Blackman et Al v Commissioner of Police

• Jurisdiction: Barbados
• Court: Divisional Court (Barbados)
• Judge: Douglas, C.J.,William, J.
• Judgment Date: 28 June 1973
• Docket Number: No. 14 of 1973
• Date: 28 June 1973

Supreme Court

Douglas, C.J.; William, J.

No. 14 of 1973

Blackman et al

and

Commissioner of Police

Appearances:

Mr. D.A. Simmons for the appellants.

Mr. E. Belgrave for the respondent.

Criminal Law - Appeal against conviction — Offence under Reg. 222(1) of the Barbados Harbour Regulations 1961

Facts: The appellants were convicted of taking a quantity of articles out of the harbour area of Bridgetown port without producing a pass out check authorising them to be in possession of the articles — The issues were whether the convictions were vitiated by an incorrect reference to the provisions creating the offence and whether since the offence required proof of mens rea the magistrate addressed his mind to this aspect of the case

Held: It was clear that the appellants had not been prejudiced by the information and therefore s. 148 of the Magistrates' Jurisdiction and Procedure Act precluded the objection from being taken or allowed on appeal — The appeal would be allowed since the magistrate never addressed his mind to the main element of the offence which was whether in the case of each appellant he knew or must be taken to have known that the articles were on the lorry — Appeals allowed.

JUDGMENT OF THE COURT:

1 The two appellants in this case were convicted by a magistrate at District “A” of taking out of the harbour area at the Bridgetown port six thirteen-pound tins of ham, twelve bottles of champagne and a bottle of whisky without producing a pass out check authorising them to be in possession of these articles. They were each fined $100 with the alternative of two months imprisonment.

2 The first limb of the appeal raises the question of the validity of the information on which the convictions rested. At the end of the information reference was made to regulation 204(1) of the Barbados Harbours (Amendment) Regulations, 1962. The contention is that the offence was actually created by the Barbados Harbours Regulations, 1961 and that these Regulations should have been referred to.

3 Regulation 204(1) of the Barbados Harbour Regulations, 1961 provides follows:–

• “204(1) No person shall take out of a harbour area any parcel, package or article of any kind except on production and delivery at the harbour gate to an authorised employee or member of the Police Force of a pass-out check authorising such person to be in possession of such a parcel, package or article.”

4 Regulation 221(1) provides the penalty for contravention of this regulation and provides:–

• “221(1) Every person doing anything prohibited by any of the regulations contained in Part XI of these regulations or in the Fifth Schedule to these regulations or omitting to do anything required by any of them to be done or otherwise contravening any of the said regulations shall be guilty of an offence and liable on conviction by a court of summary jurisdiction to a fine not exceeding two hundred dollars or to imprisonment for a term not exceeding three months or to both such fine and imprisonment.”

5 Rule 9 of the Magistrates' Courts ( Criminal Procedure) Rules, 1958 is as follows:–

• “9(1) Every information, summons, warrant or other document laid, issued or made for the purposes of or in connection with any proceedings before a magistrate's court for an offence shall be sufficient if it describes the specific offence with which the accused is charged, or of which he is convicted, in ordinary language avoiding as far as possible the use of technical terms and without necessarily stating all the elements of the offence, and gives such particulars as may be necessary for giving reasonable information of the nature of the charge.

• (2) If the offence is one created by the Act or under any other Act, the description of the offence shall contain a reference to the section of the Act, or, as the case may be, the rule, order or regulation creating the offence.”

6 A recital of the above provisions makes it clear that in the matter before us the reference in the information was inaccurate since regulation 204(1) was actually contained in the Barbados Hardware Regulations 1961 and incomplete since the offence was actually created by regulation 221(1). However that is not an end of the matter because it does not appear from the record that this objection was ever raised before the magistrate and it is abundantly clear that there was no prejudice to the appellants. Counsel for the appellants well knew the charge against them and the defect in the information did not mislead him or put him in any difficulty.

7 Counsel for the respondent submitted that in the circumstances this is not a matter which vitiates the conviction and the provisions of the Magistrates' Jurisdiction and...