THE LICENSING LAWS.

Taranaki Daily News, 4 March 1922, Page 6

THE LICENSING LAWS.

HOTELKEEPER’S APPEAL. AN ELTHAM CASE. A licensee’s appeal against a conviction for selling liquor after hours was the subject of argument in the Supreme Court at New Plymouth yesterday afternoon. The appellant, Ernest Crabtree, of Eltham, for whom Mr. R. H. Quilliam appeared, sought to secure a reversal of the decision of Mr. A. M. Mowlem, S.M., in convicting him of selling liquor during the time the hotel was supposed to be closed. Mr. C. H. Weston appeared for respondent, Constable Townsend, of Eltham. The circumstances, as stated by Mr. Quilliam, were that Crabtree was licensee of the Coronation Hotel at Eltham. He had two barmeni in his employment, one who had been with him for 9 years being a kind of manager, and the othet who had been in appellant’s employ for about three years was responsible for duties not confined to the bar, but general work about the house. His name was Telfar and he was the man who effected the sale which was the subject of the police bringing a prosecution. On September 30 about 8 o’clock Telfar had just finished clearing out the bar and went to the front door of the hotel to return the keys to the senior barman. While he was there a young man named Coleman came up and asked for a bottle of whiskey, which Telfar procured. Proceeding, Mr. Quilliam said that if the sale had been made by the senior barman it would not have been contended that the licensee was free from liability. It was contended, however, that Telfar had no authority. At the time the sale was made the licensee was away at a meeting and the managing barman was in bed. In the lower Court he pleaded guilty to the charge and was convicted. •

In reply to His Honor, counsel said the sale took place just inside the hotel door. The bar had not been open. At the same time as the other case was heard charges of keeping the bar open and of selling liquor to a youth under 21 were dismissed by the Magistrate.

The submissions made on behalf of the defence were: (1) That the Magistrate held that Telfar was acting within the general scope of his employment and there was no evidence to support that finding; (2) the Magistrate had found that the onus of proof of authority was on the defendant, and it was contended this finding was also wrong; (3) that the evidence sho”’ed that the sale was, in fact, made without, authority and that therefore the licensee was not liable. Mr. Quilliam quoted a decision of Mr. Justice Sim on a case with somewhat similar circumstances, in which it was held that a licensee was not liable for a sale made by a person who had neither express nor implied authority. In the present, instance the employee who was responsible for the sale was given possession of the keys merely for the purpose of cleaning out the bar and he had no authority. The prosecution would have to show circumstances leading to a presumption of authority, but in this instance the evidence was all against such inference.. The possession of keys by Telfar, which' was the point relied upon by the police, was an accident. For respondent Mr. Weston quoted previous cases embodying the law on fte subject. He said the rule seemed to be that if the person who sold the liquor had authority to sell to lodgers and broke the law by selling to persons other than lodgers, the licensee was himself liable to conviction. Unless a magistrate was satisfied that the vendor of the liquor had “authority,” either express or implied, to sell to lodgers the prosecution must fail. It had been contended for the appellant that the onus of proof of- authority was on the prosecution, but counsel submitted that under the circumstances of this case the onus was on the defendant to satisfy the Court that Telfar was not authorised to sell to lodgers. The Magistrate’s finding of fact, and the application he had made of the rule, was very clear and definite, and counsel thought there was evidence to support this finding. His Worship had evidently considered that the proved facts raised a presumption of authority which Crabtree’s straight-out denial did not rebut. Decision was reserved.