LICENSING. CASE.

Auckland Star, Volume XXX, Issue 273, 17 November 1899, Page 3

LICENSING. CASE.

SUNDAY TRADING AT NORTH SHORE.

THE DEPENDANT CONVICTED

At the Police Court this morning1 Mr 11. W. Brabant, S.M., gave judgment in the ease Police v. Peter^De* ianey, in which the defendant, as licensee of the Flagstaff Hotel, was charged with selling beer on a Sunday to one Percy (Jvvyther, the said Gwyther not being' a lodger or a bona fide traveller seeking- refreshments on arriving- from a journey. Jlis Worship said the facts proved were that Percy Gwyther was a billiard marker residing at the Waverley Hotel, Auckland, where he slept on the night of the 28th- October. The Waverley Hotel was distant one mile and 74 'chains from the defendant's hotel by the nearest public thoroughfare. 'On Sunday, 29th October, Gwyther with another man proceeded straight from the Waverley Hotel to the defendant's hotel, travelling- by the ferry steamer. On arriving at the latter hotel they were asked, first at the outer door and again in a room to which they were admitted, whether they were travellers or bona fide travellers. It was not clear from the evidence which was the expression used. But if there was anything material in the distinction (His Worship said) he could only hold it proved that the word "travellers" was used. Their reply to the question was that they were. They were then served with liquor. The defendant, the licensee; was away from Devonport on that day, but had left his house in charge of his nephew, Charles Lindsay, and had instructed him not to have anyone in the house but bona fide travellers. The nephew had engaged a lodger named John McLeod to look after the door, who was only to admit persons who stated they were travelleds, the door being kept locked until the bell was rung. Mcteod's evidence was that he noticed Gwyther and his companion come off the wharf on the arrival of the ferry boat, and that he would have admitted anyone who said he was a bona fide traveller, taking into consideration the dress and look of the man, Tinless he knew the man to be a resident of Devonport or the neighbourhood. Lindsay also stated that he waa under the impression that people coming by the boat who appeared respectable * were bona fide travellers.

The defence was tinder Section 157 of <the Licensing Act of 1881; it was argued that the Magistrate should be satisfied from the evidence "that the defendant's agent truly believed 'that the purchase^ . (Gwythe) was a bona fide traveller,, and further that defendant's agent. took ■all reasonable precaution t: nssertain whether or not the purchaser was such a traveller. The conduct of Lindsay and O'Brien, and the fact of the door being kept locked was relied on to sihow that all reasonable precaiitions were taken. Mr Tole (for the prosecution), on the construction and meaning of Section. 157, had cited the cases Nankivel v. O'Donovan (N.Z.L.R. CO), Perm v. Alexander (1893 1.Q.8. 522), Taylor v. Humphries (30 L.T.M.C. 242), and Roberts v. Humphries (42 L.I.M.C; 133), to which His Worship was referred. He (Mr Brabant) considered that the case he was deciding was stronger 'against the licensee than ithe Nankivel case, because in the latter the baruran had pursued !his enquiries further and had obtained a statement from the alleged traveller to the effect that he came from .the Hutt, eight miles off. The defendant was convicted in the Nankivel case, the conviction beimg upheld by the Court of Appeal. There was in the cases cited by Mr .Tole strong authority for a conviction in tihe present case, and apart from authority it was in His Worship's opinion impossible to decide that a licensee or his agent became entitled to supply liquor by simply asking a perfunctoiy question, as in the present case; or >to come to the conclusion that the licensee's agent did take all reasonable precautions. He (the agent) had clearly a wrongimpression as to his responsibilities he said he thought people coming by the ferry boat respectably dressed were bona fide travellers. The witness McLeod seemed to have, thought the some.

."I fail "to see," continued His Wor-? ship, "what the dress of the person has to do with it; probably most excursionists are well-dressed on a Sunday, whether they have travelled three miles or not, and there can be no doubt thai numbers of the persons who go over in the ferry boats reside within three miles of Devonport. Ido not think that the fact of the door having been kept locked has any important bearing' on the question. As Mr-Tole pointed out, that might have been done for other reasons than with the object of carrying out the law; and the mere fact of a door-keeper being engaged shows that considerable custom was expected.N The hardship or supposed hardship on the licensee mentioned by Mr Justice Cave in .the case Pierce v. Alexander, viz., that the licensee was bound to supply travellers if really such does not now exist in New Zealand. Since the passing of the Act of 1895 the licensee can refuse to supply anyone on Sunday if he choose.

"Each case of this sort must be decided on its own evidence, and I do not think it is my duty to point out exactly what a licensee should do. I may say that 1 recalled a case being before me where it' was shown that far more stringent precautions were taken by the licensee, for he had taken down in writing the name of each person served and his alleged residence. If that were shown to have been done the Benclv would probably order the prosecution of the alleged traveller in the event of tjie information turning out to be false. In the present case I do not think the question asked definite enough to do so. The defendant must be convicted."

The defendant was convicted and fined £3 and costs £3 11/, and his license ordered to be endorsed.