Miller v R
| Jurisdiction | Cayman Islands |
| Judge | (Zacca, P., Georges and Collett, JJ.A.) |
| Judgment Date | 24 April 1998 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 24 April 1998 |
(Zacca, P., Georges and Collett, JJ.A.)
P. Lamontagne, Q.C. for the appellant;
A. Akiwumi, Crown Counsel, for the Crown.
(1) -Blackburn v. Bowering, [1994] 1 W.L.R. 1324; [1994] 3 All E.R. 380, followed.
Court of Appeal Law (1996 Revision) (Law 9 of 1975, revised 1996), s.9(1):
‘Subject to section 12, the Court shall allow an appeal against conviction if . . .
Provided that the Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if the Court considers that no substantial miscarriage of justice has occurred.’
Police-arrest-resisting arrest-accused not ‘resisting arrest’ if honestly believes arrest not by police officer, even if belief un-reasonable-reasonable force justified in self-defence
Police-assault on police-knowledge of identity-use of reasonable force in self-defence justified if accused honestly believes victim not police officer, even if belief unreasonable
The appellant was charged in the Magistrate”s Court, George Town with, inter alia, disorderly conduct, resisting arrest and assaulting a police officer.
The appellant attended a noisy street party. When uniformed police stopped the party following a complaint and asked the crowd to disperse, a small group began to throw bottles at them. A policeman who was injured by breaking glass identified the appellant as the culprit and attempted to arrest him for disorderly conduct. When the appellant resisted, he was arrested with the assistance of other officers.
At his trial, the appellant was convicted of resisting arrest and assaulting a police officer in the execution of his duty but acquitted of disorderly conduct. He appealed to the Grand Court on the grounds, inter alia, that he had been unaware that the person apprehending him was a police officer, that his resistance had therefore been lawful self-defence and that his convictions were incompatible with his acquittal of disorderly conduct.
The Grand Court (Williams, Ag. J.) held that the arrest had been lawful on the basis of the evidence as perceived by the arresting officer, that there had been no reason for the appellant to be unaware of that person”s identity, and that, in any event, it was not necessary for the purpose of either offence of which he had been convicted for the appellant to have been aware that his victim was a police officer acting in the execution of his duty. The proceedings in the Grand Court are reported at 1997 CILR 433.
On further appeal, the appellant submitted that (a) it was an essential ingredient of resisting arrest and of assaulting a police officer in the execution of his duty that the accused should be aware of his victim”s identity; (b) both the magistrate and the Grand Court had therefore misdirected themselves by failing to consider whether he genuinely believed that the person apprehending him was a police officer and thereby giving no consideration to whether his resistance was justified as
self-defence; and (c) since, in the light of his defence, it was for the prosecution to prove that he had not been so mistaken, he had been improperly convicted.
The Crown submitted in reply that (a) whatever were the ingredients of the two offences as to the appellant”s state of mind, it could not have been clearer to him at the time-and so the Grand Court had found-that the person arresting him was a police officer; and (b) accordingly, the appellant had been properly convicted and there had been no miscarriage of justice for the purpose of the proviso to s.9(1) of the Court of Appeal Law (1996 Revision).
Held, dismissing the appeal:
(1) The magistrate had erred in not applying his mind to the issue of the appellant”s belief as to the police officer”s identity. In such a case as this, where the appellant had pleaded...
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