LIQUOR AFTER HOURS

Manawatu Standard, Volume XLIX, Issue 270, 14 October 1929, Page 2

LIQUOR AFTER HOURS

DISPUTED POINT OF LAW. APPEAL BY POLICE UPHELD. WELLINGTON, Oct. 13. An appeal by the police from the decision of a magistrate in a licensing case was upheld by the Full Court. The appellant was Edward Frank Smith, ponce constable, of Nelson, and the respondent was Keith Hickson, licensee of the Royal Hotel, Nelson. The case, stated by Mr T. E. Maunsell, S.M., who heard the case, was to the effect that - the appellant’s information alleged that the respondent, on April 27, 1929, sold liquor after' hours, exposed liquor for sale after hours and opened his licensed premises after hours for the sale of liquor. The respondent pleaded guilty to the first offence and was convicted and fined £2. The other informations were dismissed. Evidence in respect of the informations dismissed w;as heard by the magistrate, who was informed that all three charges arose out of the same set of facts.

Counsel for Hickson in the Lower Court pleaded that the conviction on the first information was a bar to convictions on the other two, as they r,elated to the same set of facts. The magistrate upheld this contention, on the-ground that the opening , for sale and exposing for sale were part of the transaction of sale upon which Hickson had been convicted, and were not independent of, but. incidental and preparetory to, and for the purpose of. such sale.

Mr Maunsell 6aid he was of the opinion that it was the intention of the Legislature that the offences of opening for sale and exposing for sale were committed when they were independent of a sale. When, as a result of such offences, an actual sale was transacted, there should not be three convictions for three distinct offences. The question for the decision of the Full Court was whether the magistrate’s determinations were erroneous in point of law. In his judgment the Chief Justice, Hon. M. Myers, said: “The practice has always been in cases of this kind to lav information# for all acts complained of if they are thought to constitute separate offences, but only to ask for one conviction in respect of what may be called the culminating or final act and to abandon the informations for the other acts or offences. Experience has shown that the ends of justice have been sufficiently and satisfactorily met by the adoption qf that practice. For that reason I have approached consideration of this with the frank desire of upholding the magistrate’s decision if possible. , “After careful consideration, however. I find myself unable to do so. In the present case to my mind the opening or keeping open for sale of liquor, exposure of liquor for sale and the actual sale are all separate and distinct acts. P apprehend, however, that the present appeal was brought simply to determine the question of law. It was said by counsel for the appellent that it was not what he called a bad case and it is competent for the police if they think proper, now thaat they have established their point of law, to abandon proceedings on the remaining informations.” Mr Justice Ostier also said that although ho had no doubt that respondent could in this case, if the evidence warranted it, be found guiltv of three separate offences, yet in such a case where they were all in respect of one sale it had not been usual for the police to press for more than one conviction. While not wishing to dictate to the police he certainly thought that unless there were strong reasons they should not in similar circumstances press for more than one conviction.-. Mr Justice Herdman, Mr Justice Adams and Mr Justice MacGregor concurred.

The appeal was allowed with costs £9 9s.