OPENING AFTER HOURS

Dominion, Volume 19, Issue 76, 22 December 1924, Page 5

OPENING AFTER HOURS

FOR “PURCHASED” LIQUOR A LICENSEE’S LIABILITY NOVEL POINT DECIDED A licensee who opens his house after closing hours for the delivery of liquor which has been placed during recognised trading tune into bottles supplied by the purchaser, commits an offence under the Licensing Act, if the property in tno liquor has not already passed to the purenaser. Such is the opinion of Mr. E. Page, S.M., as expressed in a reserved judgment delivered in the Magistrates Court on Friday in the cases m which the police proceeded against William Hannafin, licensee of the Brunswick Hotel, for various alleged breaches of the Licensing Act, and Edward McPherson, who was charged with being found on the premises after hours. Hannafin was charged with selling liquor in an hotel after hours, aiding and procuring the commission of an offence, and opening licensed premises for the sale of liquor after hours. At the hearing Mr. W. Perry had raised the defence that immediately the beer was placed in the empty bottles supplied by the purchaser the pro. perty passed to him, that there and then the contract was complete, and entitled the purchaser to return after hours and collect the beer.

The Magistrate said that the evidence showed that fit 9.35 p.m. on October 4 last, a Saturday, a sergeant and a constable entered defendant's premises. They found in the parlour th© licensee, his daughter, and three men. The sergeant asked if the men were all lodgers, and defendant replied: “They are all lodgers, sergeant.” The officers then left and kept watch outside. During the ensuing fifteen minutes they saw two men come severally out ef the hotel; one of them was carrying a handbag, and was under the influence cf liquor. They also saw a man carrying a handbag come to the hotel and enter it. At 9.50 p.m. the three men who had been in the parlour when the officers entered left the hotel. They were accompanied to the door by the licensee and his wife. One of them, who went up Willis Street, was drunk. He had in his pocket a bottle of whisky. The other two men went down Willis Street. One of them, McPherson, was carrying a brief bag. in which were two square riggers of beer. At 10.10 p.m. the officers returned to the hotel and asked the licensee for an explanation. They informed him that one of the men who had been represented as lodgers had come out of the hotel with a bag containing two bottles of beer, and that another had had a bottle of whisky. The licensee replied that he knew nothing of the men, the bag, or the beer. Ho said also that he knew nothing of the bottle of whisky. None of the three men was, in fact, a lodger at the hotel. For the defence, continued His Worship, the only evidence called in reference to the whisky found in possession of one of the men was that of the licensee, who denied that he had sold it to the man. With regard to the two square riggers of beer found in McPherson’s possession, evidence was called with a view to showing that McPherson was inxthe hotel at about 1 p.m. on the day in question, that he had some drinks then, and left his bag, containing th© two empty square bottles, with the barman, with instructions to fill the bottles with beer, and that he stated ho would call for them “later” ; that he paid 2s. 6d. for the beer; that a quarter of an hour later the barman filled the bottles with beer; that at 6.45 p.m. the bag with the two bottjes of liquor was still in the bar, and the barman reported the matter to the licensee, who instructed him to place it in the parlour, as he considered McPherson was sure to come for it: that the liquor was put in the parlour. and that at about 8-30 p.m. McPherson called, and was given delivery of it when he was leaving at 9.50 p.m. Breach of Licensing Laws. “Assuming that this evidence is accepted in every detail, I think, nevertheless.” said the Magistrate, ‘.‘that the transaction discloses a breach of the licensing laws. “There have been a number of decisions relating to cases of this sort where liquor has been ordered during the time the bars are open, and delivered after closing hours, the latest decision being that of Olson v. Cruickshank. The English cases on the matter are there collected and discussed. In none of the cases, are the facts identical with those in the present case, but the principles laid down in those cases can be applied to the facts in the present case. In Saunders v. Thorney, Mr. Justice Channell said: ‘I think a person opens bis licensed premises within the mea.. ing of the section when he opens them for the carrying' out of material part of the contract of sale.’ This dictum has been quoted with approval in several or the subsequent cases. It is clearly establishdUj from the authorities that in a transaction of this sort, if neither delivery las been made nor the property in the liquor has passed to the purchaser until after the statutory closing hours, an offence is committed.

“In the present case I do not think tho property in the liquor passed to the purchaser when the liquor was put into the bottles. The purchaser had not assented to the appropriation of this particular liquor. The bottles remained in the charge of the licensee. If the liquor had been spilt before delivery to the purchaser, the loss would, in” my opinion, have fallen on the licensee.

“Although the point has never been directly decided, I may say that even if the property in this beer had passed to the purchaser, delivery after hours would, in my opinion, constitute breach of the law. Delivery is a material part of the contract for a sale of this nature.. From the point of the purchaser, it is probably the most material part, and I think that a licensee who opens his house to give delivery of liquor thus sold or agreed to be sold, opens his house for Che sals of liquor. “I can find no case in which a definite delivery after hours has been held 1 to be lawful. “I wish to add that if I were to disregard altogether the existence of these two bottles of beer, I think the remaining evidence relating to the movements of the various men going to and coming from this house, coupled with the untruthful statements of licensee, justifies me in holding that the premises were being kept open for the sale o' liquor. Defendant will be convicted of tljat, offence. The remaining charges against the licensee will be dismissed. I propose to convict McPherson of being unlawfully on the premises.” Hannafin was fined £lO and costs, and McPherson £2 and costs. Security for appeal was tix'.d nt- £l5 155., plus + h<s of fijto £>ul cost*.