Smith v Cooke

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Cecil Lewis. J.A.,Lewis, C.J.
• Judgment Date: 27 November 1970
• Neutral Citation: VG 1970 CA 4
• Docket Number: Criminal Appeal No. 2 of 1970
• Date: 27 November 1970

Court of Appeal

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

Criminal Appeal No. 2 of 1970

Smith

and

Cooke

J.S. Archibald for Appellant

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

Criminal Law - Appeal against sentence — Beating Police Officer while in the course of his duties.

Criminal Law - Appeal against conviction — Indecent exposure.

Facts: This was an appeal against sentence. Evidence revealed that the appellant beat the police officer while he tried to arrest him. He was sentenced to four months. He had no previous convictions and was only 18 years old.

Facts: Evidence revealed that the appellant was accosted by the officer for indecent exposure and responded with indecent language. The officer asked him for his name and address. The officer doubted the truthfulness of the response and therefore arrested the appellant.

Held: In the circumstances, the court would use its discretion and replace sentence of improvement with a fine.

Held: Under s. 22(2) of the Act because the appellant's residence was unknown to the officer he was empowered to arrest him under the Act. Appeal on this point dismissed.

Cecil Lewis. J.A.

1 The appellant was convicted on the 21st day of August, 1970 of the offence of beating George Cooke, a member of the Virgin Islands Police Force, while in the execution of his duty, and was sentenced to a term of imprisonment for 4 months. He has appealed against his conviction and sentence and on his behalf two grounds of appeal were argued, viz:- “(a) that the decision was erroneous in point of law in that the learned magistrate held that the arrest of the appellant was lawful, and (b) that the sentence imposed was unduly severe.”

2 The evidence for the prosecution discloses that the appellant was at the Happy Lion restaurant in Road Town on the 3rd of August 1970. At about 7.50 a.m. that morning one Daphne Lewis made a report to the respondent, a police constable, at the Road Town police station. As a result of this report the constable and Daphne Lewis went to the restaurant where she pointed out the appellant and said in his presence and hearing that he, the appellant, had exposed his person to her. The appellant made no reply. The constable told him of the charge of indecent exposure which Daphne Lewis had made against him. Thereupon the appellant used indecent language to the constable. The constable asked him for his name and address and he said his name was George Smith and that he lived at East End. This address was in fact incorrect the appellant later stated in his evidence that he lived at sea Cows Bay. The constable told the appellant that he was arresting him, and added that he suspected him of giving a false name. He arrested the appellant, and on their way from the restaurant to the police station the appellant started wrestling with the policeman. He pushed him on his left shoulder, lifted him up and threw him to the ground, and while he was on the ground he made a grab at the policeman's neck and the policeman pushed him away. The appellant then escaped, entered a motor vehicle which was nearby and was driven off by some friends who were with him in the restaurant.

3 The appellant's evidence is that he did not assault the constable, that he did not expose...