AN IMPORTANT DECISION.

Wairarapa Age, Volume XXXII, Issue 10202, 1 April 1911, Page 3

AN IMPORTANT DECISION.

AFFECTING THE LICENSING ACT-

SALE OF'LIQUOR AT A FOOTBALL CONCERT.

A decision of considerable importance, as affecting athletic bodies and associations, was given by Sir Robert Stout, Chief Justice, in Mastorton yesterday. This was an appeal against a conviction entered by Mr L. G. Reitl. S.M., at Pongaroa. The prosecutor was Constable Cattanach, and the defendant Charles Erickson, bootmaker of Pongaroa. Erickson was charged originally that on September. 1910, he not being a person exempted by the Licensing Act, 1908, from acquiring a license to sell liquor, and not being licensed to do so, did unlawfully sell liquor—to wit, whisky—to one Percy Richard Kent. At the hearing before the Magistrate, the defendant was convicted and fined 20s and costs 7s. Defendant appealed, and the appeal was heard yesterday morning. Mr C. A. Pownall appeared for the appellant, and Mr H. Ostler, of the Crown Law Department, for respondent. His Honor delivered the following judgment:—This is an appeal on a point of law from a conviction under section 195 of "The Licensing Act, 1908." The facts as stated show that tlie appellant, along with' other members of a football club, bought aleholic liquor amounting to £8 .worth, for consumption at a concert. The admission to the concert or entertainment was to footballers, other than guests, 8s and 7s 6d; to non-members of the.club, ss. " The charge made against the appellant was that he sold the liquor to one Percy Richard Kent. It was found by the Magistrate that Percy Richard Kent did not pay ss, which other non-members were paving, but in lieu of such payment ho*lent his piano. The questions raised, therefore, are: (1) Was there a sale? (2) Was there a sale by Erickson? (3) Did the transaction come under section 268 as a permissible transaction? I, am of opinion that there was a sale. Under the old English Ale House Act (9, Geo. IV., c 61), the section preventing sales had the words "bartering, exchanging or for valuable consideration otherwise disposing of the liquor," etc. In the English Licensing Act of 1872, however, the words "bartering or exchanging" were not inverted. The words, however, in section 3 of the English Licensing Act oi--1872 are similar to the terms of our Act. and section 62 of the English Act is similar to bur section 206, and under two English vsections it has been lield that they include the words "bartering or exchanging." (See Patterson's Licensing Acts, 17th Ed., pp. 324, et seq.). In my opinion there was a. sale, for good consideration was givm by Kent for admission to the concert, and the Magistrate has found that any persons who were non-mem-bers and who did not pay 5s or give an equivalent for the ss, were not admitted, but were excluded from the entertainment. I am therefore of opinion that it was a sale within the meaning of our Licensing Act. See also the lecision of the Supreme Court in the 'nse of Mackenzie v. Whittingham ! '23 N.Z.L.R., 857' at 863) when His Honor Mr Justice Denniston held that ;he word "sale" did not require to be j, sale within the meaning of the Sale rf Goods Act, 1895. In my opinion tbjs was. 1 a sale in the strict sense of the term. It was an equivalent given for something else. Was there a sale by Erickson? Erickson was one of the proprietors of the liquor. (See Graff h Evans,B Q.8.D., 378). The liquor belonged to the club, and he was a member of the club, though unregistered, and as such he joined with the others in the sale of liquor to various j people, and to Kent amongst the number. It is time that ho did not actually hand the liquor to Kent, but the officers of the Association did hand the liquor to Kent, and the liquor was there for his use, as well as for the use of others. In my opinion this was a sale by Erickson, he being one of the proprietors. Did the transaction come under section 268 of the Act as a permissible transaction? That section states that "meetings of an association, society or club bona fide formed for .... outdoor games and exercises may supply the members and their guests at the expense of the association, society or club, with freshments," .including liquor. This I was not. however, supplying a guest. It was the supplying of a person who bought his right of admission. This being so. the protection afforded by section 268 as an amendment of section 267 does not apply, and consequently the law lias 1 been violated. The •Magistrate has considered the violation of the law not to bo one of the .ordinary violations of the Licensing Act by an illicit sale, and has modified the penalty accordingly. The question is whether in point of law the MagisI trate's decision was wrong. lam of I opinion that his decision -was correct in (point of law, and that consequently j the appeal must be dismissed, with £5 5s costs.