6 Kendall v Khan 433, Dolly Kendall and Others v Mohamed Khan Det Corporal No 7307 HIGH COURT OF THE FULL COURT OF GUYANA CRANE CJ AND COLLINS 3 2Ist SEPTEMBER 1979 Summary conviction offence ~ Public insult and provocation - Guyana national anthem ~ Refusal of cinema goers to stand up when national anthem being played ~ “Whether such refusal insult fo police officer - Whether police officer insulted and provoked in a manner likely to result in commission of breach of peace ~ Summary Jurisdiction (Offences) Act, Cap 8:01, s 140. ‘Summary conviction offence ~ Guyana national anthem ~ Refusal of cinema goers 10 Stand up when national anthem being played - Law, public morality and ethics ~ Breach of positive morality committed thereby ~ Problem of enforcement ~ Whether politic to enforce respect for anthem through legislation. The three appellants were charged and convicted in the magistrate’s court for insulting one Mohamed Khan, a detective corporal of police in his presence in a manner likely to provoke him to commit a breach of the peace. They were arrested in 44 cinema by a party of policemen specifically sent for the purpose of arresting and charging any person or persons failing to stand up while the national anthem was being played. The magistrate observed that failure to stand up simpliciter when the anthem was being played did not constitute an offence, but considered it is otherwise ‘when the anthem is played in a public place and members of the public are present. It is reasonable in those circumstances, he considered, to expect members of the public to behave themselves and out of moral and national duty and pride to show respect for the country's flag and national anthem. When, therefore, the officer in charge of the police party gave evidence to the effect that he was ‘annoyed and provoked” by the fact that the defendants failed to stand, they were each convicted and fined $50. in default three months’ imprisonment. On appeal to the Full Court Held ~ (i) There is no evidence that Mohamed Khan was insulted even if there is evidence of his ipse dixit that he was annoyed and provoked by failure of the appellants to stand up during the strains of the national anthem. Such annoyance cannot be said to constitute an insult, nor to amount to provocation such as is likely to ‘make him commit a breach of the peace. i) It is not every act of annoyance that is insulting. A clear Tine must be drawn between insulting conduct on the one hand and critical or annoying or irritating ‘conduct on the other. (iii) This case is decided on the failure of the prosecution to prove the ingredients contained in the particulars of the charge; although there was an obvious breach by the appellants of a rule of positive morality. (iv) The appeal must be allowed and the convictions and sentences set aside, Bryan v Robinson (1) applied; R v Zwicker (4) considered, Cases referred to (1) Bryan v Robinson {1960} 2 All ER 173, {1960] | WLR $06, 124 JP 310, 104 SolJo 389, 76 QB 350, DC. (2) Gordon v Cummings (1909) AJ SupCt, 8/7/09.434 ‘West indian Law Reports (1979) 26 win (3) Minigree v Bookir (1909) AJ SupCt, 27/8/09. (8) Rv Zwicker[1938} | DLR 461 ‘Appeals from the decision of a magistrate of the Georgetown Magisterial District. C Ramson for the appellants, C Weithers, Assistant Director of Public Prosecutions for the respondent. CRANE CJ. The lights came on just before the Indian film ‘Mehbooba’ was scheduled to begin at the Liberty Cinema on the evening of 28h March 1978. I is customary in this country for patrons to stand at that moment, They do so as a mark of respect when the national anthem of Guyana is usually played at all public places. 1 would venture to say that is the practice all over the civilised world. whenever national anthems are played. However sixteen persons, including the appellants, did not stand; they remained seated and their discourteous behaviour was the signal for a party of policemen including Det Cpl Mohamed Khan, the virtual complainant, to effect their arrest. ‘The policemen were specifically sent by the authorities to the cinema with instructions to arrest any persons who were insulting the State's anthem in that manner. There is reason to suppose, I believe, this type of behaviour must have been fairly widespread in public places for them to take this course of action. Four of those arrested were seated two rows in front of Cpl Mohamed Khan who led the police Party and who preferred the following complaint without oath against them. STATEMENT OF OFFENCE PUBLIC INSULT AND PROVOCATION: Contrary to ection 140 of the ‘Summary Jurisdiction (Offences) Act Chapter 8:02. PARTICULARS OF OFFENCE Defendants on Friday 10th March, 1978, at Liberty Cinema, Newtown, Kitty, a public place in the Georgetown Magisterial Distriet insulted Mohamed Khan Detective Corporal No. 7307 in his presence in a manner likely to provoke the said Mohamed Khan Detective Corporal No. 7307 to commit a breach of the peace.” Section 140 which comprises one of twelve sections under Title 11 of Cap 8:02 entitled Disorderly Conduct reads as follows: “Everyone who, in or in view of any public way or public place, insults anyone ‘else in his presence in a manner likely to provoke a person to commit a breach of the peace, shal, on conviction thereof, be liable to a penalty of one hundred and fifty dollars. ‘The learned magistrate convicted four defendants of whom only these three saw fit to appeal, and while in his memorandum of reasons he rightly observed that simply failing to stand when the national anthem is being played is not in law an offence, he considered it is otherwise when such failure is done in