Anthony v The Chief of Police

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Lewis, C.J.
• Judgment Date: 26 November 1970
• Neutral Citation: VG 1970 CA 1
• Docket Number: Criminal Appeal No. 1 of 1970
• Date: 26 November 1970

Court of Appeal

Lewis, C.J., Gordon, J.A., Lewis, J.A.

Criminal Appeal No. 1 of 1970

Anthony

and

The Chief of Police

McW. Todman for Appellant

E.A. Hewlett (Acting Attorney General) for Respondent

Criminal Law - Appeal against conviction — Assault,

Revenue Law - Treasury Ordinance, Cap. 186, 47(f).

Facts: The issue was whether the evidence supported a conviction of assault. Evidence revealed that the appellant assaulted X, Revenue Officer, while he was discharging his duties.

Facts: The issue was whether the Revenue Officer at the time of assault was executing a power given him by the Ordinance. Evidence revealed that as Revenue Officer X attempted to seize the particular goods he was assaulted by the appellant.

Held: The judge in deciding the issue preferred one testimony to another which was more favourable to the appellant. The court saw no reason to alter the finding of the judge.

Held: In the circumstances at the time when the assault was committed, the defendant was exercising powers given him under the Ordinance. The appellant was therefore liable under the Ordinance. Appeal dismissed.

Lewis, C.J.

1 The appellant was convicted on the 3 ^rd of June, 1970, for an offence under section 47 (f) of the Treasury Ordinance, chapter 186, the offence being that he assaulted Aubrey DeCastro, a Revenue Officer acting in the execution of powers given him by the treasury Ordinance. Against this conviction he has appealed.

2 The facts as found by the learned magistrate and certified in his reasons for decision may be briefly stated as follows:

3 On the 9 ^th April the ferry boat “Empress of Tortola” arrived at West End. The passengers landed and proceeded in the ordinary course into the Customs house where the baggage was being examined. The appellant was a passenger and he had with him a number of packages. When his baggage was examined by Mr. De Castro, the Comptroller of Customs, he claimed that he had already paid duty on two packages which were dutiable, that they were included in an invoice which had been presented on a previous voyage at Road Town, entry had been made and duty had been paid, but on that occasion they had not been found and he was now bringing them in: he did not have the receipt with him. De Castro told him that in that event the packages must go up to Road Town on the boat and he would produce the receipt there. These two packages were at the time on the wharf. According to De Castro's version, which the learned magistrate accepted, the appellant then said, “You cannot make me do anything of the sort, I have paid the duty on them and I am going to take them away.” The appellant then took up one of the packages, tried to go through the Customs house with it, De Castro blocked his way and held on to the package, there was a tussle, the appellant pushed the package against De Castro and released it at the same time, as a result of which De Castro lost his balance and staggered backward. In the course of the tussle De Castro received a cut from the wire which was around the package.

4 The appellant's version of the incident was that when De Castro told him to take the goods to Road Town he said “Why? Since this is a Customs warehouse.” And the “All right, I will take them in here” – meaning that he would leave them in the Customs warehouse until he could prove that he had paid, and that he then went to get one of the packages; De Castro rushed ahead of him on to the wharf and grabbed the wire strapping. He pleaded with him to let it go and De Castro did not let it go so he let go the package. He did not push the package against De Castro, but when he let the package go De Castro staggered about two steps backward. He denied telling De Castro to get out of his way or he would push him down. As I have already said, the learned magistrate accepted the version given by De Castro.

5 Two grounds of appeal have been taken. The first is that on the evidence the decision of the magistrate was unreasonable. The attention of the court has been drawn to the evidence of a witness for the prosecution, another customs officer named Frett, who said that he saw a tussle going on between De Casto and the appellant, that it seemed to him that what happened was that...