LAW REPORTS.

New Zealand Police Gazette, Volume XXXVI, Issue 26, 5 July 1911, Page 305

LAW REPORTS.

“ New Zealand Law Reports,” Vol. xxx, page 488.)

[S.C. Masterton—(Stout, C.J.)—29th March, 1911.] Coe and Simmons v. Simmonds (No. 2).

Practice — Libel — Evidence—Police Report—State Document — Privileged.

The plaintiff in an action for libel subpoenaed a police officer to produce a report to his Department containing information as to the alleged committal of a crime. The Department claimed privilege. Held, That the document was privileged, and the Court

would not order its production. Action for libel. A question was raised whether a police officer could be examined as to the contents of a document said to be in the hands of the Government, which was information regarding the alleged committal of a crime. The Commissioner of Police filed an affidavit stating that the Department claimed that the document was privileged from production, on the ground that it was a matter of State which should not be disclosed. Ostler, for the Commissioner of Police :

The Commissioner cannot be compelled to produce the document : Odgers on Libel (4th ed. pp. 628, 629); The Bellerovhon (44 L.J. Adm. 5) ; Hennessy v. Wright (21 Q.B.D. 519) ; Taylor on Evidence (10th ed. Vol. i, 667, par. 939) ; Marks v. Beyfus (59 L.J. Q.B. 479). Nielsen, for the defendant : The evidence is inadmissible. We rely upon the authorities cited by Mr. Ostler. Pownall, for the plaintiffs : This is a civil action, and the information given was without foundation, and the Court ought to order its production. Stout, C.J.: — I am of opinion that the Court cannot order the Government to produce the document in their possession. One of the functions of the State is the dealing with crime, and the Police Department is intrusted with the maintenance of law and order and the detection of crime. If this Department receives a document from any one about a crime being committed, in my opinion the Department is not bound to produce that document if the head of the Department says it ought not, in the interests of the State, to be produced. An affidavit has been filed making that allegation, and in my opinion it would bs overruling the usual procedure in many cases that can be cited were I to order that the Government should produce the document. If the document cannot be produced it is clear that secondary evidence of its contents cannot be given: See Odgers on Libel (p. 329). It may be that an injury is done to an individual by preventing him from suing a person who may have been an informer, but the interests of the State are greater than those of individuals ; and it would be, in my opinion, a dangerous thing to say that all information received by the Government regarding crimes can be made public if a party chooses to sue another, and that the Government can be compelled to produce the information they have received. This might lead to great injury in the detection of crime.

There being no other evidence, it is admitted that the action must fail. The plaintiff is nonsuited. Solicitor for the plaintiffs : C. A. Pownall (Masterton). Solicitor for the defendant: C. W. Nielsen (Wellington).

(“New Zealand Law Reports, Vol. xxx, page 492.) [S.C. In Banco. Masterton—(Stout, C.J.) —31st March, 1911.] Erickson v. Cattanach. Licensing — Offences —Sale of Liquor by Unlicensed Person — “ Sale ” —“ Guest” Whether exempted The Licensing Act, 1908, Sections 195, 368. The appellant, an unlicensed person, in conjunction with other members of a football club, purchased liquor amounting to £8 in value for consumption at a concert. A charge was made for admission to others than guests. Liquor was supplied at the concert to A, who, in lieu of payment for admission, lent his piano; but there was no evidence that the appellant actually handed the liquor to A. Held, —1. That there was a sale to A within the meaning of the Licensing Act, 1908 ; 2. That there was a sale by the appellant; and 3. That the transaction was not permissible, as being within seotion 268 of the said Act. Appeal from a conviction by L. G. Reid, Esq., S.M., at Masterton, for an offence under section 195 of the Licensing Act, 1908. The facts appear from the judgment of Stout, C.J. Pownall for the appellant. Ostler for the respondent.

Cur. adv. vult.

