A DECISION REVERSED.

Otago Witness, Issue 3783, 14 September 1926, Page 15

A DECISION REVERSED.

WELLINGTON, September 6. Tn an important judgment which was delivered to-day Mr Justice MacGregor allowed the appeal of James M’Parland, licensee of the Hotel Cecil, against the conviction of Mr E. Page, S.M., of permitting drunkenness on the licensed premises of the Hotel Cecil. In the course of his judgment his Honor said: — “I respectfully agree with the following statement of the law on the subject by Mr Justice Cooper in Agnew v. Matthews. ‘The essence of the offence is consequently “permission” by the licensee or bis servants to a drunken man remaining upon the premises while in a drunken state.’ This means, in my opinion, that there must be evidence that the licensee consents to a drunken person remaining on the premises. As Mr Justiee Chapman said in Williams v. Jones, permission consists in consciously allowing a drunken man to remain on the premises. The time during which a drunken man is to the knowledge of the licensee upon the premises while in a drunken state, the reasons why he has not been ejected and all other surrounding circumstances must be taken into consideration.” “On applying these principles of law to the facts in the present case I am in the end not satisfied that the offence charged has been proved a ( rainst the appellant,” said his Honor. “The evidence does not convince me that there was ‘permission,’ iether by the licensee or by his servants, to a drunken man to remain upon his licensed premises. The licensee himself was not present, and knew nothing of the occurrence. His barman admittedly was. present, but T do not think that the e'idence establishes that he ‘consciously’ allowed a drunken man to remain on the premises within the meaning of \gnew v. Matthew. The appellant here i charged with a criminal offence, and is entitled to an acquittal unless his guilt be clearly proved. What are the particular circumstances attending the present prosecution? A drunken man came into appellant's bar a few minutes before closing time a busy Friday evening. There were then from 50 to 70 men in the bar. He asked the barman for a pint of beer. -he barman saw that he already had enough drink .and said. ‘No, get out of it.’ Then, according to the barman’s evidence in this court: ‘He turned round almost immediately and went towards the door. - did not see him go through the door, because as soon as he left the counter his place was filled up by others. 1 believed the man went out of the bar and so took no more trouble.’ The case L close to the line, but, after consideration. I do not think I would be justified in convicting appellant on this evidence of permitting drunkenness in his licensed premises. In the present case I am certainly not satisfied on the facts before me that either the licensee or his deputy (the barman) did willingly and unlawfully allow a drunken man to come and to remain on his licensed premises on the day in question. The anneal must accordingly be allowed, and tlie decision of the magistrate reversed, and the information against appellant dismissed. There will be no costs of appeal, as the circumstances were undoubtedly at first sight suspicious, and I think the police were quite justified in laying the information.”