APPEAL DISMISSED

Nelson Evening Mail, Volume LXIV, 8 December 1930, Page 2

APPEAL DISMISSED

ENDORSEMENT OF LICENSE SUPREME COURT PROCEEDINGS Oji 15lh November last Ann Jane Davis, licensee' of the Post Boy Hotel, was convicted in the .Magistrate's Court by Mr T. E. Maunsell, S.M., for permitting clrunlcenness on her premises and was lined £lO, with costs £1 2s, and her license was endorsed. The case arose out of the death of a relief worker named Edward Canington, who when leaving the hotel fell down, sustaining fatal injuries. An appeal against the Magistrate's decision was heard at the Supreme Court to-day before His Honour Mr Justice Reed. Mr Movnagh appeared for the appellant, and"Mr C. U. Fell for Edward F. Smith (a police constable) who laid the information.

Mr Fell staled that the appellant in the lower court pleaded guilty, and he contended that it was impossible for an appeal to go on after a plea of guilty. He had had instructions from the Police to use his discretion and on certain terms he was prepared to allow the hearing to go on. His Honour: I do not think I have any jurisdiction. What are the grounds of appeal? Mr Fell said they were as follows: (1) That the penalty imposed was unduly severe in.its result.

(2) That further evidence has now been available which was unknown to the defendant at the date of the hearing which if before the Court would have shown that one Edward Carrington was not necessarily drunk when the alleged offence took place. (3) That the defendant .when pleading guilty was unaware of the penalty imposed by statute in case of her conviction, arid was acting under stress, and emotion, and she was not rational or fit to instruct her solicitor as to her true position under her lease. (4) That she was unaware when she pleaded guilty that the effect of an endorsement of her license was, under the covenant of her lease, such a breach as to enable the lessor to re-enter and take possession of her licensed premises. (5) That owing to all the circumstances not being placed before the Magistrate a substantial wrong or miscarriage of justice had taken place. His Honour: All questions for rehearing. , ' Mr Fell said an application had been made for a re-hearing. Mr Moynagh remarked that every conceivable misfortune that could have happened had happened in the case. When applicant first called at his office to give instructions he was at the Bay and did not personally see her. He arrived backon the morning of the hearing and was told his client was going to plead guilty. He had not time to investigate the facts and the decision«was reserved, and he was then confronted with the question of getting in his appeal, as he 'had only seven days to get it in. -His obvious'course was to apply for a rehearing, but if the Magistrate had declined his application and he had not got his appeal in he would have bean m a cleft stick. Ho had not been aware at the time, owing to the shortness of the time ho had at his disposal to go into the case before it came on for hearing that an endorsement of the license meant that the lease would lapse. His Honour: Perhaps the Magistrate did not know that? Mr Moynagh: No. His Honour: If you can support these facts and the Magistrate in endorsing did not know the effect of what the endorsement would bo I think he would grant a re-hearing. I am quite satislied that there is no ground for appeal. Nono of the grounds alleged are sufficient for an appeal. After some further argument Mis Honour intimated that he thought he was justified in expressing his opinion that in the circumstances the Magistrate could re-hear the case. He thought that if the facts had been brought to the attention of the Magistrate he w° ud have modified the penalty he had inflicted. His Honour added that he thought the Magistrate would be fully entitled to hear the facts and if he thought fit to qualify them. Mr Moynagh: I will be satisfied with that. , , ~ , Mr Fell intimated that he would be willing to agree provided that the evidence which was available at . the original hearing was available for the re-hearing or was admitted. Three of the material witnesses were relief workers and he did not know if they were producible. - His Honour (smiling) : Are they in gaol? .■' , . , Counsel replied that they had not qualified for that but he did not know where thev could be found. He added that the licensee pretty well knew the whole position, because prior to the hearing an inquest was held covering the whole of the grounds. There was a lengthy investigation and the charge was not laid until the conclusion of the evidence. . , His Honour: The police .have a. brief of the evidence. The Magistrate could quite well impose a condition that that evidence could be accepteu. Mr Fell: My learned friend may want to cross-examine. . . Mr Movnagh : No. lam quite willing to take the evidence given at the inquiry. ~ ~ His Honour: I think if an application is made to the Magistrate for a re-hear-ing the Magistrate has a right to impose any condition he wishes. He can consider the matter purely from the point of view of penalty from the tresh evidence brought before him.. The appeal was dismissed with costs £4 4s and disbursements.