Stout, C.J.: — This is an appeal on a point of law from a conviction under section 195 of the Licensing Act, 1908. The facts as stated show that the appellant, along with other members of a football club, bought alcoholic liquor amounting to £8 worth for consumption at a concert. The admission to the concert or entertainment was: to footballers other than guests, Bs. and 7s. 6d. ; to non-members of the club, ss. The charge made against the appellant was that he sold liquor to one Percy Richard Kent. It was found by the Magistrate that Percy Richard Kent did not pay ss. which other non-members were paying, but in lieu of such payment he lent his piano. The questions raised are therefore —1. Was there a sale? 2. Was there a sale by Erickson? 3. Did the transaction come under section 268 as a permissible transaction ? 1. Was there a sale ? I am of opinion that there was a sale. Under the old English Alehouse Act (9 Geo. IV, c. 61) the section preventing sales had the words “ bartering, exchanging, or for valuable consideration otherwise disposing of the liquor,” &c. In the English Licensing Act of 1872, however, the words “bartering or exchanging” were not inserted. The words, however, in section 3 of the English Licensing Act of 1872 are similar to the terms of our Act, and section 62 of the English Act is similar to our section 206, and under these two English sections it has been held that they include the words “ bartering or exchanging ” : See Paterson’s Licensing Acts (17th ed. pp. 324 et seq.). In my opinion this was a sale, for good consideration was given by Kent for admission to this concert ; and the Magistrate has found that any persons who were non-members and who did not pay -55., or give, as here, an equivalent for the 55., were not admitted, but were excluded from the entertainment. 1 am therefore of opinion that it was a sale within the meaning of our Licensing Act. See also the decision of the Supreme Court in Mackenzie v. Whittingham (23 N.Z. L.R. 857, at p. 863), where His Honour Mr. Justice Denniston held that the word “ sale ” did not require to be a sale within the meaning of the Sale of Goods Act, 1895. In my opinion this was a sale in the strict sense of the term. It was an equivalent given for something else. 2. Was there a sale by Erickson ? Erickson was one of the proprietors of the liquor: See Graff v. Evans ( 8 Q.B.D. 378). The liquor belonged to the club, and he was a member of the club though unregistered, and as such he joined with the others in the sale of liquor to various people, and to Kent amongst the number. It is true that he did not actually hand the liquor to Kent, but the officers of the association did hand the liquor to Kent, and the liquor was there for his use as well as for the use of others. In my opinion this was a sale by Erickson, he being one of the proprietors. 3. Did the transaction come under section 268 of the Act as a permissible transaction? That section states that “ meetings of an association, society, or club bona fide formed for outdoor games and exercises may supply the

members and their guests at the expense of the association, society, or club with refreshments, including liquor.” This was not, however, supplying a guest. It was the supplying of a person who bought his right of admission. This being so, the protection afforded by section 268 as an amendment of section 267 does not apply, and consequently the law has been violated. The Magistrate has considered the violation of the law not to be one of the ordinary violations of the Licensing Act by an illicit sale, and has modified the penalty accordingly. I have not to deal with that. The question is whether in point of law the Magistrate’s decision was wrong. lam of opinion that his decision was correct in point of law, and that consequently the appeal must be dismissed, with £5 ss. costs. Appeal dismissed. Solicitor for the appellant : C. A. Pownall (Masterton). Solicitors for the respondent : The Crown Law Office (Wellington).

