ASSAULT CHARGE

Press, Issue 33845, 17 May 1975, Page 9

ASSAULT CHARGE

Conviction quashed

An appeal by Wayne James McLennan, aged 21, a painter and paperhanger, against a conviction on a charge of assaulting a police officer in the execution of his duty, was allowed by Mr Justice Somers in the Supreme Court yesterday.

McLennan had been sentenced by Mr K. H. J. Headifen, S.M., in the Christchurch Magistrate’s Court to one month’s imprisonment on the charge.

Mr R. L. Kerr appeared for McLennan and Mr G. E. Langham for the Crown. His Honour reserved decision until Monday on an appeal by McLennan against a sentence of thr„e months imprisonment imposed by the Magistrate ou a charge of wilfully damaging a car.

His Honour when dealing with the assault charge said that Sergeant Saunders had given evidence that he had been hit on the back but was unable to identify his assailant. Detective Constable Brickman had said that McLennan was half out of the police car when he punched Sergeant Saunders in the back with his right closed fist. DISABILITY IN EAND McLennan had denied that and had given, evidence of a disability in his right hand in which seven bones had been broken. He had said that he was unable to . bend most of his fingers and could not close his fist.

Mr Kerr had submitted that the’ Magistrate, in’'convicting i McLennan, had not considered that the force used by him was intentional, and failed to take into account whether the prosecution evidence supported the use of force and that McLennan was incapable of applying force or that the Magistrate was left in doubt. The Magistrate’s judgment had given some credibility to McLennan’s inability to make a closed fist. The possibility of an unintentional application of force by McLennan was not so remote in the circumstances that it could just be dismissed.

The case against McLennan had riot been made out, and, accordingly, the appeal against conviction would be allowed, his Honour said.