Clarke v Commissioner of Police

• Jurisdiction: Barbados
• Judge: Douglas C.J.,Williams, J.
• Judgment Date: 05 March 1971
• Docket Number: No. 4 of 1971
• Date: 05 March 1971
• Court: Divisional Court (Barbados)

Divisional Court

Douglas C.J.; Williams, J.

No. 4 of 1971

Clarke

and

Commissioner of Police

Appearances:

Mr. D. A. Simmons for the appellant.

Mr. E. Belgrave for the respondent.

Criminal Law - Appeal against conviction — Public Order Offence.

Facts: The appellant was convicted by a magistrate for contravention of s. 34 of the Public Order Act, in that he made a statement which was capable of inducing one person to ill another — The issue was whether the statement was capable of inducing one person to kill another.

Held: That the statement was capable of having the effect which it was alleged to have.

JUDGMENT OF THE COURT:

1 The appellant was charged before the magistrate of District “A” with an offence against s. 34 of the Public Order Act 1970, No. 15. The information alleged that the appellant on June 25, 1970 at a public meeting, unlawfully made a statement which was capable of inducing one person to kill another. The statement which he was alleged to have made is as follows:

“When the Government fails during its term in office, to put into effect the reforms it told the people it would put into effect, it is for the, people to decide if it is now you want elections, or if it is when the Government say they want elections. Now, if you wait for the Government to say when they want elections, they gine do like Barrow did last week and talk about he gine give income tax concessions later on this year; he give put up the electorate for the vote again next year. Or there is another way. This way that I'm gine tell you about has been done in one of-in the greatest countries of this world. It has been done in France; it has been done in Great United States of America; it has been done in Russia; it has been done in China, Algeria, Ghana, Egypt; you call them all it has been done. The people go down by the House of Assembly and tek the Government by force. It is you the people of Barbados that must decide for yourself if that is the way you all want to tek the Government. As I tell you all when I start off, I running against Dipper B. Boy Barrow; I running for the seat during the circus time. But if you all decide tomorrow night to tek the Government, yuh have a right to tek it, and if I am in your way when you gine down the road to tek it, move my neck off; and if anybody else in the way move them neck off also.”

2 The magistrate found the offence proved and convicted the appellant. He was fined $250 to be paid in three months with the alternative of three months' imprisonment and he has appealed against his conviction.

3 Three main grounds were in fact relied upon by counsel in seeking to show that his conviction was wrong:

• (1) that the magistrate had “failed to consider adequately or at all the relevance and materiality of the question of mens rea;”

• (2) that the statement was not capable of inducing one person to kill another;

• (3) that a recording on tape was wrongly admitted in evidence.

4 The provision under which the appellant was convicted reads as follows:

• “34 (1) A person is guilty of an offence under this section if, without lawful authority, the proof whereof shall lie on him, in any public place or at any public meeting he-

  • (a) makes any statement; or

  • (b) plays or causes to be played any phonograph record or other sound recording; or

  • (c) publishes or distributes any written matter; or

  • (d) behaves, or incites any other person to behave, in a manner which is intended, or is likely to incite or induce or is capable of inciting or inducing any person-

  • (e) to kill or do physical injury to any person or to any class or community of persons; or

  • (f) to destroy or do any damage to any property; or

  • (g) to deprive any person by force or fear of the possession or...