Brian Cavanaugh v Commissioner of Police

. li. ... MONTSERRAT IN THE COURTOF APPEAL MAGISTERIAL CRIMINAL APPEAL N0.2 OF 2003 BETWEEN: BRIAN CAVANAUGH and COMMISSIONER OF POLICE Before: . The Hon. Mr. Justice Albert Redhead The Hon. Mr. Justice Brian G.K. Alleyne, SC TheHon: Mr. Justice Michael Gordon Appearances: Mr. David Brandt for the Appellant · .. Mrs. Esco Henry-"Greer, Attomey:.Generalfor the Respondent 2003: . September 23; 2004: · January 12. 2004: January 22 [Re-issued]. · JUDGMENT

[1]··ALLEYNE, J.A.: 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 southof the island, which had to be evacuated .. The majority ofthe residents ofMontserrat . . . . . . . . . · haverelocated 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 . r" ::· . . . . : ·. : 1996, S.RO. 26 of 1996. Regulation 5 of the Regulations provides in partas . ·. i follows; . 5. (1) .·The Governor may by Order declare an area to bean 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} bein~ in an unsafe area tails onefuses to leave that area, {d} . commits an offence and is liable on summary conviction - .. . . . .. to a fine of $2000.00 butwhith shall not be less than -$200.00 or to a term of imp(is6~mentof sixmonths~ . Jhe appellaniBrian Cavanaugh owns a dwelling house atLogwood. Road, Old Towne, Montserrat.. In _October 2002, while he w~s.·•·-· at his house, .the. Commissionerof 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 19th December. On 20th December he. called the Co~missioner of - Police and informed. him ofhis presence. He told him hewouldlike to occupy his -·. house for the holidays. The Commissioner told him th.at the house was still in the ~xclusion zone, but that Mr. Cavanaugh could go in between 9.00 a.m. and 2.00 . p.m.. On 23rd December Sergeant Brade met Mr. Cavanaughat ·his house and· _ told him it wasan offence to be in the exclusion zone, and requested him to leave. ·· _ MrL Cavanaugh requested the officer's name; whi?h the officer ga~e. Mr .. Cavanaugh then walked away. On the following day, 24th December; the· police again found Mr. Cavanaugh atthe house, and arrested him. They subsequently charged him with the offence of whlch he was convicted and has appealed . .

[4]Mr. Cavanaugh was charged that he on the 24th 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 1997made by the Governorunder section 03 ofthe Leeward Island Emergency Powers Order in Council 1959 No. (2206) SRR&O No. 14of1997as amended by ., . :, '. .. · . ."-'. ·. Statutory Rules and :orders No. 53 of 1997 as amended Powers Order 2002 SR&O No·. 49 of 2002 .... .· ··.· ...

