ALLEGED BREACH OF THE LICENSING ACT.

Otago Witness, Issue 2356, 20 April 1899, Page 23

ALLEGED BREACH OF THE LICENSING ACT.

SOCIALS AFTER HOURS. Charles M'Veigh, the licensee of the Club Hotel, Kaitangata, was charged at Milton o-i Monday 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. He was- also further charged with unlawfully keeping open his premiseß for the sale of liquor, and with selling liquor at a time when the house was directed to be closed. , It was .agreed to hear all the charges together, and' the defendant pleaded not guilty. Mr N. Paterson, of Kaitangata, who appeared for the defendant, stated that he was present when the alleged offence took place, and he drew up the document winch might : be 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, tele- ; graphed on Saturday afternopn that it would ' be- impossible for Mm to be. present that day. , So (Mr Paterson) had therefore practically no option but to appear: J Sergeant King, -who conducted the case for the prosecution, said' one of' his- witnesses j was not present. His excuse was that his ex- j penses had' not been paid ; but Mr Solomon •' undertook to pay all 'the witnesses to be s present. .. i Mr' Paterson was willing to meet the prose- , cution in any way in. regard to witnesses. Mi" 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 , Joeeph Shore could not be there. Mr Hawkins asked • if Joseph Shore's evidence was something that defendant was pre- ; pared to admit. ! Mr Patej-son replied that if it was something against defendant he was not going t« 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 Patterson &aid he admitted 'that tho liquor was -in the room after the hour of closing, and was obtained from Mr M'Veigh, but lie would not admit the consumption of the liquor. He would admit that Mr ' Shore was secretary of the club, and anything in connection' with the secretaryship. I Sergeant King eaid he understood that each member of the club paid 2s 6d for admtfsaion , that'iiight.> They paid the money to Shore, as secretary, and he paid" it, or was to pay it, 'to the defendant. He wanted to knowwhether the defendant would admit that the , money was paid or was promised to be paid. ' Mr Paterson admitted that the money was i promised' to be paid', and undertook" to pro- | duce the license, which was not in court/ at any time it was required. Sergeant King said the information was laid under section 155 of the Licencing Acti of . 1851. The defendant was the holder of "a publican's license, and also an extension; li- ' cen6e to 11- o'clock, for the ' Club Hotel; at Kailangata. On Saturday,, the> 25th- of February, the defendant allowed a smoke concetti to be" heiSUn' the dining room of" hisr licensed premises. The- concert was got up by the ' Kailangata Athletic Club, and in the- room in which, it was' held- there were from 18 to 20 persons. There were some refreshments . in the^room, including beer and. whisky. The . concert started at 8 o'clock and- finished about ' 12 ; and during the concert there were toasts • and " speechifying," besides singing. About half-pasb 11 Constable Ferguson was- passing the hotel, and noticed the place all lit up. He went inside, and asked the licensee why ' his place was not closed, and Mr M'Veipfh told, him he had a permit to keep open till 12 o'clock. Mr M'Veigh also, showed him the. permit, which was signed by- two members of the licensing committee. He (the ' sergeant) produced the document. Mr Hawkins asked what section the document was given under. i Mr Paterson replied under sections 73 fend 36 of the act of 1881. Mr Hawkins : A conditional license you call it? Mr Paterson: What I intend to show is if it cannot be looked upon as a conditional license, it could be 'looked upon as a permit under section 128. Mr Hawkins said in no sense could it be j called a -conditional license. -In any case it would be bad unless signed by him. Mr Paterson submitted that that was not so. He hadjooked into tlie matter, and he was prepared- to combat' that view. Sergeant King saidiuie .whole committee could not.' grant permission to 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". Mr Patetson said the permission could be given under section 128. That referred to the leasing of a room. ' Two of the committee assumed that they could allow a hotelkeeper to lease a room ; but in that case application must be made in a differeut. form showing the object for which the room was wanted. That section did not justify a ho lei keeper polling or allowing the sale of liquor on his premises after hours of closing. Mr Patereon admitted that section 128 did not allow a publican to sell liquor after closing hour 6. His view of the case was based on what took place in Grant's case, and the judgment put forward in- that case. Sergeant King proceeded to^ay that after Mr .vrVoiijh showed the eomtaole the permit the house was kept open -till 12 o'clock, and the evidence he waj= going to bring forward was to the effect that ituthe dining room beer in a keg was consumed by the people there up to 12 o'clock. William Thomas, cnginedrivcr, residing at Kaitangata, who was then called, deposed on the 25th of February last he was in the Club Hotel. There was a tmoke concert there, and there were 18 or 20 people present. He. went to the hotel about 8 o'clock, and left about 11.55. There were beer and lemonade in the room, and he had a glass or two of beer. He could not pay when he had the last drink, or whether drinking was going- on up tc the time he left. There was very little drinking going on during the whole of the evening. There were numerous toasts during the night, but ho could not swear when any of them were proposed. Tliopq present had to pay 2s 6d admission to the secretary of the club. Cross-examined : Before "Auld Lang Syne" was sung there was a long discussion about forming a, cycling track ir Kaitangata. He should imagine that the discussion lasted three-quarters of an hour, judging by the number of speakerc who ppoke. He knew everybody present at the concert. Ho could not noint to any of those uresent and say he

