Court explains ‘mental element’ of wounding

Ex-policeman’s wounding conviction overturned by Court of Appeal

Former police officer Rabe Welcome won his appeal against a 2012 jury verdict that found him guilty of unlawful and malicious wounding in a situation where he had the right to arrest someone for offenses he witnessed.

The Court of Appeal handed down its decision last week. The single point argued was the judge’s instruction to jurors as to what they had to consider in deciding whether Welcome’s use of force was reasonable.

The court pointed out that a defendant is guilty of unlawful wounding if the jury is satisfied that he applied force to the person of another and that he had the necessary mental element to constitute guilt.

“The necessary mental element to constitute guilt is the intent to apply unlawful force to the victim,” the court said. “We do not believe that the mental element could be substantiated by simply showing an intent to apply force and no more.”

Common law required the prosecution to establish that Welcome himself did not believe the degree of force he used was reasonable.

The court quashed the conviction, directed a verdict of “not guilty,” and declined to order a retrial.

Welcome was suspended with pay after the incident led to the charge, and was terminated from the police force upon his conviction. He was sentenced to six months imprisonment, but was granted bail pending appeal.

Welcome was off duty when the incident occurred at the Red Bay On the Run gas station around 1 a.m. on June 17, 2009.

Justice Alexander Henderson summarized what happened when he passed sentence. He said Welcome initiated a dispute with complainant Adolphus Myrie by making inappropriate remarks to Myrie’s then-girlfriend. He found that Myrie took a machete from his car and pointed it at Welcome and his two companions, also off-duty officers.

Myrie was disarmed, the judge continued, so Welcome had no need to defend himself, but had the right to arrest Myrie for carrying an offensive weapon and threatening violence.

The judge found that Welcome intended to arrest Myrie but also intended to apply force well in excess of what was reasonable. Myrie had told the court that Welcome “hugged me up and walked me to the back of the station.” A CCTV camera recorded what happened and the jury viewed it. Myrie also told the court he was 5 feet, 8 inches tall and weighed 130 pounds.

Welcome had told the court he was 6 feet tall and 250 pounds. He denied kicking Myrie, saying he was simply trying to free his foot. A doctor’s evidence confirmed that Myrie’s injuries included a broken arm, a laceration to the chin that required stitches, another laceration to the head and bruises.

Attorney Thomas Lowe, instructed by John Furniss, appealed against conviction and sentence. He argued that, as a matter of law, the judge’s direction to jurors was not sufficient for them to understand their task in relation to the issue whether the use of force in effecting the arrest was unlawful.

The appeal court said it was not enough for the jury to be satisfied that, viewed objectively, the degree of force was unreasonable.

The judge told jurors they must examine the circumstances from Welcome’s point of view at the time.

But he went on to say that if jurors were sure that the degree of force used by Welcome was unnecessary in making the arrest, or if they were sure that the degree of force was unreasonable, they should reject the defense of lawful arrest.

“That, it seems to us, gives rise to a real doubt as to whether the judge failed to alert the jury to be sure that [Welcome] himself did not have an honest belief that the degree of force used was necessary in the circumstances or was not unreasonable in the circumstances,” the Court of Appeal said.

It was not enough for the jury to be satisfied that the degree of force used was unreasonable when viewed objectively; the jury had to be satisfied that Welcome himself did not hold an honest belief that the force he used was reasonable in the circumstances as they appeared to him at the time.

The decision was delivered by court president Justice John Chadwick after consultation with Justices Elliot Mottley and Anthony Campbell.

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