LAW REPORT.

New Zealand Police Gazette, Volume XXXII, Issue 19, 15 May 1907, Page 192

LAW REPORT.

“New Zealand Law Reports,” Vol. xxvi, pp. 169-74 Adams v. Horan.

“ The Police Offences Act, 1884,” Section 4, Subsection 12— Obstructing Public Place—Bookmaker operating on Footpath in Street — Evidence —Other Acts of same Glass—Principle upon which admissible. The appellant was charged in the lower Court with obstructing a public place—namely, the footpath of a-street. The evidence showed that the appellant, who was a bookmaker by profession, had no office in which to carry on his business, but that he was accustomed to stand on the footpath in a narrow street during each day, and that he had been seen making entries in a book while engaged conversing with other persons who stood by or near him. He had been frequently cautioned by the police, and on the day in question the informing constable saw him thus using the footpath several times, on one occasion watching him for about three minutes. The inference to be drawn was that the appellant was plying his vocation as a bookmaker in the street. The Magistrate convicted the appellant, inflicting the maximum penalty of £lO. Held, that the appellant was not using the highway as a highway, but as a place in which to pursue some avocation not connected with the user of the highway as a highway, and that the result of such user was to impede the traffic of the highway by persons lawfully using it; and the conviction was therefore sustained. At the hearing of a charge against a person of obstructing a highway on a certain specified occasion, evidence that the person charged was in the habit of obstructing the highway on other occasions is admissible not for the purpose of proving other offences of the same nature as that charged, but for the purpose of showing the nature of the user of the highway by the person charged with the offence. —Passage in the judgment of Jessel, M.R., in The Original Hartlepool Collieries Company v. Gibb (5 Ch.D. 713, 721) approved and followed. General appeal from a decision of R. W. Dyer, Esq., S.M., Auckland, convicting the appellant of havin obstructed a public place, to wit, the footpath in Vulcan Lane, in the City of Auckland. The facts are sufficiently stated in the judgment. Edwards, J. :

This is a general appeal under “ The Justices of the Peace Act, 1882,” from the decision of R. W. Dyer, Esq., S.M., at Auckland. The information, which was laid under the 12th subsection of the 4th section of “ The Police Offences Act, 1884,” charged the appellant for that he did on the 31st day of May, at Auckland, wilfully obstruct a public place, to wit, the footpath of Vulcan Lane. The evidence establishes the following facts : Vulcan Lain' is a public thoroughfare, which is very narrow, the footpath being from 2 ft. to 4 ft. wide. The appellant is a bookmaker. He has no office or place of business in Vulcan Lane, but he has made a practice of frequenting it almost daily, sometimes for as much as four hours at a time, and frequently in company with other bookmakers. The lane is the resort of bookmakers, and persons reputed to be bookmakers, to such an extent that it is at times blocked up by bookmakers and by persons who come there to bet with them. The appellant has been repeatedly cautioned by the respondent, who is a police officer, and has never given any reason for being in the

lane. At different times he has informed the respondent that unless he was clearly obstructing the thoroughfare the respondent could not shift him, and that unless the respondent could prove he was betting he could not do anything with him. On the day charged in the information the appellant, at 1.45 p.m., was standing upon the footpath in Vulcan Lane ; his son and another man were with him, and there was a third man at the back of him : he appeared to be writing in a book. In consequence of the presence of the appellant and those who were with him upon the footpath, two pedestrians coming down the lane were compelled to leave the footpath and go into the road in order to pass the appellant and his associates. The appellant and those with him stood there for about three minutes, at the end of which time the respondent approached them, and they went away. The appellant was seen by the respondent four or five times later on the same day, once on the road in Queen Street opposite to the end of the lane, at other times in the lane and on the footpath. There was always some one with him—sometimes one, sometimes more than one.

The legitimate inference from the evidence is that the appellant was not using the lane as a thoroughfare, but as a place in which to carry on some pursuit not connected with the use of the lane as a highway. There can, in my opinion, be no doubt that the appellant was using, and had made a practice of using, the lane not as a highway, but as a place of business in which to ply his avocation as a bookmaker. It is not, however, necessary to go so far as this. It is sufficient if it is made to appear that the appellant was not using the highway as a highway, but for some other purpose, and that his continued and repeated presence there did impede the lawful user of the highway by the general public. The Magistrate convicted the appellant, and fined him in the maximum penalty of £lO. From this adjudication the present appeal is brought. Mr. Reed, for the appellant, contends that the 12tli subsection of the 4tli section of “ The Police Offences Act, 1884,” must be read as referring to some act which not merely has the effect of obstructing the thoroughfare, but is of the same class as some one of the acts mentioned in the preceding eleven subsections. The enactment in question reads, “ Any person who commits any of the following offences in or upon any public place is liable to a penalty not exceeding ten pounds—that is to say . . . . (12.) Wilfully or negligently encumbers or obstructs a public place in any manner not before specially described.” The eleven preceding subsections refer to a variety of acts of essentially different classes, some of which may obstruct or encumber public places, many of which could not have that effect. This section therefore does not deal with the acts ejusdem generis in the sense contended for by Mr. Reed. All the acts specified are, however, of a nature which may interfere with the comfortable and convenient user of public places by persons who have a right to resort there. In this sense, and in no other, can it be said that the various matters dealt with by the 4th section are matters ejusdem, generis. There can therefore be no valid reason for limiting the natural meaning of the words used in the 12th section.

