CONVICTION QUASHED.

New Zealand Herald, Volume LXIX, Issue 21116, 25 February 1932, Page 12

CONVICTION QUASHED.

JUDGE UPSETS DECISION. PICKING PEAS ON SUNDAY. "A WORK OF NECESSITY." CHINESE WINS APPEAL. Stat'ng that the picking of peas on Sunday, in readiness for the market on Monday, was a necessity, and was therofore legal, Mr. Justice Herdman, in the Supreme Court yesterday, reversed the. decision of Mr. F. H. Lcvien, S.M., in fining a Chinese for picking peas at Panniure on a Sunday, in view of a public place. Tho appellant. Ah Low, had been convicted under section 18 of tho Police Offences Act, 1927. Counsel for appellant said (lie appeal rested on the question of fact whether the work that was done was a work of necessity. There did not appear to be any Supreme Court decisions in New Zealand that defined a work of necessity. Appellant, in evidence, said he worked in Wing Ping's gardens, of 136 acres, at On the Sunday on which he was approached by a policeman about 50 or 60 bags had been picked. He left 'at 2.30 a.m. on Monday to take the peas to the market. If (hey were picked on Saturday they would becomo heated and would go black and would not be fresh on Monday morning. He could not afford to have the peas put in cold store. John Donald, a director of Produce Markets, Limited, said (hat at the height of tho season the markets opened at about 2.45 a.m. to receive fresh vegetables. Monday was one of the biggest days for green vegetables and at times they handled 500 or 600 bags of peas. Peas picked on Saturday for Monday's market would not be satisfactory and could riot be sold. Cold storage would not. be suitable and tho cost would bo prohibitive. Sabbath Requirements. John Duncan Kennedy, an inspector of the Agricultural Department, said that peas picked on Saturday would be practically unfit for human consumption on Monday. "Surely the necessity for keeping the Sabbath would not require that," said His Honor, when cross-examining counsel suggested that (he Chinese might employ extra hands and start picking at 2.30 a.m. on Monday. "I know at one time you were not supposed (o shave on Sunday," ho added. Percy William Massicks. greengrocer, supplying various clubs and hotels, said it. was essential to havo fresh vegetallies on Mondays. Unless the peas were picked nn Sunday they would be no use to him. Eli Percy Titchcner. branch manager of Irvine and Stevenson, produced various contracts in which it was required that peas should bo freshly picked and not over-heated. He had a staff of 50 or 55 engaged for two months on canning peas. The first of the staff commenced shelling the peas at 7 a.m. on Monday. Whpn he heard that appellant had been fined he. considered the results would be so serious for his business that he sought an opportunity to give evidence". His Honor expressed surprise that, there was so little authority bearing directly on tho matter. Case For The Crown. Counsel for the police said the weak point of his case was that some of the peas might go bad if kept over Sunday, but did that warrant the extensive carrying on of the business on the Sunday? Any question of convenience or expense must be ruled out and the only question was whether irreparable loss was being avoided by doing the work on Sunday. The public, he pointed out, 'went without fresh peas for the greater part of tho year. His Honor said it would appear that (he case was purely a. question of fact, to be determined upon (ho evidence, whether it had been proved that the picking of peas on a Sunday was a necessity. lie had come to the conclusion (hat it was a, necessity, and that for that reason a man was exempt from prosecution. If the appellant. had picked the peas on Saturday they would have been useless for the market on Monday. If a market gardener was prevented from pickii/g peas on Sunday he could only carry on his business under very grave disabilities. Tho appeal was allowed and the conviction quashed.