BREACH OF THE LICENSING ACT.

Otago Witness, Issue 2914, 19 January 1910, Page 38

BREACH OF THE LICENSING ACT.

IN RE C. G. -THURSTON. The following is the full judgment given by his Honor Mr Justice Williams in this case:— A rule nisi for a habeas corpus was obtained on behalf of one Charles George Thurston, directed to the gaoler at Invercargill, in whose custody Thurston was. The warrant under which he was held showed that he was sentenced to three months’ imprisonment under the LicensingAct for selling liquor in a no-license di.s- . trict. Under that act, however, he was { not liable to imprisonment unless he had | been previously convicted of a similar j offence, and the warrant did not state that he had been so convicted. The rule was obtained on the ground of the irregularity of th© warrant, and on the ground that j the magistrate had no evidence before him ! to show that Thurston had been previously convicted. At txTe hearing the gaoler produced a warrant, good on its face, which bad been substituted for the original warrant. The question, therefore, was ; whether the magistrate had jurisdiction to sentence the accused as having been previously convicted. Affidavits have been filed on both sides. There is not much difference in the statements of fact, and such difference a-s there is in no way suggests that tbs persons making the statements do not honestly believe them to be true. Tbs accused was charged before (Mr Young, the stipendiary magistrate at Gore, with the offence of keeping liquor for sale in a no-license district, and pleaded guilty. The accused was represented by Mr Hanlon. After He had pleaded the magistrate ' asked if anything- was known of him. The . clerk of the court, who was not sworn, | produced the criminal record book, in ; which a previous conviction of a person of the same name as the accused for a similar ! offence was entered. The magistrate then : said it must be admitted or proved that the accused was the person so convicted, and that the accused was the same man, and Mr Hanlon said that be neither admitted . nor denied it—that he did not know. In- ■ specter Mitchell, who was not sworn, then | said to Mr Hanlon that the accused was the j same person, and in answer to a question j from Mr Hanlon said that the clerk of the ! court (Mr Lang) and himself were present, | and that they both knew he was the same j person. Then Mr Hanlon says that he said | “ It may be so.” Mr Young says that Mr | Hanlon said that was sufficient, or words : to that effect. Inspector Mitchell says that Mr Hanlon said: “If both you and Mr Lang were present that will do.” or words to that effect. The magistrate said nothing, but did not call for any further evidence. Mr Hanlon then addressed tho court, in mitigation of the penalty. Mr j Hanlon says that in so doing he did not > admit that it was the accused’s second i offence. The magistrate, however, says | that Mr -Hanlon admitted that as it was a j second offence the magistrate, had no j option to fine. Inspector Mitchell says that on addressing the court in mitigation j of punishment Mi- Hanlon referred to the j fact that as this was thq second offence , the magistrate ’ had no option but to send j the accused to gaol. X have no doubt ; that, Mr Hanlon, in Ins address, made no! direct, admission that it \va« the accused s ; cooond offence. Ho must, however. H*v« ; founded his argument on the assumption ; that it, was the accused’s second offence. I and that, the fact of its being a second . offence had been eufflcientlv established, j If the truth of Inspector Mitchell’s state- ! ment as to the identity of the accused bad not been acquiesced in by Mr Hanlon

[ there was no need for him to address the ; court in mitigation of the punishment by imprisonment, because there would have been no jurisdiction to imprison. The f book containing- the record of the conviction was properly in evidence. All that j was necessary to be proved or admitted' • was the identity of the accused with the person whose conviction had been recorded. It was competent for counsel to bind the accused by the admission of -a fact which would otherwise require to be proved. If a statement of fact necessary , to be proved is made not upon oath, and 5 there is a clear acquiescence by counsel in ; the truth of the fact stated, that is an ■ admission of the fact. The test of whether or | no there is such acquiescence is whether ■ the words and acts of counsel are such as j would lead the magistrate reasonably to ■ conclude that he had . acquiesced in the truth of the statement. There can bo no j doubt, after Inspector Mitchell had stated 1 that the accused was the same man, that j whatever the exact .words' were that Mr j Hanlon used, the magistrate was led to I believe from them that Mr Hanlon ac- ! quiesced in Inspector Mitchell’s statement. Mr Hanlon himself says that he used the words, “ That may be so.” If these were the exact words used it may be said that, taken by themselves, they are equivocal, j But if immediately afterwards Mr Hanlon addressed the magistrate on the assumption that from the facts before him the only course open to the magistrate was to sentence the accused to imprisonment, and asked for a mitigation of that imprisonment, any doubt as to the meaning _of i these words would be removed. Looking at the whole of the evidence, I am satisfied that the magistrate was justified in concluding that Mr Hanlon, by his acquiescence in the truth of Inspector Mitchell’s statement, had admitted that the accused was the same man who had been previously convicted. Rule discharged; costs, £7