LICENSING CASE

New Zealand Herald, Volume LXXVIII, Issue 23995, 19 June 1941, Page 14

LICENSING CASE

ILLICIT LIQUOB SALE

MAGISTRATE'S CONVICTION

APPEAL TO HIGHER COURT

[bv telf.ck vrrr— pukss association] AV E L LI X ( iTOX, Wednesday

The Court of Appeal to-day commenced the hearing of a case in which an hotel licensee applied for a writ of certiorari quashing a recent conviction by a magistrate. In May last Andrew Dick Reid Duncan, licensee of the Dominion Hotel, 'Wellington, was charged in the Magistrate's Court, before Air. J. 11. Luxford, S.M., with assisting and counselling the commission by Erie Doull of the offence of selling liquor without a licence, and also with opening nis hotel for the sale of liquor at a time when the premises were required to be closed. The first charge was laid under section 195 and the second under Section 190 of the Licensing Act.

Evidence brought by the police was that Doull, a lodger in the hotel, had been selling liquor at night in a street outside the hotel. The magistrate, coming to the conclusion that in selling this liquor Doull had acted as agent of the licensee, convicted the licensee of selling liquor at a place not authorised by his licence —another offence arising under section 195. He fined the licensee £SO and endorsed the hotel licence with the conviction. Grounds of the Appeal In the Court of Appeal Duncan applied for a writ of certiorari quashing the conviction of selling liquor at an unauthorised place oil the grounds that that charge was never laid against him and that he had been convicted without being called upon to answer that charge. Mr. P. 11. Cooke, counsel for Duncan, said the matter was of very great importance. because the Licensing Committee had at a recent meeting informed Duncan that his licence would not be renewed unless this conviction against him was removed.

The Chief .Justice, Sir Michael Myers, asked if counsel had considered the question whether the magistrate had power to endorse the licence in respect of a conviction recorded under section 195, even if that conviction was correct. His Honor said he had understood the power to endorse licences applied only to convictions under section 190, which contained a special code of offences. Counsel said he had not considered that point, but would do so. Mr. Cooke referred to affidavits filed in the case, which showed that a difference of recollection existed between Mr. .1. J. McGrath. counsel for Duncan in the Magistrate's Court, and the magistrate, Mr. Luxford, as to whether Mr. McGrath had agreed to the substitution of the charge of selling at an unauthorised place. Mr. McGrath had filed an affidavit as to his recollection of the lower Court hearing, and the magistrate had filed an opposing affidavit. Magistrate's Affidavit

Sir Michael then said that in 19.'12, in the case of the New Zealand Sheep Farmers Agency versus L. Mosle.v, ho had expressed the opinion that it was wrong for magistrates to file affidavits in such cases as the one before the Court, and lie still held that opinion. He said a magistrate in filing an affidavit. put himself in the position of a witness and was liable to cross-examin-ation. This was not. consistent with his dignity. An affidavit could, and should, have been made by the clerk of the Court. Mr. Cooke explained that it was not suggested for a moment that there was anything more than faulty recollection on the part of the magistrate, for whom everyone at the Bar had the greatest respect. Argument is continuing.