AFTER TEN O’CLOCK

New Zealand Times, Volume XXXIII, Issue 7399, 29 March 1911, Page 1

AFTER TEN O’CLOCK

AN APPEAL UPHELD NEW ZEALANDER HOTEL CASE SEQUEL TO SMOKE CONCERT. Tho appeal by M. J. Donnelly, the licouseo of tho New Zealander Hotel, Wellington, against his conviction on a charge of allowing liquor to be consumed on licensed promises after closing hours has been allowed by Mr Justice Cooper. The case arose out of a smoke concert held in the hotel diningroom on August Bth by the Ramblers Football Club, Tho promoters obtained police permission to continue the proceedings after 10 p.m., provided there was no consumption of liquor. Appellant had to attend to the bar owing to the sudden illness of his barman, and he left the diningroom, giving express instructions to a Mr Waters, who was controlling the concert, that after 10 o’clock there must be no consumption. Tho magistrate held that defendant' had left Waters in charge of the diningroom, and as Waters was unable to say that no beer was consumed between 10 o'clock and 10.35 o'clock there was no ground of answer or defence to the information, and he convicted the appellant. EVIDENCE OF CONSUMPTION. “The question for the opinion of the court is whether the magistrate's determination w:as erroneous in point of law," stated his Honor. “Two questions have been argued. The first is whether there was any evidence upon which tho magistrate could properly inter that liquor had been consumed in the diningroom after 10 o'clock. 1 In my opinion there was. The fact that beer had been poured into tho glasses by some of Ui© party just before 10, and that at 10.35 there was some beer remaining in some of the glasses, is evidence that between 9.53 and 10.35 beer had been consumed, and the magistrate could properly infer from that fact that some beer bad-been, consumed by some of the footballers alter 10 o'clock, ■lt is not necessary in order to prove the consumption of liquor within the prohibited hours that there should be evidence of such .consumption. It is sufficient if there is presumptive evidence, and here the fact that the vice-president of the club would not state, that beer had not been consumed after 10 o'clock, coupled .with, the fact that he had permitted it to bo poured into the glasses five minutes before 10 and tho condition of the glasses as observed by the police about half an. hour afterwards, the <smoke concert being- then still, in progress, is, in my opinion, amply sufficient evidence to establish a prima facie case of. consumption within tho prohibited hours. The other question is lyhether Eli© appellant 'allowed' the consumption .of. beer after 10 o’clock. The magistrate held that, upon, tho facts found by him, Waters was placed by the appellant in charge of the room, and that, therefore, as there was evidence from which a consumption of liquor after -10 o'clock could properly be presumed the appellant ‘allowed' this consumption. “Mr Ostler, has admitted that - the facts proved by the magistrate do not justify any inference that "Waters was constituted by the appellant his agent or servant during the appellant's absence from the room, and, in my opinion, this admission is right. Waters, as vice-president of the club, and one of the promoters of the concert, may be fairly said to have been in . charge of the concert*, but the concert was allowed by the express, permission, of the police to be continued after 10 o'clock, subject* it is true, to. a condition made with the promoters of tho concert that no liquor should bo consumed after that hour. The facts do not justify tho inference that the appellant left 'Waters, as his, the appellant's, representative in charge of the room, but merely show that the appellant, who was obliged to leave the room, emphasised to Waters the condition on which the police had at the request, not of tho appellant, but of the representative of the club, allowed tho concert to continue. I agree, therefore, with Mr Ostler that an inference tha’fi Waters was representing the- appellant cannot properly be drawn, and that Waters was not the agent, or servant of the appellant. THE GROUND OP CONVICTION.' “The only ground urged by Mr Ostler in. support of the conviction is that the magistrate must bo held to have found that tho appellant connived at the conr sumption of liquor after 10 o'clock by purposely abstaining from returning to tho room in order to give the footballers an opportunity to consume beer after 10 o'clock. In my opinion the case, as stated, shows that the magistrate did not draw such an inference, and, even if he had done so, the facts found by him could not, in my opinion, support such a conclusion. The magistrate has found as facts that tho appellant had no intention of leaving the room, but that tho sudden illness of his barman made it absolutely necessary for tho appellant to do so, and he has found as a further fact that the appellant had no person in his employ to take the barman's place or to attend in the diningroom. He has also found as a fact that the appellant, before leaving the diningroom, had expressly told Waters that liquor must not bo consumed after 10 o'clock. borne liquor remained in the room after the appellant left. The hour at which he left is stated to have been ‘during tho evening,' and it was evidently some time before 10 o'clock, for'he had to take the barman's place, and according to the magistrate, he was necessarily absent until 10.35. . DEFINITION OF “ALLOWING." “Now, in Bailey v. Pratt, 20 N.Z.L.R. 758, Mr Justice Denniston, after exhaustively examining the English cases from 1875 to 1899, held that in order to justify the conviction of a licensed hotelkeoper for ‘allowing 1 - to take place in his iicetnsed premises which were prohibited during the hours within which the licensed premises were directed to be closed, knowledge or connivance must bo proved, and that mere negligence or carelessness will not support the charge, unless such negligence or carelessness was of such a character as to bo in itself evidence of connivance. Section 190 of the Licensing Act, 1908, under which tho present appellant has been convicted, is so far as regards this charge against him in the same terms as section 155 of the Act of ISSI. which was under consideration in Bailey v. Pratt. NO CONNIVANCE. “I have carefully examined tho cases .

on which his Honor has based his judgment and X quit© agree with the principle he has deduced from them, and I shall follow his judgment. Is there, then, any evidence upon which the conviction in tho present case can be supported upon the ground that the appellant has been guilty of such negligence or carelessness as amounts to evidence of connivance? I do not think there is.. The appellant was obliged to leave the room; tho magistrate fias found as a fact that he jvos justifiably absent up to the time when the police visited the hotel, and that he had no intention of allowing a breach of the law to be committed, and the proved facts show that he did not know that a breach of the law was likely to be committed, The only circumstance from which negligence or carelessness might b© inferred is Re did not insist on the liquor being removed from the diningroom. He forbad© some time before 10 o'clock its consumption after 10 o'clock, and the magistrate has found that the appellant intended to prevent such consumption by his own personal attendance throughout the concert. but that he was prevented from remaining in the room by circumstances beyond his control. These facts found hr the magistrate negative any inference that the appellant left the room and abstained from returning for the. purpose of allowing a breach of the law to bo committed. Therefore, in my opinion, the mere fact that the appellant _ did not remove the liquor is not evidencefrom which any inference can be drawn that he remained out of the room lor tho purpose of conniving at a breach of the law-, “I do not think it necessaiy to refer to the later English cn«*s cited by Mr 8011, beyond stating that they do not at all narrow the principle which, in my opinion, Mr Justice Denniston has correctly stated to be the result of the decisions of the English courts up to the year 1899. Mr Ostler has urged' that if this appeal is allowed it will o© difficult to enforce the law, X do not agree with this, A simple remedy is that the polio© shall insist on all entertainments, if held in a licensed house, ceasing at the hour at which the house is directed to be closed. , “The appeal is allowed and the conviction. quashed." At the hearing of tho appeal Mr .Ostler appeared ‘for the Crown, and Mr Bell and Mr Fell foe the appellant