(“ New Zealand Law Reports,” Vol. xxx, page 496.) [S.C. In Banco. Napier (Stout, C.J.) — 29th November, 1911.] Fitzpatrick v. Cruickshank. Practice Appeal on Fact from Justices —Admission of Fresh Evidence —Betting with an Infant —Onus of Proof of Bona Fides— The Gaming Act 1908, Section 67. On an appeal on fact from Justices, or a Magistrate sitting as a Justice, the Court is not confined to the evidence *given in the Court below, but may hear fresh evidence and fresh witnesses. Where [a person is charged with the offence of betting with an infant under section 67 of the Gaming Act, 1908, the statute places upon him the onus of proving he believed the infant was twenty-one years of age; and in determining the apparent age of the infant the Court will look at the personal appearance of the infant and at what took place on the occasion of the bet. Appeal from a conviction by S. E. McCarthy, Esq., S.M., a Napier, of an offence under section 67 of the Gaming Act 1908, The facts appear from the judgment of Stout, C.J. Dolan for the appellant. E. E. Williams for the respondent. Cur. adv. vult. Stout, C.J. : This is an appeal from the Stipendiary Magistrate sitting in the Justices of the Peace Court, and the case really turns on a question of procedure and of fact. The first question as to procedure is whether on an appeal on fact from Justices fresh evidence and fresh witnesses may be called. I stated in the case of Brown v. Bowden (2 Gaz. L.R. 374) that I was of opinion that fresh evidence should not be allowed to be introduced in such appeal cases. It, however, has been the practice to introduce fresh evidence, and there is nothing in the statute prohibiting it: See Poole v. Cooper (3 Gaz. L.R. 198.) In this respect the statute differs from appeals on fact from the Magistrate’s Court in its civil jurisdiction. The Supreme Court in dealing with appeals on questions of fact from the Justices’ Court, is really carrying out the jurisdiction that is performed in England by Quarter Sessions ; and it has been laid down that in such appeals the Quarter Sessions are not confined to the evidence of the witnesses who appeared in the Court below: See Stone’s Justices’ Manual (43rd ed. p. 954). As I have said, it has been the habit to introduce such evidence, and so long as the law remains unaltered I cannot rule that such evidence is_ improperly introduced. If this is so, then the whole question really turns on one point—namely, whether the appellant proved that he had reasonable ground for believing, and that he did believe, that a certain John Gilbert McDermott, was twenty-one years of age. The onus of proving this affirmatively is cast upon the appellant, who was the accused. The Magistrate held that he had not done so. The question is whether there was evidence on the rehearing sufficient to satisfy the Court that the appellant has done what the statute reauires him to do—to prove that he had reasonable ground iox believing, and did believe, that McDermott was of full age. It" is unnecessary to deal with the question of McDermott’s age, because the evidence of his mother is sufficient, along with the birth-certificate, to prove that he was only twenty on the Ist of November, 1910, he being born on the Ist of November, 1890. Even if Mrs. McDermott had not given her evidence, I do not know that there

was not prima facie evidence that he was only of the age stated. There was his own evidence and the certificate of birth produced from the Registrar of Births, and that by our statute is made prima facie evidence. In my opinion, it is prima facie evidence of the facts stated in the certificate itself, and the main fact stated in the certificate itself is the date of the birth. However, it is unnecessary to consider that question, as there was the conclusive testimony of the mother. There are two factors that have to be considered in determining the apparent age of McDermott. There is his personal appearance. This is always a most difficult question to determine. Looking at him, I should say that there are many lads in this Dominion who are only eighteen years of age and who look very much as McDermott looked—that is, he did not look older than many lads whom 1 know of eighteen years of age. There are some, however, who may be twenty-one and over who do not look older than he looks. The Magistrate apparently, looking at him came to the conclusion that he did not look twenty-one years of age, and I cannot say that he is wrong. If, however, the case rested on that alone I should have great difficulty in coming to a decision on the matter, but I have also to look at what took place on the occasion in question; and the evidence is, I think, clear, from what, it is admitted, was said in the Court below, from the constable’s statement in this Court, and from the action of the appellant, that the appellant was not convinced that the lad was twenty-one years of age. This is what is said to have occurred: The lad MoDermott asked the appellant the price of a horse called 11 Entente.” The appellant replied, “ Two to one.” McDermott told him to give him a ticket for 10s. The appellant did so. Immediately thereafter a constable rushed up and said, “ You are betting with an infant.” The appellant then shouted out, “No bet.” The constable repeated three or four times that it was a bet. The appellant said it was no bet, and handed the money back to McDermott. This, in my opinion, was an admission that it was apparent that the lad McDermott was not twenty-one years of age. The explanation he gave for his action was that he had heard that a bookmaker had been caught betting with a boy in the outside enclosure, and that therefore he was determined to be very particular with whom he bet. In my opinion he would not have recalled the bet if he had been convinced in his own mind that the lad was over age. He would have said, “ This lad is over age.” The constable, when he charged the lad with being under age, did not know his age. He assumed that he was under age; and there was no evidence before the appellant at the time when the constable said he was betting with an infant, but the appearance of McDermott, and yet he at once acquiesced in the constable’s statement. I think this was cogent evidence, and, the Magistrate having acted on it, I cannot say he was wrong. This is really the whole case ; and I am of opinion that the appellant has not discharged the onus which is cast upon him by subsection 4 of section 67 of the Gaming Act, 1908, and that the conviction must therefore stand. I understand that there has been no charge against the appellant before of this kind of offence. He had, however, been convicted of street betting. This penalty—namely, £75 or a month’s imprisonment—may have been unusually "severe. There have been two cases decided in New Zealand —namely, Searl v. McArdle (15 N.Z. L.R. 613) and Taylor v. Marsack (17 N.Z. L.R. 153 ; 1 Gaz. L.R. 130)—in which it has been held that the Supreme Court has no power to mitigate the penalty imposed. It must either affirm or quash the conviction. The appellant may, however, apply to the beneficence of the Crown, and no doubt on proper representations some part of the penalty may be remisted if the facts now before the Court are correct. The conviction must be affirmed, with £5 ss. costs, and the costs of the witnesses called on behalf of the respondent. Conviction affirmed. Solicitors for the appellant : Dolan and Ferguson (Napier). Solicitor for th 6 respondent: H. A. Cornford (Crown solicitor, Napier).

