conviction — Whether arrest lawful — Sufficiency of findings and reasons for decision

JUDGMENT of Kawaley CJ

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...