AN EXTRAORDINARY JUDGMENT.

New Zealand Illustrated Sporting & Dramatic Review, Volume XVII, Issue 1008, 1 July 1909, Page 20

AN EXTRAORDINARY JUDGMENT.

The Magistrate, in delivering judgment, readily admitted his belief that the barman did not know at the time he supplied Nolan that he was a prohibited person, but for all that he considered he was bound to convict him, because the defendant Fischer was charged under Section 213 of the Licensing Act, 1908. “ That section,” Mr. Cutten said, “ quite reasonably, in his opinion, threw a heavier responsibility with respect to the supply of liquor to prohibited persons upon licensees than was thrown upon other persons. To maintain a sufficient defence to a charge under Section 213, a licensed person must satisfy the Court that he, and the agent actually selling the liquor, had no reasonable opportunity of knowing, and did not know, that the person to whom the liquor was supplied was a prohibited person. In other words, to maintain an effective defence, a licensed person must satisfy the Court, not only that he did not know that the person was prohibited, but that he had taken reasonable steps to inform himself whether or not the person to whom the liquor was sold was the person described in the prohibition order served upon him. For prohibition orders to be effective, a care, which probably involves a good deal of work, must be exercised, and the responsibility of seeing that the necessary care was exercised was, it seemed to him, quite reasonably thrown upon licensed persons. It was one of the obligations attached to the holding of a license. To be in a position to set up a sufficient defence to a charge under Section 213 it was, in his opinion, necessary for a licensed person to be able to show that he had, after service upon him of a prohibition order, taken some reasonable steps to enable himself and his servants to identify the subject of the order. The mere filing away of the prohibition order served upon him was not a sufficient discharge of the duty thrown upon a licensee of making some reasonable efforts to acquire such knowledge as would enable him and his servants to identify the prohibited person in the event of his entering the licensed premises. There was no evidence of any steps having been taken, nor any inquiries made, by the defendant in this case to enable him to identify the prohibited person, and he therefore considered he was bound to convict. “ Possibly licensed persons,” concluded the magistrate, “ have not had their attention fully directed to their responsibilities in this matter. In view of that, and of the facts in this particular case, no penalty will be inflicted.”

Mr. Cutten’s reading of the law may be sound enough, in his own judgment, but surely the decision is monstrously unjust. On his own showing, a man is convicted of an offence he did not commit, for the charge against him was that he supplied a prohibited person with liquor “knowing him to be prohibited,” and Mr. Cutten expressly stated his belief that the barman, at the time he served the man did not know he was prohibited. How does Mr. Cutten think the hotelkeepers of a city like Auckland, for instance, can possibly acquaint themselves with the identity of every prohibited person? How can they expect their assistants to know them? Would he have the licensee insult his customers by asking them, “ Are you a prohibited person?” before serving them with drinks, or would he advise the setting up of a portrait gallery of prohibited persons

in every hotel in the land, and a careful comparison of tne " rogues ” in such a gallery with every caller at the bar who sought refreshment. If Mr. Cutten and his brother magistrates would only exercise a little more common sense in their judgments, instead of endeavouring to make the reading of the law more impossible of honest observance, we should not have to comment upon the travesty of justice involved in the conviction of a man for an alleged offence of which the magistrate himself admits he was innocent.