CONVICTION OF LICENSEE

Greymouth Evening Star, 19 June 1941, Page 3

CONVICTION OF LICENSEE

COURT OF APPEAL HEARING

WELLINGTON, June 18. The Court of Appeal to-day commenced hearing a case in which a hotel licensee is applying for a writ of certiorari quashing a recent conviction by a magistrate. In May last, Andrew Dick Reid Duncan, licensee of the Dominion Hotel, Wellington, was charged in the Magistrate’s Court before Mr J. H. Luxford, 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 the Licensing Act. Evidence brought by the police was that Doull, a lodger in the hotel, had been selling liquor at night in the street outside the hotel. The Magistrate reserved his decision, and, coming to the conclusion that in selling this liquor Doull had acted as the agent of the licensee, convicted the licensee of selling liquor at a place not authorised by his license—another offence arising under section 195. He fined the licensee .£5O and endorsed the hotel license with the conviction.

In the Court of Appeal, Duncan is applying for a writ of certiorari quashing the conviction for selling liquor at an unauthorised place on the grounds that the charge was never laid against him, and that he had been convicted without being called upon to answer that charge. Mr P. B. Cooke, counsel for Duncan, said the matter was of very great importance, because the Licensing Committee had, at a recent meeting, informed 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 power to endorse the license in respect of a conviction recorded under section 195, even if that conviction were correct. His Honor said he had understood that 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 the affidavits filed in the case, which showed that a difference of recollection existed between Mr J. J. McGrath, counsel for Duncan, in the Magistrate’s Court and the Magistrate as to whether Mr McGrath had agreed to the substitution of the charge of selling at an unauthorised place during the hearing in the Magistrate’s Court. Mr McGrath had filed an affidavit as to his recollection of the Lower Court hearing, and the Magistrate 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, he had expressed the opinion that it was wrong for magistrates to file affidavits in such cases as the one before the Court, and he still held that opinion. He said that a magistrate, in filing an affidavit, put himself in the position of a witness, and was liable to cross-examination. This was not consistent with his dignity. The affidavit could and should have been made by the Clerk of the Court. Mr Cooke exnlained that it was not I suggested for a moment that there was anything more than faulty recollection on the part of the Magistrate, for whom everyone at the bar had the greatest respect.