Attorney-General v Vula [1957] FJLawRp 8; [1956-1957] 5 FLR 52 (3 May 1957)

[1956-1957] 5 FLR 52

IN THE SUPREME COURT OF FIJI

Appellate Jurisdiction

Criminal Appeal No. 8 of 1957

THE ATTORNEY-GENERAL
Appellant

AND

SOLOMONE VULA
Respondent

Penal Code s. 192 (d)-whether licensed premises a public place in view of restrictions under the Liquor Ordinance.

The respondent was charged under s. 192 (d) of the Penal Code with being drunk and disorderly in a public place, namely in the bar of certain licensed premises. The trial magistrate held there was no case to answer on the ground that the bar of licensed premises was not a public place.

He gave two principal reasons for his decision:

(i) In the Colony of Fiji certain sections of the public are permitted to have access to the bar of a licensed premises, namely holders of Liquor Permits and persons to whom sections 69 (1) and 72 of the Liquor Ordinance do not apply, but the public as such have no permission to go to the bar of a licensed premises, in fact the greater part of the population of the Colony are prohibited from having access to the bar of a licensed premises under section 79 of the Liquor Ordinance.

(ii) The public are not entitled to have access to the bar of licensed premises for the reason given in (i) above, by reason of the fact that a licensee of such a premises is under no obligation to admit anyone nor is he under any obligation to keep his premises open for the sale of liquor, and by reason of the ruling of Lord Goddard C.J. in Brannan v. Peek [1948] 1 KB at p. 71.

The Crown appealed by way of case stated. The question submitted for the opinion of the Supreme Court was" whether or not the bar of licensed premises is a public place within the meaning of section 192 (d) of the Penal Code as defined by section 4 of the Penal Code."

Held:-

(1) The bar of licensed premises is a public place within the meaning of section 192 (d) of the Penal Code.

(2) The magistrate had not distinguished between the prohibition against the consumption of alcohol and the right of access to licensed premises.

(3) A person prohibited from consuming alcohol could legitimately be on licensed premises for the purpose of purchasing non-alcoholic drinks, cigarettes, and tobacco.

Cases referred to:-

Brannan v. Peek [1948] 1 KB p. 71.
Saunders v. Plummer [1662] 124 ER p. 557.

Appeal allowed.

B. A. Doyle, Q.C., Attorney-General, for the appellant.

R. L. Regan for the respondent.

HAMMETT, J. [3rd May, 1957]-

Judgment:

This is an appeal by way of Case Stated at the instance of the Crown from the decision of the Magistrate's Court of the First Class sitting at Nausori dated 21st January, 1957.

In the court below the accused was charged with being drunk and disorderly in a public place-to wit the Rewa Hotel-contrary to section 192 (d) of the Penal Code.

The evidence for the prosecution showed that the accused was drunk and disorderly in the bar of the Rewa Hotel. At the close of the case for the prosecution the learned trial Magistrate held that the accused had no case to answer on the ground that the bar of licensed premises is not a public place.

The question which the Crown wish to be submitted for the opinion of the Supreme Court is whether or not the bar of licensed premises is a public place within the meaning of section 192 (d) of the Penal Code as defined by section 4 of the Penal Code.

The material part of section 192 (d) is as follows:-

"Any person who is drunk and disorderly in any public place . . . is (are) liable to imprisonment for one month or to a fine of £5."

The definition of a" public place" contained in section 4 reads as follows:-

" 'public place' or 'public premises' includes any public way and any building, place or conveyance to which, for the time being, the public are entitled or permitted to have access either without any condition or upon condition of making any payment, and any building or place which is for the time being used for any public or religious meetings or assembly or as an open court."

In the same section, the word" public" is defined as follows:-

"' public' refers not only to all persons within the Colony, but also to the persons inhabiting or using any particular place, or any number of such persons, and also to such indeterminate persons as may happen to be affected by the conduct in respect to which such expression is used."

This definition of the word" Public" must be read into the definition of the term" public place" where appropriate, for that definition to be understood properly.

The learned trial Magistrate gave the following principal reasons for his decision:-

"(i) In the Colony of Fiji certain sections of the public are permitted to have access to the bar of a licensed premises, namely holders of Liquor Permits and persons to whom sections 69 (1) and 72 of the Liquor Ordinance do not apply, but the public as such have no permission to go to the bar of a licensed premises, in fact the greater part of the population of the Colony are prohibited from having access to the bar of a licensed premises under section 79 of the Liquor Ordinance.

(ii) The public are not entitled to have access to the bar of a licensed premises by reason of my opinion in (a) (i) above and by reason of the fact that a licensee of such a premises is under no obligation to admit any one nor is he under any obligation to keep his premises open for the sale of liquor and by reason of the ruling of Lord Goddard C.J. in Brannan v. Peek [1948] 1 KB at p. 71."