public to the annoyance and provocation of others. But I cannot feel otherwise than that he convicted the appellants out of emotion for their discourteous behaviour, rather than on the strict pplication of law to the facts as ought to have been the case. Im his memorandum of reasons the learned magistrate observed: 30, failing to stand is not an offence. One may be in his bedroom or some other place where he may not find it convenient or appropriate to stand when the national anthem is played. It is, however, a different matter when such anthem is Played in a public place, and members of the public are present, Out of moral and national duty and pride one is expected to stand to show respect for our flag and country when the national anthem is played. It is reasonable to expect members of the public to so behave. It is also reasonable for6 Kendall v Khan 435 ‘human being to reaet or is expected to react when he sees persons around him failing to do what is not only moral but decent ~ failing to stand when the rational anthem is played. Only recently have we acquired our own national anthem and national flag, but hitherto all and sundry was expected to. and indeed showed the respect for the other national anthem by standing and or saluting ‘In my judgement itis the only decent and reasonable thing to do, and failing to do so is likely to cause others to feel annoyed and provoked. So, if in a public place, the national anthem of Guyana is played, and members of the public have pathered, i is expected that all would stand and pay their respects.” am afraid 1 can agree with neither the reasons nor conclusions of the learned magistrate; although [am inclined (o agree with the submission of counsel for the State that the ambit of s 140 of Cap 8:02 is wide indeed. It seems to me there are at least two situations which are envisaged by the legislature on the face of that section ‘The insult that is offered must be such as is likely to provoke the commission of a breach of the peace by either (a), the person insulted, or (b) by some third party who is present and hears the insults made to the person insulted, ie, the person who hears the insult and becomes so provoked as to commit a breach of the peace need not be the very person to whom the insult is offered. For example: a husband might be standing by and hears his wife insulted; such provocation may likely cause him to commit a breach of the peace. But in either case the words or actions constituting the insult ‘must be spoken or done in the presence of the person insulted. From the particulars of offence the prosecution had obviously set out to prove case (a) above, namely, that the insult was offered in the presenee of and to Det Cpl Mohamed Khan ina manner likely to provoke him to commit a breach of the peace. The question to be decided is: although the behaviour of the appellants was done in Khan's presence, albeit he was seated two rows of seats behind the appellants, ean it be said their action of sitting down was an insult or affront to him, or was it to the State of Guyana? It seems clear that the words ‘in his presence’ in s 140 cannot mean that there must have necessarily been a “Tace to face’ confrontation, as counsel for the appellants has urged, between the defendants and Khan, the person allegedly insulted. Whilst this must be true in case (a) above, a “face to face’ confrontation is irrelevant in case (b) above, because as we have scen ‘a person’ in that case might well be provoked in a manner likely to commit a breach of the peace even though he was standing by and the insulting words or actions were not directly addressed to her. But the important point in the circumstances under consideration is, assuming it cean be supposed the appellants’ refusal or wilful neglect to stand up for the national anthem may be regarded as an insult or affront to Cpl Khan, whether such failure or neglect was likely to provoke him to commit a breach of the peace. While Khan did say he was ‘provoked and annoyed’ by what he saw the appellants fail t0 do, he did not say he felt insulted thereby which is one of the ingredients of proof of the charge. Neither did he say he was so provoked that he felt like committing a breach of the peace because of what he considered to be discourteous and insulting behaviour to him. This, as it seems to us, is really the gravamen of the offence under s 140, Well as | concede any decent minded person will be annoyed at what he saw itis not every act, ‘of annoyance that is insulting. A clear line has to be drawn between insulting conduct fn the one hand and critical or annoying or iritating conduct on the other, Lord Parker CJ, made this very clear in Bryan v Robinson (1), a case in which the defendant who was employed as a hostess at a non-alcoholic refreshment house, stood in the doorway, leaned out, smiled, beckoned and spoke to theee men who were walking in the street past the front door of the premises [1960] 1 WLR 566 at 509: “It is true that three men were annoyed, but quite clearly somebody can be annoyed by behaviour which is not insulting behaviour. The mere fact that they ‘were annoyed really carries the matter no further. Even if it can be said that a reasonable person would be likely to treat the gestures as insulting, they were436 West Indian Law Reports (1979) 26 win certainly not, in my judgment, of such a character, whereby a breach of the peace may be occasioned.” In the course of the hearing my brother Collins remarked it would have been indeed ludicrous had Mohamed Khan been heard to say to the magistrate he had gone to the Liberty Cinema that evening for the specific purpose of being annoyed