Jackson v R

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 28 November 1996
• Date: 28 November 1996
• Court: Grand Court (Cayman Islands)

Grand Court

(Smellie, J.)

JACKSON

and

R.

A.S. McField for the appellant;

S. Bonnar, Crown Counsel, for the Crown.

Cases cited:

(1) -Blake v. Pope, [1986] 1 W.L.R. 1152; [1986] 3 All E.R. 185.

(2) -Castorina v. Chief Const. (Surrey) (1988), 138 New L.J. 180; The Times, June 15th, 1988.

(3) -Chapman v. D.P.P.UNK(1988), 89 Cr. App. R. 190, dicta of Bingham, L.J. applied.

(4) -D.P.P. v. Watkins, [1989] 1 Q.B. 821; [1989] 1 All E.R. 1126.

(5) -Dumbell v. Roberts, [1944] 1 All E.R. 326, dicta of Scott, L.J. applied.

(6) -Glinski v. McIver, [1962] A.C. 726; [1962] 1 All E.R. 696, followed.

(7) -Hussien v. Chong Fook KamELR, [1970] A.C. 942, sub nom. Shaaban Bin Hussien v. Chong Fook Kam, [1969] 3 All E.R. 1626.

(8) -McArdle v. EganUNK(1933), 150 L.T. 412; 98 J.P. 103.

(9) -McCarrick v. Oxford, [1983] RTR 117; [1982] Crim. L.R. 750.

(10) -McGrath v. Vipas, [1984] RTR 58; [1983] Crim. L.R. 628.

(11) -R. v. Downey, [1970] RTR 257; [1970] Crim. L.R. 287, applied.

(12) -R. v. Lennard, [1973] 1 W.L.R. 483; [1973] 2 All E.R. 831.

(13) -R. v. Vanderbol, 1986–87 CILR 8, applied.

(14) -Ward v. Chief Const. (Avon & Somerset), The Times, June 26th, 1986, unreported.

Legislation construed:

Traffic Law (Revised) (Law 16 of 1973, revised 1986), s.61: The relevant terms of this section are set out at page 342, lines 7–14.

s.62: The relevant terms of this section are set out at page 342, lines 15–42.

Road Traffic-drunk ‘in charge’-arrest-lawful arrest requires reasonable grounds for belief accused guilty of either driving under influence of drink or drunk in charge-precise offence communicated to accused on arrest irrelevant

Road Traffic-driving under influence of drink-blood, breath and urine tests-refusal to provide specimen-validity of request for breath speci-men not dependent on lawfulness of arrest-requesting officer”s belief accused guilty of offence under Traffic Law (Revised), s.61 justifies request

Road Traffic-driving under influence of drink-blood, breath and urine tests-refusal to provide specimen-refusal to provide breath specimen reasonable under Traffic Law (Revised), s.62(8) only if accused physically or mentally unable or substantially risks his health-belief in own innocence or in lack of evidence against him irrelevant

The appellant was convicted in the Magistrates” Court, George Town of refusing to provide a specimen of breath for testing, contrary to the Traffic Law (Revised), s.62(2) and (8).

The appellant was arrested, following information received, on suspicion of having driven a car while under the influence of excess alcohol, contrary to s.61 of the Traffic Law (Revised). At the time of his arrest the car was parked in a parking-lot outside a petrol station, with the appellant in the driver”s seat and the bonnet raised. When questioned, he confirmed that he had driven the car there. He then got out of the car to look at the engine and the arresting officer noticed that he was unsteady on his feet and smelt of alcohol. When cautioned, he denied being drunk and later refused to give a sample of his breath, saying that the officer had not seen him driving.

In the Magistrates” Court, the magistrate not only found that the arresting officer had reasonable cause to believe the appellant had been driving or at least that he was in charge of the car whilst intoxicated, and that he therefore had no reasonable excuse for refusing the breath test, but that the lawfulness of the arrest was, in any event, not a necessary precondition of the offence under s.62.

On appeal, the appellant submitted that (a) the magistrate had erred in finding that the constable had reasonable cause to believe either (i) that he had been driving whilst intoxicated, since the only evidence to this effect (the appellant”s own alleged words and those of the original informant)

was hearsay and inadmissible, or (ii) that he was drunk in charge of the vehicle, since the car was clearly immobilized, and the constable had failed to make enquiries which would have established that the appellant had bought the beer he had drunk from the adjacent petrol station; (b) the arrest was therefore unlawful on either ground and the appellant was under no obligation to give a sample of breath when requested; and (c) in any event, it was not open to the magistrate to convict him of the offence of refusing to give a specimen under s.62(8) of the Traffic Law on the basis of the constable”s reasonable belief that he was drunk in charge of the vehicle, when he had been arrested and charged on the basis that he had committed a different offence, namely driving it whilst intoxicated.

