Ramkelawan v Jaggernauth

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Yorke Soo-Hon
• Judgment Date: 02 April 2014
• Neutral Citation: TT 2014 CA 15
• Docket Number: MAG. APP. NO. 76 of 2013
• Date: 02 April 2014

Court of Appeal

Yorke Soo-Hon J.A.; Mohammed J.A.

MAG. APP. NO. 76 of 2013

Ramkelawan

and

Jaggernauth

Appearances:

Mr. S. Saunders for the appellant.

No appearance for the respondent.

Criminal law - Unlawful assault — Language to provoke breach of peace — Whether the charge of use of annoying language was defective where it failed to specify the required intent pursuant to section 49 of the Summary Offence Act — Breach of the peace — Whether the charge of annoying language was correctly made out where the appellant argued that the language was used in the confines of a private home so thus could not amount to a breach of peace — Unlawful assault by beating — Whether the magistrate's conclusion on evidence was plainly wrong where it dealt with issues of pure fact — Means enquiry — Appeal against conviction dismissed — Appeal against sentence dismissed

Yorke Soo-Hon and Mohammed JJ.A.:

BACKGROUND

1 Two private criminal complaints were instituted by the respondent against the appellant, charging him with:

• i. the use of annoying language to provoke a breach of the peace, contrary to section 49 of the Summary Offences Act; and

• ii. unlawful assault by beating contrary to section 4 of the Summary Offences Act (the Act).

2 By consent, the offences were heard together. The appellant was found guilty of both offences and the respective sentences ordered were:

• i. Fined $ 100 or 1 week hard labour. Time allowed 3 months. Costs to complainant in the sum of $2, 500. 00 or 6 weeks simple imprisonment. Time allowed 1 month; and

• ii. Fined $ 100 or 1 week hard labour. Time allowed 3 months. Compensation for the injuries in the sum of $6, 000. 00 or 6 weeks simple imprisonment. Time allowed 2 months.

EVIDENCE OF THE COMPLAINANT/RESPONDENT

3 The evidence of the complainant/respondent, Ishwarlal Jaggemauth, was to the following effect. The respondent and the appellant were neighbours for a number of years and grew up together. The respondent went to work on 21st November, 2010, but was unexpectedly given the day off by his employer. He returned to his home some time after. He went inside and called his children, who were watching television.

4 The respondent saw the appellant walking in the hall of his (the respondent's) house. The appellant was coming out of the centre bedroom of the house. The respondent walked towards the appellant enquiring from him as to what he was doing there and the appellant responded by exclaiming, “What the (expletive) you doing here.” The appellant walked towards the door to run away, cursing at the time. The appellant then proceeded to slide a couch and behind that couch he proceeded to beat the respondent, hitting him on his back and on his chest several times.

5 The respondent had observed earlier that his wife and the appellant were in the bedroom. Because of the beating inflicted, the respondent fell to the ground for about a minute and a half, and sustained a bruise to his knee. The respondent's wife came out and said, “Beat him and kill him. I don't want him here.” The respondent got up and struggled with the appellant. The struggle proceeded to the back of the premises, the appellant then kicked the respondent on his back, near the rear entrance of the premises, and the told respondent that the next time he came there, he would kill him.

6 The respondent then left his home and reported the matter to the police.

EVIDENCE OF THE APPELLANT

7 The evidence of the appellant, Veesham Ramkelawan, was one of a denial of the incident having taken place. The appellant also raised the issue of alibi, that on the date in question, he was at his home, which was at the back of his sister's house, and not at the home of the respondent, as alleged by the respondent in his evidence.

MAGISTRATE'S REASONS

8 The magistrate concluded that she was sure that the appellant was at the home of the respondent on the material day. She considered that the appellant's defence of denial had been disproved by the respondent's evidence. The magistrate found that there was nothing peculiar that might have motivated the respondent to make the allegations against the appellant, and to follow through on them.

GROUND'S OF APPEAL.

THE s. 49 OFFENCE — USE OF ANNOYING LANGUAGE

9 Counsel for the appellant submitted that the annoying language charge was fatally defective because it failed to specify the required intent. It is necessary to set out what Section 49 of the Act says. Section 49 of the Act provides:

“Any person making use of any insulting annoying or violent language with intent to, or which might tend to, provoke any other person to commit a breach of the peace, and any person who uses any obscene, indecent or profane language to the annoyance of any resident or person in any street, or of any person in a place in which the public is admitted or has access, or who fights or otherwise disturbs the peace is liable to a fine of two hundred dollars or to imprisonment for thirty days.”

10 We agree that it is crucial to the validity of the complaint that it be stipulated that there is either an intent to provoke the other person to commit a breach of the peace, or alleging the use of language which might tend to provoke any other person to commit a breach of the peace. The charge as formulated and laid was defective. However, in contemporary criminal process and procedure, form is very seldom allowed to trump substance. This deficiency could have been cured before the magistrate. This submission therefore fails. However, we think that the other argument concerning this offence is of broader and deeper significance.

BREACH OF THE PEACE

11 In challenging the conviction on this offence further, counsel for the appellant relied on two decisions, the first being that of Alexis Garcia v Rameshwa Baldeosingh Magisterial Appeal No. 118 of 2005; and the second, from the Appeal Court, High Court of Justiciary of Scotland, the decision in Mark Harris v. Her Majesty's Advocate [2009] HCJAC 80. Counsel pointed us first to paragraphs 22 and 27 of the decision in Garcia v. Baldeosingh where Hamel-Smith JA examined the case of R v. Howell [1982] Q.B. 416 and said at the paragraph 27:

“We had asked counsel to address the Court on the question of whether there could be a breach of the peace on private premises, since the incident had taken place at the respondent's home. Neither counsel appears to have considered that issue, but from what Watkins, L.J. stated in Howell (above) breach of peace is a breach of the public peace and so it may be that the harm or likelihood of harm being done to the person or his property must occur in the public place or in a place where the public has access in order that there be a breach of the (public) peace. Since the issue does not arise, however, we do not decide the point.”

12 We were also referred to Mark Harris (supra), where at paragraph 24 the Lord Justice General said, “absent a public element, that offence [breach of the peace] is not committed”

13 Relying on these two cases, counsel submitted that the charge relating to annoying language could not have been made out in the context of this case because it occurred within the confines of private premises. According to counsel, there could have been no breach of the peace in these circumstances. Also, it was submitted that there was no evidence before the magistrate as to exactly what the annoying language was. The appellant maintained that he was not guilty and challenged the magistrate's decision on the basis that there was no evidence given by the complainant to support a finding of guilt.

14 According to the statement of Watkins, L.J. in Howell (supra), a breach of the peace appears to be a breach of the public peace. Examining the circumstances of the case, first we note that the language complained of occurred on private premises. In our view, in this case, there is an absence of a sufficient factual public element to establish a breach of the peace. We do not go as far as to say that such an offence can never take place on private premises. That would be a proposition of law that, in our view, cannot be supported having regard to the current state of the law.

15 We make reference to three cases, the first being the case of Mark Harris (supra) where it was said at paragraph 25:

“It is unnecessary for the purposes of this opinion to seek to give definitive guidance as to what public element would be sufficient. Disturbance or potential disturbance of even a small group of individuals in a private house - as in Paterson v. KM Advocate - may suffice. The conduct need not be directly observable by the third parties (as it was not in that case) but, if in...