A hungry Johannus Kerity Roes ordered a "decent-sized" hamburger in a central Auckland burger bar and discovered it would break a window.
When he accused the cook of poor hygiene, a violent row erupted. At its climax the cook threw the burger in the direction of the shop's glass window, smashing it.
The argument had its sequel in the Auckland District Court yesterday when Roes, 44, faced a charge of assaulting the kitchenhand and cook, Clinton James Ewington, at Brucies Diner in Victoria St West about 3.45am on December 9.
Roes claimed that Mr Ewington had not washed his hands, was not wearing gloves and had wiped his forehead while preparing the burger.
Mr Ewington said he had washed his hands out of the defendant's sight. Furthermore, his employer had told him customers did not think gloves were hygienic any more.
Judge Michael Hobbs dismissed the charge, finding that both parties used force but it was unclear who had turned violent first.
It would be "unsafe" for him to say the police had proved their case against Roes.
Mr Ewington told the court that he washed his hands after Roes ordered one of the diner's top-ranked hamburgers. It was almost ready when Roes asked for his money back.
Mr Ewington said he did not want to give the hamburger to Roes.
"I had a feeling that he was going to throw it at me."
Instead, on instinct, Mr Ewington threw the hamburger - aiming for the door.
"I threw it out the door. I got the window. That was an accident ... The guy was a bit stunned."
Mr Ewington took a broom and shovel to sweep up the broken glass on the pavement outside.
The court heard that he hit Roes over the head with the broom, breaking the handle, as Roes was calling police on his cellphone.
Under cross-examination, Mr Ewington denied using the hamburger as a weapon.
Judge Hobbs said the case arose out of an unseemly confrontation when the defendant became concerned about health precautions during the construction of the "epicurean delight".
It started when Mr Ewington hurled the hamburger.
"It is clear the hamburger missed the defendant and was of such weight it smashed a window at the entrance to the diner. It was at that stage that things went from bad to worse."
Although Judge Hobbs dismissed the assault charge, he found Roes guilty of possessing a pocket knife without reasonable excuse and fined him $200.
The judge said Roes, who told the court he had spent about $40 on drinks that night, had an incredible list of previous convictions.
Last night, Mr Ewington, who is still at Brucies Diner after seven years, said he would stay because he loved the clients.
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