(“Now Zealand Law Reports,” Vol. xxx, page 506.)

[S.C. In Banco. Wellington (Goober J.) —22nd and 28th March, 1911.]

Donnelly v. Jones.

Licensing—Offences—Allowing Liguor to he consumed after Closing - hours Smoke Concert Licensee unavoidably called away Proof of Knowledge or Connivance essential—The Licensing Act, 1908, Section 190.

A football club held a smoke concert in licensed premises, having previously obtained the permission of the police to continue the entertainment after 10 p.m. on condition that no liquor was consumed after that hour. The appellant, the licensee of the hotel, remained in the room till shortly before 10 p.m., when he was obliged to leave in order to attend to customers in the bar owing to the sudden illness of his barman. Before he left he informed the vice-president of the club that no liquor was to be consumed after 10 p.m., and the vice-president undertook to see that these instructions were carried out. The Magistrate found that liquor had been consumed after 10 p.m., and convicted the appellant of an offence under section 190 of the Licensing Act, 1908, of allowing liquor, although purchased before, to be consumed on the licensed premises after closing-hours. Held, That the conviction must be quashed, there being no evidence of knowledge or connivance on the part of the appellant. Bailey v. Pratt followed (20 N.Z. L.R. 758). Appeal on point of law, under the provisions of the Justices of the Peace Act, 1908, from a conviction of the appellant by W. G. Riddell, Esq., S.M., at Wellington, of an offenoe against the provisions of section 190 of the Licensing Act, 1908. The facts are fully stated in the judgment of Cooper, J. Bell, K.C., and G. H, Fell, for the appellant, cited the following cases: Emary v. Nolloth ([1903] 2 K.B. 264); McKenna v. Harding (69 J.P. 354) ; Somerset v. Hart (12 Q.B.D. 360); Somerset v. Wade ([1894] 1 Q.B. 574); Sherras v. De Rutzen ([1895] 1 Q.B. 918) ; Massey v. Morriss ([1894] 2 Q.B. 412) ; Weiss v. Green (26 N.Z. L.R. 945.) Ostler, for the respondent, referred to section 190 of the Licensing Act, 1908, section 61, subsection 1, of the Licensing (Consolidated) Act, 1910 (10 Edw. YII and I Geo. Y, c. 24); and Paterson’s Licensing Acts (21st ed. p. 556) ; and cited Thompson v. Greig (34 J.P. 214) ; Pearce v. Gill (41 J.P. 742) ; Bailey v. Pratt (20 N.Z. L.R. 758) ; Jull v. Treanor (14 N.Z. L.R. 513) ; Ireland v. Connolly (21 N.Z. L,R. 314). Bell, K.C., in reply, stated that Bailey v. Pratt (20 N.Z. L.R. 758) was decided before Emary v. Nollotli ([1903] 2 K.B. 264.) Cur. adv. vult. Cooper, J.: — The appellant, the licensee of the New-Zealander Hotel, Wellington, was convicted by the Stipendiary Magistrate, Wellington, on the 17th of August, 1910, upon an information laid by the respondent charging the appellant with allowing liquor purchased before the hour of closing of the hotel to be consumed on the licensed premises after the hour of closing. The faots stated by the Magistrate are that on the Bth of August the Ramblers Football Club held a smoke concert in the dining-room of the hotel; that prior to that date the representatives of the club inquired from the Inspector of Police, Wellington, whether the club would be allowed to continue its concert after 10 p.m., and that they were informed by the Inspector that so long as the meeting was orderly no proceedings would be taken against any of those present after the hour of 10 p.m. for being on licensed premises without lawful excuse, but that no liquor must be consumed after 10 p.m. ; that the concert commenced at 7.30 p.m., and the proceedings were of an orderly character, and a number of those present were total abstainers ; that the appellant (the licensee of the hotel) remained for some time in the dining-room where the smoke concert was being held, and intended to remain there until 10 o’clock and after for the purpose of preventing any liquor being consumed after that hour ; that 10 gallons of beer and two bottles of whisky were taken into the dining-room before the concert commenced, but no liquor was taken in there afterwards ; that during the evening the appellant was called from the dining-room in consequence of the fact that his barman had taken ill, and had been compelled to leave the hotel and go home, and that it was necessary for some person to go into the bar, and the appellant was the only person available ; that before leaving the room the appellant informed Harry Waters, one of the representatives and the vice-president of the clnb, and a promoter of the concert, of his reason for having to leave the room, and also informed Waters that no liquor must be consumed after the hour of 10 o’clock; that Waters undertook and promised to see that no liquor was served after that hour ; that the appellant had no servant available, after his barman became ill, to station in the dining-room ; that it is the custom for police officers in Wellington to visit the bars of the various hotels in Wellington shortly after 10 o’clock, and it is necessary that immediately after 10 o’clock the bar should be cleaned up and the glasses and bottles removed, and that this work takes half an hour or so to perform, and the appellant on the occasion in question remained in the bar for the purpose of doing such work;

