ON TECHNICALITY

King Country Chronicle, Volume XXXII, Issue 4641, 18 May 1938, Page 5

ON TECHNICALITY

APPEAL SUCCEEDS. APPELLANT STRONGLY CRITICISED. SLY-GROG CONVICTION SEQUEL. The fact that appellant, when charged in the Lower Court with selling liquor and with keeping liquor for sale in a proclaimed area, had not been informed of his statutory right to a trial by jury, in view of previous conviction, was the technicality on which Herbert Mowat Young, hotel proprietor, of Te Kuiti (Mr. N. S. Johnson), won his appeal against the sentence of imprisonment for a month and a day imposed on him in the Magistrate's Court, Te Kuiti, on January 18 last, when heard by the Chief Justice, Sir Michael Myers, in the Supreme Court, Hamilton on Monday afternoon.

The omission in the Lower Court was brought to light in cross-exam-ination of the respondent, Sergeant T. Campagnolo, of Te Kuiti, and the information being secured; Mr. Johnson stated that it was a point he desired to make. His Honour: This is a serious matter.

Mr. H. T. Gillies (for respondent): I am afraid I did not know of this, Your Honour.

Mr. Johnson: I told my friend about it ten days ago. Mr. Gillies: I am quite certain that if that opportunity was not given to appellant the conviction is bad. Would Your Worship grant me a five minutes' adjournment? His Honour: I certainly will. This is most extraordinary. Magistrate Criticised. "The position as I understand it," said His Honour, after the adjournment, "is that appellant had been convicted previously in respect to two separate offences under Section 273 of the Licensing Act. Appellant was charged in the information as if he were a first offender, but was dealt with by the Magistrate as an offender who had at -least once before been convicted."

Not only had the previous convictions not been alleged in the information; but no evidence whatever had been given before the Magistrate on such convictions.

"That being so," continued Sir Michael, "seeing that there were two previous convictions, the Magistrate clearly had no right to deal with appellant as he did."

If appellant had two or more previous convictions he was liable on conviction to imprisonment for 12 months and was therefore entitled to be given the option of trial by jury. As nothing was said of his previous convictions, His Honour held that appellant could only properly have been convicted as a first offender to a fine not exceeding £SO. "Therefore, though the conviction may be good on the evidence," went on His Honour, "the penalty is wrong, but it is amendable in the Court." Under the circumstances, said Mr. Johnson at this juncture, it was not proposed to offer any evidence for appellant.

Censure for Appellant.

"I am satisfied on the evidence placed before me in this Court," said Sir Michael, "that the conviction was a perfectly proper one. My regret is that through this technicality—which is no fault of yours, Mr. Gillies —this man escapes the sentence of imprisonment which his conduct so well deserves. A man who so deliberately flouts the law and carries on, after being fined once or more, an unlawful business is deserving of no sympathy from the Court, and I, myself, will be no party to any course which has the effect of permitting the continuance of an unlawful business by a fine which is considered by -the offender as no more than a license-fee." In the case under consideration, an unfortunate mistake in the Court below allowed appellant to escape from a term of imprisonment. "All I can say," concluded the Chief Justice, "is that he had better take warning and give up this illegal business for which he has so far shown such fondness. The sentence of one month and one day's imprisonment must be cancelled and a fine of £SO is substituted. It is very regrettable that a man who, on the merits of the case, has certainly not had too severe a penalty should escape it by this error, but the law entitles him to escape and escape he must." Police Search Described. Constable T. G. Hunter, of Auckland, said he had been detailed for plain-clothes duty in Te Kuiti where he went to the Grand Central Hotel with another man in plain-clothes, on December 21. Appellant was the proprietor. When there, witness' companion bought one bottle of beer, and witness bought two bottles. He was served at the hotel office and there were five men, strangers to witness, in the office at the time. Each of these had a bottle of beer and a glass. Later in the evening, witness had bought two more bottles of beer, this time from appellant himself.

To Mr. Johnson, witness said he had seen appellant about 3.30 p.m. on December 21. If appellant said he had been in Hamilton that day until 5.30 p.m. it was untrue. Constable E. D. Fraser, of Te Kuiti, described the raid on the appellant's hotel, carried out by witness, Sergeant Campagnolo and a constable, on December 23. Witness saw the sergeant and appellant go into a room together. Shortly after, the sergeant had asked witness to go to the washhouse. There witness found two sugar bags full of unopened bottles of beer. In a tub were seven more full bottles of beer, while under the tubs were seven and a half sugar bags full of empty bottles. Witness took all the liquor found to the sergeant, in Room 3.

In Room 3, there was a long bench and sink on one side, and a couch on the other. On the floor were five bottles of wine and three of ale, while there were two opened bottles on the couch. Under the bench were more full bottles of beer and 20 empties, and on the bench was a tray with eight empty bottles and two more empty bottles. There were 13 glasses in all in the room and a half-full quart bottle of whisky. Six men and one woman were in the room. The woman was washing glasses at the sink and the men were all under the influence of liquor. The woman was an employee of appellant.

Wine and Spirits Found.

Appellant, said witness, had said to the sergeant: "I got knocked £SO last time; I wonder what he will knock me this time? I suppose it will be £IOO on each." Other rooms were searched, and ale, whisky, gin, champagne cider, and brandy found. Appellant was present when liquor was found in his son's room. This liqour, however, was claimed by a young man, a friend of appellant's son. There were 20 men in and around the building. To Mr. Johnson, witness said that an exhaustive search of the entire premises was made. He had heard afterwards that a wedding breakfast had been held in the hotel on December 23. Room 3 appeared to have been a kitchen.

Sergeant T. Campagnolo, of Te Kuiti, corroborated the evidence given by the previous witness. Appellant had told witness that all the liquor at the house had been declared. Appellant took witness to the washhouse, and a room at the back of the house where there were quantities of liquor. Witness also described Room 3, its contents and occupants. In appellant's own room further liquor was found. Witness laid two informations against Young. One of selling liquor on December 21 and the other of keeping liquor for sale, also on December 21. Witness was acting pursuant to instructions in charging appellant for offences alllegedly committed on December 21. and not on December 23. To Mr. Johnson, witness said he knew that appellant had before been charged for offences committed on the same day and under similar circumstances, namely selling liquor and keeping liquor for sale. It was at this stage that Mr. Johnson was informed by witness that appellant was not given the option of trial by jury when charged in the Lower Court.