PUBLICAN’S APPEAL

Evening Star, Issue 23915, 19 June 1941, Page 6

PUBLICAN’S APPEAL

APPLICATION TO QUASH CONVICTION (P.A.) AV ELLINGTON, June 18, The Court of Appeal to-day commenced the hearing of a case in which an hotel licensee is applying for a writ of certiorari quashing his recent conviction hy a magistrate. In May last Andrew Dick lleid Duncan, licensee of the Dominion Hotel, Wellington, was charged in the Magistrate's Court before Mr J. H. Luxford, S.M.. with assisting and counselling the commission by Eric Doull of the offence of selling liquor without a license and also with opening his hotel for the sale of liquor at a time when the premises were required to be closed. The first charge was laid under section 195 and the second under section 190 of tho Licensing Act. The evidence brought by the police was that Doull, a lodger in tho hotel, had been selling liquor at night in the street outside tho hotel. The magistrate reserved his decision, and, coming to the conclusion that iii selling this liquor Doull had acted as an agent of the licensee, convicted tho licensee of selling liquor at a place not authorised by his license—another offence arising under Section 195. He fined the licensee i!SO and endorsed his hotel license with the conviction. In the Court of Appeal to-day Duncan applied for a writ of certiorari quashing the conviction of selling liquor at an unauthorised place, on tho grounds that tho charge was never laid against him, and that lie had been convicted without being called upon to answer the charge. Mr P. B. Cocke, counsel for Duncan, said the matter was of very great importance, because the Licensing Committee had at a recent meeting in formed Duncan that his license would not be renewed unless this conviction against him were removed. The Chief Justice, Sir Michael Myers, asked if counsel had considered the question whether the magistrate had the power to endorse the license in respect of a conviction recorded under section 195, even if that conviction were correct. His Honour said he had understood that tho power to endorse licenses applied only to convictions under section 190, which contained a special code of offences. Counsel said he had not considered that point, but he would do so. . Mr Cooke referred to tho affidavits filed in the ease, which showed that a difference of recollection existed between Mr J. J. M'Grath, counsel for Duncan in the Magistrate’s Court, ami • the magistrate, Mr Luxford, whether Mr M'Grath had agreed to the substitution of the charge cf selling at an unauthorised place during the hearing in the Magi slrate’s Court. Mr M'Grath had filed an affidavit as to his recollection of tho lower court hearing, and the magistrhte had filed an opposing affidavit. The Chief Justice then said that in 1932, in the case of the New Zealand Sheep Farmers’ Agency v. Mosley, ho had expressed the opinion that it was wrong for magistrates to fils affidavits in such cases as the one before the court, and he still hold that opinion. He said that a magistrate in filing an affidavit put himself in the position of a wutness and w r as liable to crossexamination. This was not consistent with his dignity. ■ An affidavit could and should have been made by the clerk of the court. Air Cooke explained that it was not suggest;d lor a mouiC’.;t that there was anything more than faulty roc.d-'ectioo on the part of the magistrate, for whom everyone at the Bar had the greatest respect. The hearing was adjourned.