and provoked into committing a breach of the peace. It is not difficult for one to sce Khan could not tell the magistrate he had gone to the cinema to be insulted and to be provoked. That is why it seems to me there is no evidence on the record that there was the likelihood of a breach of the peace In Gordon v Cummings (2) Bovell CJ, when considering what constitutes a breach of the peace, observed. “I agree with counsel for the appellants, that whether a breach of the peace may bbe occasioned is a matter to be inferred from all the circumstances proved, and not one to be proved by special evidence. But the facts that insulting words have been used, that the parties are near each other, and that there was a. physical possibility of a breach of the peace, do not, in my opinion, necessarily show that a breach of the peace may be occasioned.” ‘And again, in Minigree v Bookie (3) Hewick J, acting Chief Justice, considered it appropriate to remark when a magistrate declined to infer from the circumstances of the case, when no evidence was led (as in the instant case) that a breach of the peace ‘may be occasioned, that from the circumstances of the case, it necessarily had to follow that a breach of the peace may be occasioned, his conclusion was supported by the Supreme Court in its appellate jurisdiction thus: “In dealing with cases of this kind the magistrate has to take into account not only the words used, but the circumstances detailed before him, from which he can come to a conclusion as to whether a breach of the peace may be occasioned. 1 do not consider that the word may (s. 14 (a) Cap. 8:02) can be interpreted to ‘mean at any time, but must be held to refer to the likelihood of a breach of the peace at the time |." So that whereas the failure of the prosecution to prove Mohamed Khan was insulted in a manner likely to provoke him in the commission of a breach of the peace ‘must be fatal to this case, for it is extremely unlikely the legislature contemplated facts of this kind, in which the virtual complainant, a law officer, can be heard to ‘complain he was s0 provoked that a breach of the peace seemed likely to be committed by him. It seems to me it isa fundamental principle in the law that one to whom is, entrusted the keeping of the peace cannot be heard to urge on the court in order 10 secure the conviction of another that he was so provoked by that other that there was a likelihood he would have commited a breach of the peace. ‘As a peace enforcement officer Khan ought to use every restraint in maintaining the peace and, speaking for myself, [think it would be entirely wrong for him to press the likelihood of his own wrongdoing on the court in order to secure the conviction of another, a proposition which is too monstrous to contemplate. Were the law to permit him to do so, it would only be in mockery of justice. “Much the same point was taken in Rv Zwicker (4), the headnote of which reads ‘a ‘motorist using abusive language to a police officer who stopped him on the highway for alleged non-compliance with license plates requirements, cannot be convicted under a byelaw prohibiting the use of such language in public ‘calculated to provoke a breach of the peace; the gist of the offence is to provoke others to commit a breach of the peace, through personal violence induced by the words used, but a police officer is required to be tolerant and forebearing,’ The court observed {1938] | DLR 461 at 464; “The well knoven saying from Gilbert & Sullivan that “A policeman's Jot is not a hhappy one” is true ~ at times, but itis also true with regard to all public officials. ‘They must expect more or less so called abuse. It is an incident of democr6 Kendall v Khan 437 government and free speech; and they should bear it, if not in good humour, at @ least with reasonable tolerance and that tact which isa very necessary part of the ‘equipment of a servant of the public. In this country a policeman is a peace officer, and his duty is not only to the public generally but to every individual citizen, and to protect that citizen, and to protect him, as far as possible, even against his own weakness, and not to have him before the magistrate for every foolish thing he does.” > What facts are capable of fitting the charge preferred is not for us to say: itis sufficient to say those now laid before us do not prove the charge. Without delving too Far into the jurispeudential aspects of the overlapping citcles of law, positive morality and ethies (which itis well-known can never co-incide), it must be fairly obvious that what has happened in this case is that the four miscreants had broken a rule of © positive morality, the standards of which are never laid down a priori by the State. It is for this reason why the magistrate rightly observed that there is no law requiring. persons to stand while the national anthem is being played. Public morality, however, has only the unorganised sanction of public opinion in securing obedience to its dictates, and though it undoubtedly influences legislation and the course of the law, q_ there is'a close affinity between the two as the content of the latter being generally fixed by the powerful influences of the former. But it is well-known that if the law were to lag behind popular standards it will soon fall into disrepute, and that when those standards are placed at too high a level problems of enforcement are certain to arise, But the problem in this case is whether there was a breach of a legal duty to stand up when the national anthem was being played at the Liberty Cinema which is © punishable, or whether, which is not punishable, there was a mere infringement