1) Casanki Quow of Barrouallie 2) Osrick James of Fancy 3) Hadley Ballantyne of Georgetown v Commissioner of Police

• Jurisdiction: St Vincent and the Grenadines
• Judge: Rawlins, C.J.,Hugh A. Rawlins,Ola Mae Edwards,Janice George-Creque,Chief Justice,Justice of Appeal
• Judgment Date: 21 February 2011
• Judgment citation (vLex): [2011] ECSC J0221-2
• Court: Court of Appeal (Saint Vincent)
• Docket Number: MCRAP 2010/022
• Date: 21 February 2011

[2011] ECSC J0221-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Hugh A. Rawlins Chief Justice

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-creque Justice Of Appeal

MCRAP 2010/022

Between:

[1] Casanki Quow of Barrouallie

[2] Osrick James of Fancy

[3] Hadley Ballantyne of Georgetown

Appellants

and

Commissioner of Police

Respondent

Criminal Appeal — assault causing actual bodily harm — section 193 of the Criminal Code — appellants jointly charged — summary trial by magistrate — appellants convicted — appeal against conviction — whether reasons given for convictions were inadequate amounting to an error of law and accordingly fatal to conviction

The appellants are Police Officers who were attached to the Criminal Investigations Department (CID). A magistrate convicted them of assault causing actual bodily harm to the virtual complainant, Jemark Jackson ("Jemark"). They were each fined $1,500.00 to be paid within 1 month. In default of payment, each appellant would serve 6 months in prison. They appealed their convictions on the ground that the magistrate failed to give adequate reasons for convicting them.

At the trial, the prosecution called 13 witnesses, including medical doctors, police officers and Jemark. The prosecution's case was that appellants Osrick James and Hadley Ballantyne held Jemark and one Kimron McDowall ("Kimron") for fighting, took them to the CID at the Central Police Station in Kingstown and arrested them. They took Jemark and Kimron to the holding cell there during the night. Jemark alleged that appellant Ballantyne pulled out his gun and taunted them. Jemark further alleged that, during the night, appellant Casanki Quow beat him with a hose and was assisted by appellants James and Ballantyne, who also boxed him and threw him onto the ground and down some steps in the CID. Subsequently, Jemark informed a female police officer that he felt ill. He was taken to the hospital where he was treated and eventually discharged. He reported the matter to the Commissioner of Police and to one Mr. Jomo Thomas. An investigation was launched, as a result of which the appellants were charged some 8 months after the incident. The medical evidence that was adduced indicates that at the hospital Jemark complained of pain in the abdomen and medical examinations showed that he suffered severe respiratory distress. However, there were no visible signs of any external injuries on his body.

The appellants testified in their own defence and called another police officer and a vendor. The appellants denied beating Jemark or throwing him on the ground. They denied that they beat him or saw anyone beat or harm him. They testified that there were no steps in CID.

Held: dismissing the appeals and affirming the convictions and sentences:

• 1. The reasons given by an adjudicator for a decision should show an awareness of the salient issues, an appreciation of the relevant law, and an assessment of the material evidence particularly where credibility is at issue. Whether an adjudicator's reasons for decision are adequate depends on the circumstances of each case.

  Dicta in Aqui v Pooran Maharaj (1981) 34 W.I.R. 282, applied.

• 2. The general rule is that in giving reasons for a decision, an adjudicator should identify and explain each factor which was weighed in his or her appraisal of the evidence and was vital to the conclusion and the manner in which he or she resolved them. It is not possible to lay down firm guidelines for this process. If the critical issue is one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon. Reasons may be set out briefly in a judgment. The duty of the adjudicator is to give a clear explanation for a decision. However, an unsuccessful party should not seek to upset a decision on the ground of inadequacy of reasons unless, despite the advantage of considering the decision with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the adjudicator reached an adverse decision. Given the evidence that was adduced at the trial and the reasons that the magistrate gave in the present case, it should not be difficult for the appellants to understand why they were convicted.

  English v Emery Reimbold & Strick Ltd. ; DJ & C Withers (Farms) Ltd v Ambic Equipment Ltd.; Verrechia (Trading as Freighmasters Commercials) v Commissioner of Police of Metropolis [2002] 3 All E.R. 385 [2002] 3 All E.R. 385 (CA), applied.

Rawlins, C.J.

