THE LICENSING ACT.

Evening Star, Issue 11692, 25 September 1902, Page 6

THE LICENSING ACT.

POLICE v. PUBLICAN. At the Police Court this morning, before Mr E. H. Carew, S.M., John Tansey, licensee of the Coach and Horses Hotel, Saddle Hill, was charged with keeping his ‘premises open for the sale of liquor at eight o’clock on the night of Sunday, the 31st of August. Mr J. F. M. Fraser appeared to prosecute, and Mr I). D. Macdonald (instructed by Mr A. C. Hanlon) to defend. Mr Fraser, in opening the facts, said: The information is laid under sections 154 and ISS of the Licensing Act, 1881. The defendant is the licensee of the Coach and Horses Hotel, Saddle Hill, and on the date the offence is alleged to bare taen pace Sunday—was in his hotel. Constable Findlay visited the hotel at eight o’clock in the evening, and found the door at the side of the bar wide open. This door led directly into a sitting room having access to the bar, which was fully lit up, and in the bar were the licensee and two men. The wife of the licensee was behind the bar. Immediately Mrs Tansey saw the constable enter she ran into a room behind the bar, and Constable Findlay followed. In this room (our young men were sitting, and Mrs Tansey had a glass ball-empty ai her hand, which she was trying to conceal, but subsequently handed over, saying it was only a soft drink, and when asked whose drink it was, said the constable could find out. In another room across the passage there were four or five young men, and a daughter of the licensee playing the piano. One of the two men in the bar, named White, asked for a drink in the constable’s presence, and was supplied, the licensee stating they were travellers. White had arrived there at four o’clock, and had had tea, but was not-stopping in the house, and had ceased to be a traveller under the provisions of the Licensing Acts. When the licensee was asked why the bar was open, be said he kept it open for the convenience of travellers. With the exception of the front door being closed, the house was absolutely open for business just as it would be on a week day. The bar was lit up, and all the internal doors open, and the door beside the bar—which is also a front door, leading almost directly into the bar—was wide open. In order to convict the accused of the offence charged, it is not necessary to prove a sale of liquor. It is only necessary to satisfy the Court that the accused kept his licensed premises open for the sale of liquor—Le., kept his premises open for persons to come in, with the obj' ct of being supplied with liquor, and I submit that the offence would be complete even if no persons came in, provided that the Bench was satisfied as to the intentions of the publican' in opening the house. In the case of Dodson v. Duffy, 2 N.Z. J.N.S., 277, Mr Justice Williams said in a similar case; “ In order to justify a conviction under this section the magistrates should be satisfied that the premises were kept open for ono of these purposes (selling or supplying liquor, or suffering liquor to be drunk). Very slight evidence would justify them in convicting, but there should be something before them on which they could base their decision.” The Judge referred to Bregden v, Hughes, 45 L.J., Q. 8., 58, and Tassel and Ovenden, 46 L.J., M.C., 250. In Pearsey v. Gall, 41 J.P., 742, a room was hired by some local residents, and they remained after closing the house (ten o’clock), and were found there at 11 p.m. with drinking glasses before them, some cf which were not quite empty. The front door was closed, but the back door was unfastened. It was held that (here was evidence to support a conviction for keeping the premises open durin? prohibited hours f or the sale of liquor. Thomson v. Greig, 34 J.P., 214, was a somewhat similar case, in which the conviction was also confirmed. Brewer v. Shepherd, 36 J.P., 373, waa a much weaker case, but th're also (he conviction was affirmed. Jeffrey v. Weaver, 63 L.J., 819, a recent case, is instructive, fn that case, had there been any evidence that the doors were open, the conviction would have been sustained, and this case also makes it clear that the words “keeping open ” is a distinct offence, and must be errven their ordinary interpretation—viz., keeping open for persons to come in. Tassel v. Ovenden, 46 L.J., M.C., 230 —n case where liquors were kept in a locked ca«e in a shop—ilnst rates the principle (fast licensed persons must take proper precautions when closing time arrives against the "ale of liquor, and that it is for the magistrate to consider whether the precautions ro real or a sham. A case decided by Mr Justice Fdwards in March, 1902—Poole v. Healey, TV. Gaz., L.H., 258—may be relied upon by the defence, but it is really a strong case for the prosecution, for every point made for the defence is based on tarts the exact opposite of those in the present case. Had the facts in Poo’e’s appeal oven approached those in the present case, the conviction would have been unhesitatingly confirmed. In Poole’s case ’he internal doors were closed, the lights were out, and the bar was closed, save wb*»n the licensee was supplying lodgers. The back door was closed, and the front door wav accidentally ajar, but an inside door was locked. In the present case the whole house waa internally open, a front door was open, and the bar lit up, and admitted’y open as on a week ni'ht, and the bouse full of men. I would also point nut that the ale of liquor to the man White who was ; n the bar was unlawful, and ae-ve" a" a ■■ ir illustration of the object the licensee had in view when he kept his bouse open White arrived at four o’clock, had a drink, and then his tea; went out for a walk, and came back about 7.30. In a case decided in February, 1901 —Stanton v. James, 3 Gaz., I .E,, 2C4—Mr Justice Denniston stated that the Legislature appeared to contemplate a bona fide traveller arriving from a journey satisfying a thirst acquired whilst travelling, but not that which l:e acquired after he arrived at his journey’s cad. No doubt some interval might elapse between the man’s arrival and his seeking refreshment, and what is a reasonable time Is a question for the magistrate. Arrival iud supply at U n.m. did not justify a ; ’-P ply at 4 p.m. Here we have an arrival ;:t four o’clock and supply, then tea, au J again supply at eight o’clock. Obvioos’y the latter supply was a breach of the cor litions of license. It is perfectly true tin' his is a quari-criminal prosecution, a-d hat it lies upon the informant to prove h's Re affirmatively, but I rubmit that if 1 •icreed in showing that (he i * me was ope —fit up as for ordinary wee' -day traffi ■ill of men, and liourr being supplied—v ll succeed in establishing a case that w : J cad the Bench to the concluson biyoix my reasonable doubt that the licensee wa unquestionably keeping his bouse open foi the sale of liquor at a time when, by the , ixmditianß of his. license, be is. required to

