Haywood v Mumford [1908] HCA 62; (1908) 7 CLR 133 (6 October 1908)

HIGH COURT OF AUSTRALIA

Haywood and another Defendants, Appellants; and Mumford Informant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

6 October 1908

Griffith C.J., Barton, O'Connor and Higgins JJ.

Starke and Jacobs, for the appellants.

Arthur, for the respondent.

Starke, in reply.

Griffith C.J.

This is an appeal from the Supreme Court of Victoria dismissing an appeal from justices by way of order to review. The appellants were charged with a breach of a regulation made by the Borough of Sale under powers conferred by sec. 6 of the Police Offences Act 1890, which provides that any local authority may from time to time make regulations for, amongst other things, "keeping order in the carriage and foot ways and public places of any city town or borough and for preventing any obstruction thereof whether by the assemblage of persons or otherwise." The Borough of Sale made a regulation in these words: [His Honor read the regulation and continued.] The appellants were two members of the Salvation Army, and they were, in fact, holding a meeting in a street in Sale at about seven o'clock on a summer evening. It appeared that this street is not much frequented at that time, and the magistrate who convicted did not think that anybody was really inconvenienced by the presence there of the defendants, who had collected around them a crowd of persons numbering about 70 or 80.

It was contended by the appellants that it was not sufficient that there should be physical occupation of the street which diminished the space available for persons to pass and repass, but that it must also be shown that the public could not without substantial inconvenience go round the obstruction, and so make that use of the street which a reasonable and not churlish man might desire. In my opinion the term "obstruction," as used in the Police Offences Act 1890, includes any continuous physical occupation of a portion of a street which appreciably diminishes the space available for passing and repassing, or which renders such passing or repassing less commodious, whether any person is in fact affected by it or not. In the nature of things such a diminution of available space might be made by a single individual, although that is unlikely. For instance, a man who stood in the middle of the road with his arms stretched out or holding something in his hands might so appreciably diminish the available space. A crowd of persons standing in the street would certainly do so, and, if they were acting in concert, they would all be sharers in obstructing the street.

The lawfulness or unlawfulness of the obstruction is immaterial. A large van standing in a narrow street equally obstructs it, whether it is standing at the roadside to discharge goods or is left empty in the street, although in the former case the driver of the van is using the street for the purposes of a highway. But, if a by-law were made requiring vehicles standing under such circumstances to be moved on, if so required by a police officer, it would be no answer to say that but for the by-law the driver would have been lawfully obstructing the highway.

The only question open on this appeal is whether or not the appellants were obstructing the street by standing or loitering within the meaning of the Police Offences Act and the Regulation. So far as the physical facts are concerned there can be only one conclusion. The crowd were collected by the action of the defendants, who were themselves part of the crowd, and the available space was thereby appreciably diminished. The case of Rex v. Bartholomew[1] is a clear authority against the contention that that was not enough unless under the circumstances of time and place it was likely that some person would be prejudicially affected. In that case the defendant was indicted for a nuisance caused by erecting a coffee-stall in the middle of a public street. The jury found a special verdict, that the coffee-stall was an obstruction, but that it did not appreciably interfere with the traffic in the street. The question was whether that finding was equivalent to a verdict of guilty. Lord Alverstone C.J. said that it might mean that, although there was an obstruction, so few people wanted to use the street that it did not matter, or that, having regard to the place where the coffee-stall was situated, it was no appreciable obstruction. He was of opinion that if it meant the first, it was a verdict of guilty, and that if it meant the second, it was a verdict of not guilty. That is to say, that, if the jury meant that the coffee-stall was an obstruction, but that so few people wanted to use that part of the street that it did not matter, the verdict was one of guilty. In that respect the present case is not distinguishable. Channell J. agreed on the same ground that the finding was ambiguous. Lord Alverstone C.J. pointed out, as it has been pointed out in other cases, that it is not necessary that anybody should in fact be passing down the street while the obstruction is there. The question is whether the obstruction is there? As I pointed out in argument, it would be a very singular thing if, in the case of a log laid across a foot way, the person who put it there could be allowed to say that there was no obstruction because nobody fell over the log.

