Gale v Commissioner of Police

• Jurisdiction: Barbados
• Court: Divisional Court (Barbados)
• Judge: Douglas, C.J.,Browne, J.
• Judgment Date: 31 May 1968
• Docket Number: No. 13 of 1968
• Date: 31 May 1968

Divisional Court

Douglas, C.J.; and Browne, J. (Ag.)

No. 13 of 1968

Gale

and

Commissioner of Police

Appearances:

Mr. J.S.B. Dear, Q.C., for the appellant.

Mr. C.O. Tulloch for the respondent.

Practice and procedure - Magistrate's Court — Remarks by magistrate prior to defendant's giving evidence — Reference to prevalence of perjury — Remarks intimidatory and trial unsatisfactory — Magistrate's Jurisdiction and Procedure Act, 1956, s. 133(1).

JUDGMENT OF THE COURT:

1 On Friday last week this appeal came on for hearing, the appeal was allowed and it was ordered that the conviction be quashed and the sentence set aside. We now give our reasons for our decision.

2 On the 22nd of January this year, the appellant was convicted of driving a motor vehicle on a public road at a speed greater than that specified in the Motor Vehicles and Road Traffic Regulations, 1952 in relation to a vehicle of that class or description. He was ordered to pay a fine of $100 in seven days or to undergo seven days' imprisonment.

3 From this order he appealed and his grounds are as follows:

• (1) The decision was against the weight of evidence;

• (2) The magistrate acted maliciously in that

  • (a) He lectured the accused on the law of perjury as the said accused was about to give evidence in his own defence and thereby indicated his belief that the said accused was about to speak untruths and that he had made up his mind before the end of the entire evidence had been adduced.

  • (b) The magistrate took into consideration certain facts not adduced in evidence.

  • (c) The sentence imposed was excessive.

  • (d) The magistrate stated that if the accused had pleaded guilty he would have fined the accused $25.00, but since he had pleaded not guilty the fine would be $100.00.

• (3) The sentence imposed was excessive.

4 In support of his ground of appeal, the appellant filed an affidavit dated the 20th April, 1968, the relevant passages in which are these:

“On 22nd January, 1968, I appeared at the District “B” Magistrate's Court to answer a charge of speeding on the Pilgrim Road, Christ Church. Evidence was given by the two police constables who reported me and at the conclusion of this my counsel made a “no-case” submission to the magistrate, Mr. A.K. Walcott.

Mr. Walcott did not accept my counsel's submission and my counsel then asked me to take the witness stand and be sworn to give evidence. I took the New Testament Book to be sworn by the magistrate but before he administered the oath the magistrate proceeded to lecture myself and my counsel on the question of perjury and said that anyone on speeding charges who came into his court and committed perjury was going to be sent to jail forthwith.

I took this to mean that Mr. Walcott had made up his mind, before I gave my evidence, that I was going to be untruthful in my evidence and I regarded this as a threat.

After giving my evidence Mr. Walcott made many remarks in the course of delivering his judgment and among these he said that I was not only a member of the Barbados Rally Club but I was the ‘head man’ in the Barbados Rally Club and I gathered from these remarks that he was taking this into consideration in arriving at my sentence. He then went on to say that had I pleaded guilty he would have fined me about $25, but as I had pleaded not guilty, had my day in court and wasted nearly an hour and three-quarters of his time, he found me guilty and fined me $100.”

5 A copy of the appellant's affidavit was referred to the magistrate for his comments. In regard to the complaint about threats to imprison for perjury, the magistrate comments as follows:

“The only remarks made by the court on the subject of perjury were made by the court in overruling the “no case” submission of counsel for appellant Mr. Dear that the police had “concocted” the case against his client. The court informed counsel that whereas it was true that it had taken a strong line against the prevalency (sic) of perjury in the court and had remarked more than once that it was time that prosecutions were instituted for this offence and the offenders jailed whether police, witnesses or accused — it was equally opposed to the making of a totally unfounded allegation of that practice against police officers especially when this was done by Senior Counsel who should know better. That it could not find a shred of evidence to support such allegations in the case so far and that it was not prepared to tolerate this practice indefinitely.

These remarks were not addressed to the accused personally and the discussion between counsel and court was confined to the evidence then given and submissions made thereon.”

6 As to the allegation that he made up his mind before hearing the appellant's evidence, the magistrate had this to say:

“The court formed no ‘opinion’ at all as to the accused testimony until after he had given it, when from the manner in which the accused gave it (1) haltingly (2) looking at his shoes most of the time...