[5]He was convicted of the offence tm 23rrdJanuary 2003, ahdfined · paid in 14 days in defaL1lt to be imprisonecffor 30 days. He ha~ ............ ,.. ....... ,.. ·!:11,,!:ll.n•at•.:.,... this convicticm a~d sentence on the following grounds; . 1. · .•.. that inadmissible evidence wasadmitted by the eourt'and sufficient admissible evidence t~ sustain 'the C<lnviction ~ft~r rau::.,•••r•n · inadmissible evidence. •· 2 .. tha,t the decision is unreaso~able and cannot be supportecthaving iegard ·<> . . . ·. ··,.,- ., .... · . ... to the evidence. . . ·· ·. ·. :>}:.·:.: . · . • < .. that· the· decision ·was erroneous in··point .of law in ... that.the.iearned .. \ .. ·: ··<·· ...... ···•• . . . , . . . ·· ... · ... ,. .. ,., ... .'·:.·•.·.: . . . . . magistrate. used . the .. rule.· of judicial. notice to . introduce evi~ence •\f\'hiri'.h.• .··. ·could not properly fall under this.head, ·.·•. : . . ·.·-:. :./.::· 4. . that the judgment given or order was. based· on· the wrong principle br .was . '·.·· such that the .. court viewing the circumstances reasonably could not. ·. · · ·. properly have so decided: .. ·. ... [61 ' For a proper appreciation of the issues ln tl1is appeal~rtain l~islativepro~ins . ·· · must b~ examined in some detail: . l look first at the Emergency Powers Regulations SR&O 26~f1996. Regulation 5 is inthe following terms; .. . .·.· 5. (1) The Governor may by.Qrde~de~lare an area to-be an uns~f~ 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 inan unsafe area; or . . . . . . (c} being. in an unsafe area fails or refuses to leave that area, (d} commits an offence andis liable on summary co,nviction . ·.to a fine of $2000 but which shall not be less than $200 . · .. or to aterm of imprisonment f six months .. ·•·· (e) For the purpose ()f paraQraph· (1)"properauthorisation" . . · means authorisation issued by . or on · behalf of the ·., .····._,· Governor or thePolice Commissioner.· (n A police officer may; in an unsafe area, arrest any pf3rson reason~bly suspected· of committing . an offence ·under paragraph (2). . . . . . ~ . . . . (g) Notwithstanding the description of an. unsafe area . . . . . specified. in an Order m~de 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 p~rson . who .. crosses that checkpoint without proper authorisation so to do comm.its ··. . . . . ··. .· an offence and is liable on sumrnary conviction to a fine . : . ' ·. . :. of $2,000 or to a term of imprisonment of six months .. . . : .. ·. . ' ·. .·. (h) And Regulation 2 providesthe following definitions; "order'' means an order publish~d at the notice board located at the Salem ·Police Station or aLthe Cudjoe Head Police>Station, or where .in the ·. circumstances such publication is not expedient, to give directions through ··the media or otherwise, orally or in writing or by any method which .is .· expedient in the circumstances. · · · .: . .· ·. .· -"unsafe area" means 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. · · ' . ... . ·. . . ...... . ·• . . . .···. . . .. . . [71 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 of a line, shown for descriptive purposes only ori the plan annexed hereto, running from a point commencing from the northernmost part of the . runway ofW.H. Bramble Airport and continuing westward to the road at Mournful Ghaut to the point where it is Ii .. gated and thereafter. to. a···.·point bisecting Jhe Valley northwest of Molyneux and continuing 1A1i:lc:trw::irn along the Belham Valley to BelhamBridge and west south west to the sea; and . . _- .. ·.-. _·. (b) The area commencing from the mouth of the ghaut at Lime Kiln Bay south-eastwards along the ghaut toJhe · roundabout in Old Towne; and from there eastward along . _,. ' - . . - ' ,_.·:··.·.< the Logwood Drive to Olveston ·Ho us(;!; · then continuing eastwards to the Happy Hill I Friths Main road junction; and from there· south-eastwards to the Water· VV9rks Estate. · 2. . DAYTIME OCCUPATION OFUNSAFEAREAS: · · . 3. · Notwithstanding anything to .the contrary in this Order entry to the. area hereinafter described shall be. allowed with the express written permission of the Commissioner of Police between the hours of 6.00 a.m, to 6.00 p.m. · each day. 4. The areas aforesaid encompass all those areas - (a) · · shown for descriptive purposes only as the Day Time Entry Zone on the plan annexed hereto; (b) described in paragraph 2(b); and (c) north and west ofa line running eastwards from Sturge Park to the southern base of St. Georges Hill but excluding Lovers Lane and then northwards past Jhe ghaut at Lees road at the point marked by the notice prohibiting unauthorised access, and continuing to a point bisecting the Belham Valley northwest of Molyneaux. (d) The Commissioner of Police may from time totime and as and when he thinks it necessary restrict the entry to · the Day Time Entry Zone permitted by this Regulation. . . · Annexed to and forming part of the SR&O is a plan or map of Montserrat dated 12 . . April 1999 demarcating areas shown respectively as the Exclusion Zone, within the Exclusion Zone theDay time Entry Zone, and the Northern Zone. Thisisthe . . . plan or map referred to "for descriptive purposes only" inRegulations 2 (a) and 3 (2)(a). Old Towne is shown on that map as located som13 distance north of the line demarcating the Exclusion Zone (and the Day time Entry Zone), and well within the Northern Zone. Apart from Old· Towne, none of the •locations mentioned in · Regulation 2 (b) is shown on the map, which consequently is of noassistance in determining the precise boundaries of the unsafe area established by the · Emergency Powers (Unsafe Areas) Order 2002,. Regulation 2(b), the area within which the Crown alleges that the appellant committed the offence of which he has been convicted. The respondent needed to establishthatthe appellant was within the said area