1 The appellants are police officers who were attached to the Criminal Investigations Department (CID) of the Royal St. Vincent and the Grenadines Police Force. They were jointly charged and tried for the offence of assault causing actual bodily harm to Jemark Jackson on 18^th November 2008 in Kingstown, contrary to section 193 of the Criminal Code.1 Jemark was 15 years old at the time of the incident. The appellants were convicted for the offence on 2^nd February 2010. Each appellant was fined $1,500.00 to be paid within 1 month. In default, each would serve 6 months in prison. They appealed on 6 grounds, but withdrew them when the appeal came for hearing. Instead, this court gave them leave to pursue their appeal on 1 new ground, which states as follows:

"The reasons given by the Learned Trial Magistrate in support of the convictions were wholly inadequate and constitute an error of law."

The reasons for decision

2 I think that it would be helpful to reproduce the learned magistrate's reasons for decision fully at this juncture. He stated his reasons as follows:

"The Evidence elicited in this case left me with no doubt as to the guilt of the three Defendants/Appellants. The Prosecution called thirteen witnesses including four Medical Doctors, eight Police Officers and the Virtual Complainant Jemark Jackson. The Defence called five witnesses including the three Defendants/Appellants, a Civilian and a Police Officer. Jackson was in Police custody from about 12:00 PM on 18^th November 2008 to about 12:40 AM 19^th November 2008, when he was hastily rushed to the Milton Cato Memorial Hospital on the orders of Cpl. Bartholomew, who was in charge of CID and, who obviously panicked when he saw Jackson's condition. Jackson was almost in a state of collapse, crying and vomiting and complaining of serious pain in his belly and chest, yet not one single Police Officer from the prosecution and defence saw or heard any harm done to Jackson. However some of them conceded that he was normal and healthy when he was brought into CID. The defence claimed that Jackson said he fell from a step. There was no step in CID. No one saw him fall from anything or anywhere from the time he was arrested to the time he was taken to hospital. Jackson's evidence, however, was very compelling. He maintained a calm and confident demeanour throughout on the stand despite blistering cross examination. He stated that he was held down on a table by James (also called Charles by Jackson) and Ballantyne, while Quow beat him with a green hose pipe about his head and back. Then James and Ballantyne lifted him off the table and

slammed him on the ground three times. His chest hit the ground three times. He was 'bawling' for his chest and Charles kicked him. He felt 'dizzy'. They took him to the bathroom and washed his face. In their evidence the doctors agreed that Jackson suffered very serious internal injuries — acute pulmonary oedema consistent with blunt force trauma, and that had he not been taken to the ICU where he was intubated and placed on a mechanical ventilator for five days, he could have died.

I am firmly of the view, on hearing and analyzing the evidence ofall the Police Officers, that they (the Police) were not fair and truthful to the Court and that Jackson's evidence in conjunction with the evidence of the doctors ought to be believed. I therefore found the three Defendants/Appellants guilty as charged."

Bases of the appeal

3 In their appeals, the appellants contended, in effect, that the learned magistrate erred in that he did not raise the issues that were to be determined in the case. They insisted that even if the magistrate resolved that Jemark sustained the alleged injuries while detained by the police, the magistrate should have provided a fuller analysis to show how he arrived at the decision. They contended, further, that the learned magistrate erred in dismissing all the evidence of all the police witnesses as untruthful. They insisted that the magistrate should have disaggregated the police witnesses whose evidence was peripheral to the issues and those that were central to the determination. The appellants also contended that the magistrate erred by not stating which aspects of the evidence of any witness he did not believe and his reason for not believing it. Accordingly, they insisted that he provided no clear explanation for the decision on the issue of credibility.

4 In order to determine the appeals, I shall first set out the applicable legal principles on the adequacy of reasons for a magistrate's decision. Against that background, I shall then reproduce the evidence given at the trial as fully as is necessary for the purpose of this appeal. This will be followed by a summary of the submissions by learned counsel for the parties, and, subsequently, my analysis and decision.

The applicable principles

5 It is settled principle that where a decision of a magistrate is appealed, particularly in a criminal case, reasons for the decision are required for the purposes of due process,justice, fairness and transparency. Thus in Forbes v Chandrabhan MaharajUNK (1997) 52 WIR 487,2 the Privy Council quashed a conviction for the possession of...