that at 10.35, just as the appellant was completing his work in the bar, Sergeant Kelly and a constable knocked at the door of the hotel, and were at once admitted; that after inspecting the bar they went into the dining-room and saw on the table several glass jugs containing beer, and also a number of glasses containing aerated waters and some containing beer, and that in some cases there was only a small quantity of beer in the glasses ; that the police remained a very short time in the room, probably a minute ; that there was no direct evidence of any actual consumption of liquor after 10 o’clock, but Waters stated that the jugs were filled with beer about 9.55 o’clock, and he was not prepared to say that no beer was consumed after 10 o’clock.

The Magistrate states that he “ held that defendant had left Waters in charge of the dining-room, and as Waters was unable to say that no beer was consumed between 10 o’clock and 10.35 o’clock, the matters hereinbefore stated afforded no ground of answer or defence to the said information,” and he convicted the appellant. The question for the opinion of the Court is whether the Magistrate’s determination was erroneous in point of law. Two questions have been argued. The first is whether there was any evidence upon which the Magistrate could properly infer that liquor had been consumed in the diningroom after 10 o’clock. In my opinion there was. The fact that beer had in fact been poured into the glasses by some of the party just before 10, and that at 10.35 there was some beer remaining in some of the glasses, is evidence that between 9.55 and 10.35 beer had been consumed, and the Magistrate could properly infer from that fact that some beer had been consumed by some of the footballers after 10 o’clock. It is not necessary in order to prove the consumption of liquor within the prohibited hours that there should be direct evidence of such consumption. It is sufficient if there is presumptive evidence; and here the fact that the vice-president of the club would not state that the beer had not been consumed after 10 o’clock, coupled with the fact that he had permitted it to be poured into the glasses five minutes before 10, and the conditions of the glasses as observed by the police about half an hour afterwards, the smoke concert being then still in progress, is, in my opinion, amply sufficient evidence to establish a prima facie case of consumption within the prohibited hours. The other question is whether the appellant “ allowed ” the consumption of beer after 10 o’clock. The Magistrate has held that, upon the facts found by him, Waters was plaoed by the appellant in charge of the room, and that therefore, as there was evidence from which a consumption of liquor after 10 o’clock could properly be presumed, the appellant “ allowed ” this consumption. Mr. Ostler has admitted that the facts proved by the Magistrate do not justify any inference that Waters was constituted by the appellant his agent or servant during the appellant’s absence from the room, and in my opinion this admission is right. Waters, as vice-president of the clnb and one of the promoters of the concert, may fairly be said to have been in charge of the concert, but the concert was allowed by the express permission of the police to be continued after 10 o’clock, subject, it is true, to a condition made with the promoters of the concert that no liquor should be consumed after that hour. The faots do not justify the inference that the appellant left Waters as his (the appellant’s) representative in charge of the room, but merely show that the appellant, who was obliged to leave the room, emphasized to Waters the condition on which the police had, at the request not of the appellant but of the representative of the club, allowed the concert to continue. I agree, therefore, with Mr. Ostler that an inference that Waters was representing the appellant cannot properly be drawn, and that Waters was not the agent or servant of the appellant. The only ground urged by Mr. Ostler in support of the conviction is that the Magistrate must be held to have found that the appellant connived at the consumption of liquor after 10 o’clock by purposely abstaining from returning to the room in order to give the footballers an opportunity to consume beer after 10 o’clock. In my opinion the case as stated shows that the Magistrate did not draw such an inference, and, even if he had done so, the facts found by him could not, in my opinion, support such a conclusion. The Magistrate has found as facts that the appellant had no intention of leaving the room, but that the sudden illness of his barman made it absolutely necessary for the appellant to do so, and he has found as a further fact that the appellant had no person in his employ to take the barman’s place or to attend in the dining-room. He has also found as a fact that the appellant, before leaving the dining-room had expressly told Waters that liquor must not be consumed after 10 o’clock. Some liquor remained in the room after the appellant left. The hour at which he left is stated to have been “ during the evening ” and it was evidently some time before 10 o’clock, for he had to take the barman’s place, and, according to the Magistrate, he was necessarily absent until 10.35.

