Ebanks v R
| Jurisdiction | Cayman Islands |
| Judge | (Summerfield, C.J.) |
| Judgment Date | 22 November 1979 |
| Court | Grand Court (Cayman Islands) |
| Date | 22 November 1979 |
(Summerfield, C.J.)
L.F. Soutar for the appellants;
J. Martin for the Crown.
(1) Boodoo v. JosephUNK(1964), 7 W.I.R. 373, dictum of Phillips J.A. applied.
(2) Cedeno v. O”BrienUNK(1964), 7 W.I.R. 192, observations of Wooding, C.J. applied.
(3) R. v. Price(1967), Court of Appeal of Jamaica, Crim. App. No. 114/67, unreported.
Firearms Law (Revised) (Law 17 of 1964, revised 1976), s.2(1): The relevant terms of this sub-section are set out at page 428, lines 18–28.
Misuse of Drugs Law, 1973 (Law 13 of 1973), s.5(1): The relevant terms of this sub-section are set out at page 425, lines 32–39.
s.11: ‘Whoever resists any lawful arrest or search . . . is guilty of an offence.’
Penal Code (Law 12 of 1975), s.193:
‘Whoever unlawfully discharges or attempts to discharge any firearm at any person or, being armed with a firearm, unlawfully threatens to discharge such firearm at any person is guilty of an offence . . . .’
Police-entry, search and seizure-reasonable suspicion-police officer”s ‘reasonable grounds to suspect’ accused of possession under Misuse of Drugs Law, 1973, s.5(1) to be examined objectively according to standards of reasonable man to determine existence of grounds-reasonable grounds for suspicion by one officer imputed to all officers acting in concert with him
Police-entry, search and seizure-resisting search-body search-search must be commenced before it can be ‘resisted’-running away from police officer about to search not ‘resisting’ search under Misuse of Drugs Law, 1973, s.11
Police-entry, search and seizure-resisting search-suspect entitled to resist unlawful search-may use no more force than reasonably necessary-threatening police with gun in face of possibility of personal search or arrest is disproportionate response
Firearms-threatening discharge of firearm-proof-evidence of experienced police officers acceptable to establish that weapon is ‘firearm’ within Firearms Law (Revised), s.2(1)-evidence that accused seen loading gun and his threat to shoot police is evidence that weapon capable of discharging bullet
Police-entry, search and seizure-resisting search-entitlement to resist unlawful search of premises not extended to volunteers, i.e. persons without rights of ownership in premises, whose help not solicited by owner or person in possession
The appellants were charged in the Magistrate”s Court, George Town with offences arising from their conduct in resisting a search by police officers of the first appellant”s home.
Acting on information received that the first appellant was in possession of ganja, four police officers went to his home without a warrant to conduct a search. One of them explained to the first appellant what they were about to do and he agreed to let one officer conduct the search. The first appellant then ran and locked himself in a room in the house. The second and third appellants intervened to prevent the officers forcing the door and a struggle ensued. The first appellant left the room, pushed one
officer against a wall, shouted that they did not have a warrant to search his house and ran into the road. He was observed to be carrying something bulky hidden under his shirt. The police officers chased him but gave up after he allegedly threatened to shoot them with a firearm which they saw him load. They arrested the second and third appellants and in a search of the latter”s person allegedly found a small packet containing ganja. 45 minutes later the first appellant was arrested outside his house after a struggle in which the fourth appellant came to his aid. He then produced from under his clothing a toy gun which he claimed was the one he had used to threaten the officers earlier.
The first appellant was charged with four offences: assaulting a police officer in the lawful execution of his duty; resisting a police officer in the lawful execution of his duty; resisting a lawful search; and unlawfully using a firearm. The second appellant was charged with two offences of resisting a police officer in the lawful execution of his duty and two offences of assaulting a police officer in the lawful execution of his duty. The third appellant was charged with possession of ganja, resisting a police officer in the lawful execution of his duty and two offences of assaulting a police officer in the lawful execution of his duty. The fourth appellant was charged with assaulting and obstructing a police officer in the lawful execution of his duty.
On the basis of the evidence of the police officer who claimed to have received the information about the first appellant, the magistrate found that there were reasonable grounds for suspecting the first appellant of being in possession of ganja and since the police had therefore been acting lawfully, the course of events involving all the appellants justified their convictions on all the counts.
On appeal, the appellants submitted, inter alia, that there was no evidence (a) that the police had reasonable grounds for suspecting that any person was in possession of a controlled drug in contravention of the Misuse of Drugs Law so as to justify a search of the premises without a warrant; (b) that the object allegedly used to threaten the police was a firearm within the meaning of the Firearms Law, s.2(1); (c) that the appellants were informed that a search without a warrant was to be made because of a ‘reasonable suspicion’; and (d) that the evidence in general was manifestly unreliable.
Held, dismissing the appeals in part:
(1) Whether there was reasonable cause for suspecting that the first appellant was in possession of ganja was a question of fact which had to be established objectively according to the standards of the reasonable man. The information received by the police that the first appellant was in possession of ganja was a legitimate cause for suspicion and, taken together with his conduct after he was told of the information and his attempting to remove a bulky object beneath his shirt, was sufficient to demonstrate that the police officers had reasonable grounds for their suspicion. Although only one of them gave evidence to this effect, a finding that he had such reasonable grounds meant that a similar suspicion could be imputed to all who were acting together to search
the premises. The search without warrant was therefore perfectly lawful and in resisting it the first appellant committed an offence contrary to s.11 of the Misuse of Drugs Law, 1973 (page 426, line 41 – page 427, line 6; page 427, line 15 – page 428, line 2).
(2) Moreover, the police had no obligation to tell the first appellant that they were about to conduct a search of the premises without a warrant once they had reasonable grounds to suspect him, although the failure to do so might have some later bearing on whether the resistance constituted an offence. Since the first appellant had been explicitly told the reason for the search and had actually agreed to it, his appeal on this ground would fail. However, since there was no evidence of his resisting a personal search because no search had been attempted, his conviction on this count could not be sustained (page 428, lines 3–13; page 429, lines 18–23).
(3) If the officers had had no reasonable grounds to suspect him, the first appellant would have been entitled to resist the search of his premises provided that he used no more force than was reasonably necessary. But his act of threatening the officers with a gun, when at the most he was faced with the possibility of a personal search or arrest for his earlier assault, was an entirely disproportionate response which made...
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R v Misick
...hand, Sir John Summerfield CJ in the Cayman Islands, in a case which is almost identical with the present one ( Ebanks & Ors. v. R [1952–79] C.I.L.R. 419), held that it would be enough. He said, at p. 427: “P.C. Blake stated that he went to the home of Ralston Ebanks “from information.” The......