ALLEGED BREACH OF THE LICENSING ACT.

Otago Daily Times, Issue 11400, 18 April 1899, Page 6

ALLEGED BREACH OF THE LICENSING ACT.

SOCIALS AFTER HOURS.

Charles M'Veigh, the licensee of the Club Hotel, Kaitangata, was charged at Milton yesterday before Mr R. S. Hawkins, S.M., with having, on February 25, allowed beer to be consumed on .his licensed, premises at a time when his house was directed, to be closed. Ho was 'also further charged witli unlawfully keeping Qpen his premises for the sale of liquor, and with selling liquor at a time when the "house was directed to bo closed.

It was agreed to hear all the charges together, and the defendant pleaded not guilty. Mr N. l'atorson, of Kaitangata, who ap-peared'-for tho defendant, stated that ho was present when the alleged offence took place. 3iid, ho drew up' tho which might bo referred to in the' case. He should have preferred if an outside solicitor could have appeared in the case instead of himself, but Mr Solomon, who had been engaged, telegraphed on Saturday afternoon that it would be'impossible for him to be present that day. He (Mr Patersim) had therefore practically no option but to appear. Sergeant King, who conducted the ease for the prosecution, said one of his witnesses was not present.' His excuse was that his expenses- had not been paid;'but Mr Solomon undertook, to pay.all the. witnesses to be present, .; '..':. Mr Paterson was willing to meet the prosecution in any way. in. regard to witnesses. Mr' Joseph Shore consulted him as to whether it was necessary to be present, and Mr W. M. Shore intended to send a note explaining why Joseph Shore cauld not be there. Mr Hawkins asked if Joseph Shore's evidence was something that defendant was prepared to admit. .'. .■■.-.' ill Patorson replied that if it was' something against defendant ho was not going to admit it. , ' • Sergeant King desired to know if defendant was prepared to admit that the liquor was used and' obtained from Mr M'Veigh? Mr Palorson .said he admitted lliat the liquor'was in the rpofc after the hour of closing, and was obtained from Mr Jl'Veigh, but lie would not admit tho consumption ol tho liquor. He would admit that Mr Shore was secretary of the club, and anything in connection with the secretaryship. ■ .' Sergeant Kins said ho understood that each ii.omborof the club paid 2s W for admission that night. • Thoy paid the money to Shore, as secretary, and'ho paid it, or was to pay it, to the defendant. He wanted to know whether trie- defendant would admit that the money was paid or was promised -to be paid. Mr Paterson admitted that the money was promised to be paid, and undertook to produce the license, which was not in court, at any time it was required.

Serjeant King said the information was laid under section 155 of the Licensing Act oi 18P3. The defendant was tho holder of a rmblican's'licence, and also an extension license to 11 o'clock, for the Club Hotel at Kailangata, On Saturday, the 25th of lobraary. the defendant allowed a smoke concert to be held in the dining room of. his licensed premises. ' Tlhe concert was got up by the Kaitang.ila Athletic Club, and in the room in which it was hold there were from 18 to 20 pcrsoiiE. There were some refreshments in the room,, including »eer !ukl whisky. , ihe concert started at fi'o'cloclr and finished about 12; and during the concert there were toasts and'"speechifying.'1 besides singing. About half-past 11 Constable Ferguson was passing tho hotel, and noticed tho place all lit up. lie went inside, and asked the licensee why his place win not closed, and Mr M.-Veigl! I old him he had a pormit to keep open till 12 o'clock.. Mr M'Vftigh also showed him the permit," which'was signed by two mom-b-jr-; of thu licensing committee. He (the servant) produced the document. Mr Hawkins asked What section the document was given under. '. Mr Paterson replied under sections 7a and 3& of the act of 1881.' Mr Hawkins: A conditional license you call it? ' . . r Mr Paterson: What I.intend to show is if it cannot be looked upon as a conditional license,' it could bo looked upon as a permit under suction 128.

Mr Hawkins sajti in no sense could it De called a' conditional licenfe. In any case it would bo.bad unless signed by him. Mr Paterson submitted tlistt that was not so. lie had looked into the matter, and he was prepared to combat that view. Sergeant. King said the whole committee could not grant "oevmit-pion tn keep open to 12 o'clock. Section 12 of the act of 1893 abolished 12 o'clock licenses. Extension licenses now lasted to 12 o'clock. Air PaterEon said tho permission could be given under section 128. That referred to the leasing ol a room. Two of the committee assumed that they could allow a liGtolkeepev lo lease a room ; but in that case application must be made in a different form showing the object for which the room was wanted. That section did not justify a hotolkeepor selling or nllowing the kale of liquor on his premise? after hours of closing. Mr Pators-.ni admitted that section 128 did not allow a publican to sell liquor after closing hours. His view of the case was based on what loo!; place in Grant's case, and the judgment put forward in that case. Sergeant King- proceeded lo say thai after A!.:- -u-V'eigh showed tlio constable the permit the house was kept upon till 12 o'clock, and the evidence he was going lo bring forward was to the offeet that in the dining room beer in a, koji was consumed by the people there up to 12Vclock. William Thomas, enginedriver, residing at •Ivnilaneata, who was then called, deposed

