Haywood v Mumford

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.