LAW REPORT.

New Zealand Police Gazette, Volume XL, Issue 21, 26 May 1915, Page 377

LAW REPORT.

(“ New Zealand Law Reports,” Vol. xxxiv, page 318.) [S C. In Banco, Wellington—(Chapman, J.)— l7th and 22nd March, 1915.] Bagrib v. Suhan. Licensing — Offences. Certain licensed premises were situated next door to a social club. A door of the licensed house opened into an enclosed and covered passage running at right angles to the side wall from one house to the other. The licensed premises ended at this door. A servant of the licensee took drinks through this door into the club premises after 10 p.m., closing-time.

Held, That the premises had been opened for the supply of liquor during the time the premises were directed to be closed, and that the licensee should be convicted under section 190 of the Licensing Act, 1908.

Appeal from a decision of J. W. Poynton, Esq., S.M., dismissing an information under section 190 of the Licensing Act, 1908, charging that the respondent, being the holder of a publican’s license for premises at Levin, had during the time at which licensed premises are directed to be closed by or in pursuance of the Licensing Act, 1908—namely, at 10.30 p.m. on 2nd July, 1913—unlawfully opened his premises for the sale of liquor. Ostler for the appellant. Wilford for the respondent. Cur. adv. vult.

Chapman, J. : The case showed that there was next door to the licensed premises a social club. A door of the licensed house opened into an enclosed and covered passage running at right angles to the side wall from one house to the other. The licensed premises ended at this door. There is a small telephone in the club-room which is used for conveying orders for liquor from the club to the hotel. Two rounds of drinks were taken by respondent’s servant to members of the club. The first, consisting of six drinks, was ordered through the telephone. There was a doubt as to whether these were ordered and served after or before 10 p.m., and the Magistrate says that he gave the respondent the benefit of this doubt and did not rely on that transaction as part of the proof. The second round of drinks, some of them being whisky, was served from the hotel after 10 p.m. The Magistrate then finds as follows:

“ 8. It was not proved by the informant who ordered the second round of drinks or who paid for them, or whether they were a gift from the licensee, but no evidence was called on behalf of the defendant.

“ 9. There was no evidence that any door of the hotel was left open or unlocked for the admission or exit of the public, or that anyone except the servant aforesaid entered or left the hotel premises after 10 p.m. on the 2nd day of July. “ 10. The side door of the said hotel through which the servant of the defendant carried both rounds of drink into the club-room leads into the back part of the said licensed premises and not directly into the bar, and is not a door which is used by the public.” For the purpose of deciding the real question in the appeal I will, in the first instance, assume that the transaction was an ordinary transaction in which intoxicating liquor was ordered and sold. The law on the subject is expressed in section 190, which is derived from English statutes. The offence is committed when a person, during the time at which premises are directed to be closed, opens such premises for the sale of intoxicating liquors. The offence is proved if the intent is made out and it is shown that the premises are opened for ingress—Jeffrey v. Weaver ([1899] 2 Q.B. 449) — or for egress where, as in this case, the liquor is to be supplied to persons outside: Commissioner of Police v. Roberts ([1904] 1 K.B. 369). It is the opening, not the supplying, that is the offence, ai d that is complete if the premises are opened for the carrying-out of any material part of the transaction of sale : Saunders v. Thorney (62 J.P. 404) ; Noblett v. Hopkinson ([9os] 2 K.B. 214). It is obviously unnecessary to prove a sale if the purpose of the opening can be otherwise proved, and this renders it immaterial to consider who gave the order so long as it is clear—as it certainly is clear in this case—that the servant was acting on an order, or what he took to be an order, when he opened the premises. It is quite evident that the case was not stated in order to raise the question whether or not a sale was proved, but. as Mr. Wilford has argued this question, 1 may refer to it. The findings I have set out verbatim were emphasized as containing the matter relied on by the Magistrate as justifying the dismissal. The whole case, however, points to a transaction in the nature of a sale or an intended sale, and an opening of the premises for the purpose of supplying liquor pursuant to such a transaction. Paragraph 8 negatives some of the matters which the first part of section 206 renders immaterial. It, however, implies that some one ordered the drinks, though it is not ascertained who ordered them. This must be read with paragraph 6, which refers to the first order, and implies that when, as appears by paragraph 10, the servant carried in the drinks as a servant he was acting on the second order just as he acted on the first. There is nothing to suggest that he was a servant engaged in this service at the first period and ceased to be such at the second. The contrary is stated in paragraph 2, which says that the “ two rounds of drinks were served by a servant of the defendant from the said hotel to certain members of a social club.” The Magistrate draws no distinction between the two transactions save as to proof of the hour when they were carried out, and the immaterial circumstance of payment or non-payment. The only proper inference is that they were similar transactions so far at least as the intention of the servant in opening the door was concerned.

Appeal allowed, with £5 ss. costs, and case remitted to the Magistrate. [Solicitors for the appellant : Crown Law Office (Wellington). Solicitors for the respondent: Wilford, Levi, & Jackson (Wellington).]