c h.'i '+"'T J ' 1 > my * ’* v , poreftifo t*We!lErt , - | s , untruthful exctufe, Int frilio io dMbIBM admiadon of'his gwt; for it ia duo enough {or t tniMim> 4o ; liitf hMw ohn t bona fid® tnmQar demand* »ilnii««iwi

' William White said that lie #nd a companion named Murdoch arrived at the hots from Mosgiel about {par o’clock in the * afternoon. They were asked by 3£iss : Tantej if they weretraveDers, and on answering in the affirmative they were an 1 pplieJ with a drink. They then had tea aba went for a walk, returning about eight o’clock. He asked for a drink in the bar, bat Mn Tansey told him to go into the bar parlor and he would get it. She' then gave him a drink, bat he did not pay for it; she H shouted M for him. He had only been in the house three or four times.

Constable Findlay in his evidence said that Mrs Tansey told White she would not serve him in the bar, but if he went round the back she would serve him. When witness entered Mrs Tansey was behind tj* bar counter, and the men in the bar. Wrt-

ness said to Tansey : “ What arnyon doing with the house open like this?” and he replied: “ I keep it open for the convenience of travellers.” Ho saw the defendant about five days afterwards. He told him that he had come hack to make- inquiries as to whether the men were travellers or not

Tansey said that they were, that they came there for supper, and that they bad just entered the bar to pay lor their meals whoa he (witness) came in. Mr Fraser said that, in view of the evidence of the witness White, he would refer His Worship to two cases. The first one waa that of Schultheis v. Wilson, 13 N.Z. Law Reports, p. 295, which was to the effect that the fact that liquor was supplied to a perron over the bar ’during prohibited hours was, notwithstanding that both parties swore., it was a gift, evidence upon which the presiding magistrate might presume that there was a sue, he havmg disbelieved that part of the evidence as to its being a gift. There was also the case of Batt v. Cullen, 16 N.Z. Law Reports, P- IV, where a licensee supplied liquor gratuitously, and allowed the same to be consumed upon his premises daring prohibited hours by a person who, the Court was satisfied, was not a friend of the licensee, bona fide entertained by him at his own expense, but a customer, and the Court was satisfied that- the object of the licensee in gratuitously supplying him waa indirectly Vo benefit himrclf by keeping his connection together. It was - therefore held that an of-

fence was committed under section 155 of the Licensing Act, 1881. Mr Macdonald submitted that, the true principle of the case was that the Bench

must be satisfied that the house was open for the sale of liquor. There was no > jf-fc-rence between the information laid in this

case—that the house was open for sale -and the case before His Worship the other day —-namely, that of exposing liquor for sale. The principle in one case was exactly the same as in the other—that the Bench must come to the conclusion that all the surrounding circumstances go to show that the «n«p deliberately opened his bar for the purpose of exposing liquor for sale. What he (counsel) submitted was that the evidence did

not go far enough to convince His Worship to come to such a conclusion. The burden of proof rested with the prosecution. They must clearly show by tno whole of them evidence that the object of opening the place was for the purpose of selling liquor. The facts showed that the men were there

for a meal, and there was no evidence of

illicit drinking having taken place. The whole surrounding circumstances negatived the idea of a sale, and the alleged sale was really a gift Was it to be supposed for a moment that a man would be so stupid as to sell a glass of liquor in the presence of a constable 7 He (counsel) did not intend to call any evidence, because the facts had

been fairly brought out. His Worship, in giving judgment, said : I don’t think there waa a sale of liquor to White. It was improbable that the defendant would permit the liquor to be sold order the then circumstances of Constable Findlay’s presence. What might have taken {dace had he* not been there I don’t know. From the questions he put to the constable he seems to have been doubtful whether he could lawfully sell or not, and he got no satisfactory reply. Mrs Tansey then seems to taken the matter in hand and settled the question by volunteering to give White a drink if he would go to another room. Probably she thought it was safer to give away a drink in a room than direct from the bar. It would have caused

a prosecution to hare sold liquor under zuen circumstances. I cainot come to the con-

clusion upon the evidence that the premises were open for the unlawful sale of liquor. The case will be dismissed.

Mr Fraser: I shall ask your Worship to state a case for appeal. It is an interesting print to decide. His Worship: It is a pity the law is rot amended to make it easier to deal with these cases.