Criminal Appeal 12 of 2021 Duran Dane Martin Dalley v The Queen
IN THE CAYMAN ISLANDS COURT OF APPEAL
CRIMINAL APPEAL No.012/2021
SCA 0021/2021
SC 1276/2020
BETWEEN:
Duran Dane Martin Dalley
Appellant
- and –
Her Majesty the Queen
Respondent
BEFORE:
The Rt Hon Sir John Goldring, President
The Hon Sir Richard Field, Justice of Appeal
The Hon C. Dennis Morrison, Justice of Appeal
Date of Hearing:
16 November 2021
Appearances:
Appellant in person
Mr. Scott Wainwright of DPP for the Respondent
JUDGMENT
Revised from transcript of oral judgment 16 November 2021 and Approved
Released 15 December 2021
MORRISON, J.A.
1.
On 24 February 2021, the Applicant was convicted after trial in the Summary Court for
the offences of (1) disorderly conduct at a police station, contrary to section 126 of the
Police Act (2017 Revision); and (2) making a threat to kill, contrary to section 88C of the
Penal Code (2019 Revision). The Applicant was acquitted of a third charge of being drunk
Criminal Appeal 12 of 2021 Duran Dane Martin Dalley v The Queen
and disorderly, contrary to section 165 of the Penal Code (2019 Revision).
2.
On 28 April 2021, the Applicant was sentenced to 14 months' imprisonment on the charge
of making a threat to kill and 2 months' imprisonment on the charge of disorderly conduct
at a police station.
3.
Activating the right of appeal against conviction and sentence in the Summary Court,
given by section 165 of the Criminal Procedure Code (2021 Revision), the Appellant
appealed to the Grand Court. The grounds of appeal were that there had been an abuse of
process and an unfair trial, but no particulars were provided. The appeal was heard by
Richards J (‘the judge’) on 30 July 2021, and was dismissed in an oral decision given on
the same day.
4.
In her ruling on the appeal, after considering the evidence, the findings of the Magistrate,
and the submissions of the Applicant, the judge stated her conclusions as follows (at
paragraph 24 of her decision).
"I can see no basis to disturb the findings of the learned Magistrate who
applied the proper legal test as is set out at paragraph 26 onwards of the
Ruling and Sentencing Note. The learned Magistrate was entitled to listen
to the witnesses and form a view of the credibility of one or other witness.
The learned Magistrate concluded that she was satisfied to the required
standard that the prosecution witnesses were speaking the truth and did not
believe that the Appellant was a credible witness.
The Court cannot and ought not to substitute its own views as to witnesses
in circumstances where a tribunal of fact had the opportunity to see and
hear all the witnesses. Additionally there appear to be no errors in law
made by the learned Magistrate. The appeal against conviction is
dismissed.
As to sentence: Although the Appellant expressed the view that he is not
concerned about the sentence, having considered the circumstances of the
Criminal Appeal 12 of 2021 Duran Dane Martin Dalley v The Queen
offending and the Appellant's conviction record which includes offences of
violence, it cannot be said that the sentence imposed is manifestly excessive
or out of line with the gravity of the offending. An appeal against sentence
would also have been dismissed.”
5.
By notice of appeal dated 4 August 2021, the Applicant now seeks leave to appeal against
the decision of the judge on the following grounds: Abuse of process, unfair trial, and
abuse of power. Although section 29 of the Court of Appeal Act restricts appeals from
the Grand Court exercising its appellate jurisdiction to matters of law only, or against
sentence, we have nevertheless considered the Applicant's application in respect of all
aspects of his appeal.
6.
Before considering the Applicant’s complaints, we will first indicate the circumstances of
the offences for which he was convicted, all of which were allegedly committed at the
West Bay Police Station on 29 January 2020. This is how the judge summarised the
evidence (at paragraphs 8-10 of her factual summary):
“On two occasions … the Police were called to the Department of Vehicle
Licensing … in West Bay. This is a building across from the West Bay
Police Station. The Appellant was said to be causing a disturbance and
behaving in a drunk and disorderly manner. On the second occasion the
Police escorted the Appellant from the [Department of Vehicle Licensing]
across the road to the Police Station.
The Appellant is described as being visibly intoxicated and staggering. PC
Bush one of the escorting officers gave evidence that he 'put his hand on the
shoulder of the Appellant to steady him.'
On arrival at the door to the station, the Appellant accused PC Bush of
pushing him and threatened to kill him and blow his head off. PC Bush
gave evidence that he was afraid when this was said. The Appellant was
arrested for the three offences and when cautioned he continued to threaten
to kill the officer. PC Bregani, the second escorting officer, supported the
account given by PC Bush of a hand being placed on the shoulder of the
Criminal Appeal 12 of 2021 Duran Dane Martin Dalley v The Queen
Appellant to steady him. PC Bregani described the Appellant as loud, angry
and incoherent and testified that the Appellant threatened to blow PC
Bush's head off and to kill him.
