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A LICENSING CASE, Issue 15684, 24 December 1914
A LICENSING CASE
* Messrs Slout und O’Beime, of Invercargill) appeared before MrjlTastice Sin nt the Supreme Court on Tuesday in support of a motion-to quash the conviction nf John Kerrigan, of Gampbelltowu '.Bluff), hotelkeeper, on a charge of selling liquor to a person already in a state of intoxication. ■ Mr Macalister, of Invercargill, appeared'to oppose The motion., Mr Stout said that this was a motion to quash the conviction and also to-quash the order endorsing the license. The case charging-Kerrigan .with selling liquor to a person already intoxicated was heard at the Bluff and at Invercargill. On. the 30th September tho Magistrate (Mr Hutchison) gave a written judgment at Invercargill. He convicted the defendant and fined him £5, and ordered the license to he endorsed. Under section 247 of the Licensing Act it was left to the Magistrate’s discretion to either order an endorsement of not. The two questions that arose were First, did the Magistrate inspect the entries in the register before passing sentence, as required by that section ? and, second, Did tho Magistrate inspect the entries at all at any time? The affidavits filed all showed that the Magistrate delivered his written judgment without a pause, that after he delivered it the inspector of police asked leave to call the clerk of the Licensing Committee to produce tho register, and that the Magistrate thereupon intimated that it was not necessary to produce tho register,, as the license was already in court. Notwithstanding this, the clerk was called, and produced the register, which was put on the bench, hut there was nothing to show that the Magistrate ever inspected the entries.
His Honor • • Tho clerk says he read them out. Do you say that tho Magistrate must actually look at tho register himself? . ' Mr Stout: That is what I contend.
His Honor: Surely not. Mr Stout said it was perfectly clear from the affidavits that when the Magistrate read the judgment he did not realise at the time that it was necessary to inspect tho entries of tho register at all. He was of tho opimen that it was sufficient for the license to be produced during tho hearing. Learned counsel submitted that the Magistrate had passed sentence when he read his judgment, and all he then had to do was to enter up the conviction. Mr Stout quoted a number of cases in support of his contentions. Ho pointed out tnat power was given to amend the conviction by striking out the endorsement. Mr O’Beime quoted cases to show that pronouncing sentence was the main part of tho judgment, and the recording of it was merely a magisterial act to be done after the actual pronouncement of the judgment. Mr Macalister said that section 247 showed.that what had to be done in reference to the endorsement had to take place after tho conviction, so that the conviction must stand, and tho only question in these proceedings was whether the endorsement should bo quashed. With regard to the first of the two points raised, he submitted that on the facts, as stated, it was quite clear that the Magistrate inspected the register. The other question was whether the Magistrate inspected the register before passing sentence. Learned counscd submitted that ho did. Mr Macalister contended *• that tho Act had been substantially complied with. It was narrowed down to this: Should the Magistrate, after inspecting tho register, repeat the words he had used before? It was plain that he intended to convict, and order the license to be endorsed. The final passing of the sentence look place after the register was inspected. The important tiling was that the register was in court and the contents were read out. , , . His Honor, giving judgment, said the question was whether the conditions described bv section 247 had been complied with in the present case, and it seemed to him clear that they had not. What really happened was that the sentence
that the'defendant should bo ’fined £5 and his' license endorsed was pronounced before' any -attempt-was made to comply with section 247. It was_ true thht afterwards the register of license won produced, and what happened might amount to Hit inspection of it by the Magistrate but it was cleat that the Magistrate did rot reopen the matter and consider the ' question of whether the license should be endorsed or not. There was no further pronouncing sentence of any kind after the production of the register of license. All that the Magistrate did afterwards was to enter in the record book a record of the sentence he had pronounced before the register of lico.ise was, produced- His Honor thought, therefore, it_ was clear that the conviction, so far as it embodied tho endorsement of license, was_ bad. Under section 7 of the Inferior Courts Technical Defects Procedure Act, 19U9, that part of tho conviction might be struck out, ami he would amend the conviction bv striking out all reference to the endorsement of the license. No costs were allowed. .. .. r Following on this was a motion b> L-. J. A. H. Tipping and another for possession of the hotel leased to Kerrigan. Mr Haggitt appeared for the plaintins, and Messrs Stout and O’Beirno for tho defendants. . . . ■Mr Haggitt said that Kerrigan having been • convicted and fined £5, he contended that'the plaintiffs were still _ entitled to possession- of the premises. There was no doubt that the conviction endangered tho license, but perhaps it would be better to adjorn the.matter tor evidence. - , Mr Stout said he had evidence to show that one conviction was not a breach ol the covenant in the lease. . His Honor ordered tho case to stand over until the next sittings at Invercargill.
A LICENSING CASE, Issue 15684, 24 December 1914
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