Two Appeals Fail, Third Gains Rehearing

Press, Volume CIII, Issue 30451, 27 May 1964, Page 11

Two Appeals Fail, Third Gains Rehearing

Mr Justice Macarthur in the Supreme Court yesterday ordered the rehearing of a charge of assaulting a police sergeant in the execution of his duty. George John Bryenton, aged 22. a labourer (Mr R. L. Kerr), had appealed against his conviction and sentence in the Magistrate’s Court on that charge and had also appealed against the sentences imposed on two other charges, both of assault. He had been sentenced to nine, months’ imprisonment—three months’ cumulative imprisonment on each charge—and disqualified from driving for two years. His Honour dismissed each of the appeals against the sentences imposed on the two assault charges and upheld the disqualification of Bryenton. The appellant, he said, had while driving been involved in incidents with other drivers, and assaults had resulted in each case. Although Bryenton was only 22 he had a formidable list of convictions for assault and other offensive behaviour, his Honour said. In the last 18 months he had had three convictions for assault —in November, 1962, when he was fined, and in February and July, 1963,' when he was sentenced to three months’ imprisonment in each case. “Right In Sentences" His Honour said that the magistrate had been perfectly right in imposing the sentences and making them cumulative in view of Bryenton’s record. The appellant would have to learn to control himself, because other offences Could lead to his serving a long term in prison. In the appeal against conviction and sentence for assaulting a police sergeant in the execution of his duty a matter had been raised which had not been discussed at the hearing in the Magistrate’s Court, his Honour said. The evidence did not show whether the police officers were acting in execution of their duty at the time of the alleged assault. It appeared from the record he had before him that there might have been a misunderstanding on the police sergeant’s right to arrest the appellant. The sergeant at the time of arrest did not have a warrant for Byrenton’s arrest, his Honour said. The sergeant and a constable were on premises Byrenton tenanted, and in those circumstances and the section of the Crimes Act mentioned they had, it seemed, no power to arrest Byrenton. This point had not been put to the police officers or to Byrenton and his wife in the Magistrate’s Court His Honour said he wanted to make it quite clear that the magistrate was in no way at fault The case was put on an assumption which now seemed wrong. Appellant’s Submissions Earlier, Mr Kerr had said that the police were menaced with a pick handle only after Byrenton slammed the door of his home and then reopened it. Before slamming the door he told the police to leave, and his wife corroborated that statement.

The police had arrived to investigate an assault complaint, in which Byrenton was involved.

Mr Kerr said he conceded that the police had the right to pursue their inquiries, but, after being told to leave and having neither' an arrest warrant nor other authority to remain, they acted under an assumed right. As the police had no arrest warrant or other authority and had neither witnessed the assault being investigated nor pursued Byrenton on to the property they had no right to remain on that property after being asked to leave. Mr Kerr said* he conceded that if the police had departed and returned with a warrant the action would never have come before the Supreme Court