- saw-hira-take-a-glass-of beer- from 11 o'elockto 55 minutes- pact 11. To Gonstable King : Ifc was a very dry meeting. • j Mr Paterson objected at. this stage tc Ser- \ geant King putting leading • questions to .' and cross-examining his own witness. I i Mr Hawkins remarked r that the witness's 1 memory was exceedingly accurate when Mr ) Paterson questionedTnim, and exceedingly inaccurate when the sergeant questioned him. On being further interrogated by Sergeant King witness said he never saw a man take j a drink after 11. He would not swear that | I he had none, and he would not swear that he I -had. _ _ I , To Mr Hawkins : Witness saw no liquor | drunk between 11 and 11.55. • ] i To Mr Paterson : Witness remembered a" stranger entering the room and being ejected, ; . as it was a prnnte meeting. William Hamilton Mackenzie deposed that i ) ho was a retired storekeeper residing at Kai- ' tangata. He was at M'Veigh's hotel on the « night of the smoke concert. IJo oceupie/1 the ; , position of chairman. He went (here between ) half-past 7 and 8. and left shortly before ; ! 12. There, were abotit half a dozen bongs and j I toasts. They were given in the earlier part i [of the evening. He had half a glass of beer, , i 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 iiot much. There was beer in unfinished tumblers on t-ho tublo ■ i up to the time he left. De was .not aware •' of any toasts "being proposed after 1L o'clock. There was not a keg of beer standing at tho i ' left of wit ness's seat. ! Cross-examined : Witness had had ,a busy ! • day that day, and continually wanted them to ' J break up the meeting. He had been enter- , . iaining Mr Soddon that clay. ; ' 'To Sergeant King : Witness was told by the j secretary that they had got a grant to keep j r the place open for an extra hour. He took | , it for granted that that was to allow liquor to , be consumed in the concert room" an hour j after the usual closing time. The secretary I informed them that the hotelkeeper had an i . hour's grace, but it was a perfect farce, bo- ] cause they cottfd not keep the affair going ' long- enough. ! j Constable Ferguson gave evidence as to in- i '■ terviewing Mr M'Veigh at about half-past il '■ on the night of the 25th of February. He I heard some singing going on in the hotel. | Thoso'inside were singing " He's a jolly good fellow." Witnefs went in by the back, door. . People were going in and out of that door. ! •He as'ced why the house was not closed. Mr '• M'Veigh informed witness that he had a j permit to keep open till 12 o'clock. Witness ! asked him to show tho permit, and he- did as j requested! When he Went to the hotel he I saw two persons sitting in the bar parlour, j , After the conversation with M'Veigh witness i • walked about the place, and he saw people ! leaving the hotel at five minutes to 12. He j ' did not hear any singing after half-past 11. j When witness interviewed' Mr M'Veigh ho | , seemed quite satisfied that- he had a permit to ke3p open to 12 o'clock. ; Cross-examined : Witness did not know the , persona who were sitting in the bar parlour ; wherr he went into the hotel. The sh'de in „ the^bar ,was open. He did not go into the ' dining room. Hb could not say what, was the practice in regard to holding 1 banquets in. publichouses after Hours. ' * j »Mr Patersjon- 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 J ■ house- at the usual time when a banquet was . going on tho police did not interfere. Witness replied that lie knew nothing about it. He had formerly bean in Invercargill. Mr Hawkins askpd what about the other witnes3 ? ■ Sergeant King replied that he was prepared ! to allow the case to stand as it was. He , could see that the witnesses lost their memory after 11 o'clock. Mr Pateraon said tho charges were very serious. Tho remit of a conviction would be an (indorsement on the license, and the depreciation of the value of the property by hun- , dieds' of pounds. As to the charge that there was 'a sale, lie did not know whether it would bo seriously contended that that charge had been supported. It seemed to have been half , dropped by the prosecution. He would point out that the sale had taken place as boon as ; tho liquor was sot aside for the purpose of- ; consumption ; and the nrosecution could not. . win on that particular charge- Then, as to tho charge of keeping the hotel open after : hours; that must fail, when it was shown that \ the doors of the premipes were kept closed, ' although a number of persons were inside drinking. Mr Hawkins : You" have not proved that the door was kept closed. j j Mr Paterson : The front door waR closed. j j Mr Hawkins: But tho back door was open, i i Mr Paterson said there had been frequent I decisions in Dunedin to the effect that tho \ front door could be kept open for the con- ; venience of travellers. Mr Hawkins asked if counsel could cite any case where that had. been, decided. i Mr Paterson. replied that he could not. Mr Hawkins said closed' meant locked. Mr Paterson : It has been proved the front I door was locked. I Mr Hawkins:, But the back door was not looked. Mr Paterson said he had evidence to show that it had' been locked. i Sergeant King : The constable walked right ] in. ; J Mr Paterson said, with regard to the cliarpfp ' of consuming liquor after hours, there had i i only been the vaguest evidence as tc what i I took place, and if there was any reasonable I i doubt in his Worship's mind as to whether , liquor won really consumed after 11 o'clock, then lie submitted that his Worship would I ! refuse to convict. With regard to the permit , to keep open after 11 o'clock, counsel contended that any two members of the licen- j sing committee had power to grant an addi- ! tional lirense to do so. j , Tho Defendant, who was then called, de- I . posed that ho locked up his house at 11 o'clock on the night of tho concert. He locked the front door, the back door, and the bar door. When he took Constable Ferguson into the bar he opened the bottom part of the bar door to show the constable the permit, i There was no one else in the bar parlour but ' himself and the- constable. The back door ; might have hoen open when the constable came in, but he locked it at 11 o'clock. If , the back door was opened after 11 o'clock it j must have been by some one going out of the dining room or «ome one belonging to his own household. j This closed the case for the defence. j Mr Hawkins said, 'with regard to the charge ; of keeping open house for the sale of liquor, I it must be dismisaed. There was no proof j that the defendant kept the house open for j the purpose of felling liquor, and there was no proof of there being- a sale of liquor. He came back, therefore, to the charge of allowing liquor to bo consumed or purchased after the hours of closing. Tho evidence of ' Thomas and Mackenzie, who were called for the prnsenution, waß of the usual non mi ricordo style of rucli evidence. Their memory