The Crown submitted in reply that (a) the constable had had reasonable cause to suspect the appellant of both (i) having driven the car whilst intoxicated, since the officer”s reasonable belief for the purposes of a lawful arrest could be formed on the basis of inadmissible evidence such as hearsay, and here had to be taken together with his own observations at the scene, and (ii) being drunk in charge of the vehicle, since the appellant was at the time of his arrest attempting to start the car in an apparently intoxicated state; (b) once the constable had formed a reasonable belief, he was not obliged to make further enquiries to discount all possible defences to the offence before arresting the appellant; (c) since the appellant had been arrested on a reasonable belief that an offence had been committed of a kind which the constable had in mind (namely, one of the offences under s.61), the magistrate had properly convicted him of refusing to give a breath specimen on that basis, regardless of the specific reason given for arrest; and (d) in any event it was unnecessary that there should have been a lawful arrest as a prerequisite to a conviction under s.62 for refusing a breath test.

Held, dismissing the appeal:

(1) The circumstances of the appellant”s arrest did not support a reasonable belief that he had been driving under the influence of alcohol. However, the constable”s personal observation that the appellant appeared intoxicated whilst attempting, keys in hand, to start his car, was sufficient in itself to justify a reasonable belief that he was guilty of the alternative offence of being drunk in charge of the vehicle. It was therefore unnecessary for the court to consider otherwise inadmissible hearsay evidence of the appellant”s driving the car. Having satisfied himself that an offence had been committed to which an appropriate power of arrest applied, the constable was not obliged to inquire further into possible defences (page 343, line 44 – page 344, line 23; page 344, line 36 – page 345, line 5; page 345, line 40 – page 346, line 18).

(2) The magistrate therefore correctly found that the appellant had been lawfully arrested for an offence under the Traffic Law (Revised), s.61. It was irrelevant for this purpose which of these offences was communicated to the appellant as the reason for his arrest, particularly

as he was given the opportunity to answer the charge on the alternative basis at his trial, and was therefore not prejudiced in his defence (page 344, lines 24–35; page 347, lines 3–18).

(3) In any event, a valid arrest under s.62(1) was not a prerequisite to the appellant”s conviction for refusing to give a breath specimen, contrary to s.62(8). He could properly be convicted even if the constable was adjudged by the court not to have had reasonable cause for his belief in the commission of the s.61 offence, a view which was supported by the absence of the word ‘lawfully’ from s.62(8)(a) in prescribing the arrest which must precede a request for a specimen of breath (page 347, line 24 – page 348, line 8; page 348, lines 17–32).

(4) The appellant”s belief in his own innocence or doubts as to the sufficiency of evidence against him were not reasonable excuses for refusing a breath test, since only physical or mental inability to provide a specimen or a substantial risk to his health in doing so could justify his refusal in law. Accordingly, the appellant”s conviction would be upheld (page 348, lines 9–17).

SMELLIE, J.: The appellant appeals against his conviction in the
5	Summary Court for the offence of refusing, without reasonable excuse, to
provide a specimen of breath for testing, contrary to s.62(2) and (8) of the
Traffic Law (Revised).
A summary of the relevant circumstances is as follows: At about 10.20
p.m. on February 15th, 1994, the arresting constable was on mobile patrol
10	duties when he received a report that someone was driving a Toyota
motor car along North Church Street in George Town in the vicinity of
Delworth”s Gas Station and that the driver appeared to be intoxicated.
The constable went to Delworth”s where he saw a Toyota Corolla motor
car parked in the parking-lot. Its bonnet was raised. The appellant was the
15	only occupant and was seated in the driver”s seat. The constable asked
him if he had just driven the car there. The appellant replied ‘Yes.’ The
appellant then went from the driver”s seat to the engine compartment
where he appeared, from the evidence of the constable, ‘to check on
some problem he had in the engine.’ The constable testified that he then
20	noticed that the appellant was ‘unsteady on his feet and smelt of alcohol
on his breath . . . and wasn”t exactly walking as if in full control.’
The constable also testified that as a result of all the

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