COURT’S POWER REMOVED

Nelson Evening Mail, Volume 77, 19 October 1942, Page 3

COURT’S POWER REMOVED

DISCRETION AS TO PENALTY MAGISTRATE CRITICISES LEGISLATION Christchurch, Oct. 17. “The Court feels that it is only right to pass some comment on the difficulties raised by the new legislation,” said Mr E. C. Levvey, S.M., in delivering his reserved decision yesterday afternoon in the case in which William Ewart Donnithorne, licensee, and Herbert Ormond Solomon, porter, of Storey’s Hotel, xvere charged with supplying liquor after hours. “The real difficulty is that the Court’s ordinary power of discretion has been removed from it, and no matter how it may \-iexv an offence, and whatever the degree of gravity it may hold to be involved, it has no alternative, on entering a conviction, to imposing the minimum fine ol' £10.”

Mr Levvey said the case before the Court was really a technical offence and amounted to little more than a slip on the part of the porter. “I am going to suggest at once that, subject to counsel lor the defendant deciding not to test my decision, he apply for a remission, and I shall certainly recommend it,” he added.

Legal argument was heard xvhen the case first came before the Court and further submissions were made by defending counsel, Mr D. W. Russell, and the prosecutor, Sub-Inspec-tor E. T. C. Turner, yesterday morning on what constituted “supplying” liquor under the new emergency licensing regulations. Mr Russell argued that the purchase of beer was legally made during licensing hours and that it was delivered, appropriated to the contract, and the transaction completed. The beer was placed in a cupboard to be called for before 6 p.m. Before the emergency legislation came into force there was certainly no offence by the licensee even if the liquor was called lor in prohibited hours, as it was in this case. The transaction having been completed, even though physical custody of the liquor was left with the hotel, the purchaser was only reclaiming his own property in calling for it later. In gixfing his decision, the Magistrate said an interesting argument had been raised by counsel, but the cases he cited were not analagous either as to fact or as to the legal position, and he had had to decide the case from his own angle of view. He had come to the conclusion that the action of the porter in assisting to remove the beer came xvith in the meaning of the word “supplying.” The licensee was responsible vicariously. After Mr Lexwey’s remarks about the impossibility, under the new regulations, of imposing a nominal penalty for a technical offence, Mr Russell said that the legal point involved was of importance to the licensing trade throughout New Zealand. “So important that 1 shall be glad if you do decide to test the decision,” said Mr Levvey. Each defendant was fined £lO, with costs.