From the facts found on the uncontradicted evidence for the prosecution it is clear that a licence has been issued in respect of the Rewa Hotel under the provisions of the Liquor Ordinance 1946. There are six kinds of licences which may be issued under this Ordinance, namely wholesale, packet, publican's, rest house, occasional and aerodrome licences. This appeal has been argued on the basis that a publican's licence has been issued in respect of the Rewa Hotel and it is on that basis that it will be determined.

It has first to be considered whether any distinction should be drawn between the terms" the bar of licensed premises" and" licensed premises".

By section 2 of the Liquor Ordinance 1946 " licensed premises" are defined as " any premises in respect of which a licence issued under this Ordinance is in force".

Section 15 (1) of the Ordinance provides that no publican's licence may be granted for any premises unless the premises contain residential accommodation for the family of the licensee and contains the required number of rooms for public accommodation. Section 11 (2) (a) refers to persons taking a meal in the dining room of "the licensed premises".

The only references in the Ordinance to the bar alone are those contained in the definition section, and sections 11, 60 and 61 and in none of these sections is there any suggestion that" licensed premises" means only the bar. It is clear from these and other sections in the Ordinance that the words "licensed premises" refer not only to the bar but to the whole of the premises of which the bar forms but a part.

The opening words of section 21 of the Ordinance are as follows:-

"Every house in respect of which a publican's licence has been granted shall be held in law to be a common inn."

The "house" in respect of which a publican's licence is granted is "licensed premises" and the bar is merely a part of the licensed premises which are deemed by law to be a common inn.

A common inn, i.e. an inn at common law is a house held out as a place where the traveller is furnished with everything for which he has occasion whilst upon his way. At Common Law the keeper of a common inn is bound to receive and lodge in his inn all comers who are travelling and to provide them with lodging and refreshment at reasonable prices. He is not entitled to pick and choose between them or to accept certain persons as guests and refuse others except for some reasonable ground, when, for example, the inn is full.

Indeed under section 55 of the Ordinance the holder of a publican's licence who refuses to receive guests when there is accommodation available is liable to a fine of £5.

In the case of Saunders v. Plummer, a case decided in 1662, which is reported in 124 English Reports at page 557, Bridgman, C.J. even held "the law forceth the inn keeper to receive the guest's horse else an action will lie against him".

It is clear therefore that travellers have a right of access to every house in Fiji in respect of which a publican's licence has been granted subject to there being accommodation available or any other conditions which are prescribed by law.

In Fiji there are certain restrictions prescribed by law on the supply of liquor to large sections of the public. By section 79 of the Liquor Ordinance the persons enumerated therein are prohibited from being or remaining on licensed premises without any legitimate reason. It is worthy of note that this prohibition refers to licensed premises and not merely to the bar of licensed premises. But section 79 does nothing to whittle away the rights of those persons when travelling to accommodation and refreshment on licensed premises. Furthermore it would appear to be a legitimate reason for a person who is prohibited by law from consuming alcohol to be on licensed premises for the purpose of purchasing or consuming non-alcoholic drinks, or cigarettes or tobacco, which are usually sold at the bar.

There is no provision of the law which absolutely prohibits any member or scetion of the public or population of Fiji from having access to licensed premises and there is only one section in the Ordinance which absolutely prohibits any person from having access to the bar of licensed premises. This is section 60 (5) which prohibits the admission to the bar of persons under the age of 13. This limitation is certainly insufficient alone to bring a bar outside the wide definition of a public place in section 4 of the Penal Code.

In the case of Brannan v. Peek referred to by the learned Magistrate it was held that a public house in England is not a public place under the Street Betting Act of 1906 within the somewhat restricted meaning put upon that term by that Statute. With respect to the learned Magistrate since a public house in England is not a common inn, as is a house in Fiji in respect of which a publican's licence has been issued, that decision would not appear to be relevant to the issue in this case.

In my opinion the learned trial Magistrate did not distinguish between the prohibition imposed on a large proportion of the public in Fiji against the consumption of alcohol and their right of access to a common inn or licensed premises, or to hotels, as they are usually called in Fiji, when he held that the bar of licensed premises was a place to which the public had no right of access and was therefore not a public place within the meaning of the Penal Code.

The question submitted to the Supreme Court is therefore answered as follows:-

The bar of "licensed premises", in respect of which a publican's licence has been issued under the provisions of the Liquor Ordinance 1946 is a public place within the meaning of section 192 (d) of the Penal Code as defined by section 4 of the Penal Code.

I therefore set aside the order of acquittal made in this case.

I direct that the case be returned to the court below and that the accused be called upon to make his defence, and that the case be determined according to law.