A RESERVED JUDGMENT

Hokitika Guardian, 9 July 1926, Page 1

A RESERVED JUDGMENT

POLICD v. DOWELL. Mr W. Meldrutn S.M., gave his reserved judgment as follows, yesterday : Defendant is charged with (1) selling and (2) exposing for sale. The facts are that defendant asked a cordial manufacturer, Robinson, to bring to his hotel on Sunday, 13th. June, a supply of instilled water for “breaking down” whisky. Robertson turned up about 2 o’clock, bringing a friend of his named Bone with him. Forabout three hours the two assisted defendant, Robinson in breaking down the whisky and Bone in washing bottles.

They finished about 5 p.m. at which hour Dowell’s wife announced that tea was ready. Dowell said to tho two men : “We’ll go up and have a glass of ale before you go home.” They were not invited to tea or into defendant’s private rooms for refreshments. but went to tlie bar to have the drinks.

They were on the point of having the drinks when the police entered. Sorgt King says: “The bar was fully lighted, the slide was up, Dowell was inside the bar and Robinson and Bone were at the slide with two glasses of beer in front of them. I asked Bono and Robinson what they had to say and they said nothing. The licensee took the two glasses from the slide and put them down inside the bar. I then addressed the licensee' who replied, ‘I know when I’m caught and T’vc got nothing to say. Caught fair.’ Dowell on the other hand says his reply to the Sergeant was, ‘You’ve caught me with the slide up,’ and this ho says he repeated to the Sergeant when he came out of the bar. For tho moment, Dowell; appears to have had been caught doing something he ought not to hare done. 1 Two or throe days before the hearing on the 24tli. June, Dowell, according to Scrgt. King’s evidence, said ho was going to plead guilty but he would get his solicitor to explain the posi-

Thc defence is that tho drinks were a gift without consideration from the licensee to Ro-hinson and Bone, that the latter were his bona fide private guests, and that there was no sale or exposure for sale. Tho charges are alternative ones, laid under Sec. 190.

Now in proving a sale of liquor a breach of the Act “it shall not be “necessary to show that any money “actually passed if the Court is “satisfied that a transaction in the “nature of a sale actually took place” (sec. 2(1(1). Where a gift of liquor is made it must he an absolute gift without consideration” (Williams ,T., in Dalton v. Bowden, N.Z.I/.R. XXIII., 165). and such a gift may he lawfully made after hours by a licensee to liis bona fide private guests. Edwards .T., in R.yland v. Foley (16 N.Z.L.R. 670) says: “The pri“vato guests of a landlord may for the “time being be, looked upon as part “of his family, and the reception of “such guests, so long as it is "confined “to bona fide private guests is not “part of the conduct, of tlie business of “licensed premises.” But Robinson and Bone could not bo looked upon as part of the licensee’s family. They were not in that sense his bona fide private guests. They were on the licensed premises to help him to break down whisky and to wash bottles, and when they had done (hat they were asked to the bar tb have a drink; they were not invited to tea h.v the licensee, or by his wife who fold them it was ready, nor were they invited to the licensee’s private rooms to have refreshments. The drinks wore the return made bv the licensee to them for the work they had done for him.

In Batli v. Cullen (16 N.Z..E,. 17) where a licensee supplied liquor gratuitously and the facts afforded sufficient presumption that the licensee’s object was to indirectly benefit himself by keeping bis connections together it was bold that an offence had been committed.

This decision was cited with approval in Green v. Coss G.L.R. TT. 1899 by Denniston .T.. who further said : ‘‘Whenever a Magistrate finds definitely that an alleged gift of liquor is “not really an absolute gift without “consideration. . . . then unless there “is actually no evidence to support “such finding it should he supported. “This is what in effect I myself decicl“od in Schultliies v. Wilson” (13 N.Z.L.R. 295). In the case In?fore me there were all the elements of a sale, except that no actual money was paid. The defendant got his quid pro quo, not in money, but in the work done by Robinson and Bone in breaking down whisky and in washing bottles. In my opinion there was a transaction in the nature of a sale. Defendant is accordingly convicted on the charge of selling liquor after hours and fined £2 and costs.