APPEAL CASE

Evening Star, Issue 21662, 6 March 1934, Page 6

APPEAL CASE

A LICENSING MATTER In the Supreme Court to-day His Honour Mr Justice Kennedy heard an appeal by Constable Wroblenski against the decision of the magistrate in dismissing a charge against Charles Parnell, of the Shamrock Hotel, Ophir, of 'keeping open his licensed premises on August 25 for the sale of liquor at a time when such premises were required to be closed. ,

Mr F. B. Adams appeared for the appellant, and Mr J. M. Paterson for the respondent. It was stated by Mr Adams that the appeal was brought on a point of law against the decision of the magistrate in dismissing an information charging the respondent with keeping open his licensed premises for the sale of liquor at a time when, such premises were required to be closed. The facts were that the constable saw a light in the bar of the hotel. He saw a man (Daly) going towards the rear of the hotel, followed him, and saw him standing outside the door. The door opened, and an employee (Auld) of the licensee was standing inside. Daly said, in answer to a question by the constable, that he was waiting for a parcel, and lie was handed a sugar sack which contained three bottles of beer, actually delivered to him by Auld. The door was presumably opened by Auld in response to a knock by Daly. The constable took possession of the bag. Auld_ said that Daly asked him to get the liquor for him. The licensee then came down and said ho know nothing of the matter. The _ case was one, in which the question was whether the licensee was subject to vicarious responsibility for the act of another person in his own absence, or, in this case, when he was asleep. Auld had a key, and it was claimed that such possession gave him access,to the liquor at any time, and was a most characteristic mark of general authority for the sale of liquor. It was contended that upon the facts there was an inference of law to the effect that the licensee was responsible.

Mr Paterson said his submission was that the question depended upon the scope of Auld’s authority. Instead of paying for his board Aukl was in the habit of doing certain work for tho licensee, including the cleaning out of the bar. That explained tbe possession of tbe key. Auld was not employed as a barman, but assisted by serving as a barman in the daytime, when requested to do so, and by looking after the hotel when the licensee was absent. It was a legitimate inference, as stressed by the magistrate, as he might very well, that Auld had no authority at all during the presence of the licensee in the hotel. Auld could not be held to be the agent for Parnell for the sale of liquor at that time. , His Honour reserved his decision.