IMPRISONMENT FOR THREE MONTHS.

Press, Volume XLIX, Issue 14841, 5 December 1913, Page 8

IMPRISONMENT FOR THREE MONTHS.

APPEAL LODGED.

(mESS ASSOCIATION T_l.EG_._-.) WELLINGTON, December 4. The judgment of the magistrate in the case against W. T. Young, president of tho Federation of Labour and secretary of the Wellington branch of the Seamen's Union, charged with wilfully inciting divers unknown persons to resist constables stationed in Wellington in the execution of their duty, was given by Mr W. G. RiddeLt, S.M., this morning. The defendant, who was refused bail at the preliminary hearing, has been in gaol exactly four weeks. A further charge against him was that of inciting persons to commit a breach of the peace. At the hearing an application was made to bind the defendant over to keep tne peace. Tho two charges were therefore taken together. A third charge of using seditious language, an indictable offence, was held over, to. bo proceeded with later. Mr H. H. Ostler appeared for the Crown, aud Mr T. M. Wilford and Mr P. J. O'Regan for the defendant. "The defendant is charged that on October 26th, 1913, at Wellington, he wilfully incited divers unknown persons to resist constables stationed in Wellington in the execution of their duty,'' said Mr Riddell. "It has been proved that defendant used tho words contained in tho information in the course of a speech delivered by him to a large crowd of waterside workers and other persons at the Basin Reserve on the above date. Evidence has been called to show that immediately prior to October 26th the waterside workers on strike, and their sympathisers, had taken possession of the waterfront in Wellington, had prevented owners of property from handling it there, and had intimidated and assaulted persons who were prepared to handle cargo on the wharves, and that the ordinary police force were powerless to prevent intimidation and acts of violence. It was common knowledge that at this time tho Government had increased the number of the regular police, and was organising a force of special constables to assist in the preservation of law and order in tho city. On October 26th the defendant, among others, addressed a large gathering of persons on the general state of affairs at the waterfront, and in the course of his address made reference to the special constables. To gather the full meaning of the words mentioned in tho information and used by the defendant, it is necessary to bear in mind the state of affairs existing prior to the meeting, and to read the defendant's remarks immediately preceding the particular words in the chargo. These are:—J. want to say that special constables are being called, for a number of them were marched to the Newtown depot last night. I want to say this, that if the police force of this country aro going to be utilised — I know the individual police don't want to be used for. the purpose, but if the authorities of this 'country are going to' use them—to suppress the working class, I will undertake—we will undertake—to mass in this City of Wellington 10,000 or 15.000 armed men ready to protect themselves as armed men.- If a police constable uses his baton to you, give him one back. If one won't do, make it a double-header.' The immediately succeeding words used by defendant must also be considered as determining the meaning of the particular words in the charge. These are: If we have got. to fight the police force and the military, it has got to be done in style and effectually. It is a very easy matter indeed. ... ..If I have got to incite tho multitude; I will incite them, ahd in a proper manner.' "Evidence has' heen given of later events in which the strikers were concerned, : and it is common knowledge that a state of insecurity existed in the city for 6pmo days-after October 26th, and." in some cases special constablewere attacked and the police resisted in their attempts to preserve order. | There is no direct evidence, however, to connect defendant with any of .these latter, disturbances.

"Section 68 of the Police Offences Act. 1908, eniftnerates a number of acts which. constitute offences against the police when acting in the execution of their duty. The words of the section which define the offence alleged' r to have been committed by defendant are: 'if any person wilfully Incites any person to resist any constable in the execution of his duty, such person may be taken into custody without warrant by any constahle, and on conviction shall be liablo to a fine not exceeding £20, or to imprisonment for any term not exceeding three months. 5

"For the defence it is contended that an incitement under section 68 must be an a person or persons to resist a particular constable actually performing some act in tho execution of his duty.at the time .of tho incitement, and that as defendant's words were addressed generally to a crowd of persons who were not interfering with any member of the police in tho execution of his duty, the uso of them does not constitute ah offence within the words of the., section. The argument is illustrated by referring to the case of the arrest of an offender in the street by a constable, followed by interference on the part of a bystander. No doubt all tho elements of the offence under the section are present on such an occasion, but in stressing the importance of the words "in the execution of his duty," and tho time when the inciting must take place, I think counsel has placed too harrow an interpretation on the words of the section. A constable may act in the execution of his duty although he is not arresting an offender. A constable acts in the execution of his duty when ho is on his beat in the public street, or when he is present at a public meeting to preserve order if required. He cannot use his baton at pleasure,' even when_ on duty_ but only when occasion- arises, and it becomes necessary for vim to do so. Two canons of construction are applicable:—(l) That the words of the section must receive such an interpretation as will carry out the intention of the Legislature, (2) that as the section is a penal one, it must be construed strictly so that the act of the defendant may conic exactly within the wordwithout any strain being, placed upon their meaning. Cases nave been cited to show that before a person can become liable for obstructing a constable in the execution of his duty, there must be an offence either committed or in the course of being committed. At the same time there is, however, a difference between obstructing and inciting, and the question is, 'can the offence of inciting l>e complete without being committed simultaneously with some other offence which provides the object or reason of tho incitement.' Apparently it can, and on the authority of Regina v. Most, where it was held that the publication and. circulation of a newspaper article may be an encouragement or endeavour to persuade to murder within section 4 of 24 and 25 of Victoria, chapter 100, although not addressed to'any person in particular. If such a publication is an offence. I think that, considering the condition of law and order which there existed, the particular words addressed by the defendant to a mixed crowd on October 26th constituted an offence withrn the meaning of section 68. The defendant will be -__T_n_&d.-'

In considering the question of the sentence to be inflicted, tho Magistrate referred to the sentences passed by the Chief Justice on two offenders who had not taken a particularly prominent part in the disturbances. The defendant Young, on the other hand, was one of the leaders. Tho sentence would be one of imprisonment for three months. He would also be required to enter into a bond of £250, and two sureties of £250 each, to keep the peace for twelve months.

Mr Wilford then gave formal notice of appeal, on the ground that the Magistrate's decision was erroneous in point of law. He also asked that bail be fixed. »

The Magistrate said that he had anticipated that no matter which way his decision went it would be necessary to have a ruling on the point. Bail would be allowed in the accused's own recognisance of £150, and two sureties of £75. Each security for the costs of appeal would be fixed at £10 10s. Mr Wilford asked if defendant would be required to find the sureties stipulated for to keep the peace. The Magistrate stated that the sureties were part of the penalty, and the only security required (apart from bail) would be the security for costs of appeal.