CASE OF W. T. YOUNG.

Dominion, Volume 7, Issue 1972, 31 January 1914, Page 14

CASE OF W. T. YOUNG.

BASIN RESERVE SPEECH. HIS JOVML IN PROGRESS. WHAT 18 INCITING? An appeal by W. T. Young, president of tho Federation of Labour, arising out of strike proceedings taken in the Magistrate s • Ctwrti cam© before the Chief Justice (Sir Robert Stout) in tho Supreme Court yesterday. The appeal was • against a decision by Mr. W. Q. Riddell, S.M., under which Young was convicted ana sentenced to three months' imprisonment and ordered to enter into a bond of £250, and to find two sureties of £250 each to keep tlie peaco for twelve months, Mr. T. M Wilford and Mr. P. 'J. O'Regan appeared for Young. Mr. H. H. Ostler,,of the Crown Law Office, appeared ia support of tho conviction:

I In opening for appellant, Mr. Wilford said that the conviction had been arrived at under Section 69 of the Police Offences Act, and the wording of tllis section formed tho basis of the appeal, I Tho portion of Young's speech regarding which the police proceedings had been taken read thus:— ■ - "I want to say to yoti that special constables are being ealietJ for. A number of them were marched to • tho Newtown Depot last night. I j want to say this: If the poliee force of this country is going to be utilised' —I know the individual. police don't want to boused for tlie if the authorities of this country are going. to use them to suppress iie working class, I will . will undertake—to. mass in this eity of Wellington 10,000 or 15,000 anned men, ready to protect themselves , as armed men. If a police constable uses his baton to you, give aim one back, and if one won't do, 'jnake it t a ciouble'header." The portion of the above especially relied on by the informant (DetectiveSergeant 'Cassells) was tho last sentence. What Old the Speech Amount to? Mr. Wilford wont on to say that it was common ground that on Thursday, October 30, a serious riot took place, in which three constables had been assaulted while in the execution of their duty, ono being severely injured, The date of Young's speech was October 26, and it had not been proved that he had had any. connection.with the disturbance on October 30. Neither had it been proved that, when he spoke on October 26, constables were present in tho execution of their duty. This was import* ant, for. tho section dealt only with per*sons actually resisting, assaulting, or obstructing a constable in the execution of his duty. Thoro was also tho question: When wasa constable in the execution of his duty? If one person, incited another to resist, this was an offence,, whether the-person - so incited' resisted or not, but tho constable had to be doing something which was actually "in tho execution of liis duty" before inciting could .take- place in tho senso contemplated,by tho Act. When the speech was delivered no constables were affected in tlio actual execution of their duty. In any actual case of inciting the Crown would have to prove tho following:—(1) That the person ' obstructed was a constable; (2) that he was in the execution of his duty; (3) that tho accused used inciting words addressed to some person or persons; and (4) that the act urged was, 'or would k>, an obstruction of the constable in tho execution of his duty. Apply these presents to Young's ease and tho following conclusions become apparent: (1) Thero was no constable in the . execution of hje duty; (2) there was nothing to show that the suppositions constable or constables would be executing their duty, because every act of a constable or spe* cial constable was not in execution'of his duty; (3) the words, used did not invite any particular act, that is to. say tho whole suggestion was suppositions. It was merely a caso of "if so-and-so happens; do so-and-so." (4) It was not clear that the act suggested by the speech would be 3 resistance. It micht' be an assault, but that was not resist-' ance. The qtfenco contomnlatai in tlsa ■ charge was inciting to resist—not eim-' plo retaliation.

Hit Back U Struck. Itwae .trua tiat. inciting to eommifc a crime wns an offones in the eowftion' lair of England, hut a general incitsment for everybody to become a criminal was not an offence. Young had dono no more 'than issue to'a largo number, of people {engaged in an indttstrial trouble) a stiggestion that, if they wore hit, they should hit.back. Tho case on which the prosectttion rolifltl was Royina v. Most (7 Q.8.D., p. 724)! It would bo that in this case the article published advocated the murder of ruling kings, and that they v;ere sufficiently described. 'ConsequentJy when the words were used in respect toconatableE.thoy canto within tho definition of that case. His point in regard to Ilegina .v. Most was that definite persons had to bo indicated. The incitement in tho case of Eegina v. Mcst was to murder all reigning monarchs. It would not, however, be a correct apnlicntion of that, and other decisions, to say that Young's .worda were an. incitement to resist tho whole o f the gp©. cial cbustables in Wellington. Young had not said ono word to any strikfer to hit back ifj when do-ing wrong, a constable attempted to arrest him. Another objection which, seemed, fatal to this conviction was that there was nothing in the words. to suggest -that a. constable would be doing "his duty, ia the circumstances contemjJlated iii his client's speech.. A constable was justified in using his hatou, but not at Ms own sweet will.

