IMPORTANT JUDGMENT

Dominion, Volume 12, Issue 307, 23 September 1919, Page 7

IMPORTANT JUDGMENT

CHARGE OF EXPOSING LIQUOR FOR SALE

LICENSEE'S APPEAL UPHELD

By Telegraph.—Special Correspondent. Palmerston North, September 22. Judgment was given by Mr. Justice Hosklug in the Supremo Court this morning in the ease in which .T. Mitchell, licensee or the Occidental Hotel, appealed against his conviction by Mr. Kenrick, S.M., -of'exposing liquor foi- sale. His Honour reviewed the evidence at some length, and and that to "'expose for sale",he took to mean to "put forward for sale." "This," he-said, "may I think be done without'a visible exhibition of the contents of the 'bar to the desired or intended customers. A bar, as everyone knows, is a place where liquor for sale in an hotel is kept. If there is a slide to tho bar which permits liquor being bonded out to the purchaser and is open in circumstances indicating that it is open for tho purpose of enabling an order to be received, and the licensee, or ."omo other person in au.thoritv to sell for him, h standing behind the elide in apparent readiness to receive and fulfil an order for liquor in the bar. then it appears to mo there is prima facie evidence that the liquor in the bar is put forward or exposed for sale, without jjoiiig further and providing the additional elements of persons nearby ready to purchase. If, however, in addition to tho evidence alluded to in support of the charge of exposing liquor for-sale it nhown that there aro persons waiting about tuVslide of the bar without apparent reason save that of obtaining liquflr, then the prima facia inference that the liquor is exposed for sale is strengthened; still more so, .if it is shown that bottles have been newly opened or glasses have just been filled, or that any of the bystanders ted' a glass in hand. The last/mentioned class of evidence was not available in the present case." Continuing, His Honour, outlining what would constitute an exposure for sale, raid he had postulated the ..presence of the licenser, or some person, with authority to , sell, apparently ready to receive and fullil orders. If the licensee-were charged, and it was he who was present, there would be, of course, no need of proof that ho had authority to sell beyond showing that he was the iicensee, but if it were some person other than the licensee who was present, then it appeared tc him Hint some prima facio evidence of authority for that person to sell was requisite in order to convict the licensee vicariously. This, His Honour thought, followed qmto clearly fro.ni tho decisions' of the Court ns to the responsibility of the licensee for the acts of agents or servants with respect to sales during'prohibited hours. In the present case there , was no evidence to show that the licensee's wife had any authority whatever to sell liquor at any timo on behalf of the'husband.! It did not follow because she was tlie wife that she had such authority. There was not oven in this ease cvidenco in .the shape of newly-opened bottles or freshljMlramed glasses, indicating some active control over liquor from which an authority to sell might possibly be inferred. The defendant's wife's own statements ■to the police of what she was doing were- uo evidence against hot liusbana, unless 6ome independent authority to bind him were shown. His Honour said in his-opinion -uie 'appeal lu ! lst . m ai '. lowed, and ine conviction, 'set aside. It the license hud been in tact endorsed pursuant to the conviction, tho endorsement must be cancelled. ~ . air.'O. a. iiouguiian received judgment on behult ot the police, and Sir. J. I'. inhes on beliali of tne appellant (J. Aliuchell).., "■■ . ~-''. Tl . T r Prior to delivering judgment His Honour a'sKcd iVLr. 'Unguium if it could bo shown irum tne'evidence that the licensee's wife had any/authority to sell air. "iiougliiian. said that the licensees wife", was i-lie pel son in. charge of tho jiis Honour said that counsel could I not say'that. Ho could not inter it ! was lor a certain purpose, aud with tho permission-of. itie licensee. Ihe ,only 'lact ■ they' had '..was her presence num.-, and he did not think tnat was.enongli. Mr. Loughnan said he. thought mere was evidence that it was the licensee's wile's custom to be there during the dinner period for tho purpose of giving out liquor. * 7 ■ His Honour said thM there was no evidence to that effect. Doubtless the police assumed from their local knowledge that she was the licensee's alter ego, but' Miav did not appear in the . eviueuce. IhO licensee's wife may -have said she was there'for the purpose of serving boarders, but that could not bo binding on the licensee. There was no ovidcuce ot sale, no half-consumed glasses of liquor, no bottles. .

Mr. Louglman said that from Mi*. Mitchell's own evidence she had access to the bar for tho purpose of serving liquor. ■ His Honour said that the hceuseo's 'vUv's, evidence was .that she wpened the bar because of a knock. •Judgment was then given as above, tiic appeal by Mitchell being upheld.