NO-LICENSE DECISION

Otago Witness, Issue 3148, 15 July 1914, Page 30

NO-LICENSE DECISION

the club hotel case. IMPORTANT SUPREME CO CRT JUDGMENT. MAGISTRATE’S DECISION UPSET. INVERCARGILL, July 9. In the judgment m Mie Club Hotel case, Mr Justice Denniaton upheld the appeal from-the- magistrate’s decision. His Honor said: “This is an appeal from the stipendiary magistrate on his dismissal of an information charging the respondent that, being the manager of premises known as the Club Hotel, at Invercargill, he did keep such premises as a place of resort for the consumption of intoxicating liquors. The information was laid under section 37, subsection 3, of ‘The Licensing Amendment Act, 1910.’” After quoting the whole section of the Act his Honor went on to say: “The facta are not in dispute. They are thus stated by the magisrate : “1. The defendant is landlord of, and has control of the premises known as the Club Hotel, Invercargill, which is a noliconse district under the Licensing Act. (2) One of the rooms of the said Club Hotel is fitted up as a so-called temperance bar, where non-alcoholic liquors arc obtainable. (3) This bar is used as a resort by many persons, who bring with them alcoholic liquor, which they consume there, and the bar was so used between March 7, 1914, and May 2, 1914. (4) The defendant supplies customers with glasses and soda water, and such-like beverages, and charges them 3d for the use of the glass, and 3d for each bottle of soda water or other beverage supplied.’. The magistrate finds that this must mean, or at least include, the use of the room in which the bar is fitted up, which is part of defendant’s premises, and is the resort of numbers of persons whose main object—in many instances, at all events —may be said, without any breach of charity, to bo the consumption of alcoholic liquor, which they bring with them, and further, that the evidence shows that this use of the bar is not occasional, but ftecjuent. Ho finds on these facts and in-, forences that the defendant did not ‘keep’ this bar —that is this room —as a place for the consumption of intoxicating liquors. Ho says that if the section had made the ‘permitting a place to be used as a resort for the consumption of intoxicants’ an offence, defendant must have been convicted. He refers to the distinction which the Licensing Act draws between offences which consist in ‘permitting’ certain things, and that other class of offence which consists of doing certain things, and adds that there is no ground for confounding one with the other. He concludes thus: ‘Here the thing prohibited is ‘keeping’ premises for certain purposes. It is, I think, the purpose for which defendant keeps this bar, and not the purpose which other people may have in coming there which is the essential point. Now it is not only suggested that the defendant keeps this bar for the purpose of the consumption of intoxicants there, but such view is expressly repudiated by the prosecution.’

“If the offence created had been keeping or using- wholly for the purpose forbidden, said his Honor, I should concur in thia reasoning; but'this is not the case. Subsection 1 of section 37 malices it illegal to keep or use any building, room, or other premises in any no-license district as a place of resort for the consumption thereon of intoxicating liquors. A room in defendant’s hotel is, with his knowledge and consent, habitually used by a number of persons as a place of resort for the consumption of intoxicating liquor therein (or, in the language of the section, ‘thereof’). Defendant supplies these persons with glasses, for the use of which a charge of 3d is made. They can also be supplied with soda water or other beverage (not intoxicating, of course) at 3d a bottle. It is not stated that it is compulsory to take and pay for such beverages. If that were the fact, I think it would have been stated. In ray view „of the matter, however, that point is not essential. It is obvious that but for the facilities thus afforded for the consumption of intoxicating liquor, these persons would not resort to this room and bar. If a person keeps or uses a room for the purpose or purposes for which ho knows it is resorted to, it is immaterial —■ on the question of keeping or using—that he may also keep for sale non-intoxicating beverages. It is. of course, in his powes to forbid and prevent a breach of the law by persons consuming intoxicating liquor in the room. The occupier and every person having or taking any part in the care, management, or control of the same are severally liable to a fine not exceeding £2O for every day on which the premises arc so used. Persons found on any permises so kept or used are liable to a fine of not less than £5. I do not see how the conduct of the defendant can, as found by the magistrate, be construed as only permitting the place to be used as a resort. To my mind he clearly keeps it for that purpose, although not for that purpose solely. The appeal well bo allowed, and the case remitted to the 'magistrate. Complainant will be allowed £7 7s costs.”