SUPREME COURT Student Wins Appeal Against Conviction

Press, Volume CIX, Issue 32114, 9 October 1969, Page 12

SUPREME COURT Student Wins Appeal Against Conviction

A Lincoln College student, Phillip John Dash (Mr L. M. O’Reilly), who was convicted of wilfully obstructing the police on June 13, in that he had given repeated advice to the driver from the back seat of a car: "You don’t have to take the breath-analyser if you don’t want to,” has won an appeal to the Supreme Court against his conviction. Mr Justice Wilson, in quashing the conviction yesterday, has held that the magistrate who heard the case was not justified in drawing an inference that Dash’s words were capable of being understood as encouraging the driver not to go to a police station and undergo a test there.

His Honour has also held that the magistrate had misdirected himself in using the authority of a leading case, Steele v. Kingsbeer—a decision of Mr Justice McGregor in 1957—as a basis for finding wilful obstruction on the part of Dash.

Essential Ingredient An essential ingredient of wilful obstruction, said his Honour, was the intention of the offender to prevent the police from carrying out a particular duty or delay them in performing it. After quoting a statement made by an English judge, Mr Justice Darling, in 1910: “The gist of the offence is in the intention with which the tiring is done,” his Honour said: “Unless the thing be done deliberately and with the intention of obstructing the constable, it is not wilfully obstructing him.” It had been urged by Mr

O’Reilly, said his Honour, that the appellant’s words had ended with the qualification “if you don’t want to”; and that he had uttered them in response to a request by the driver (a longstanding friend) for advice as to how he (the driver) should behave, when stopped by the police. The words, Mr O’Reilly had urged, were spoken with the intention of giving such advice and not with the intention of obstructing the police. ' But the magistrate, said his ’ Honour, had apparently not t accepted this explanation by the appellant, or have con- ' sidered the decision in Steele ’ v. Kingsbeer as authority for ‘ the proposition that even if ’ uttered by way of solicited adt vice they constituted wilful obstruction.

Request For Advice

His Honour said it was clear on the appellant’s evidence—evidence not rejected by the magistrate—that the appellant’s remarks were made in response to a request for advice. ‘This distinguishes this case from Steele v. Kingsbeer, on which the magistrate relied in convicting the appellant,” his Honour said. In Steele v. Kingsbeer, said his Honour, the licensee of a hotel had said to a person in his bar being questioned by the police: “Just give him your name and address. Don’t give him anything else . . . ” As a result, the man refused to give further information. The licensee was subsequently convicted of causing or permitting an inspector of licensed premises to be obstructed or delayed in his duty—the licensee’s appeal being dismissed by Mr Justice McGregor, who accepted that mens rea must be proved and that it had been done.

Steele v. Kingsbeer

In Steele v. Kingsbeer, said his Honour, the advice given was unsolicited, and tendered in the interest of the appellant licensee himself. “In such circumstances, an

intention to obstruct was the natural inference, and that case is authority for the proposition that such an inference may be drawn, and a conviction entered for wilful obstruction, even if the advice given be good in law,” his Honour said. “It is not, and was never intended to be, any authority for the proposition that advice given in response to a request—and in a matter in which the adviser does not stand to gain if the advice be followed—is evidence from which an intention to obstruct should be inferred.” For these reasons, said his Honour, he thought the magistrate had misdirected him-

self in concluding that Steele v. Kingsbeer was “sufficient and proper authority on which to base a general finding of wilful obstruction as charged.” “No Intention To Obstruct” In Dash’s case, said his Honour, the combination of a request for advice and close friendship with the person advised, in the absence of any strong indication that the intention was to obstruct the police rather than assist a friend, satisfied him that there was no proof of intention by the appellant to obstruct.