Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 37 of 2015

Presendieu v. Director of Public Prosecutions (CR-AP 37 of 2015) [2017] TCACA 7 (28 November 2017);

Law report citations
Media neutral citation
[2017] TCACA 7
Coram
Mottley, P
Stollmeyer, JA
Weekes, JA

IN THE COURT OF APPEAL TURKS AND CAICOS ISLANDS CRIMINAL DIVISION CR-AP 37 of 2015

BETWEEN:

GENNESONE PRESENDIEU                                                                                     APPELLANT

AND:

DIRECTOR OF PUBLIC PROSECUTIONS                                                             RESPONDENT

BEFORE:

The Honourable Mr. Justice Mottley, President

The Honourable Mr. Justice Stollmeyer, Justice of Appeal

The Honourable Madam Justice Weekes, Justice of Appeal

APPEARANCES:

Mr. Tim Prudhoe for the Appellant

Ms. Mickia Mills for the Director of Public Prosecutions

28th November 2017, 25th April 2018

REASONS

Mottley, P

1.             At the conclusion of this appeal, the Court allowed the appeal, quashed the conviction, set aside the sentence and entered a verdict of not guilty. At that time, we promised to put our reasons for so doing into writing; these are those reasons.

2.             Following a trial before a jury, the appellant Gennesonne Presendieu was convicted on an information containing three counts. Count 1 charged that he assaulted Police Officer Sabrina Lightbourne; in count 2 he was charged with assaulting Police Officer Carlos Guillaume; in count 3, the appellant was charged with having a firearm in his possession with intent to resist arrest.

3.             The case for the prosecution was that on 24 June 2017, PO Carlo Guillaume was on patrol in a marked police vehicle when he received a report from a 911 dispatcher that there had been a burglary at Dako Yard in Providenciales. Along with PO Sabrina Lightbourne, PO Guillane went to the scene of the burglary. The officers were dressed in police uniform. On arriving at the scene, PO Guillaume recognized the person who made the report as “Gasone Presdues” also known to him as “Ti Blau”, the appellant. He recalled that the appellant had escaped lawful custody in 2014.

4.             PO Guillaume had a conversation with PO Lightbourne. He attempted to caution and arrest the appellant by holding onto his shirt. The appellant attempted to run. PO Guillaume restrained the appellant who resisted him. While seeking to restrain the appellant, the appellant hit PO Lightbourne on her breast; he also punched PO Guillaume in his face and bit him on his middle finger.

5.             During the struggle, the appellant got hold of PO Guillaume's police issued firearm which he pointed at the officers and threatened to shoot them.

6.             The appellant denied assaulting any of the officers; he also denied that he had possession of the officer's firearm. He alleged that he was beaten by PO Guillaume.

7.             At the trial, the appellant denied the allegations made against him. During the cross examination of the police officers, the issue of the lawfulness of the arrest was raised.

8.             On 24 November 2015, the appellant was sentenced to 9 months imprisonment on count one, 12 months' imprisonment on count 2 and a term of 5 years' imprisonment on count 3.

9.             At the time of arrest, the police officer did not have a warrant of arrest and did not purport to arrest the appellant pursuant to any warrant of arrest. The issue that arises in this appeal is simply this- was the arrest of the appellant without a warrant, lawful?

10.          The Summary Offences Ordinance Cap 12 creates a number of summary offences. One such offence is escaping from lawful custody. Section 30 provides:

“30. Any person, in lawful custody of any police officer or other person who escapes or attempts to escape from such custody, shall be liable to be imprisoned for three months, but this section shall not be held to prevent any person escaping from lawful custody from being proceeded against under any other Ordinance, provided that no person shall be punished twice for the same offence.”

11.          Neither counsel brought to the attention of the Court that any other Ordinance dealt with escape from lawful custody.

12.          In the Magistrate's Court Ordinance Cap. 2.03, section 20 which deals with the commencement of criminal proceedings provides inter alia:

“20(1) Criminal proceedings may be instituted either by the making of a complaint or by the bringing before the Magistrate of a person who has been arrested without a warrant.

(2) Any person, who believes from a reasonable and probable cause that an offence has been committed by any person or that any person is likely to commit a breach of the peace, may make a complaint thereof to the Magistrate:

Provided that where no time is specially limited for making a complaint for any summary offence, in the law relating to such offence, the complaint may only be made within six calendar months from the time when the cause of complaint arose; or if it arose on the high seas, then within six months after the arrival of the vessel at her port of discharge in the Islands.”

13.          As stated previously, a report of a burglary at Dako Yard had been made to the police. On arrival at Dako Yard, Gillanume recognized the appellant as the complainant in respect to the burglary. The officer also recognized the appellant as a person who had escaped from lawful custody. The officer decided to arrest the appellant for escaping custody. PO Guillaume spoke to PO Lightbourne about it. PO Guillaume then arrested the appellant for escaping custody.

14.          The police have power to arrest, without a warrant, an individual on suspicion of committing an offence. The officer did not purport to act under this power. When a police arrest a person for committing an offence it is expected that the person who had been arrested will be charged for the offence for which he had been arrested. Having arrested the appellant for escaping lawful custody, the appellant ought to have been charged with the offence of escaping lawful custody contrary to section 30 of the Summary Offences Ordinance and brought before the court.

15.          A charge of escaping legal custody under the Summary Offences Ordinance could not be brought against the appellant because it was time barred, not having been brought within six months from the date of the commission of the offence.

16.          Section 20 of the Magistrate Court Ordinance states that criminal proceedings may be instituted against a person who has been arrested without a warrant provided that, if no time limit is specially provided for the making of the complaint, the complaint may only be made within six months.

17.          No offence for escaping lawful custody could be brought against the appellant as it was not brought within the six-month period permitted under the Ordinance. In our view, the appellant was arrested without a warrant for committing an offence for which he could not be prosecuted. In the circumstances, the arrest of the appellant without a warrant was unlawful.

18.          Before leaving this matter, the Court is of the view that some provision ought to be made so that a person who escaped lawful custody and who has been able to evade the authority for at least six months may still be prosecuted. The Court will not venture to suggest what changes should be made.

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Mottley, P

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Stollmeyer, J.A.

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Weekes, J.A.