Haywood v Mumford - [1908] HCA 62

HAYWOOD AND ANOTHER

DEFENDANTS, MUMFORD

ON APPEAL FROM THE SUPREME COURT OF Highway-Obstruction-Standing or loitering in street and not moving on when

requested-Collecting a crowd-Interference with traffic-By-love-Police Offences Act 1890 (Vict.), (No. 1126), sec. 6*.

The term "obstruction" as used in sec. 6 of the Police Offences Act 1890 (Vict.) includes any continuous physical occupation of portion of a street which appreciably diminishes the space available for passing and repassing, or which renders such passing and repassing less commodious, whether or not any person is in fact affected thereby, and the lawfulness or unlawfulness of the obstruction, considered apart from the Act, is immaterial.

The two defendants, at about half-past six on a summer's evening, stood in the carriage way of a street of Sale playing a drum and a concertina and *Sec. 6 of the Police Offences Act

vehicles and persons and for keeping 1890 (Vict.), so far as material, is as

order in the carriage and foot ways and public places of any city town or 'Any local authority may from time

borough and for preventing any to time make regulations for the route

obstruction thereof whether by the to be observed by all carriages carts

assemblage of persons or otherwise."

7 CLR 134

singing, and thereby collected a crowd of about 80 persons, and they refused to move on when requested to do so by a police officer. The magistrate found that there was no actual interference with the traffic and that the defendants were not making an unreasonable use of the street, but that their acts brought together a crowd which Was likely to-cause an obstruction of the street.

Held, that the defendants were properly convicted under a by-law made under sec. 6 of the Police Offences Act 1890, and which provided that any person obstructing any carriage way, &., within the municipality by standing or loitering therein or thereon, should, upon being requested so to do by a member of the police force, discontinue such standing or loitering, and that any person committing a wilful breach of that regulation should be guilty of an offence against the section.

Decision of the Supreme Court: Mumford v. Haywood, (1908) V.L.R., 308; 29 A.L.T., 247, affirmed.

APPEAL from the Supreme Court of Victoria.

At the Court of Petty Sessions at Sale, before a Police Magis- trate, an information under a by-law of the Borough of Sale was heard whereby James Hugh Mumford charged Henry Haywood and Millie Ross for that they wilfully obstructed a carriage way in York Street within the Borough of Sale by standing therein or thereon, and did not discontinue such standing upon being requested SO to do by the informant, a member of the police force. The by-law provided that :-

' Any person obstructing any carriage way, foot way, or public place within the Borough of Sale, by standing or loitering therein or thereon, shall, upon being required SO to do by any member of the police force, discontinue…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1908] HCA 62
Decision Date: 6 October 1908

CaseChat Overview and Summary

This case involved an appeal from the Supreme Court of Victoria to the High Court of Australia. The appellants, Henry Haywood and Millie Ross, members of the Salvation Army, were charged with wilfully obstructing a carriage way in Sale by standing and loitering, and failing to discontinue such standing upon request by a police officer, contrary to a by-law of the Borough of Sale. The by-law stipulated that any person obstructing a carriage way by standing or loitering, who upon request by a police officer fails to discontinue such standing or loitering, commits an offence. The appellants had been playing music and singing in the street, which attracted a crowd of approximately 80 people. While the magistrate found no actual interference with traffic and that the appellants were not making an unreasonable use of the street themselves, he convicted them on the basis that their actions brought together a crowd likely to cause an obstruction.

The legal issues before the High Court were whether the appellants' conduct constituted an "obstruction" within the meaning of the by-law and section 6 of the Police Offences Act 1890 (Vict.), and whether the by-law itself was valid. Specifically, the court had to determine if an obstruction required actual interference with traffic or if the mere physical occupation of a street, which diminished available space or rendered passage less commodious, was sufficient. The court also considered whether the lawfulness of the obstruction, apart from the Act, was relevant.

The High Court, affirming the decision of the Supreme Court, held that the term "obstruction" as used in the Police Offences Act and the by-law encompassed any continuous physical occupation of a portion of a street that appreciably diminished the space available for passing and repassing, or rendered such passage less commodious, irrespective of whether any person was actually affected at the time. The court reasoned that the right of the public to use the highway extends to the whole of it, and anything that appreciably and practically interferes with this right constitutes an obstruction. The lawfulness or unlawfulness of the obstruction, considered independently of the Act, was immaterial. The court found that the appellants' actions in standing in the street and collecting a crowd had appreciably diminished the available space, thereby constituting an obstruction.

The appeal was dismissed, and the convictions of Haywood and Ross were affirmed. The court ordered that the appeal be dismissed with costs.

Orders