R v Vanderbol

• Jurisdiction: Cayman Islands
• Judge: (Hull, J.)
• Judgment Date: 06 February 1986
• Court: Grand Court (Cayman Islands)
• Date: 06 February 1986

Grand Court

(Hull, J.)

R.

and

VANDERBOL

B.F. Sharman, Crown Counsel, for the Crown.

The respondent appeared in person.

Cases cited:

(1) R, v. Lennard, [1973] 1 W.L.R. 483; [1973] 2 All E.R. 831; [1973] RTR 252; (1973), 57 Cr. App. R. 542, followed.

(2) R. v. Sang, [1980] A.C. 402; [1979] 2 All E.R. 1222; (1979), 69 Cr. App. R. 282, distinguished.

(3) R. v. Trump, [1980] RTR 274; (1979), 70 Cr. App. R. 300, distinguished.

(4) Scott v. Baker, [1969] 1 Q.B. 659; [1968] 2 All E.R. 993; (1968), 52 Cr. App. R. 566, distinguished.

Legislation construed:

Traffic Law (Revised) (Law 16 of 1973, as amended), s.62(1): The relevant terms of this sub-section are set out at page 11, lines 36–39.

(2): The relevant terms of this sub-section are set out at page 12, lines 1–6.

(8): The relevant terms of this sub-section are set out at page 12, lines 10–15.

Road Traffic-driving under influence of drink-arrest-for lawful arrest under Traffic Law (Revised), s.62(1), constable”s ‘reasonable cause to believe’ offence committed must go beyond reasonable suspicion

Road Traffic-driving under influence of drink-breath test-requirement to provide breath specimen under Traffic Law (Revised), s.62(2)-validity of requirement not dependent on lawfulness of prior arrest

Road Traffic-driving under influence of drink-breath test-reasonable excuse for refusal under Traffic Law (Revised), s.62(8)-drinking alcohol after driving and before requirement of breath specimen not per se reasonable excuse for refusal

The respondent was charged in the Magistrate”s Court, George Town, with refusing without reasonable excuse to provide a specimen of breath for a breath test having been lawfully required to do so, contrary to the Traffic Law (Revised), ss. 62(2) and 62(8)(a).

The respondent was seen to be driving a pick-up truck in a highly erratic manner and the matter was reported to the police. The respondent left the truck at a garage less than half an hour later and went for a drink. Almost an hour after that, he was arrested for disorderly conduct in public. He was interviewed briefly at the police station: at that time- two hours after the original incident-his breath smelled of alcohol, his eyes were red and his speech slurred. The interviewing officer then arrested him ‘on suspicion of’ driving while intoxicated two hours previously. The respondent denied being drunk, saying that he did not drink. As the breathalyser test was being demonstrated to him, the respondent refused to take it and provide a breath specimen.

The magistrate held that the respondent had reasonable cause, within the meaning of the Traffic Law (Revised), s.62(8), to refuse to provide a breath specimen, since there had been a break in the sequence of events for which the prosecution could not account and particularly because there was evidence that the respondent had consumed alcohol after driving and before being required to provide a specimen. He was therefore discharged.

The Crown appealed by way of case stated seeking an order for retrial. It submitted (a) that the evidence showed that the arresting officer had reasonable cause to believe that the respondent had previously been driving while intoxicated, which amounted to more than mere suspicion, and that the arrest had therefore been lawful in terms of s.62(1);

(b) that even had the arrest been unlawful, the court had a discretion to admit evidence improperly obtained, but that in any case the omission of the word ‘lawfully’ from s.62(8)(a)-in contrast to its inclusion in the following paragraph-indicated that a requirement to provide a breath specimen did not have to be ‘lawful’; and (c) the evidence did not disclose any facts capable of amounting to a reasonable excuse for the respondent”s refusal to provide a specimen and that the magistrate”s decision was therefore wrong.

Held, remitting the case to the lower court with a direction to convict:

(1) The evidence did not support the view that the officer who arrested the respondent had ‘reasonable cause to believe’ (within the meaning of the Traffic Law (Revised), s.62(1)) that he had been driving while intoxicated but merely that he had reasonable cause to suspect that he had done so. The arrest was therefore unlawful (page 12, line 34 – page 13, line 12).

(2) Nevertheless, the omission of the word ‘lawfully’ from s.62(8)(a) of the Law, in contrast to its inclusion in the following paragraph, implied that there was no need for an offender to be lawfully required to provide a breath specimen and the unlawful nature of the arrest had not therefore invalidated the requirement (page 14, lines 20–33; page 15, line 38 – page 16, line 10).

(3) There being a valid requirement to provide a breath specimen, on the facts established in the lower court, the magistrate had been wrong in holding that the respondent had reasonable excuse for refusing to provide a breath specimen simply because the respondent had apparently consumed alcohol after driving and before being required to provide the specimen. The case would therefore be remitted to the lower court with a direction to convict (page 12, lines 24–27).

HULL, J.: This was an appeal by way of case stated brought by
5	the Attorney General against the dismissal by the learned magis-
trate, on June 19th, 1985, of a charge brought against the respon-
dent that on Saturday, April 13th, 1985, at George Town,
without reasonable excuse he refused to provide a specimen of
breath for a breath test, having been lawfully required by Sgt. A.
10	Seale to provide such a specimen, being an offence contrary to
s.62(8)(a) as read with s.62(2) of the Traffic Law (Revised).
The facts, as set out in the case stated, to which I wish to refer,
were as follows: At about 5 p.m. on the day in question, the
respondent was driving a blue Toyota pick-up truck along North
15	Sound Road. His tyres were making a noise. This caused another
road user, a Mr. Texford Barnes, to ‘haul off’ the road. The
respondent passed him, and drove on, from side to side along
North Sound Road. He then turned left towards a marl pit and
drove round and round with the two right wheels off the ground
20	for a time. A tyre blew out. The respondent then

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