The Acting Chief of Police Appellant v David Nolly Bryan Respondent

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: ROBOTHAM C.J.
• Judgment Date: 10 June 1985
• Neutral Citation: VG 1985 CA 1
• Judgment citation (vLex): [1985] ECSC J0610-1
• Docket Number: MAGISTERIAL APPEALS NO.1 of 1984
• Date: 10 June 1985

[1985] ECSC J0610-1

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Robotham-Chief Justice

The Honourable Mr. Justice Bishop

The Honourable Mr. Justice Williams (Acting)

MAGISTERIAL APPEALS NO.1 of 1984

NO.2 of 1984

Between:

The Acting Chief of Police

Appellant

and

David Nolly Bryan

Respondent

The Acting Chief of Police

Appellant

and

Alphonso Bryan

Respondent

Appearances:

L. Hunts, Attorney General, with him H.D. Protih for the Appellant

J.S. Archibald, Q.C., with him G. Farara for the Respondents.

1 ROBOTHAM C.J. delivered the Judgment of the Court.

2 The Respondent David Nolly Bryan was charged on a complaint of the Chief of Police for that he, on May 17, 1984, being a Captain on board a foreign fishing boat registration No. 9720T together with Alphonso Joseph Bryan, in the exclusive fishing zone of the Virgin Islands, did take marine productions (sic) to wit 515 lbs of fish without the authority of a licence issued by the Minister-contrary to section 7(1) of the Fisheries Ordinance No. 18 of 1979 as amended by Ordinance No. 3 of 1982.

3 A charge in similar terms was laid against the other respondent Alphonso Bryan. On June 12, 1984, the Magistrate dismissed the charges, hence this appeal by the Chief of Police. In dismissing the charges the Magistrate in his reasons stated as follows:-

"In my final determination, I find firstly that the evidence for the Prosecution has not established beyond reasonable doubt that the boats were foreign fishing boats, as no evidence was led as to what series of registration numbers are used by local fishing boats neither was there any direct oral testimony that the boats were foreign."

4 The Magistrate took cognizance of the Beciprocal Fisheries Agreement Treaty series No. 32, (1983) made between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America dated London, March 27, 1979, with agreed minute of April 28, 1980, and in respect of which instruments of ratification were exchanged, on March 10, 1983. He also took cognizance of the fact that this treaty (as it will hereinafter be called) was presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by command of Her Majesty in July 1983 as appears on the face thereof. Further, that this treaty was gazetted in the British Virgin Islands Gazette on May 16, 1984, the date immediately prior to the commission of the offence. He thereupon concluded that this treaty:-

"being a treaty made by the Imperial Parliament took precedence over the local legislation of the British Virgin Islands namely the Fisheries Ordinance of the British Virgin Islands. The said agreement was gazetted in the British Virgin Islands on May 16, 1984. This Court in coming to its decision is of the view that the said agreement had to be construed in favour of the defendants and ……… that the defendants were fishing within existing levels and patterns in accordance with the agreed minute of April 28, 1980."

5 Article III of the agreed minute reads as follows:-

"Commercial fishing vessels of the United States may continue in the exclusive fishing zone of the British Virgin Islands in accordance with existing patterns and at existing levels. The Government of the United Kingdom of Great Britain and Northern Ireland extends access to the exclusive fishing zone of the British Virgin Islands to vessels of the United States for the purpose of conducting such fishing."

6 Throughout the appeal, the words treaty, agreement and agreed minute were used interchangeably.

7 It is a matter of record and agreed on all sides that this treaty was never made into an Imperial Act of the United Kingdom, by way of Imperial legislation being passed, it was never extended to the British Virgin Islands by an Order in Council, made in the United Kingdom and it was never passed into law by the Parliament of the British Virgin Islands. It was merely gazetted.

8 The main grounds of the Honourable Attorney General's appeal were (1) that the Magistrate misdirected himself in the construction and application of section 7(1) of the Fisheries Ordinance (No. 18 of 1979) and in so doing produced an unreasonable interpretation, (2) that he failed to draw the correct distinction between judicial notice, presumption, and reasonable inference and thus came to an erroneous conclusion as to whether the boats were foreign fishing boats, and (3) he misdirected himself with respect to the legal effect and interpretation of the treaty.

