MAGISTRATE’S COURT

Nelson Evening Mail, Volume LIV, 12 July 1921, Page 5

MAGISTRATE’S COURT

CHARGES AGAINST BUTCHERS

DEFENDANTS ACQUITTED OF ANY INTENT

NOMINAL PENALTY IMPOSED

At the' Magistrate's Court to-day Mr J. S. Evans, S.M., gave his reserved iudgnient in the case in.whioh F. W. Fairey and E .E. Boyes : were charged, on the information, of ,7; the Police, with selling unwholesome meat to Elizabeth Mary Miles. Defendants, who pleaded not guiHjy, were /represented by Mr C. J.' Harley, aiid_Sy-r nior-Sergeant Barrett \ prosecuted. The information. Avasi laid under’; section 3 (P) of “The Police Oflfencefc Act, 3908.” —• ; ■; In the course of the judgment 'Mr Evans said:—“The defendant Fairey is a butcher carrying on a large business in Nelson, and defendant jßoyes is an employee. He sells meat dn the shop as part of his employirienti. The facts alleged x for the jwosecutjop.Jtte’: —That on Saturday. 28th Mpr, 1981, about 10 a.m., Mrs Mites bought from the defendant FaiVcy. through, his ser-; vant Boycs. part of a leg of nmtrom and paid 2s 6d for the seme. Shepid not, examine it before pufehas,®.; apd , took it away from the paper to the place where she worked, where she wrapped it, in an additional piece of brown paper. After I p.rri, she took it home, and a friend of hers, Miss Kerr, who lives with‘h'er, opened the parcel, intending to put “the meat in the safe.. ,Bpth, * and Miss Kerr saw that fly-hlpwn, discoloured Mrs Miles immediately tohk the. meat and showed it to .Constable O’Neill, who lives near-by. |H4 says thfeV meat was flyblown and crawlingyritli maggots, and was discoloured. He'did npfl smell it. Mrs Miles'then .went: no defendant Fairey’& ; house, the : ShAp being closed; hut ;the defendant, W®¥ not there. She complained of the hand treatment she revived.' She then went t.o the 'TbKce'iStation,and saw Cfenstahlh^fflick®y r Constable Hickey saysthateth© meat was very mfiggotty and ed and had a. bad smelly' which ;he could detect while the ‘ meat waS lying on the table without applying, his nose tio it for the purjposd.df :hiSiSll|lig it.; Constable O’Donnell Bays the;, meat was fly-bidAvn and that , ther© were , a very few .small maggots in it, jbut it had no had smell.- Mrs Miles'fypk the meat home again,and in the evening the defendant for it He exchanged if morning. ■ *