of a tule of positive morality? (See pp 9-10 of The Concept of Law by HLA Hart (Oxford at the Clarendon Press) where the learned author makes the same point about the subject’s neglecting to stand during the strains of God save the Queen.) We have, however, decided this case on the failure of the prosecution to prove the ingredients ‘contained in the particulars of the charge; although there was an obvious breach by the appellants of a rule of positive morality, the area of which it is quite possible for the legal order to make co-incident with’a rule of law through the medium of legislation. But whether that would be a wise step to take in the circumstances is a matter for the legislature to determine. Decency and self-respect ought not, however, to be enforced by punishment, that is to say, virtue ought not to be secured by 4 legislation, but should be inculcated on the minds of the people, As I say, the law ‘ought not to place the behavioural standards of the community at (00 high a level, that is, beyond those warranted by the dictates of positive morality lest effective enforcement should pose a problem. Suppose all persons at the Liberty Cinema and other public places were to refuse to stand in similar circumstances, will the legal order be in a position to enforce effective compliance with what will have become a rule of law? To this question I can furnish no better answer than that given by Paton in his Jurisprudence (1946), where the learned author says: "Law in elaborating standards must not try to enforce the good life as such: it must always balance the benefits 10 be secured by obedience with the harm that the crude insteument of ‘compulsion may do, There are many ethical rules the value of the observance of which Ties in the voluntary choice of those who attempt to follow them.” J “"Tunderstand Paton to mean that it is not advisable to enforce by legal process a rule of positive morality such as now confronts us, namely, the refusal, neglect oF failure to stand when the State's national anthem is being played. The matter must be left to the good sense, self-respect and loyalty of the Guyanese public who must be so educated that they will spontaneously take a pride in such accompaniments of nationhood as their national flag and national anthem, As the learned magistrate has ‘0 rightly observed in the excerpt from his memorandum of reasons above, the Guyanese public used to stand up in the days of the colonists to the strains of “God438 West Indian Law Reports (1975) 26 win save the Queen’. There is no reason why they should do otherwise now that they are a free and independent people with their own national anthem, ‘The appeals must be allowed; the convietion and sentence on the three appellants reset aside, but we decline to grant them any costs, COLLINS J. | concur, Appeals allowed. Convictions and sentences set aside. The State v Alfred Kellman COURT OF APPEAL OF GUYANA EV LUCKHOO C, PERSAUD AND HAYNES 14 23rd APRIL, 2nd MAY, 9th JUNE 1975 Criminal evidence ~ Corroboration ~ Successive carnal knowledge of two child- ‘complainants of tender years ~ Each eye-witness to offence involving the other ~ Both testified implicating ihe appellant with the crimes charged ~ Whether cach ‘corroborative of thers testimony. Criminal evidence ~ Corroboration ~ Sexual offences ~ Jury not warned 10 be ‘cautious before convicting on uncorroborated evidence of children of tender years ~ Whether non-direction fatal to conviction. Criminal evidence ~ Distressed condition of complainant observed by mother four hours after alleged crime ~ Weight of such corroborative evidence ~ Test 10 be applied. ‘The appellant was charged and found guilty on a two-count indictment with having. unlawful carnal knowledge of his two step-children, Carol and Barbara Cambridge, aged 9 and 11 years respectively. Mary Kellman, the children’s mother was not home Al the time, but on her return, some four hours later, observed that Barbara was in @ distressed condition and related this to the jury. Each child was an eye-witness to the offence involving the other and at the assizes both gave sworn testimony implicating the appellant. The medical evidence was of no help and there were no external signs of injury whatever to the children. The trial judge did not, however warn the jury that it is dangerous or unsafe to convict on either count on the uncorroborated evidence of children of tender years; he never used the word ‘warn or caution’ or told them of any danger or risk in convicting if they di not find corroboration, although he did explain that corroboration is always looked for as a matter of practice even though itis not required as a matter of law in sexual cases. The jury were however told that the independent eye-witness evidence of each child, if believed, was capable of amounting to corroboration, and that they could consider the offences as proved if they believed what the children said about the appellant. On appeal, it was contended on behalf of the appellant that the cumulative effect of the judge’s directions did not amount to a sufficient warning to the jury that it was unsafe to convict on either count on the ‘uncorroborated evidence of children of tender years. Held - (per Haynes JA) (i) That the jury were not in terms or effect, warned as they ought to have been, in a sexual offence on children of tender years that they should be cautious before convicting the appellant on uncorroborative evidence. This prima facie, would be fatal to the conviction unless there has been no substantial miscarriage of justice, (ii) That the erucial question is whether the ate has in relation to each count a