by other evidence. The first three grounds of appeal concern precisely this matter;. The unsafe area in Regulation 2(a) is described as being south of the described . line. In Regulation 2(b) the dividing line is defined as commencing at the mouth of the ghautat Lime Kiln Bay, south-eastwards along the ghaut to the roundabout in · Old Towne; from there eastwards. The learned magistrate stated in his reasons for decision that evidence from the police indicated that Old Towne was designated an unsafe area. That is not strictly correct. It appears that only parts . of Old Towne were so designated. In any eventthe mere contention by the police would not in itself be sufficient to establish that fact.. However, the magistrate · stated further .thatthe prosecution contended thatthe appellant's house was in the exclusion zone because itwas approximately 110 yards westof the Old Towne . roundabout. Assuming that the unsafe zone was south of the dividing line, that is not an unreasonable contention. It is a matter of common knowledge, borne out by the. map ·annexed to the· Order, that the volcano, and the.unsafe zone, is in the south ofthe island, and that the north is the part of the island to which the population has been relocated from the unsafe area.· it would therefore be safe, in my view, to make the assumption that the intention of the Order was to declare the ...... : : . .. ~ :_ - . -. .... · . . . ·. ,\•· a:rea south. of the· line as .• unsafe.. ·The court would give effect to .this cl~ar)nt~g~i~~·c{j".\f;,;··.}~'r'.tt}i~;;}I'.I:<:::> · .. ·· .. _:: .. ... . as the magistrate appears to have done when he held th.at all the area'to:the. righ,t::1:<·: . r:;i: .· •. < . . ··.or south ofthe.ghaut falls in theunsafezon~. In ~y.viewthe'leame~ ~~~i,~tr~t~ .·/+:L'S''fa> . ·was also not wrong in taking judicial n9tice of what· he held to be cbfuMph)'.··.t .;;;·· .· · .. ·.·•. · knowledge,.that the·only.ghautwhich comes:upfrom the sea at UmeKUn~.is;,n9rifa'\(·.;; . · of the entire Old Towne district.·. He was entitled; in the words bfHa/sbury'sJ~w~/:< .. · ·.·· .,:., ::,<.· of England fourth edition, volume 17 paragraph ·573 under the rubric Notoripu~t< '.:;/' fatts, •to' act. upon·· his general knowledge'.of local affairs. In stating . thaithe ho.u~e:}· .. , was "right and south of the>ghaut", the magistrate was in my view d~a\4/in~ ~ · .· oormlu~ion from the evidence of Sergeant Brade that it was : west 6f th~ roundabout, and what he heldJo be common· knowledge as to the IOcati~n-ofth~·.. < > . •: . . . ... : ... · . ,, ·.:.' '" .. · ghautirirelation to the Old Towne district West of the roundabout would, in tho~~ / . .. . ..... ,:.::··; circumstances; necessarily be south oHtie ghaut. Whafis rnore, at page 14 oUhe . ·.· ... · recordtheappellantin.his evidence spoke ofa ,;Government house next tomeJ6 .•.... . · •. the north towards the roundabout"; ·That tends to confirm the conclusioh.th~tth~j· .. ·. appella11t's house is sbuth of the iine demarc~ting the unsafe area; • · ... ·· .[10] . The le~rned Attorney~General for the respondent. submitted,· and I agree, th~t th'e ...•.. ·. • .. ·• . . . . . .. . appellant. admitted being "in the zone" "during the proper times thafw~ •. Viere . · allowed ··~ of 9.00 and 2.00 p.m.", and further •I was in my house duringth~ ·· . . prescribed times. J think this was an unfair arrest." .· . . ·. ·.. . . ' ··.· · ... · .·· ·. " ·": .· . . .. · .·. : .· ·> , .: .;.-·· :' : ... [11J ·. : Learned .. co~nsel . for the ··appellant contended ·that the· .. ~onsequence • of. the . . ·Governor's failure tospecify the time and prpcedure for evacuation in the drd~r as" provided by Regulation 5 of the Emergency Powers Regulations: 1996, js thaf evacuation cannot be enforced. The provision forevacuation is permissive, and •.. · the ciovernor is required to exercise ~ discretion as to whether the situation. that exists requires mandatory evacuation, or some lesser action, such as. a warning to . ·.·· .. the residents of the area of the danger of damage or injury from seismic activity. In this regard, learned counsel laid emphasis, not only on the permissive nature of the language in Regulation 5, but also on the definition . of "~nsafe area" in .· Regulation 2. This definition does not in itself presuppose evacuation, but relates , to the likelihood of damage or injury from what may be a more or less intense level of seismic activity. Counsel contends that there may well be levels of activity·. which warrant a warning but would not call for evacuation, and that this judgment is within the competence of the Governor, who must exercise a discretion. Section 65 ofthe Montserrat Constitution Order 1989 gives limited immunity to things done under the authority of any regulation made under inter alia the Leeward Islands (Emergency Powers) Order in Council 1959, which may be in · contravention of certain constitutional protections including the protection from deprivation of property under section 64 of the Constitution. Nevertheless, section · 64, as well as section 58, ofthe Constitution illustrate the importance which the law of Montserrat gives to property rights. Limitations on the.right to occupy one's home will not be readily . conceded,. and legislative or executive incursions on that right will only be upheld if stated in clear terms. · I agree with learned counsel for the appellant· that the Emergency Powers Order 2002 does not by its terms "direct that all unsafe areas be evacuated by a specified time· and Jn accordance with specified procedures" as permitted by the Emergency Powers Regulations 1996, under which Regulations the Governor . made the Emergency Powers Order 2002. ltfollows, in my view, that neither the Governor nor .the Commissioner of Police had lawfully assumed the· power to · enforce evacuation of householders in the unsafe area.

