LIQUOR CONVICTION QUASHED ON APPEAL

Press, Volume CV, Issue 30980, 9 February 1966, Page 3

LIQUOR CONVICTION QUASHED ON APPEAL

(New Zealand Press Association) WELLINGTON, February 8. The Court of Appeal today unanimously upheld an appeal by a Greymouth publican, Barry Herbert Leslie Budd, and quashed his conviction on a charge of supplying liquor to a person under 21.

Mr Justice North, president of the Court, outlining the facts of the case in a reserved decision given today, said Alan Brereton, aged 19, went to the Australasian Hotel in Greymouth after football on Saturday, May 15,

last year. After making an inquiry for some missing spectacles he went into the bar which was somewhat crowded. Brereton stood about 10ft from the bar counter and in front of him customers were lined up four or five deep.

He was “shouted” two beers and then handed 10s and his empty glass to a friend, presumably in order to return the hospitality he had earlier received.

The friend bought the beer and gave the change to him. Soon after, a police sergeant entered the bar and saw Brereton hurriedly making off towards the exit. Decisions Reviewed Reviewing the Lower Court decisions, Mr Justice North said both the Magistrate and Mr Justice Perry based their conclusion that the barman had been guilty of supplying Brereton by invoking the law of agency. “Both appear to have been of opinion that proof that Brereton had supplied the money for the purchase of the beer, though through an agent, and had then received and consumed the beer, concluded the matter,” he said. “In short, the liquor was

supplied to Brereton under a contract of sale. “It is no doubt true that in civil law a person acting through an agent may establish a contract between himself and another, even though the latter is unaware of the existence of the agency. But in my opinion it is quite a different matter to invoke this rule in a prosecution for a criminal offence.

“I consider that agency has no place in a case of this nature unless the person dealing with the agent is aware of the existence of the principal. “I am of opinion that the ground upon which the judgments in both the Courts below rested is unsound and if that ended the matter. I would be in favour of allowing the appeal." New Point Mr Justice North said that in the Appeal Court, Mr G. S. Orr, for the Crown, had raised a new point not based on agency at all. He submitted that if a person ordered several drinks in one order and these were furnished to him, the barman nevertheless had notice that more than one person was likely to consume some of the liquor and accordingly was under a duty to ascertain who were the persons so intended and if one of them was under 21, the licensee or, for that matter, the barman, could successfully be prosecuted for supplying liquor to a prohibited person. “I see no reason to doubt that if one person orders and pays for several drinks for the enjoyment of himself and his friends, all being present at the same time, the barman, having accepted the order, may be held to have supplied liquor to each member of the party. Mr Justice North said that in his opinion, the argument gave insufficient weight to the fact that there were two offences provided for the particular section, first the supplying of liquor and second, allowing it to be supplied. Concurring judgments were delivered by the other two members of the court, Mr Justice Turner and Mr Justice McCarthy. Mr Justice McCarthy said it was not suggested that the ( barman knew the precise per-1 sons by whom the drinks were to be consumed or even; saw them.

“I agree with the president that in such circumstances it is going too far to hold a licensee guilty of supplying the consumer. In my view before the offence is established it must be shown that the barman knew or should have known that the liquor was intended for a specific individual.”