on the 25th of February last he was in the Club Hotol. There was a smoke concert there, and there were 18 or 20 people present. He wont to the hotel about 8 o'clock, and left about 11.55. There were beer and leinonatlo in the room, and holhacL a glass or two of beer. He could not say when he had the. lost drink, or whether drinking was going on up to tho timo ho loft. There was very little drinking going on during the whole of tho evening. There wore numerous toasts during tho night, but he could not swear when any of them were proposed. Those present had to pay 2s 6d admission to tho secretary of the club.

Cross-examined: Before "Auld Lang Syne" was sung there was a long^ discussion about forming a cycling track in.' Kaitangata. Ho should imagine that the discussion lasted threo-tjuarters of an hour, judging by tho number of speakers who spoke. Ho knew everybody present at the concert. He could not point to any of those present and say he saw him take a glass pf beer: from 11' o'clock to 55 minutes past 11. To Constable King: It was a very dry meeting. x .',■.. Mr Paterson objected at thin stage to Sergeant King putting Tteading questions to and cross-examining his own witness. Mr Hawkins remarked. .jbhat the witness's memory was exceedingly^ accurate when Mr Paterson questioned him: and exceedingly inaccurate when the sergeant questioned him.

On being further interrogated by Sergeant King witness said he never saw a man take a drink after 11. He would not swear that he had none, and he Vrould not swear that he had.

To Mr Hawkins: Witness.saw no liquor drunk between 11 and -11.55. To Mr Paterson: .WiWess remembered a .'stranger entering the room and being ejected, as it was a private meeting.

William Hamilton Mackenzie deposed thai he was a retired storekeeper residing at Kaitangata. Ho was at M'V,eigb's hotel on the night of the smoke concert.* ;,H« occupied the position of chairman. [He weitt there between half-past 7 and 3,. and left shortly before 12. There were about half a. dozen songs anil toasts. They were given in the earlier part of the evening. He had half a glass of beer, but he did not drink it. After 11 o'clock there was a general conversation. He did not see any drinking after 11. There was some drinking before, but not much. There was beer in unfinished tumblerß on the table up to the time he left. He was not aware of any toasts being'proposed after 11 o'clock. There was not a. keg of boer standing at the left of witness's seat.

Cross-examined: Witness had had. a busy day tbat day, and continually wanted them to break up the meeting. He hail been entertaining Mr Seddon that day... . ■ ..

To Sergeant King: Witness was told by the secretary that they had Ngot a grant to keep the place open for aAseitra. hour. He took it for granted that that was to allow liquor to be consumed in the concert room an hour after the usual closing time. The secretary informed them that the hotelkeeper had an hour's grace, but it was a porf,ect farce, because they could not keep the" affair going long enough. ••'

Constable Ferguson gave evidence as to interviewing Mr M'Yoigh at about half-past 11 on the r.ight of jthe 25th of" February. Be heard some singing going on in' tho hotel. Those inside were singing *He's a jolly good fellow." Witness went in by tho back door." People wero going in .and out of that door. Ho asked why the house was not closed. Mr M'Veigh informed "witness that .he had a permit to keep open till 12 o'clock: Witness asked him to show the permit, and ho did as requested. When he went td the hotel he saw two persons sitting in the bar parlour. After the conversation with -M'Veigh witnofs walked about the place, and he saw people leaving the hotel at five minutes tq 12. He did not hear, any singing after half-past 11. When witness interviewed Mr M'Veigh he seemed quite satisfied that, he had a permit to keep open to 12 o'clock.

Cross-examined: Witness, did.not know the persons who were sitting in the bar parlour when he went into tho hotel.- The slide in the bar was open. He did .not go into the dining room. He'could not say ; .what was the practice in regard to holding banquets in publiehouses: after hours. ■ Csf';:

Mr Paterson. asked if witness would be surprised to hear that he held a. telegram in his hand from Invercargill stating, that so long as a publican closed the .business part of his house at the usual time when a banquet was going on the police did not interfere.

Witness replied that.he knew nothing about . He had formerly been in Invcrcargill.

