A homeless man who mounted his own appeal has had a conviction for kneeing a Policeman in the testicles quashed by the Supreme Court.

Clinton McDonald Eugene Smith, 52, of the Salvation Army hostel, Pembroke mounted a skilful legal case before Charles-Etta Simmons earlier this month. In the written judgment obtained by Ms Simmons said a miscarriage of justice by Magistrate Ed King had occurred rendering the January 2004 conviction unsatisfactory.

Mr. Smith had been jailed for assault causing actual bodily harm on P.c. Stephen Cosham in Hamilton Police station on May 2003.

Smith had been arrested on suspicion of stealing but during the arrest it was alleged he kneed P.c. Cosham in the groin causing injuries. However, Smith said testimony of Dr. Heather Montgomery had not been properly entered as that of an expert witness. Instead of allowing her to list her qualifications and experience and allowing the defence to challenge that, Mr. King had ruled the procedure unnecessary because he was familiar with that doctor.

Mr. Smith denied having been served Dr. Montgomery?s witness statement prior to the trial.

Mrs. Etta-Simmons said Mr. King had not dealt with that legal point adequately.

The appellant said the magistrate had denied him the right to make a no case submission, then stated his view of the trial indicating he had pre-judged the case.

Mrs. Simmons said: ?This suggests to any right thinking person that the magistrate had made up his mind and raises a doubt as to whether or not the magistrate did or did not adequately consider the no-case submission once it was made.

?In my judgment this error apparent from the record raises an inference of pre-judgment. It will be shown in all the circumstances that this could not be cured in the events that followed.?

Mr. Smith said his witnesses were not treated equally with prosecution witnesses because the magistrate had got the clerk to check whether Andre Simmons?s name was correct while prosecution witnesses went unchallenged.

The judge said: ?The magistrate went far beyond the bounds of ensuring the proper conduct of the trial.?

She questioned why Mr. King had denied Mr. Smith the right to make a closing address. Mr. King had also drawn the wrong conclusion from a witness?s statement, said Mrs. Simmons. Andre Simmons had said he did not see Mr. Smith hit any Police officer that night and Mr. King recorded he did not see anything done by the defendant to anybody.

?The witnesses answer to the questions could equally have meant that he saw the incident and the defendant did not knee the complainant in the groin,? said Ms Simmons.

The judge said Mr. King?s questions led to equivocal answers and the he drew one set of inferences.

She said Mr. King had failed to give any reasons for his conclusions.

?This is an essential exercise for a decision-maker even in a court of summary jurisdiction.

The process of justice demands that judgments be grounded soundly.?

Mrs. Simmons continued: ?While some of the matters complained of by the appellant may not individually justify this appeal, the totality of these grounds give rise to sufficient concern that a miscarriage of justice has occurred to such as to render the conviction in this case unsafe and unsatisfactory.?

She quashed the conviction, ordered no further action against the defendant and dismissed the charge.