Now, in Bailey v. Pratt (20 N.Z. L.R. 758) Mr. Justice Denniston, after exhaustively examining the English cases from 1875 to 1899, held that, in order to justify the conviction of a licensed hotelkeeper for “ allowing ” matters to take place in his licensed premises which were prohibited during the hours within which the licensed premises were directed to be closed, knowledge or connivance must be proved, and that mere negligence or carelessness will not support the charge, unless such negligence or carelessness is of such a character as to be in itself evidence. Section 190 of the Licensing Act, 1908, under which the present appellant has been convicted, is, so far as regards this charge against him, in the same terms as section 155 of the Act of 1881, which was under consideration in Bailey v. Pratt (20 N.Z. L.R. 758). I have carefully examined the cases on which His Honour has based his judgment, and I quite agree with the principle he has deduced from them, and I shall follow his judgment. Is there, then, any evidence upon which the conviction in the present case can be supported upon the ground that the appellant had been guilty of such negligence or carelessness as amounts to evidence of connivance ? I do not think there is. The appellant was obliged to leave the room ; the Magistrate has found as a fact that he was justifiably absent up to the time when the police visited the hotel, and that he had no intention of allowing a breach of the law to be committed ; and the proved facts show that he did not know that a breach of the law was likely to be committed. The only circumstance from which negligence or carelessness might be inferred is that he did not insist on the liquor being removed from the dining-room. He forbade, some time before 10 o’clock, its consumption after 10 o’clock ; and the Magistrate has found that the appellant intended to prevent such consumption by his own personal attendance throughout the concert, but that he was prevented from remaining in the room by circumstances beyond his control. These facts so found by the Magistrate negative any inference that the appellant left the room and abstained from returning for the purpose of allowing a breach of the law to be committed. Therefore, in my opinion, the mere fact that the appellant did not remove the liquor is not evidence from which any inference can be drawn that he remained out of the room for the purpose of conniving at a breach of the law. I do not think it necessary to refer to the later English cases cited by Mr. Bell, beyond stating that they do not at all narrow the principle which, in my opinion, Mr. Justice Denniston has correctly stated go be the result of the decisions of the English Courts up to the year 1899. Mr. Ostler has urged that if this appeal is allowed it will be difficult to enforce the law. Ido not agree with this. A simple remedy is that the police shall insist on all entertainments, if held in a licensed house, ceasing at the hour at which the house is directed to he closed.

The appeal is allowed, and the conviction quashed. Solicitors for the appellant : Bell, Gully, Bell, and Myers (Wellington). Solicitors for the respondent : The Crown Law Office (Wellington).