CUTTEN LAW.

New Zealand Illustrated Sporting & Dramatic Review, 4 May 1911, Page 20

CUTTEN LAW.

MR. JUSTICE EDWARDS PRONOUNCES IT BAD. AN APPEAL UPHELD. Isn’t it about time some one took notice of Mr. Cutten’s law? The right of appeal from magisterial or other legal decisions, is mercifully conceded in some cases, to those who are charged with offences against the law, but in others it is denied. Mr. E.. C; Cutten, the Auckland Stipendiary has distinguished himself, on more than one occasion by his unsound decisions, two or three of which, at least, have been reversed within the last year or so- That being the case, what guarantee have those who, either as the result of misfortune or wrong doing, come before Mr. Cutten, that the law may not be strained against them, as it would seem to have been strained in certain “prohibited person” cases? The latest of these cases was disposed of on Saturday morning, when Mr. Justice Edwards gave judgment in the appeal case, Daniel Dunn v. Wm. Monson, an appeal against the decision of Mr. E. C. Cutten, S.M., in which appellant (a -barman) was convicted of having sold liquor to a prohibited person/ His Honor said that the question for determination in the appeal was under which of the three classes of cases under the statute law this case fell. In his opinion it fell within the third class as laid down by the Court of Appeal in the King' v Ewart (25 N.Z. Law Reports (C.A.) 709; 8 G.L-R. 22). This was: “Those in which although from the omission from the statute of the word ‘knowingly’ or ‘wilfully’ it is not necessary to aver in the indictment that the offence charged was ‘knowingly’ .or ‘wilfully’ committed, or to prove a guilty. mind, a?d the comm'ssion of the act in itself prima facie imports an offence, yet the person charged may still discharge himself by proving to the satisfaction of the tribunal which tries him that, in fact, he had not a guilty mind.” Section 205 created five offences which might be created on licensed premises by persons other than licensees. One was the offence of supplying liquor to any prohibited person, the offence charged in this case, and no person coming within section 205 could by any means keep himself free from risk of infringing the statute if the construction of the magistrate was correct. The scope and object of the statute in creating that offence were conclusively shown in section 213. The intention of the legislature clearly was, so far as reasonably possible, to prohibit the sale of liquor to prohibited persons. If, however, that had been absolutely prohibited, it would have entailed intolerable hardships upon licensees. Accordingly section 213 was qualified by a proviso exempting the licensee from the operation of the section if he, or his -agent actually selling the liquor, had no reasonable opportunity of knowing, and did not know that the person to whom fie sold the liquor was a prohibited person. In other words- the legislature had in express terms brought the offence created by section 213 within the third class of cases mentioned in Rex. v. Ewart (quoted above). The scope and object of section 205 (d) are plainly the same scope and ob-

ject as those of section 213. • The object of intention of the legislature jn section 213 was to prohibit the supply'of liquor to persons who were pro-r 'fcibited to purchase it; without cre•atihg unreasonable hardships to innocent persons. Its scope had accordingly been carefully limited to those tfho could not show themselves to be innocent- There could be no doubt tJiat the same scope and object must be attributed to section 205 (d). If the appellant in the case could not have shown himself innocent the licensee would have come within the penalty of section 213. The innocence of the appellant relieved the licensee of that penalty. It was absurd to suppose that the intention of the legislature was, was relieving the licensee upon proof of the innocence of bis agent, at the same time to expose that innocent agent to a penalty in respect of the same Act. The appeal must, therefore, be allowed, and the conviction quashed. The prosecution being a police prosecution there were no costs allowed.

Mr. F. Earl appeared for appellant in the case, and Mr. S. Mays for respondent.