The Appellant gave evidence at trial. He denied being intoxicated at the
material time and denied threatening to kill the Officer. He was adamant
that he had been pushed by PC Bush and it was not a case of being assisted
as he walked on unsteady feet."
7.
Before us today, the Applicant has, as he did before the judge, represented himself. He
makes a number of submissions which essentially amount to a complaint of abuse of
process. He complains about the nature of the evidence that was adduced against him.
He suggests, if we may put it this way, that the cards were stacked against him, and that
it appeared that his innocence was not considered at all before the Magistrates' court. In
all of those circumstances, he urges us to allow his appeal and to quash his convictions.
8.
As regards sentence, he tells us that he is not really interested in the issue of sentence but,
having spent a considerable amount of time in custody, he is more concerned now with
the question of quashing his conviction.
9.
In our view, as is clear from the Magistrate's ruling and sentencing note, the Summary
Court gave careful attention to the evidence on both sides and analysed it in accordance
with the established principles. This is how the Magistrate dealt with the matter in her
sentencing note, and we will quote now from the record of the proceedings before the
Magistrates' court.
“In considering the entirety of the evidence, I have reminded myself that the
burden of proof rests with the Crown at all times. The defendant has
nothing to prove. If I have any doubt at all in relation to the matter, I must
give that doubt to the defendant. I must be satisfied beyond a reasonable
doubt that the Crown has met the particulars of the charge.
Accordingly, in relation to the drunk and disorderly charge, while the
Criminal Appeal 12 of 2021 Duran Dane Martin Dalley v The Queen
Defendant was drinking and whilst he was talking non-stop, there is very
little evidence of drunk and disorderly at the [Department of Motor Vehicle
Licensing]. In fact, PC Bush says that there was not enough in his opinion
on the first visit to arrest and on the second visit - he agreed to go over to
the station with them. As such, charge (1) is dismissed.
In relation to charge (2) these are admissions by the Defendant that he was
told to calm down by the Sgt. Clearly he was behaving in the manner which
amounts to disorderly conduct. The charge is proved.
In relation to charge (3) the threat to kill, I find the Defendant guilty. He is
selective in his recollection of what he may or may not have said. However,
PC Bush and PC Bregani were both very reasonable and fair in their
evidence and demeanor. I found them to be credible witnesses. They did
not seek to embellish. They did not falter under cross examination.
They corroborated each other - in at least the words 'blow off your head'
and 'I will kill you'.
Having observed and listened to the defendant he was not believable at
times - this is because he was honest when he wanted to be - and then he
was forgetful of events.”
10.
In the circumstances, the Magistrate therefore found the case against the Applicant to be
proved.
11.
The issues before the Summary Court were entirely issues of fact. It is clear that the
Magistrate, whose duty it was to assess the credibility of the witnesses and to make
findings of fact, did so applying the correct principles. In these circumstances, as the
judge concluded, no basis has been shown for interference with the conclusions of the
Summary Court.
12.
Despite the fact that the Applicant makes no complaint about sentence, Mr. Wainwright
Criminal Appeal 12 of 2021 Duran Dane Martin Dalley v The Queen
pointed out to us that, in her sentencing remarks, the Magistrate observed that, in
sentencing the Applicant to 14 months’ imprisonment for making a threat to kill, “the
court used the case of Duane Bodden v R [CICA (Crim) 005 of 2015] as guidance where
the Court of Appeal said that 16 months was not excessive where a police officer was
threatened”. But, as Mr. Wainwright quite properly observed, what this court actually did
in Duane Bodden v R was to reduce a consecutive sentence of 16 months to 9 months'
imprisonment on account of the guilty plea of the Appellant. It is clear, therefore, that the
Magistrate plainly erred in thinking that Duane Bodden provided authority for the
sentence of 14 months’ imprisonment in this case.
13.
Accordingly, although, as we have said, the Applicant makes no specific complaint
against sentence, we will reduce the sentence for making a threat to kill from 14 months
to 12 months' imprisonment to reflect the fact that, unlike in Duane Bodden, the Applicant
in this case was sentenced after trial.
14.
So, in the circumstances, the application for leave to appeal against conviction is refused.
But we will give the Applicant leave to appeal against sentence, and allow the appeal to
the extent that the sentence for making a threat to kill is reduced from 14 months'
imprisonment to 12 months' imprisonment. The sentence of 2 months’ imprisonment for
disorderly conduct is to run concurrently with this sentence.