Brathwaite v Commissioner of Police

• Jurisdiction: Barbados
• Judge: Husbands, C.J.,Chase, J.A.
• Judgment Date: 01 November 1991
• Date: 01 November 1991
• Court: Divisional Court (Barbados)
• Docket Number: No. 104 of 1990

Divisions Court

Husbands, C.J.; Chase, J.A.

No. 104 of 1990

Brathwaite

and

Commissioner of Police

Appearances:

Mr. E.D. Mottley for the appellant.

Mr. C. Leacock for the respondent.

Criminal law - Appeal against conviction — Obstructing and assaulting policeman in execution of his duty — Grounds: decision is against the weight of the evidence; the magistrate erred in law in refusing to grant adjournment to appellant to summon witness to produce certain documents — Magistrate found policemen truthful — Evidence supported charges — Section 77(1) of Magistrates Jurisdiction and Procedure Act, Cap. 116 confers discretion to grant adjournments — Magistrate exercised discretion judicially — No ground for saying magistrate proceeded on any wrong principle — Appeal dismissed.

JUDGMENT OF THE COURT:

1 The appellant was charged with two offences under section 62(a) of the Police Act, Cap. 167, that is to say, obstructing and assaulting Police Constable Small in the execution of his duty on the 26th February, 1988. On the 2nd February 1990, in respect of each offence the applicant was tried, convicted and fined $175.00 to be paid in one month with one month's imprisonment in default of payment.

2 The prosecution's case was that at about 1.45 p.m. on the 26th February 1988, P.C. Edgar Small, Sgt. Cumberbatch and P.C. Rock were executing a search warrant at the home of Richard McClean at Reservoir Road, Brittons Hill, St. Michael. McLean and a baby were in the house. During the search McClean obstructed P.C. Small and was arrested by him. McClean began to struggle with P.C. Small and was restrained by Sgt. Cumberbatch and P.C. Rock. The appellant, himself a police constable and McClean's uncle, arrived at the house and enquired of McClean what had happened and who had interfered with him. McClean indicated that P.C. Small had interfered with him. P.C. Small then informed the appellant that McClean was under arrest for assaulting him in the execution of his duties. Thereupon the appellant pushed P.C. Small who released McClean and fell over a metal chair and injured his left shin.

3 Getting back to his feet P.C. Small enquired of the appellant why he had pushed him and the appellant replied — “The police won't left my nephew and you ain't had no right holding on to my nephew.” P.C. Small said he told the appellant that he would report him to the Commissioner of Police for obstructing and assaulting him in the execution of his duty, and the appellant replied — “I don't care, because I going to the Commissioner first and tell him that you beat my nephew.” McClean was then taken to the Hastings Police Station where P.C. Small reported to Inspector Cumberbatch and S/Sgt. Broomes and showed them his injury. He went to Dr. Bannister who treated him and made an entry in the Police Medical Journal.

4 Cross-examined by counsel for the appellant, P.C. Small said that he did not make an entry to the police records about the incident but recalled reading such an entry which accurately reflected what had taken place. He denied that he or any of the other police officers beat or struck McClean in his stomach. P.C. Small said he complained to the Commissioner “through” his Superintendent.

5 Sgt. Cumberbatch also gave evidence for the prosecution. Under cross-examination the Sgt. said he was the senior officer at the search and on his return to the station made an entry in the diary about the whole episode, including the execution of the search warrant and the appellant's pushing P.C. Small and causing him injury. He also reported the matter to his Inspector. Subsequently, the charges against the appellant were brought.

6 The appellant gave evidence before the magistrate. He testified that about 2 p.m. on the 26th February, 1988, he was at his residence at Layne Road, Brittons Hill. He was told by his mother “that Police up there beating Richard.” He drove to Reservoir Road and saw a police car in front of McClean's house. His evidence continues –

“Constable Small came to me and said ‘Nat Brathwaite keep out of this, this is not your area.’ I said ‘I am not in it, but I can see you all beating the man.’ I said, ‘Richard if the police arrest you, go ahead.’ He said to me ‘I am not against going but they don't want to take me, they beating me.’“

7 Curiously, none of this conversation was put to P.C. Small or the two police officers who were present with P.C. Small. The appellant said that Sgt. Cumberbatch was hitting McClean in his back and P.C. Rock was cuffing him in his stomach. He told them both that they should not beat McClean and that he would report it to the Commissioner of Police. Sgt. Cumberbatch then told him –

“If you don't keep out of this, I am going to see that you get suspend.”

8 Again, this was not put to Sgt. Cumberbatch. However, the appellant said that he left immediately, drove to the Central Police Station and reported the matter to the Acting Commissioner of Police. He denied pushing or obstructing P.C. Small.

9 At that stage counsel for the appellant sought an adjournment to summon the Commissioner of Police. The Magistrate's note reads –

“Mr. E. Mottley, Q.C. applies for an adjournment to summon the Commissioner of Police to produce the Station Diary in relation to...