Appeal On Conviction For Sale Of Liquor During Licensing Poll

Press, Volume XCIII, Issue 27988, 7 June 1956, Page 15

Appeal On Conviction For Sale Of Liquor During Licensing Poll

SUPREME COURT

What was described by counsel as “a legislative tangle” was sought to be unravelled in the Supreme Court yesterday when Mr Justice Adams heard an appeal by John Fraser, licensee of Warner’s Hotel, against his conviction by Mr Raymond Ferner, S.M., in the Magistrate’s Court on a charge that he sold liquoi on March 8, 1955, at a time when the premises were required to be closed. March 8, 1955, was the day of the elections for licensing committees. His Honour reserved his decision.

Mr R A Young appeared for Fraser, and the Crown Prosecutor (Mr A. W. Brown) represented the police.

The appeal was on a point of law only, and was by way of a case stated.

A number of hotels in Christchurch. including Warner’s Hotel, remained open on the afternoon of March 8, 1955, said Mr Young. The licensees of those hotels were charged and the cases were heard in the Magistrate’s Court. It was admitted on behalf of the defendants that their premises were open and liquor was sold, but it was contended that their premises were not compelled by law to be closed that afternoon. t . The Magistrate held that the premises should be closed and no liquor sold “Unfortunately the legislation has ben subject to a number of amendments aqd they combine to make the position a complicated one,” said Mr Young. “The police and the licensing trade view the matter as important as an authoritative decision is sought so that this confusion will cease to exist. Some hotels were open and the others were closed that afternoon.

“Down to 1948 the law. as stated in the Licensing Act 1908 and its amendments, required hotels to be

closed for the sale of liquor on the afternoon of the day when elections were being held for elective members of licensing committees. The position up to that time was quite clear but, I regret to say, that was the end of clarity,” said Mr Young. Mr Young then quoted sections from the Licensing Act 1908 and Subsequent amendments down’ to 1948, the Statutes Amendment Acts of 1946 and 1947. the Electoral Act 1927 and its amendments, of 1946 and 1947, and the Acts Interpretation Act. He said that Section 95 of the Licensing Amendment Act 1948 repealed Sections 39 and 46 of the 1908 Act and in doing so repealed the only thing that had been abundantly clear. Subsection 2 of Section 95 of the Licensing Amendment Act 1948 repealed the closing provision on licensing committee election day and substituted one that all workers were to have one hour to vote without loss of pay.-It appeared that the change of policy was to allow workers time off rather than to close premises on licensing committee election days as was done on general election days. From a perfectly clear enactment the Court was now left with it m a confused state. There had been no re-enact-ment of the prohibition on the opening of premises for the sale of liquor The law draftsman could have inserted that provision with ease if it had been deemed desirable to do so.

For more than 40 years there had ] been a clear prohibition gti the i opening of premises for the - sale , of liquor on the afternoon of licensing ( committee election day and the law , draftsman might have intended to , re-enact it in Section 95 of the Licensing Amendment Act 1948 but he did not achieve it, Mr Youiig said. If an error had been made, it was for the legislature to bring down a further amendment. “But that might, make confusion worse confounded.” Wrong Information The decision of the Magistrate was quite correct, Mr Brown submitted. The appellant and other licensees were prosecuted for selling liquor at a time when their premises were required to be closed. The information was wrongly worded. It should have been for selling liquor when it was unlawful to do so. The offence was the sale of liquor and not the keeping open of the premises. It never was an offence to keep a hotel open on an election day but it was an offence to sell liquor on such a day. The Court could amend both the information and the conviction. The law at the time of the alleged offence was contained in Section 46 of the Licensing Amendment Act 1948 and this clearly retained the prohibition on selling liquor on licensing committee election day. Mr Young said that the appellant should not have been convicted on the charge before the Magistrate. If the one suggested by the Crown Prosecutor should be substituted it would not be of such moment as' the one which now appeared as a conviction. His Honour said he would take time to consider his judgment.