ROYAL HOTEL CASE

New Zealand Herald, Volume XLVII, Issue 14345, 15 April 1910, Page 6

ROYAL HOTEL CASE

COSTS AGAINST THE POLICE f • MAGISTRATE'S DECISION. ' - In the Magistrate's Court yesterday, Mr* C. C. Kettle, S.M., gave his reserved judg- |?| merit on the question of whether costs**§ should be allowed in the case of the Police 5 v. Flewellyn,the licensee :-i of the Royal Hotel. Mr* Flewellyn was charged with '• a breach of the Licencing Act, in that he was stated to have refused Mr. Henry Temple, a bona-fide traveller, accommoda- ;n tion without sufficient cause. Judgment ..S was given for the defendant, the question ;J of -whether costs should be allowed, against ? the police being reserved. • '-.'UMti

In the course of his judgment yesterday, Mr. Kettle said the general rule was., that costs were not given against the police or any public officer, when they prosecuted in cases in which it was their , duty to set the law in motion. There were,, however, exceptions to the rule, and, in his opinion, this case was one of ' the exceptions. The case was apart. alto-; ; gether from a general offence against public order, in which the public had an interest. ; The section of the Licensing Act on which the case was based was put in for the || benefit of travellers, and did not concern the general public. In this particular case the alleged offence concerned Mr. Templealone. A. distinction had been drawn between prosecutions «which were set on foot to vindicate a private grievance and. those which were set on foot to punish some breach of the law made for the general public. His Worship then, quoted statute law bearing on the question of costs, and went on to say that in this case he ought to assume that the police had the authority, if not in writing, at least distinct and direct instructions, from Mr. Temple to take proceedings' under the Act. Section 91 iof the Justices of the Peace Act provided that the Court had discretion in making an order for costs. The word "informant," which , occurred in that section, might mean the | person who set the law in motion, as | distinct from the person who laid)the information to bring the matter before the Court. He was in some doubt on that point, and would not give. a ruling, but | if the word informant meant in this case Mr. Temple, there could be no question but he would be liable for costs. There| was also another ground on which costs| should be allowed, and;;. ; that was - that before the proceedings were instituted, the *■ licensee was a not I given.: sufficient; opportunity to explain why he had refused Mr. Temple admission. ? He based his decision on the ground that 'the prosecution should ; have been ; made by Mr. Temple himself, or by someone authorised by him v in writing, and if the... police chose to' take up the case to vindicate, a private grievance on Mr. Temple's behalf, without written instructions, they did so at their peril. If, however, ; they could show that they took up this prosecution for and on behalf of Mr. Temple, they might have an action for recovery against; him in a civil| action. He was therefore of the opinion' that costs ought to be allowed against • the police, although it was a departure from the '• rule. If he deprived the licensee of costs he -would be doing him a gross injustice, and not in consequence ,of anything he had done, but on account of Mr. Temple; having attempted to shield himself \ behind the police. ; It would be an injustice simply because Mr. Temple had succeeded in, inducing the police to take up the prosecution on-his behalf. | "For these reasons," added His Worship, "I am of the opinion that the defendant i is. entitled to costs. As to the' amount, that can be agreed on." ; ~ , '

'Costs were accordingly- allowed; against" the police, any proceedings in respect'of the costs to be suspended for a reasonable time to enable the : police to take action in - the matter. * •'< '.' '. ' ' *,'