"No Excitement Where There Is r» 1 Disturbance. , * Mr. O'Regan contended that Seotioa 68 did not contemplate hypothetical cases. The incitement had to be contemporaneous with an assault. During the 40 Tears that the- section had been in force this was the first time- that the interpretation of "inciting" had arisen. Prior to 1873 there was no summary jurisdiction, but tho Assaults on Constables Aot was then passed to give such jurisdiction. The law did not then allow a person who incited to bo arrested without warrant, lljis was remedied in 1884, when Sections 8 and & of tHe 1873 Act were combined. It 6-eemed to mean that the offenco of iliciting had to follow on some previous • ofieneo of assault. , Mr. Ostler: An amended Act was passed after tho Waihi striW to provide for defects then discovered. Proceeding, Mr. O'Eegan said' that three weeks lapsed between tho uttering of tho words and tho arrest. Mr. Ostler: He was arrested as soon as order was restored. Mr. Q'Rsgan: Surely' my learned friend does not suggest that they could not arrest him? ; ■ Sir Robert Stout: Perhaps they were afraid of tho 15,000 armed men. Mr. O'Regan continued that to con-strue-tho section as had been done by the prosecution was harsh. In order to obstruct a policoman in the execution of his duty thero must have been seme contemporaneous action. Tho word "obstruct" in Section 68 occurred ' in conjunction, with "incite," so if they had to construe tbo word "incite, 1 ' it had to be controlled by thhe word "obstruot," Sir Bobert Stout: 'Dim poiat k i thai lisro ow Jbc so Jaalliineßs jiEfes

there is* sonio disturbance between the police and eomo other persons F Mr. O'Rogan: Exactly, Continuing, Mr. O'Regan, contended that tho. words, used did not constitute an offeueo under Section 68. Jt might bo argued that the-law of strict construction .had. been somewhat relaxed. Mr. Ostler: I am prcpar&d to admit that -unless I oan bring the offonco within the striet meaairtg cf the section I must fail. Mr. O'Rcgtoi contended that there was a doubt about the interpretation of tho section. Tho very fact that they had had tho present argument showed that a doubt existed. Sir Robert Stout: I don't know that wo can take that. I have known Sonie lawyers arguo about something on which there was no doubt.

Tho CrQwn'B Confentlen. Mr. Ostler said that Sootwn 68 was ■an reproduction of English Acts.' Tho section contained several offences. As to the point rideed, that there rmtst be-, contemporaneous with tho incitement, policemen present, and an actual disturbance, ho wild say there was no authority for this. It was assumed by counsel for the appellant that taeN> could not be incitement by written wosd or poster. Tho argument pushed them to such absurd lengths as that. Thoro fl-as still.a common hw offence in England of incitetuent to ofeico. A person coiiicl bo convicted of inciting, even if the offoMO was not committed, or wp impossible (Eegma v. Brovm, 63 Justices of tlio Pe-ace). Although there Were no common law offeaees in Kew ZealSnd, surely, when, th© Legislature used a word such as "incite," the interpretation should bo what it was commonly known to mean, In Eegiua v. Most, tho worda "solicits, encourages, or endeavours to persuade a pereon to murder a king or any Other person." appeared. Most was there indicted, and charged with encouraging and it was held tho offence was complete, although there was no evidence that aiiymio was oneauraged, or that anyone attempted to commit murder on any of the- crowned heads of Europe. Ho contended that tho statute was clear in this case, and, Respite the fact that no police -wore present, and 2io dioturbanco took place when Young used tho wards, the offence had been committed. If the appellant's counsel wore right, that there must bo a present disturbance, and a present resistance, the whole of the words in tho section were suparftuous, because they were covered by other sections. . Section 67 of tho Police Offenees Act, in conjunction with Section 63 of the Justices of the Pcaoe Acti would render tlrem superfluous, It had been assumed that a constable was only acting in execution of his duty when ho was doing something violent, such as arresting a person. That was not so, as ft constable was doing his dnty when walking down tho street on his beat. The question to be eonsidorcd was: What was the reasonable and probable effect of the words? The Magistrate had decided that they were to iiteifce the people to resist constables in the execution of their duty. The only reasonable assumption, was that Vuiing was advising tfio strikers to striko back, if constables were employed, and used their batons, to put down'the violence whieh was taking place at the time, Mr. Wllford's View, Jlr, Wilford, in answer to this point, which ho thought was tho ono relied en hy tho Crown, held that it wns tho uitcring with intent whieh was the offence, not the consequences which followed, and which had really nothing to do with tho offence. He contended tho words of Yoting had not tho meaning put on them by tho Crown. The meaning bo put on them was that if a con\ftable batoned a man unlawfully' tho man could protect himself. It was not right for tho Crown to assume that': I'oting incited the men to kit-'bnek, j whether thq constable used his baton j lawfully or not. There wae no tray of this conviction standing unless words wero imported fco make tho moaning consistent with gnilt,'ond.if word's wrr« imported they claimed, on bohalf of Young, that words must bo equally imported to mako sense, and establish his innocence.

His JTonour intimated that he would give judgment on Monday morning, and on Air. Wilford's application, consideration of tho Crown's appeal against the dismissal of the clsargfi against Henry Holland, editor of the Worker," was held over till then.