Brian Cavanaugh Appellant v Commissioner of Police Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: ALLEYNE, J.A.,Justice of Appeal,Albert Redhead,Michael Gordon,Justice of Appeal [Ag.]
• Judgment Date: 23 September 2003
• Judgment citation (vLex): [2003] ECSC J0923-2
• Docket Number: MAGISTERIAL CRIMINAL APPEAL NO.2 OF 2003
• Date: 23 September 2003

Between:

Brian Cavanaugh

Appellant

and

Commissioner of Police

Respondent

[2003] ECSC J0923-2

Before:

The Hon. Mr. Justice Albert Redhead Justice of Appeal

The Hon. Mr. Justice Brian G.k. Alleyne, SC Justice of Appeal

The Hon. Mr. Justice Michael Gordon Justice of Appeal [Ag.]

MAGISTERIAL CRIMINAL APPEAL NO.2 OF 2003

IN THE COURT OF APPEAL

Appearances:

Mr. David Tuitt for the Appellant

Mrs. Esco Henry-Greer, Attorney-General for the Respondent

ALLEYNE, J.A.

1 The island of Montserrat is a British Dependent Territory. In the year 1995 there occurred on the island a serious volcanic eruption, causing a number of deaths and very severe destruction of property in the entire south of the island, which had to be evacuated. The majority of the residents of Montserrat have relocated to other islands in the Caribbean, to the U.K. and to other countries. The remaining population has been relocated to the north of the island, known as the safe zone.

2 Under the Leeward Islands (Emergency Powers) Order in Council 1959 (1959 no. 2206), the Governor of Montserrat made the Emergency Powers Regulations 1996, S.R.O. 26 of 1996. Regulation 5 of the Regulations provides in part as follows;

5. (1) The Governor may by Order declare an area to be an unsafe area and may, in that Order direct that all unsafe areas be evacuated by a specified time and in accordance with specified procedures.

(2) Any person who without proper authorisation —

• (a) enters an unsafe area; or

• (b) is found in an unsafe area; or

• (c) being in an unsafe area fails or refuses to leave that area,

• (d) commits an offence and is liable on summary conviction to a fine of $2000.00 but which shall not be less than $200.00 or to a term of imprisonment of six months.

3 The appellant Brian Cavanaugh owns a dwelling house at Logwood Road, Old Towne, Montserrat. In October 2002, while he was at his house, the Commissioner of Police came to the house and informed him that he was in the exclusion zone, and that he should leave. Shortly thereafter he left the island, and returned on 19 ^th December. On 20 ^th December he called the Commissioner of Police and informed him of his presence. He told him he would like to occupy his house for the holidays. The Commissioner told him that the house was still in the exclusion zone, but that Mr. Cavanaugh could go in between 9.00 a.m. and 2.00 p.m.. On 23 ^rd December Sergeant Brade met Mr. Cavanaugh at his house and told him it was an offence to be in the exclusion zone, and requested him to leave. Mrr. Cavanaugh requested the officer's name, which the officer gave. Mr. Cavanaugh then walked away. On the following day, 24 ^th December, the police again found Mr. Cavanaugh at the house, and arrested him. They subsequently charged him with the offence of which he was convicted and has appealed.

4 Mr. Cavanaugh was charged that he

on the 24 ^th December 2002 at Old Towne, in Montserrat, without proper authorisation was found in an area to wit, Old Towne, contrary to section 5(2)(b) of the Emergency Powers Amendment Regulation 1997 made by the Governor under section 03 of the Leeward Island Emergency Powers Order in Council 1959 No. (2206) SRR&O No. 14 of 1997as amended by Statutory Rules and Orders No. 53 of 1997 as amended by Emergency Powers Order 2002 SR&O No. 49 of 2002.

5 He was convicted of the offence on 23rrd January 2003, and fined $1000.00 to be paid in 14 days in default to be imprisoned for 30 days. He has appealed against this conviction and sentence on the following grounds;

1

that inadmissible evidence was admitted by the court and there is not sufficient admissible evidence to sustain the conviction after rejecting the inadmissible evidence. 2. that the decision is unreasonable and cannot be supported having regard to the evidence. 3. that the decision was erroneous in point of law in that the learned magistrate used the rule of judicial notice to introduce evidence which could not properly fall under this head. 4. that the judgment given or order was based on the wrong principle or was such that the court viewing the circumstances reasonably could not properly have so decided.

6 For a proper appreciation of the issues in this appeal certain legislative provisions must be examined in some detail. I look first at the Emergency Powers Regulations SR&O 26 of 1996. Regulation 5 is in the following terms;

5. (1) The Governor may by Order declare an area to be an unsafe area and may, in that Order direct that all unsafe areas be evacuated by a specified time and in accordance with specified procedures.

(2) Any person who without proper authorisation —

• (a) enters an unsafe area

• (b) is found in an unsafe area; or

• (c) being in an unsafe area fails or refuses to leave that area,

• (d) commits an offence and is liable on summary conviction to a fine of $2000 but which shall not be less than $200 or to a term of imprisonment f six months.

• (e) For the purpose of paragraph (1) "proper authorisation" means authorisation issued by or on behalf of the Governor or the Police Commissioner.

• (f) A police officer may, in an unsafe area, arrest any person reasonably suspected of committing an offence under paragraph (2).

• (g) Notwithstanding the description of an unsafe area specified in an Order made under this Regulation, a police checkpoint established in respect of an unsafe area shall be deemed to be located on the perimeter of that unsafe area and a person who crosses that checkpoint without proper authorisation so to do commits an offence and is liable on summary conviction to a fine of $2,000 or to a term of imprisonment of six months.

• (h) And Regulation 2 provides the following definitions;

"order" means an order published at the notice board located at the Salem Police Station or at the Cudjoe Head Police Station, or where in the circumstances such publication is not expedient, o give directions through the media or otherwise, orally or in writing or by any method which is expedient in the circumstances.

"unsafe area" mean an area declared by the Governor under Regulation 5 to be an area in which a person is likely to suffer damage or injury through seismic activity.

7 The Emergency Powers (Unsafe Areas) Order 2002, paragraphs 2 and 3 reads as follows;

2. DESIGNATION OF UNSAFE AREAS: Notwithstanding anything contained in the Emergency Powers (Unsafe Areas) Order 1998 the unsafe areas shall be —

• (a) All that area located south...