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REX
V.
FLIGHT-LIEUT. AUSTIN ROBERT QUINN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
13TH DAY OF OCTOBER, 1944
2PLR/1944/79 (WACA)
OTHER CITATION(S)
2PLR/1944/79 (WACA)
(1944) X WACA PP. 243 – 246
LEX (1944) – X WACA PP. 243-246
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
BROOKE, J.
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BETWEEN:
REX – Respondent
AND
FLIGHT-LIEUT. AUSTIN ROBERT QUINN – Appellant
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ORIGINATING COURT(S)
Appeal of defendant from a conviction by the Supreme Court of Gambia.
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REPRESENTATION
F. K. Ewart — for the Crown
Flying Officer A. R. Ponsford — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Gambia Criminal Code, section 230 (b) – Charge of obstructing police in execution of duty – Entering premises, without search warrant, to investigate – Request to leave-Defence (Protected Places and Areas) Rules, 1941, rule 3(1)(b), Police Ordinance, 1916, section 3(1)(b)
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CASE SUMMARY
A police officer, on receiving a report that a member of the R.A.F. had committed suicide, went to the camp at Bathurst and was admitted by the corporal on duty. Before finishing his investigation, he was noticed by the Defendant, who asked him to wait while he telephoned for instructions and later told him to leave the camp. The Defendant was convicted of obstructing the officer in the execution of his duty, and appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
(1) as the officer went to the camp on lawful business and was lawfully admitted, he was not a trespasser ab initio;
(2) as he had no search warrant in his hands, he became a trespasser after defendant told him to leave and was therefore no longer acting in the execution of his duty with the result that defendant could not be guilty of obstructing him therein.
(3) Semble:
(a) Rule 3(1)(b) of the Defence (Protected Places and Areas) Riles does not confer on the police any right to enter premises they do not ordinarily possess;
(b) Section 3(1)(b) of the Police Ordinance, 1916, does not confer on the police an absolute right to enter without search warrant for purpose of investigating crime.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:-
The Appellant, a Flight-Lieutenant in the R.A.F., was charged upon information in the Supreme Court of the Colony of the Gambia for that he –
“On or about the 1st day of May, 1944, at Bathurst in the Colony of the Gambia did wilfully obstruct Sub-Inspector Kebba Jallow of the Gambia Police Force in the due execution of his duty to wit, the investigation he was carrying out as a result of a report received of a death which had occurred at the R.A.F. Camp, Marina, Bathurst aforesaid contrary to section 230(b) of the Criminal Code,”
He was convicted and sentenced to a fine of £10 or in default of payment to 21 days I.H.L. Against that conviction he has appealed to this Court.
The facts of the case are sufficiently set out in the evidence of the Sub-Inspector as follows:-
”I am Sub-Inspector, Gambia Police, Bathurst, I received certain report on 1st May of an alleged shooting of himself by a Flight-Lieut. R.A.F. at Marina R.A.F. Camp. I went alone to investigate. On arrival I went first to the Marina Guard-room where I saw the Corporal on duty. He gave me a Special Police Constable named Robson M’Boge, employed by the R.A.F. to assist me. I instructed M’Boge to collect the steward boys who were in the vicinity of deceased’s house. He collected them near the kitchen. I went and saw them. My questioning of them did not lead to any satisfactory conclusion. Next I entered the kitchen where I spoke to the Chief cook and told him what I wanted. I then sent M’Boge to collect the kitchen boys. While M’Boge was away collecting them the accused came on the scene and spoke to me. He said,” What do you come to find here”? I was in uniform.
I told him I was a Police Officer and had come to investigate the suicide case.
He asked me who gave me permission to enter R.A.F. property. I told him that I was instructed by Mr. Roberts to come and that it was in the presence of the D.A.P.M. He (accused) told me to wait where I was until he telephoned to find out whether it was in order. I stayed where I was for over twenty minutes. During that time accused did not come back. Having waited that time I decided to continue my investigation. I went outside and went to deceased’s quarters. I stood by the window and looked in. While so doing, I heard someone calling ”Hey, Hey” I turned round and saw it was accused. I went up and saluted and said “Yes Sir”. He said “Did I not ask you to wait in the kitchen?” I said ”Yes Sir, but the place was too hot and I came out.” He said “You must leave the Camp at once”. He said he had telephoned. I cannot remember his exact words. He then turned to Special Constable M’ Boge and ordered him to see me leave the camp at once. I turned my back and M’Boge walked after me. At the Guard-room I telephoned Assistant Superintendent of Police Roberts. The corporal on duty overheard what I said. He expressed surprise and spoke to me. As a result I went to the Officers’ Mess. There I pointed out the accused to the corporal. The corporal went up to accused; I heard accused tell the corporal that he should write a notice and put it up in the Guard-room to the effect that nobody should enter the camp without permission. I then went away. At the time the accused told me to leave I had not completed my investigation. I was unable to complete it because of accused’s action. Accused was not polite to me. I did not see any officer senior to accused there. Accused did not suggest to me that he was acting upon orders.”