•'P or qn eaerence ojuy vmj uweuuauu Pairey saw the meat after its return. He says there were fly-blows on it, but no maggots; that there was » slight discolouration under a flank flap,: hpt no bad smell whatever. He sajs ’ He cut off the flap with the fly-blows and discolouration and soldith© meat on, Monday as fresh meat. The defendant Pairey 'did not smell the meaff hbr see Mrs Miles in the . shop. Defendant Boves. was serving in the shop on 28th. but does not : refnemher selling the meat or seeing Mrs Miles, but he admits it is quit© possible he did sell it. I have therefor© the evidence pf five witneses that the meat was fly* blown and maggotty; four that it was badly maggotty ; five that it was discoloured ; and three that it had a bad smell. On the other i hand the defendant Pairey admits that it was discoloured and flyblown. He ,denies that it was maggotty,' and on this point.l must find against him.- He says it was fresh and that hei removed thedisco* louration and sold it on Monday. , AH I have to say about this is that,“if ho did, I don’t think he could have told the purchaser of ' the Saturday history or the meat. I must, thdfe* fore accept the evidence of the prosecution and find that-when the meat was sold it was flyblown, maggotty and discoloured,,; a*id had a bad smell. : , - ' - / j “The question is, does the condition proved make it “unwholesome naeat” within the section. The dnlv expert evidence called is that of Mr Elphick, a veterinary surgeon. He says that; flyblows and maggots do not render ‘unfit for humaif consumption; 1 This, of course, means that they do not necessarily render it unfit, because it is well-known that freshly killed meat may become flyblown and maggotty iri a very short period and the meat itself not ‘unwholesome.’ > The term is in the Act in connection with foods; therefore it must) he construed in relation to food for human consumption. The English Acts a/re wider and refer to meat which is ‘diseased or unsound or unwholesome or unfit for the food of man.’ I can find no case which defines what any of the* terms mean, but under the English Act the‘meat* has to he condemned, which .may ' he done ex parte, but an ex- parte con- | damnation is not conclusive oh a defendant suhfjequehtly' charged with 'an offence. In numerous English coses f I find that the information charges more than one of these conditions, namely, ‘unwholesome; and unfit for human consumption’ and no objection seems to have been taken to- the charge. In ‘The Sale of Food and Drugs Act, 1906,’ ... it is made an offence for atty person to sell any food which is ‘unsound, or, unfit for human consumption.’, This - meat in, question was beyond doubt unfit • for human consumption when solflV’and I do no* know why procOedings were not taken under that Act. -1 cannot convict pn* der that Act; as convictions ' nfcdhh that Act can he obtained on a sum*

;mons returnable not less than 14 ! days. The summons in, this was returnable in three days. ‘Unwholesome’ is the negative of ‘wholesome,’ and ‘wholesome’ is defined as synonymous with ‘sound,’ and ‘sound’ is defined as ‘free from flaws, defect, or decay.’ Therefore, in my opinion, ‘un> wholesome’ must bo construed as having a flaw, defect or decay which readers the meat unfit for human consumption. This condition must exist at the time of sale, but knowledge of the condition by the defendant or his servant is not necessary to constitute the offence if the meat was in fact ‘unwholesome’ at the time of sale. (Hobbs v. Manchester Corporation). Now, while flyblows or even maggot on meat, proved to bo otherwise fresh, might not make the mea<t unwholesome within tho section, yet in my opinion tho combined conditions, namely, fly-blown, maggotty, discoloured, and bad-smelling, did render it unwholesome within the meaning of tho Act, and there must bo a conviction. I quite acquit both defendants of any intention to sell bad meat, but intention is not an ingredient of tho offence. _ j “The defendants arc charged joint- : ly, but no objection has boon taken ■ to tho form of tho information. Tho

two defendants did not take part in the sale. Tho defendant .Noyes actually made the sale, and the defendant Fairey is vicariously liable. I am doubtful if this is a joint offence. L think each is separately liable for tho offence and for the penally. 1 shall, therefore, convict each defendant, Boyes for actually making the sale, and tho defendant Fairey as being liable for tho act of his servant. It is not under tho circumstances a case for a severe penalty, as I am satisfied, it was not done intentionally. Tho defendant Boyes will bo convicted and fined lined 5s and ordered to pay half the Court costs, and half the witness’s expenses. The defendant Fairey will be convicted and. ordered to pay half tho Court costs and half tho witness’s expenses.” The costs, amounted to 9s lOd for each defendant.

CIVIL CASES Mr Evans gave judgment for plaintiffs by default in the following eases; —Waimea County Council (Mr C. Thorp) v. J. 11. Brunt, claim 17s 4d, costs 10s; Waimea County Council v. O. Pahl, claim £1 los, costa £1 6s; E. Buxton and Co. (Mr C. 11. Fell) v. M. E. Coogan, claim 10s 9d, costs 9s; Neale and Iladdow (Mr E. B. Moore) v. Daniel Simpson, claim £3 17s 9d, costs £1 3s 6d, Both the Waimea County Council and the Nelson Harbour Board bad a largo number of cacss setj down, claiming unpaid rates, but with the exception above, the amounts were confessed or paid into Court, or the summons Lad not been served . IBM ■■■ ■■■— —«— —