Submissions In Appeal ‘Ingenious But Unsound'

Press, Volume C, Issue 29499, 28 April 1961, Page 20

Submissions In Appeal ‘Ingenious But Unsound '

<h«w Zeauina Pvn» Aubciotioni

WELLINGTON, April 27. The contention of counsel that a constable called to remove a man from a coffee bar after he refused to leave was not acting in the course of his duty, and could not, therefore, be obstructed was, in his view, ingenious but unsound, Mr Justice Leicester said in a judgment delivered in the Supreme Court at Wellington. His Honour dismissed an appeal by Robert Baxter Allen, aged 26. against conviction on a charge of obstructing a constable in the execution of his duty. An appeal against a sentence of one month’s imprisonment was allowed, and a fine of £l5 was substituted. Mr W. V. Gazley appeared for Allen, and Mr J. D. Murray for the Crown. Allen entered a coffee bar and purchased a cup of coffee, his Honour said. He appeared to have been slightly intoxicated. Refusing the request of the proprietress to find a sent, he caught hold of bar waist, lurched towards two middle-aged customers, used offensive language, and declined, when requested, to leave the premise* in spite of the fact that he was informed that in so declining he was trespassing. His conduct was sufficiently truculent for the police to be called, and a constable warned him on several occasion* that he had been requested to leave, was therefore trespassing, and would

have to be ejected. But he 1 persisted that he had a right • to stay and finish his coffee. ! the price of which had been : refunded to him. When the constable took . hold of his arm he pushed , him away and another con- ; stable was called. After a • slight struggle the two con- • stables took him to the t police station, where he was formally arrested ,his Honour said. Mr Gazley contended that ■ such obstruction as Allen ■ gave to the police was not ■ obstruction to the constable in the execution of his duty. ■ since the constable, in eject- ■ ing him, was not doing so in I pursuance of any duty, but merely as the agent of the proprietor. "This contention in my view is ingenious but un- ’ sound,’’ said his Honour, who added: “The constable came to the premises and did so in the execution of bis duty. “I consider it was not unreasonable for the constable to expect that, had the accused remained, some further argument with the proprietor leading to a breach of the peace might well have ensued.” Referring to the penalty, his Honour said Allen was a first offender and a married man with two children, the second of whom was born on the day the offence was committed. He had visited his wife in a maternity home and had then been celebrat-

ing the occasion with a friend. Instead of making him jovial, however, the drink made him arrogant and a nuisance to those around him.