LICENSING CASE

Otago Daily Times, Issue 16610, 5 February 1916, Page 11

LICENSING CASE

PUBUCtAN'S LIABILITY. A NICE POINT. In the City Police Court yesterday morning, before Mr J. R. Bartholomew, t».M., Senior-sergeant Dart raised an important point in rog&rd to the liability of hotolkoepcirß in tho case of persons under the ago of 21 years being supplied with liquor. Tho point, was whether tho iotelkeeper could bo convicted no matter whether ho had given definite instructions to his barman not to supply liquor to such persons, and irrespective of whether he was on the premises—in tho bar or not—oxercising a general oontrol of 'his business when such a sale was made. The caso was one in which Charles Henry Taylor, tho licensee of Tattersall's Hotel, and Harry Bertie, his barman, were charged with selling liquor to Leonard William Wilden and Georgo Merry, a returned soldier, on the evening of January 5. Both defendants were represented by Mr B. S. Irwin, and pleaded not guilty. ~ . Sergeant Thomson gave evidence as to visiting tho hotel and finding _ the two youths with liquor. Bertio admitted ing them, and said that ho had not asked their ago. He had aekod Wilden • his age on a previous occasion, and he had said he was 21. . . Tho youth Wilden, on being examined, said ho was 20 years old on November 24. Ho was excited when approached by Sergeant Thomson and said he was 21, but corrected himself a minuto later, going up to the sergeant and telling him tho truth. Tho other youth, Merry, said ho was 20 years old last April. There other hotels into which ho had gone at different times, and he had never been asked jus a S°Mr Irwin submitted that the case against tho licensee must bo dismissed. He was on tho premises and had not handed over his authority to anyone else. _If the licensee was present in charge of his hotel, and his barman did something against instructions, the licensee could not be held responsible, tho barman not being his alter ego. With regard to the age of tho youths, ho would sumbit evidence that tho youths did not appear to be under 21 years of age, and, moreover, the barman had the fact that Merry was a returned soldier, and that Wilden had previously said ho was 21 years of age. Ho submitted, therefore, that both cases must be dismissed. TTio licensee, in the course of giving evidence, said that his barman had stnet instructions not to supply liquor to persons under 21 years of ago. The instruction was to keep particular guard against this, as tho hotel, being situated in a side street, it was moro probable that such persons would seek to be served there than in a more publio locality. They refused many youths every week. At tno time of the serving of the youths who were the subject of the information, witness was not in the bar. He was working in the storeroom. It was not usual for him to bo in the bar serving except at dinner time and such hours when it was necessary to relieve the barman. Ho had never been before the court before on any matter in connection with any breach of the law. The barman, Bertie, stated that in accordance with his instructions he was very careful about the serving of youths. Ho had been 21 years a barman, and had never before been connected with a case of a breach of the licensing law. If ho had had tho slightest reason to doubt that tho youths in the case were under 21 years of age he would certainly not have served them. Mr Irwin also submitted evidence to prove that the barman had previously questioned Wilden as to his age. Counsel further called evidence in support of the contention he raised that tho youths did not appeal to be under 21. This last evidence was taken exception to by tho senior-sergeant, who said he could bring 50 or 60 witnesses to testify tho contrary. —Mr Irwin retorted that the polioe caso was closed, so far as the taking of evidence was concerned. —Senior-sergeant Dart then submitted that the point was for the magistrate to decide himself from the appearance of tho youths in the witness box, in which contention the magistrate concurred. « . Senior-sergeant Dart then submitted that the whole case turned upon the fact whether the youths appeared to be under 21 years of age. It did not matter what questions were a&ed in the bar, or what answers were 'given. The fact that a youth said he was over 21 was not a protection; if it wero it would open tho way to unlimited broaches of the law, setting it at nought. It would bo an absolute protection to tho barman and licensee. So far as the licensee was concerned, he submitted that tho case must succeed. The licensee was not in the bar, and even though it was a. faot that he had no knowledge of tho serving of the youths, and that the serving of such youths was against his instructions, that would not absolve him. Further, it would make no difference even had the licensee been in the bar. So long as the barman committed the offlenco within the 6copo of his employment the licensee was liable. The evidence showed that the barman was in charge of the bar, the licensee having deputed the work to him. It did not matter for tho purposes of the prosecution that the licensee was about the premises in pursuance of a general control of his business, that ho had given definite instructions not to serve minors, and that he had no knowledge that the offence was being committed. -The senior-sergeant referred the magistrate to a number of cases bearing a relation to the contention. . , The Magistrate said that Merry mignt reasonably be described as a person over the age of 21 years, and in respect of the charges in his' oase, both would be dismissed. With regard to the other lad, he obviously did not appear to be' over 21 years of age. He had been asked his age, and the barman had apparently elected to be governed by that fact. There was certainly some doubt in the barman's nund or ho would not have asked the question. Even if the lad did say some months before that ho was. 21, that' did not absolve the barman. He (tho magistrate) held that Wilden was apparently under tho age of 21. With regard to the point raised by Senior-sergeant Dart, as to the liability of the licensee, he appreciated its importance. It was a very nice one, and he would reservo ' his decision upon it. The caso against the barman would also bo held aver in tho meantime.