and of the Appellant
“I am Austin Robert Quinn, Flight-Lieutenant R.A.F. stationed R.A.F. Bathurst. On the afternoon of the 1st May as Mess Secretary I went into the Mess kitchen and saw an African Police Officer questioning the Mess boys. I asked him what he was doing. He said he was investigating that morning suicide. I asked him on what authority. He said Assistant Superintendent Roberts. I knew by this time that Assistant Superintendent Roberts himself had agreed to suspend his investigations. I said ‘ Wait here until I ring up the Station Adjutant and find out the position’. I walked across to the Mess ‘phone 40 yards distant — I rang the buzzer. Before I got a reply from one exchange I saw through the window opposite Inspector Jallow walking across the sand. I put down the receiver. I hurried across the dining room and called to Inspector Jallow. Since I asked Jallow to wait about 4 minutes had elapsed. I shouted ‘Hey’ to attract the Inspector’s attention and to stop him from messing around on his investigations until I got my authority. I said ‘I thought I asked you to wait; now will you wait until I get through to the Station Adjutant.’
“I went back and phoned. I asked for my instructions and got them. I went back to Mr. Jallow and told him that he must leave the Camp. That he had to have the Station Adjutant’s permission before he came in. He saluted and I probably said – what I imagine I said – it was six or seven weeks ago and I cannot swear to it–was ” See that this Officer goes out of the camp” or “see him out of the camp”. I meant that as Inspector Jallow had to finish his investigations then – to stop it – that M’Boge could Flight-Lieut. show the Inspector the way out, out of the ground. We were in a backwater Robert behind the Mess in the Officers’ quarters. M’ Boge’s place of duty was the Guard-room which they had to pass. I did not order M’ Boge to escort Inspector Jallow out of the camp. I do not consider that I was impolite.
I asked Jallow to leave the camp because (1) I believed that Assistant Superintendent Roberts had suspended his investigations (2) A question of security arose because it is a duty of R.A.F. personnel to keep a check on every visitor to an R.A.F. camp. To make certain I ‘phoned the Station Adjutant for instructions. I was instructed by the Station Adjutant to see that Inspector Jallow leave the Camp. I carried out that order honestly believing that I was doing the right thing and that Jallow had no right to be there.”
It is admitted by the Defence that on these facts the act of the Appellant did amount to obstruction, but it is contended that it was a lawful obstruction lawfully carried out.
In this Court Counsel for the Appellant has gone so far as to contend that the Sub-Inspector was a trespasser abinitio upon entering the R.A.F. Camp; we cannot agree with him as to this, the Sub-Inspector went there on lawful business and was lawfully admitted, but the moment he was asked to leave by the Appellant the position became different. The Appellant contends that, in any case, from that moment the Sub-Inspector became a trespasser and in remaining was not acting in the execution of his duty, so that the order to see him out of the camp was a lawful one.
As to this section 97 of the Criminal Procedure Code (Cap. 26) provides for the issue to the Police by any Magistrate or Justice of the Peace of a search warrant when he is satisfied upon oath that there is in any place anything upon or in respect of which any offence has been or is suspected to have been committed or anything which there is reasonable ground for believing will afford evidence as to the commission of any offence.
In view of this it is clear that, if the Sub-Inspector wished to pursue investigations of the nature in question upon premises in the occupation of the R.A.F. against the wishes of the Officer in charge, he should have gone armed with the necessary search warrant. He did not do so, and when requested to desist and leave he acted as though he had the necessary warrant. In this respect we are of opinion that the case is on all fours with that of Davis v. Lisle (1926) 2 K.B. 434, in which it was held that even if Lisle, a Police Officer, had a right to enter a garage to make enquiries as to a possible offence, he became a trespasser after the Appellant Davis had told him to leave the premises, and that he was not therefore acting thenceforward in the execution of his duty, with the result that Davis could not be convicted of assaulting him or obstructing him in the execution of his duty.
It has been contended on behalf of the Crown that the position is different here owing to the provisions of rule 3(1)(b) of the Defence (Protected Places and Areas) Rules, 1941, which exempts any member of the Gambia Police Force from the restrictive regulations No. 48 of the Rules. But the effect of the rules is merely to exempt the Police from certain statutory restrictions; they do not confer upon the Police any right of entering upon premises which the Police do not possess in the ordinary way.
It is also contended that the Sub-Inspector was acting under the express statutory powers of section 3(1)(b) of the Police Ordinance, 1916 (Cap. 95) which declares that the Gambia Police Force shall be employed –
“For the preservation of the peace, the prevention and detection of crime. the arrest and punishment of offenders, and all other such duties as are usually performed by a Civil Police Force or Constabulary.”
But here again it is clear that in performing the duties of such employment the Police must act in accordance with the law, and have only the rights which the common law or statutes confer. That section does not confer upon the Police Force absolute right of entering upon private premises without a search warrant for the purpose of investigating crime.
We have come to the conclusion, following Davis v. Lisle (supra), that the Appellant in this case was justified in ordering the Sub-Inspector to leave the premises, and that from the moment when the Sub-Inspector failed to obey that order he became a trespasser and ceased to be acting in the execution of his duty with the result that the Appellant could not be convicted of obstructing him in the execution of his duty.
The appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered. The fine, if paid, must be refunded.
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