In my opinion the conviction was right, and upon the facts the magistrate could not have come to any other conclusion.

Barton J.

I am of the same opinion and do not think it necessary to add anything.

O'Connor J.

I also agree that the conviction was right, but in view of the importance of the question, I wish to add a few words to what has been said by the Chief Justice. The foundation of the by-law is sec. 6 of the Police Offences Act 1890. The power given there is a power to manage the traffic and orderly conduct of the streets which are placed under the control of the Borough. It is important to observe the wording of the Act because, in interpreting the word "obstruction" in the by-law, a larger meaning cannot be given to it than it bears in the Act. The Act gives power to manage the streets. But the law recognizes certain rights of the public and of individuals to use the streets. It will not be taken that the Statute would interfere with those rights unless by express words. The section gives power to make by-laws "for preventing any obstruction thereof," i.e., of the carriage and foot ways and public places. The obstruction must be an obstruction of some right to be exercised in the highway. I assent therefore to the argument of Mr. Starke that some limitation must be placed upon the meaning of the word "obstruction." It is not a word of art nor has it acquired any special meaning, but it is always used in describing a particular kind of nuisance, viz., the obstruction of a highway. What is obstruction of a highway? It is not only an obstruction which actually prevents someone from exercising his right on the highway; it is any obstruction which interferes to an appreciable practical extent with the right which every member of the public has to use the highway, and to use it at all times and under all circumstances.

The right of each person is not restricted to the particular part of the highway which may happen not to be in use by others at the time; it extends to the whole of the highway. Everybody has the right to use the whole of the highway at any time he thinks fit for the purpose of passing and repassing, and anything which appreciably and practically interferes with that right is an obstruction of the highway. Mr. Starke's interpretation of the word "obstruction" would materially narrow the meaning. He did not contend—he admitted that it was impossible to contend—that some actual obstruction of some individual in the exercise of his right must be proved, but he contended that the obstruction must be something calculated to interfere with the public right under the then existing conditions of time and place. To adopt an interpretation of that kind would be to defeat the purpose of the Act. That purpose is to prevent the obstruction of highways. The Council may pass any by-law which is reasonably calculated to prevent the arising of an obstruction before it does arise, and it is therefore clearly in their power to make a by-law providing means by which an obstruction may be prevented. The by-law has provided that where a person is, by standing or loitering, causing an obstruction, notice may be given him to move on. If he does not move on, he commits an offence. In my opinion "obstruction" must be there interpreted in the sense I have explained, that is to say, any person who is standing or loitering in a highway in such circumstances that he is obstructing the use of the highway to which everyone is entitled—that is, the use of the whole of it—is committing an obstruction, and notice may be given him to move on. If it were otherwise, there would be no certainty in the duty which a constable is to perform in directing the actual working of the street traffic. If a constable is not to be guided by the rights of the public, but by the circumstance whether there is sufficient space left for the passing and repassing of the persons who happened to be in the streets at the particular time and under the particular circumstances, there would be a continually varying and uncertain rule which would be practically no guide to the constable. It seems to me, therefore, that Mr. Starke's interpretation of the word "obstruction," is not tenable.

Coming now to the facts of this case, there can be no doubt that standing in the street and collecting in the carriage way—for it must be assumed for the purpose of this appeal that it was in the carriage way—the number of persons described to have been collected here, is an obstruction to the right of members of the public passing and repassing along the street to use it in any way they think fit for that purpose. Under these circumstances the constable was justified in notifying the defendants to move on, and, as they failed to comply, they have been guilty of an offence against the by-law. The magistrate, it seems to me, clearly found sufficient facts to constitute the offence. Under these circumstances I think the decision of the majority of the Supreme Court was right.

Higgins J.

I concur in the judgment of the Court. I should like to add that the point upon which Madden C.J. based his dissenting judgment was not open to the appellants on this appeal. I mean the point as to the distinction between the foot way and the carriage way.

Appeal dismissed with costs.

Solicitors, for the appellants, Johnson & Johnson.

Solicitor, for the respondent, Guinness, State Crown Solicitor.

[1] (1908) 1 K.B., 554.