SUNDAY TRADING

Press, Volume LXXXVII, Issue 26514, 31 August 1951, Page 12

SUNDAY TRADING

ARTIST CONVICTED OF

OFFENCE

RESERVED JUDGMENT BY MAGISTRATE

(New Zealand Press Atsociation) AUCKLAND, August 30. An Auckland artist, Denis Knight Turner (Mr Haigh) was found guilty on a charge of Sunday trading by Mr H. Jenner Wily, S.M., in a reserved judgment delivered in the Magistrate’s Court. . ’ X Turner had pleaded not guilty to a charge of working at his trade or calling within full .view of the public in Ponsonby road on June 24. SubInspector W. Brown prosecuted. The Magistrate said it was admitted by the defendant that he completed the pointing of a mural depicting transport through the ages on the waU of a motor-cycle shop in Ponsonby road in full view of the public. The defence had submitted that (1) the occupation of an artist was a profession and therefore did not come within the meaning of "a trade or callv,g”; and alternatively (2) the work was of necessity, and that in either case no offence had been committed under Section 18 of the Police Offences Act, 1927. under which the charge was laid. "It is admitted by the defendant that his sole occupation is that of an artist, and that b 6 earns his living from such occupation," the Magistrate said. “He submits, however, that his primary objective in any painting is an expression of his artistic urge, and that the actual sale of the product is only incidental or secondary. He received £3O for this particular mural.’’ The Magistrate said that the word “calling” was defined in “Webster’s New International Dictionary” as “one’s usual occupation, vocation, business, trade.” “Trade” and “Calling” There did not appear to be any decision under the act defining “trade” or' “calling”, but in Police v. Bayliss and others (1946), Mr Marsack, S.M., considered the meaning of “transacts business,” and having dealt exhaustively with the interpretations given to the word “business,” said that the effect 61 the section was “to prohibit any public activities on a Sunday having a commercial basis in the broadest sense of the term, with the exception of the essential service specified in subsection 3.”

“I respectfully agree with this interpretation, and I am satisfied that the words trade’ and ‘calling* must be construed in their widest sense to include any occupation that has a commercial basis,” said the Magistrate. “Thus the word ‘calling’ must include any occupation, vocation, business, or profession that has a commercial basis, and that is not otherwise included in the other words used in sub-section 1. Whether or not a profit is made is not material. “Thus in this case 'the defendant’s sole occupation is that of an artist, and in pursuit of that occupation he carried out the completion-of his work of art in full view of the public on a Sunday. Unless he can show that this particular work was exempted under subsection 3, ne must be convicted for this offence.” The Magistrate said counsel had submitted that the mural was a “work of necessity,*’ and therefore exempted under sub-section 3, on the ground, it was alleged, that the work could only be done during the closed hours of the shop, and that if not continued within 12 hours* “drying time,” it would have to be done over again because of the contents of the materials used.

“In my opinion, the ‘works of necessity’ referred to in the sub-section imply work that is unavoidable, necessitous, or indispensible,” the Magistrate said) “The work done by the defendant cannot be classified under any of these classifications, and he could have so timed his work that it would have been quite unnecessary to continue that work into the Sunday. He is not therefore exempted under this sub-section, and must be convicted of this offence.” The Magistrate said that, as the case was in the nature of a test, he would not impose a heavy fine. Turner was fined 10s.