[14]The . appellant, in those circumstances, would not have required special authorisation to enter. or be in his home at the relevant time,· could not be subjected to a mandatory requirementto leave the area, and therefore could not be properly convicted of the offence under Regulation 5(2) as charged. I do not agree with the learned Attorney-General that it is an offence to be in an unsafe area, and that it is not necessary that an evacuation order be made under section 5(1) of the Emergency Powers Regulations in order for section 5(2) to come into ... · . . . . :'.-.)·. ·.:·· .. :>.,:· ... ' .. _:~:·· .......... , play. To hold otherwise would be to deprive of all meaning the specific statUtory , provision in section 5(1) empowering, but not requiring, the Governor to direcUhat all unsafe areas be vacated by a specified time and in accordance with specified procedures.

[15]· Learned counsel for the appellant submitted that the learned magistrate>was wrong in law to rely on the Emergency Powers Order 2002, becaJse that Order had not been admitted into evidence in accordance with the Statutory Instruments· Act t946, section 3(2). However, learned counsel did not raise that objection at · trial, and indeed he referred in some• detail in the no case submission which he made at the close ofthe prosecution's case to the Order. ()f the Order.

[16].· In response to counsel's submissions on the point, learned counsel for the respondent relied on the terms of section 23(4) of the Interpretation Act, which provides that judicial notice shall be taken of a copy of any instrument of . . subsidiary legislation bearing on its face a certificate of a public officer that the instrument. has been published. by exhibition in accordance with the section. However, the learned ·Attorney-General for the respondent was unable to show · that such a copy was in evidence before the court. Nevertheless, I. am of the view that the appellant having failed to take the point at trial, he should notbe permitted to rely on iton appeal.

[17]For the reason that the Emergency Powers Order No. 49 of 2002 made no . provision and contains no direction in respect of the evacuation of persons from the unsafe area, I hold that the appeal succeeds, and I would therefore quash the conviction and sentence. I make no order as to costs. ~=;;;;.> • ._ Brian G. K. Alleyne, SC ·· . I concur. :&JJ Justice of Appeal ~~L I concur.

Michael Gordon

Justice of Appeal [Ag.]