THE COUNTRY'S LICENSING LAW.

Ashburton Guardian, Volume XXIX, Issue 7734, 2 March 1909, Page 4

THE COUNTRY'S LICENSING LAW.

POINTS OF SPECIAL INTEREST,

POLICE v. ALBERT BOND

Mr Creagh appeared for the prosecution, and Mr Ongley, along with Mr K;jorrinw. for the defence. In this case, which v ■•." her, rcl !;i«t Thursday week at Op.m ;m, i,i.i Worship (Mr T. Hutchison, ii.lvi.) gave the following judgment : The defendant is charged under section 146, sub-section (a), paragraph 2, with keeping liquor for sale within a No-license district —namely, Oamaru. At the conclusion of the case for the prosecution, tho contention was raised by Mr Ongley for the defendant that the district of Oamaru was' not now, m law, a No-license district, and, therefore, a prosecution tinder sections 146 or 147, creating offences m -Nolicense districts, must fail. The argument m support of this somewhat ingenious point, as advanced by Mr Ongley and developed later on by Mr Rjorring, was this: By the changes of electoral boundaries which took effect at the dissolution of the last Parliament, a portion of the former _ Wai- ■ kouaiti district, which was a district ' m which licenses were m force, was brought into the Oamaru district, which was a No-license district. The district of Oamaru, as now defined, therefore, is a district m which there are licenses m force. The last licensing poll m the Oamaru district maintained the No-license character of the district. Section 8 of the Licensing Act, 1908, provides for the state of things thence arising : Section B.—"Whenever by reason of changes m electoral districts the whole or any part of the area of a licensing district (hereinafter called an ' original district') becomes comprised within the boundaries of another licensing district (hereinafter called a ' new district'), the following provisions shall ar>-ly : " Subsection (b) : Until the first valid licensing poll m the new district comes into force therein the result of the licensing poll m force m the original district immediately prior to the change shall continue m force throughout the whole of the area thereof m like manner as if such district existed unchanged." The question, then, is made: When does the poll, come into force ? And it is argued that it comes into force when taken, aiid the result declared. This question is apparently . regarded as vital by both parties, upon the assumption that until the result of the poll comes into force the old district remains. And so Mr Lucas urges that the result of the poll is postponed and the status quo ante remains until the expiry of the licensing year—that is, tho 30th of June next. I confess it is not even now quite clear to me how this question directly affects the matter. Whether the result! of the former poll m the original district, or the result of the poll m the new district be taken to be m force it seems clear that the original district' is gone, and the new district doos m fact contain within its boundaries licensed houses. On either view these must continue till the 30th June, whether they exist because the. poll does not affect them till the 30th of June, or whether they exist because expressly saved _by statute. But upon that question raised upon section 8, I may say that, m my i opinion, it is quite clear a valid licensing poll comes into force at once. Section 24 (sub-section c, second paragraph) seems to be conclusive on the the Returning Officer finds that the number of votes recorded m favour of the proposal that no license shall be granted m the district is not less than three-fifths of all the voters whose votes were recorded .... he shall notify the Licensing Committee thereof, and thereafter no licenses of any description shall be granted therein until after another licensing poll lias been taken." If the effect of the -oil were postponed, then the Licensing Committee could still grant conditional, wholesale, and (m appropriate districts) packet licenses. Moreover, the public notification of the result of the poll is binding on the committee. Ihe argument of defendant's counsel, then, so far, is, I think, sound. What follows r According to the argument, even this : That the district of Oamaru being a district within which there are licenses m force, this prosecution must fail. Now, if this conclusion be right it means that m a No-license district the provisions of sections 14b and 147, which were intended for such a district, are automatically suspended for some months of the.year, and this untoward result is brought about hv the accident of a change or its boundaries. Such a conclusion, then, should only be adopted upon clear and convincing grounds. Upon an examination of section 146, I am or opinion that this conclusion does not follow. I think that the argument of defendant's counsels fails m the appliCat 'lO Snection 146 enacts: " With respect to every district the electors whereof have duly determined m manner prescribed by this Act that no licenses shall be granted therein, and so long as pursuant to such determination, no licenses are m force therein, certain provisions ate to The^contention under examination fails to take note of, or does not sufficiently appreciate, the force of the plrenthetW paragraph, '^auant td such determination." With these words wanting, the contention would be difficult to answer. Their presence supplies an answer. The true meaning of the section can, I think, be more clearly expressed by a periphrasis. It is this- If licenses within the district are there m spite of the determination of the electors of the district they ire not m fact pursuant to their de--rmination, and do not count. In plain words, when a district once votes •ISO-license," that determination re.liains m force until superseded by mother vote of the electors. Section Ad supports this view. The contention .a therefore pycrruled. 1 have, then, to deaj with the tacts a proof. The defendant, who is a lad ;f i 9 years only, accompanied by anther Tad named Stuart,'lß years old, n the afternoon of .'I hursday, the 14th ,iay of .February, drove out to George.own, a distance of some 18 miles from .yanirti-i, -and'purchased from a hoteliceepor there a case of whisky for which he-paid £2 15s. The expedition was for -the sole'purpose of buying 'iquor. On their way back to Oamaru .ac defendant and Stuart with, as _iioy allege, the assistance of some passers-by on the road, consumed two >ottle.s and part of a third. They .rriveil m Oamaru between 10 and 11 it night, bcth drunk, tho defendant iiciylessly so. Nevertheless, m association wiih two others, one a young nan named Muldrew, the other a man iiair.erl Washer, they continued drinking the whisky until the whole was ■..•onuimed. The totru.-nU of the case, L/if-redible as it may seom, were con.umod by Saturday morning. This is die .story of the whole four, I have .iot, m my experience, ever listened to a more shocking and disgusting one than that told by these four young men —two, indeed, mere boys—without shame or sorrow. This, moreover, it appears, is not the defendant's only experience of the kind. In January last he then, too, accompanied by Stuart, drove out and purchased a case of whisky, which the same four persons consumed m a week. This fact also II3S apear.ed jn the evidence. These four men, jt' seems, form a partnership for the purpose of exploiting this kind of thing. The four shared the case of whisky supplied by the defendant m January last. Muldrew imported a barrel of beer at New Year, which the circle consumed. Washer, more economical m his expenditure, has not gone further m his contributions than a bottle of whisky at a time. Stuart, too, according to Washer, furnishes on occasions a bottle j for the joint consumption, though Stuart himself forgets or would modestly conceal his gifts. His admitted office m the partnership is to furnish his employer's horse and trap for the purpose of getting liquor m bulk into town. This state of things, however, while it might be evidence of a transaction m the nature of a sale, I does not help a prosecution m keeping liquor for sale. The defendant earns, he says, £2 a week and pays 18s a week for his lodgings. This obviously affords little margin for pur» chasing oases of whisky, $c there*