The modern tendency of the Courts, as observed by Lord Esher, M.R., in Anderson v. Anderson ([1895] 1 Q.B. 749, 752), has been to construe general words in their ordinary sense. His Lordship added, “ It cannot, however, be doubted that there are cases in which such words must be construed in a limited or restricted sense, and the question is how the rules of construction are to be applied. I will take the rule as stated by Lord Eldon in Church v. Mundy (15 Ves. 396). He said, ‘ The best rule of construction is that which takes the words to comprehend that which falls within their ordinary sense, unless there is something like declaration plain to the contrary.’ That is, as I understand him, prima facie you are to give the words their larger meaning, unless you find something which plainly shows that they were intended to be read in a more restricted sense.” If these principles are applied to the consideration of the enactment in question, it must, I think, be clear that the 12th subsection is to be read in its

natural and popular meaning as applying to any act which encumbers or obstructs a public place. Mr. Reed contends further that any lawful act which is a reasonable user of the highway is not an obstruction within the meaning of the statute, and that no more than a reasonable use of the highway has been shown in the present case. In support of this proposition Mr. Reed relies upon the Irish case of Lowdens v. Keaveney ([1903] Mag. Cas. 383 ; 67 J.P. 378). I agree with Mr. Reed in his proposition of law, but I cannot agree with him in its application. Mr. Reed also contends that evidence as to the practice of the appellant to habitually use this highway for purposes other than as a highway was not admissable, and that the appellant’s acts upon each occasion must be taken singly, and without reference to the fact that his antecedent acts showed that he was using the highway not as a highway, but for purposes unconnected with its user as a highway. In my opinion, however, the evidence was clearly admissible, not for the purpose of proving other offences of the same nature as that charged, but for the purpose of showing the nature of the appellant’s user of the highway. Eor this there is the authority of Sir George Jessel, M.R., in Original Hartlepool Collieries Company v. Gibb (5 Ch.D. 713, 721). Dealing with this question, as to what is a reasonable user of a highway, he said, “ In ascertaining, however, the reasonableness of the acts of the plaintiffs one consideration must not be overlooked : Besides a reasonable right of access they have a reasonable right of stopping, as well as of going and returning, in the use of the highway. But what is a reasonable right of stopping ? That must depend on the circumstances. You cannot lay down a priori what is reasonable. You must know all the circumstances. It would be clearly reasonable, for instance, if a wheel came off an omnibus in the middle of a highway, for a blacksmith to be sent for to put the wheel on the omnibus, if that were the easiest mode of moving it out of the way, and the omnibus might lawfully stop there until the wheel was put on in order to take it out of the way, if that were the best mode of taking it out of the way, and a reasonable and usual mode. Nobody would deny that if the blacksmith chose to carry on his trade of repairing omnibuses immediately opposite his own house, and for that purpose, not keeping any one omnibus more than a reasonable time for his work, he kept omnibuses in front of his house, or shop, or smithy-door for that purpose, that would be an obstruction of the highway, and would be a nuisance. You must look at the circumstances.” The Master of the Rolls uses other illustrations, but this is sufficient. In determining whether or not there has been a reasonable user of the highway, all the circumstances must be looked at, including, as in the illustration put by Sir George Jessel, which I have cited, the antecedent user of the highway by the person charged with obstructing it. If, as the result, the irresistable inference is that the person charged with obstructing the highway is not making a reasonable use of it as a highway, and, a fortiori, if the legitimate inference is that he is not using it as a highway at all, but for some other purpose, and if the result of his acts is such as to impede the free use of the highway as a highway, then he may be properly found guilty of encumbering or obstructing it, and this none the less if the particular act in respect of which the charge is laid is such as to cause no more actual obstruction than might be caused by the lawful user of the highway by a person using it as a highway. In my opinion it has been clearly proved in the present case that the appellant was not using the highway as a highway, but as a place in which to pursue some avocation not connected with the use of the highway as a highway, and that the result of such user was to impede the free use of the highway by persons lawfully using it as a highway. The appeal must therefore be dismissed, and the conviction affirmed, with costs £lO 10s., witnesses’ expenses and disbursements.

Solicitors for the appellant: Reed and Bailey (Auckland). Solicitor for the respondent: The Crown Solicitor (Auckland).