Mitchell v Bailey

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Bernard, C.J.
• Judgment Date: 26 March 1986
• Neutral Citation: TT 1986 CA 6
• Docket Number: Magisterial Appeal No. 109 of 1985
• Date: 26 March 1986

Court of Appeal

Bernard, C.J.

Magisterial Appeal No. 109 of 1985

Mitchell

and

Bailey

Appearances:

Mr. C. Constantine appeared on behalf of the appellant.

Mr. A. Wills appeared on behalf of the respondent.

Practice and Procedure - Magistrate's court — Magistrate dismissed charge brought by appellant vs. respondent of being in possession of a bolt of cloth which the appellant reasonably suspected of being stolen or unlawfully obtained — Summary Offences Act, Ch. 11:02, s. 36(2) — Magistrate's reason for dismissal was inter alia that there was Non-compliance with the procedural provisions of s. 36 for the respondent to be brought before a magistrate as soon as possible and that the evidence against the respondent was insufficient to constitute reasonable ground for suspicion — Magistrate erred in so finding — Also, magistrate did not require respondent to give an explanation upon a prima facie case being established as required by the section — Appeal allowed and matter to be heard de novo by another magistrate.

Statute - Interpretation — Summary Offences Act, Ch. 11:02 — S. 36(2) — Meaning of expression “as soon as possible” — Section must not be used by police as an avenue of abuse — Dennis v. Sylvester and Balladin v. Mondesir discussed — Conclusion that “as soon as possible” in the section means no more than that the person must be brought with the thing (suspected of being stolen) before a magistrate with the earliest speed bearing in mind all the prevailing circumstances.

Bernard, C.J.

1 This is an appeal against the decision of a magistrate sitting in the Port-of-Spain Magistrates’ Court in which, at the close of the case for the prosecution, he dismissed a charge brought by the appellant against the respondent for being in possession of a bolt of cloth on Tuesday, 30th October, 1984, at Woodbrook, which the appellant had reasonable cause to suspect had been stolen or unlawfully obtained, contrary to s.36 of the Summary Offences Act, Ch. 11 (hereafter called the ‘Act’).

2 S.36 of the Act provides as follows:–

• “36.(1) A constable may arrest without warrant any person having in his possession or under his control in any manner or in any place anything which the constable has reasonable cause to suspect has been stolen or unlawfully obtained.

• “(2) The constable shall bring such person and thing before a magistrate as soon as possible, and if such person does not, within a reasonable time to be assigned by the magistrate, give an account to the satisfaction of the magistrate by what lawful means he came by the same, he is liable to a fine of one thousand dollars or to imprisonment for six months.”

3 Subsection (3) is not recited here as it is not relevant to the issues before this court in this appeal.

4 In his Memorandum of Reasons the learned magistrate stated that he had come to the conclusion that the case against the respondent should be dismissed because the facts which the appellant recalled were inadequate to constitute reasonable grounds for suspecting that the article was stolen or unlawfully obtained; moreso since the respondent gave a reasonable excuse then he was apprehended; and also because there was non-compliance with the procedural provisions of s.36 for the respondent was not brought before a magistrate as soon as possible.

5 The case for the prosecution, which, it appears from his Memorandum of Reasons, the learned magistrate accepted as prima facie true, was to the effect that at about 10.30 a.m. on 30th October, 1984, the appellant and another officer were on mobile patrol duty on Warren Street, Woodbrook, when he observed the respondent walking in a westerly direction along that street with a box and a bolt of cloth under his arm. The vehicle came to a standstill because of the traffic and the appellant noticed that the respondent kept looking in the direction of the vehicle. Then he turned away and began to walk in the opposite direction at a rate of speed faster than before. The appellant became suspicious, came out of his vehicle and followed the respondent. The latter kept looking asking back in the direction of the Police. He then dropped the box and the bolt of cloth and started to run. The appellant gave chase and succeeded in apprehending the respondent in the vicinity of the Shay Shay Tien Restaurant. He identified himself to the respondent and proceeded to question him about the bolt of cloth that he had in his possession, receiving an explanation from him to the effect that he had got the cloth “by a rubbish bin just lower down the read”. The appellant indicated to the respondent that he did not believe his story but that he believed the bolt of cloth was stolen or unlawfully obtained. He consequently arrested the respondent and took steps to bring the respondent and the cloth before a magistrate to give account.

6 As we indicated earlier, the learned magistrate stated that the evidence called was insufficient to constitute reasonable ground for suspicion; more so since the respondent had given a reasonable excuse for his possession of the article.

7 In this regard we desire to record our respectful dissent from the findings of the learned magistrate. In our opinion, the evidence given by the appellant, both as to the nature and quantity of the article itself, the circumstances in which the respondent had it in his possession and his behaviour up to the time that he was arrested, was enough to create a reasonable suspicion in his mind that it was either stolen or unlawfully obtained. We are of the view that the learned magistrate erred in holding otherwise. It is inconceivable that any reasonable person would believe an explanation such as that which the respondent gave, namely, that he had found this apparently new bolt of cloth near a dustbin. The more reasonable inference, to our mind, having regard to the circumstances obtaining then, would be that that person had stolen it or had obtained it unlawfully.

8 But that is not all. The section requires a magistrate upon a prima facie Case being established to call upon the arrested person to give an explanation. That did not happen in this case and to that extent the learned magistrate's conclusion that the explanation was reasonable was premature. The explanation is only required after a prima facie Case has been made out by the arresting officer. What the respondent...