Mr Hawkins asked,what about.the other witness ? . ' '

Sergeant King replied that lie was prepared to allow the ease to stand as it was. He could see that the witnesses lost their memory after 11 o'clock. Mr Palerson said the charges were very serious. The result of a conviction would be an endorsement on the license, and the depreciation of the value of the: property by hundreds of pounds. As to the charge that .there,.' was a sale, lie did not know ivhether-.it iwould' be seriously contended that -that charge jiatl been supported. It seemed to have been half dropped by the prosecution. He would point out that the sale had taken place as soon as the liquor was' set aside for. .the purpose of consumption; and the prosecution could not win on that particular charge. Then, as to the chargo of keeping the liotel: open after hours, that must fail, when it was shown that the doors of the premises Were kept closed, although.a number of persons were inside drinking. Mr Hawkins: You have not proved that the door was kept closed. ... Mr Pa,terson: The front door was closed. Mr Hawkins: But the back door was open. Mr Paterson said there had been frequent decisions in Dunedin to the effect that the front door could be kept open for the convenience of travellers. . . 'Mr Hawkins asked if counsel could cite any case where that had been decided. Mr Patevson replied that he could not. Mr Hawkins said closed meant locked. . Mr Paterson: It hits been.proved the front door was locked. Mr Hawkins: But the back door was not locked. Mr Paterson said ,he had evidence to show that it had been locked. Sergeant King: The constable walked right in. : ■ . Mr Paterson said, with regard to the charge of consuming liquor after hours, there had only been the vaguest evidence as to what took plnoe, and if there was any reasonable doubt' in his Worship's mind as to whether liquor was really consumed after 11 o'clock, then he submitted that his Worship would refuse to convict. With regard to the permit to keep open after 11 o'clock, counsel contended that any two members of the licensing committee had power to grant an additional license to do so. The Defendant, who was'then called, deposed that he locked up his house at 11 o'clock on the night of the concert. He locked Hie front door, the. b'aek door, and the bar door. When he took Constable Ferguson into tHe liar he opened the bottom part of the bar door to show the constable the permit. There was no one else in the bar parlour but himself and tho constable. The back door might have been open when the constable came in. but he locked it at 11 o'clock. If the back door was opened after 11 o'clock il must have been by some one going out of the dining room or some one belonging to Ins own household. ' ' This closed the caso for the defence. Mr Hawkins said, with regard to the charge of keeping open house for'the sale of liquor, it must bo dismissed. There was no prooi that the defendant kept the house open for tJie purpose of selling liquor, and there was no proof of there being a sale of liquor. He came back, therefore, to the charge of allowin"- Hquor to be consumed or purchased alter the hours of closing. The evidence of Thomas and Mackenzie, who were called lor the profccutiori, was of the usual nod mi neordo style of such evidence. Their memory utterly failed the witnesses on points adverse to the defendant, and was quite exact ana particular on all points which told in thenfavour. \7nforluuatcly, i.i this case bias wen!. too far. They recollected liquor being on the table, and were certain no toasts were drunkafter 11 o'clock. The witness Ferguson. /iowever swore positively that lie heard the chonn •' For he's a jolly good fellow 'at 11.30; ana 11,0 usual stamping and knocking which emphasised the popularity of the toast, mo constable's evidence was clear, simple, and explicit, and was totally unshaken, and, in deed, hardly questioned in cross-examination. His Worship regretted exceedingly to have to say that it was a very rare thing in his somewhat wide experience to find that any persons who had been . implicated _in or were parties to a breach of tho licensing law givine honest evidence. It seemed to he .the current opinion that the oath taken to spea* the truth, the whole truth, and nothing but tho truth, was not, under such circumstances, to be regarded seriously; or, at least, it was to h». qualified by such a modification as might be attributed to imperfect, observation or defective .memory. Fortunately.-lwo judges of the Supreme Court had recognised this frailty of witnesses, and had decided' that a magistrate might accept part, or reject part, of a witness's evidence, and might judge from demeanour and the improbability of tho value of such evidence. As to the alleged permit, under winch the breach took place, it was clear that it was perfectly mil paper. It professed to be a certificate, for a conditional license and to be granted without a feo. Hfi could not understand how two members could sign such a certificate. Not only had they no power without the chairman to grant the certificate, but they had no power, even with his consent, to dispense with a fee. which the whole committee resolved should bo■ paid on a conditional license. A ■conditional .license was never issued. A publican was supposed to know the law under which he held his license, and his Worship could not excuse him from responsibility or to throw it off by alleging that he had the unauthorised or worthless permit of two persons, even if they were members of the licensine committee.

The act of 1893, section 12, eub-seetion 3. wan peremptory, and it absolutely prohibited opening 'till 12. The .entire committee only could allow . a house to be open till 11. Thevo was a practice of allowing .private societies to take a, room in a hotel, under section 128 of the act of 1881, and he had no doubt that when they took it lk|uor was being consumed; but lie also bad no doubt that it was illegal, and had ojilv been winked at by the police authorities. In those cases all the liquor, ho believed, was bought before the event and taken into the room; but that did not, ho thought, Gave a licensee from prosecution uridnr the consumption clause of hoclion 155. In this case there was not even this permit. 'J'ho defendant would be fined £5, and costs (£1 6s 6d). Mr Palerson rusked his Worship to raise the lino to £5 Is, in order to allow him to appeal against the decision. His Worship agreed to do as requested.