9 Grounds 1 and 2, can be dealt with together. I will deal with them in the first instance because the Honourable Attorney General before this Court conceded that failure to prove that the boats were foreign fishing vessels would be fatal to the Crown's case and the appeal.

10 At the beginning of his submissions, he preceded on the basis of a submission that there was sufficient evidence for the Magistrate to have called upon the accused for a defence. He asked finally that the matter be remitted to the Magistrate with directions for him to call on the respondents to answer the charges. He however when it was pointer out to him/he readily conceded that the respondents had been dismissed by the Magistrate and a finding of not guilty recorded in their favour. That in such a case it was a final determination of the matter and it could not be sent back to him. The record reads:

"Case for prosecution.

Case for defendants begin.

Learned Counsel states that there is no case to answer in fact or in law.

We will not call any witness, neither will the accused testify."

11 The lengthy submissions which followed were in fact final addresses by Counsel on both sides resulting eventually in a verdict of not guilty.

12 It is undisputable that no direct evidence was led to establish either that the boats were in fact foreign fishing boats, or that the markings VI 9726 T on one boat named the Pit-Bull-Gang was a foreign registration number. The Attorney General submitted that the Magistrate ought to have taken judicial notice of, The Fisheries Rules S.R.O. No.31 of 1982 published in the Gazette on October 21, 1982, and in particular of Rule 11 which provided that each commercial fishing boat registered in the British Virgin Islands must be given a number in the series 001 to 500 prefixed by the letters B.V.I. and of Rule 12 which provided that pleasure fishing boats should be numbered in the series 501–999 also prefixed by the letters B.V.I.

13 This order does not seem to have been produced at the trial but the Attorney General relied on section 22 of the Interpretation and General Clauses Act Cap. 135 which provides that all subsidiary legislation once gazetted shall be judicially noticed. Whilst this may be the true situation in the majority of cases, since no direct evidence was being led as to the foreign identity of the boats, it might have been better wethink, if the Magistrates had been advised of the Crown's reliance on this order. The Attorney General contended before us that since the markings VI 9726T were not of the series called for under Rules 11 and 12 of S.R.O. 31 of 1982, then the only inference which could logically be drawn was that it was a foreign fishing boat. In short therefore the Crown was seeking to prove a vital element of its case by asking the Court to take judicial notice of the contents of a statutory instrument and to draw an inference therefrom that the boat VI 9726T was a foreign fishing boat it not being in the series 001– 500 or 501–999.

14 Under the Fisheries Ordinance "foreign fishing boat" means

"a fishing boat owned and operated by a person not deemed to be a belonger, or a fishing boat owned and operated by a person not resident in the territory."

15 It will clearly be seen therefore that the Crown had to go further and prove more than the bare fact that the markings VI 9726T were not B.V.I. registration numbers, which it was being sought to do by way of inferences. As the matter stood, the further proof required that it was owned and operated by a non-belonger or a person not resident in the B.V.I. would have necessitated asking the Court to draw the inference from another inference, the argument running thus-if it can be inferred that the markings VI 9726T are not B.V.I. numbers, then it must follow that the boat is a foreign boat. If therefore the boat is a foreign boat it must also be inferred that it is owned and operated by a non-belonger or a person not resident in the territory.

16 The Magistrate obviously was not impressed with the absence of positive evidence on this. In dealing with the evidence of Randolph Walters the Marine Biologist, and Noel Vanterpool the Chief Agricultural Officer he had this to say:-

"This witness (Walters) also testified amongst other things that he liaisoned with fishermen from neighbouring countries, yet neither him/nor more importantly Noel Vanterpool gave any direct testimony as to the foreign identity of the boats in question especially as they had seen the markings on them. It was left to the Court to presume that they were foreign fishing boats taking into consideration S.R.O. No. 31/82. To this Court's mind this is a question of fact vital to the elements of section 7(1) of the Fisheries Ordinance 18/79 and in this connection I adopt the words of Lord Fraser of Tullybelton in the Privy Council case of Dillon v R 74 Cr. App. Rep. 274 where he said: It is well established that the Courts will not presume the existence of facts which are central to an offence."

17 In the final result he held that the evidence for the Prosecution had not established beyond reasonable doubt the essential ingredient that the boats were foreign fishing boats, as defined by the Ordinance. Whether or not the Crown had satisfactorily discharged the burden of proof was a matter on which the Magistrate had to be satisfied beyond...