Law Report.

New Zealand Police Gazette, Volume XXV, Issue 21, 9 October 1901, Page 235

Law Report.

The following decision is published for general information : -

In re Biggins. “ The Licensing Act, 1881,” Section 155 —Sunday Trading—Exposure for Sale—Dismissal of Information for selling—Presumption arising from such Dismissal. In proceedings under the Licensing Act, if the case is one which a Judge could have left to a jury the conviction must stand. Ex parte Day (4 N.Z. Jur. N.S. S.C. 34) approved. If the slide of the bar of an hotel is up so that any one looking into the bar could see what was in the bar, the contents of the bar are exposed ; and if the circumstances are such as to lead to the conclusion that liquor could be had on paying for it, the liquor is exposed for sale. The dismissal of an information against the same acoused for selling liquor on the same occasion, which was heard together with the information for exposing for sale, on the same evidence, means in law no more than that there is not sufficient proof of sale, and is not an affirmative finding that there was no sale. Argument of rule nisi granted under section 266 of “ The Justices of the Peace Act, 1882,” calling on the Magistrate and the informant to show cause why they should not be prohibited from proceeding on the conviction hereinafter mentioned.

On the 19th of January, 1901, one Joseph Biggins was charged, first, that he, being the holder of a publican’s licence under “ The Licensing Aot, 1881,” did in his licensed premises known as the Great Northern Hotel, on Sunday, when licensed premises are by the said Act direoted to be closed, sell liquor to Edward Dermer and others; secondly, that on the same Sunday he exposed liquor for sale. By consent the charges were heard together on the same evidence. The Magistrate reserved judgment, and subsequently, without giving any reasons, dismissed the first charge and convicted on the second. From the affidavit filed in support of the application it appeared that on the hearing of the informations no suggestion was made by the prosecution in favour of there being an exposure for sale, and the accused’s counsel directed no argument or evidence to that branch of the case, nor did the Magistrate in any way refer to it during the hearing. Fraser showed cause : If there was any evidence in support of the oonviction that could have been left to a jury, the conviction must stand ; the Court will not dissect the evidence : Reg. v. Mellish (2 N.Z. Jur. 127); Ex parte Day (4 N.Z. Jur. N.S. S.C. 34). [Solomon. —We cannot argue that the conclusion of the Court below was wrong if there was any evidence to support it: Nutt v. Bishop (13 N.Z. L.R. 656).] The statement in paragraph 5 of the affidavit in support of the rule has no bearing on the case. The acoused was charged, and knew he was charged, with exposure for sale. The oonviction for exposing for sale was right. The slide was open, giving a clear view of the bar. The landlord was in the bar, and there were men standing by drinking. The landlord stood by and heard them give wrong names and addresses. The back door was open. Crane v. Lawrence (59 L.J. M.C. 110) ; Smith v. Vaux (6 L.T. 46) ; Batt v. Cullen (16 N.Z. L R. 17) ; Finch v. Blundell (5 L.T. 672). Solomon and Sim, in support of the rule: The argument for the accused and the cases cited apply to an information which might have been laid but was not laid —viz., keeping open for sale. The question of exposing for sale is one of fact, and not of inference. Paragraph sof the affidavit has a material bearing. There was no suggestion at the hearing that the evidence would support the charge, and the case of the accused was not framed to meet it. The oase is governed by White v. Nestor (13 N.Z. L.R. 751). The Magistrate must have oome to the conclusion that the defence to the charge of selling—viz., that the liquor was a gift—was true; otherwise it was his duty to convict : Schultheis v. Wilson (13 N.Z. L.R. 295). The case of a gift of liquor is dealt with in Ryland v. Foley, (16 N.Z. L.R. 670) where it was held that there is nothing unlawful in such a gift. There could be no exposure for sale unless there were intending purchasers ; and there was no evidence that there were any. This is a stronger case than White v. Nestor. Crane v. Lawrence (59 L.J. M.C. 110) is referred to in White v. Nestor, and that case decides that in order that there may be an exposure for sale there must be an intending buyer. Cur. adv. vult. Fraser in reply. Williams, J.: In proceedings by way of prohibition under section 266 and the following sections of “ The Justices of the Peace Act, 1882,” I agree with the opinion expressed by Richmond, J., in Ex parte Day (4 N.Z. Jur. N.S. S.C. 34) with respect to similar sections in an earlier Act, that if the case is one which a Judge could have left to a jury the oon-

viction must stand. In the present case the question is whether there was evidence to go to a jury in support of the charge that on this particular Sunday liquor was exposed for sale in the accused’s hotel. It appears from the evidence that shortly before 3 p.m. Sergeant Gilbert saw a number of men going in and out of the hotel, and a woman going in and out of the door and looking up and down the street, apparently on the watch. The sergeant went for a constable, and when he came back the woman was still there. Then, in about fifteen minutes they saw fifteen or sixteen men going in and out. Then the two went to the back door, and met two men in the passage coming out. Then they saw the landlord in the bar with his coat oS, the slide of the bar up, and four men in the passage in front of the slide. Two of them had glasses in their hands with liquor in them. There were three other glasses on the leaf of the Blide, apparently recently emptied, and two empty glasses on the slide in the King Street passage with fresh froth on them. All the four men said the landlord had shouted for them, and the landlord said the same. All the men gave false names. It is a matter of common knowledge that in a publichouse the bar is the place where the liquors are kept, and the Magistrate, like a juryman, was at liberty to apply to the subject before him that general knowledge which any man may be supposed to have. If the slide of the bar is up so that any one looking into the bar could see what was in the bar, the contents of the bar are exposed, though no witness may come forward and say he has actually seen what was in the bar. If the liquor is thus exposed, and the surrounding circumstances lead to the conclusion that liquor oould be bad by discreet persons on paying for it, then the

liquor is exposed for sale. The evidence, to my mind, abundantly supports this conclusion. The point made, however, in the present case is that there was another information laid against the accused, for selling liquor on the same occasion during prohibited hours, that both informations were by consent heard together on the same evidence, and that the Magistrate dismissed the information for selling, but convicted on the information for exposing for sale. It is contended that as the Magistrate dismissed the information for selling he must have believed the witnesses who swore that the liquor was given them ; and that if there was no sale to these persons there was no exposure for sale. What reasons the Magistrate had for dismissing the information for selling I am unable to say. It is impossible to suppose that the Magistrate, as a sensible man, really believed the evidence of the witnesses that the liquor was a gift. I should rather conclude that he did not quite appreciate the effect of section 170 of the Act of 1881, thought that the question of the proof of sale to any particular person might be in dubio, and decided on what he thought the surer ground of exposure for sale. The dismissal of the information for selling, like any other verdict of acquittal, means in law no more than that there is no sufficient proof of sale, and is not an affirmative finding that there was no sale. In order to prove an exposure for sale it is not necessary to prove an actual sale. Evidence that might leave it doubtful whether there had been a sale to any particular person might well be sufficient to satisfy any reasonable man that the bar was open for the purpose of selling liquor. Of that there is ample evidence in the present case ; and the only question for this Court is whether there was any such evidence. Rule discharged.