fore explains that lie was able to purchase the whisky on the 4th instant because Stuart, who was with him, had repaid him £2. This £2, he says, Stuart, who is a groom and earns 38s a week, borrowed to pay his board, which was m arrears. The circumstances of both parties render this tale of borrowing and repaying very improbable. It is Stuart, then, under coyer of refunding a debt, who supplies the major part of the liquor, and it is ho who takes possession of it on its arrival m town and regulates the output. I cannot lay much stress on these details as evidence, because the defendant and his companions, as before observed, work under communistic principles, but my deduction from the whole evidence it that both Stuart and the defendant wore concerned as parties m the purchase of the liquor. When I come to apply all this, however, to the charge before me, it appears to be quite clear that, however disgraceful a state of things the evidence discloses, it does not justify a conviction upon a charge of keeping liquor for sale. The possession m Oamaru of a case of whisky by a person m the situation of the defendant (or Stuart) no doubt, under section 146, throws the onus on the defendant to show that the liquor was not kept for the purpose of sale (section 146, sub-section a), but the story of its consumption by the defendant and his three companions, disgusting though the story is, is intended to, and, if trap, does show that the liquor was not kept for sale. That'the liquor was consumed by the four is certain; it may bo untrue that the defendant's companions received it gratuitously, but it is the only evidence before me on this point. The admission by the defendant to the police that five m all contributed to the cape of -whisky is not evidence of the defendant keeping it for sale. Whether on the evidence the defendant could have been convicted of selling under section 146, subsection (a) I am not called on to say. The present information must be dismissed.—North Otago Times, February 2fi.