utterly- failed the witnesses on- points adverse to the defendant?, and was- quite exact and particular on aIL points, which told in their favour. Unfortunately, in. this case' bias went too far. They recollected liquor being on the table, and wtfre certain- no -toasts were drunk after 11 o'clock. The witness Ferguson, how.over, swore positively that he heard the chorus ''For- he's a jolly good fellow " at 11.30; ami the usual stamping and knocking which emphasised the popularity of the toast. The constable's evidence was clear, simple, and explicit, and was totally unshaken, and, indeed, hardly questioned in cross-examination. His Worship regretted exceedingly to have to say that it was a yery rare thing in his somewhat wide experience to find that any persons who had- been implicated in or were parties, to -a' 1 breach of the licensing law giv.ing honest evidence. It seemed to be the current opinion that the oath taken to speak the truth, the whole truth, and nothing but the truth, was not. under such circumstances, to \m regarded seriously; or,at least, it was to be qualified by such a modification as might be attributed to imperfect observation- or defective memory. Fortunately, two judges of the Supreme Court bad 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 the value of ?\ich evidence. As to the alleged permit, under which tlie breach took place, it was-c-iear that it was perfectly mil paper. It professed to bo a certificate for a conditional license and to be granted without a fee. He 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 foe. which the whole committee, resolved should "be paid on a conditional license. A conditional license was never issued. A publican was supposed to know tne 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 oftwo persons, even if they were members of the licensing- committee. .The act of 1893, section 12, sub-section 3. was peremptory, and it absolutely prohibited opening till 12. Tho entire committee* only could allow a house to be open till 11. There was a practice of allowing private nocieties to take a room in a hotel, under section 128 of tlie act -of 1881, and he had no doubt that when they took it liquor was being consumed ; but he also had no doubt that it was illegal, and had only been winked at by tho police authorities. In? those cases all the liquor, he believed, was bought before the event and taken into the room; but that did not. he thought, save a licensee from prosecution under the consumption clause of seclion 155. In this case there was not even this permit. The defendant would" be fined £5, and costs (£1 6s 6d). Mr Paterson asked his Worship to raise the fine to £5 Is, in order to allow him to ap-peal-against die decision. His Worship agreed to do as requested.