R v The George on Willis Limited [2017] NZDC 8649 (27 April 2017)

Last Updated: 8 September 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT WELLINGTON

CRI-2016-085-001356 [2017] NZDC 8649

THE QUEEN

v

_{THE GEORGE ON WILLIS LIMITED}

Hearing:	27 April 2017
Appearances:	A Winsley for the Crown J P Miller for the Defendant
Judgment:	27 April 2017

_{ORAL JUDGMENT OF JUDGE PAH HOBBS}

[1] The Ministry of Health has charged The George On Willis Limited with failing to take all reasonably practicable steps to ensure that no person smokes at any time in part of a licensed premises that is not an open area under the relevant provisions of the Smoke-free Environments Act 1990 (“the Act). The licensed premises in question is The George Hotel On Willis Street, Wellington.

[2] There are three things the prosecution must prove beyond reasonable doubt. First, that the defendant is a licensee of licensed premises. The second is that the area in question is not an open area, and the third is that the defendant failed to take all reasonably practicable steps to ensure that no one smokes in the area.

[3] There is no dispute that the defendant is a licensee of licensed premises and there is also no dispute that the defendant failed to take all reasonably practicable

_{steps to ensure that no one smoked in the area in question. The sole issue for me to}

R v THE GEORGE ON WILLIS LIMITED [2017] NZDC 8649 [27 April 2017]

determine is whether the area in question is an open area. That requires an assessment of the evidence in relation to the physical dimensions and characteristics of the area in question and an interpretation of the relevant statutory provisions.

[4] Ms Jessica Cooper, a public health regulatory officer, was the sole prosecution witness. Among other things she gave evidence about the area in question. She provided some calculations about the areas’ dimensions. She accepted they were not exact, but rather estimates. She described the area and also provided photographs of the area. Based on Ms Cooper’s experience and applying the Ministry’s guidelines, Ms Cooper was of the opinion that the area in question was an internal area and therefore not an open area.

[5] The Ministry’s guidelines provide for the following factors to be taken into

account when the Ministry is considering whether an area is internal or open.

(a) Does the space have a roof? If not, then by definition it is an open area.

(b) Does the space have only one wall and a roof? If yes, then in all likelihood it will be an open area.

(c) If the space has three walls and a roof it probably will not meet the open area definition.

(d) The most important question to ask is what would a reasonable person say about this area? Would a reasonable person consider it to be open or internal?

[6] The guidelines go on to indicate that other factors to be considered are:

(a) If an opening can be closed then it is deemed to be closed when assessing if an area is open.

(b) Permeability of wall sides, screens, ceiling, roof, overhead surface will generally be assessed based on that ratio of open/closed surfaces.

However the overall area will still need to pass “what would a

reasonable person say about this area” test.

[7] I adopt the prosecution’s general description of the area as being a rectangular shape approximately 8.7 by 3.8 metres, enclosed by walls on each of the four sides. On one wall there is an opening, approximately 2.18 by 1.54 metres into an enclosed entrance with glass doors between it and the street. The street front wall mainly consist of an iron grill with 64 grated openings. The street front wall has one solid block in the middle of the wall with a grill on either side. The internal wall is solid with an entry door into the interior of the bar. The roof and the two ends of the oblong foyer area are closed except for the opening into the enclosed entrance. The area is best depicted in the photographs that have been produced as an exhibit.

[8] An open area is defined in the Act as:

open area, in relation to any premises, means a part of the premises that is not an internal area. [ ... ]

[9] An internal area is also defined in the Act as:

internal area, in relation to any premises or vehicle, means an area within or on the premises or vehicle that, when all its doors, windows, and other closeable openings are closed, is completely or substantially enclosed by-

(a) a ceiling, roof, or similar overhead surface; and

(b) walls, sides, screens, or other similar surfaces; and

(c) those openings

[10] The key question, therefore, is whether the area in question is substantially enclosed. There is no guidance in the Act as to what that means.

[11] Mr Winsley for the prosecution submits that based on the evidence of Ms Cooper and the exhibits that have been produced, I can be satisfied that the area in question is substantially enclosed and therefore, an internal area.

[12] Mr Miller for the defendant submits that the prosecution have failed to prove beyond reasonable doubt that the area is substantially enclosed.

[13] Mr Miller submits that more than a subjective assessment based on photographs and Ms Cooper’s description of the area is required. Mr Miller submits that relying on what a reasonable person would say about the area, as suggested in the Ministry of Health guidelines, is insufficient. Mr Miller also notes that the guidelines used by the Ministry have no statutory or legal force which, of course, is correct. Mr Miller submits that included in any assessment of whether the area is substantially enclosed must be an area percentage calculation or open area calculation. Without such a calculation, Mr Miller submits that any assessment is vague and speculative. Mr Miller submits that it should be a measurement-based test as it is in other foreign jurisdictions.

[14] In addition, in determining what “substantially” means, Mr Miller has referred to ACC and Relationship Property jurisprudence. In particular, Mr Miller referred to comments made by McGechan J in Treloar v Treloar1, a case in which McGechan J considered the phrase “wholly or substantially” in the context of the Matrimonial Property Act 1976. McGechan J described the word “substantially” as, “Inherently vague,” and that its use, “Envisages a relatively marginal departure from entirety.” Essentially, Mr Miller submits that without a measurement-based test or at least an open area calculation forming part of the overall assessment, I cannot come to a conclusion that the area in question is substantially enclosed.

[15] What is clear is that in the New Zealand jurisdiction, what constitutes an open or internal space is not defined by a percentage as in some overseas jurisdictions. In the decision of Cancer Society of New Zealand Inc v Ministry of Health2, Hansen J said:

The use of the word ‘substantial’ introduces an element of subjectivity into the assessments that have to be made under the Act. The imposition of an inflexible standard is avoided at the cost of certainty.

1 _{(1988) 5 NZFLR 209 at 213}

2 [2013] NZHC 2538 at [48]

[16] I agree with the comments made by Judge Sinclair in Ministry of Health v Shearwater Hotels Ltd3 that a common sense approach is required when determining whether an area is internal or open. I think that regard must also be had to the purpose of the Act:

3A Purposes of this Act

(1) The purposes of this Act are, in general, as follows:

(a) to reduce the exposure of people who do not themselves smoke to any detrimental effect on their health caused by smoking by others; and

[ ... ]

Part1 Smoke-free workplaces and public areas Purposes of this Part

The purposes of this Part are-

(a) to prevent the detrimental effect of other people's smoking on the health of people in workplaces, or in certain public enclosed areas, who do not smoke or do not wish to smoke there;

[ ... ]

[17] I reject the suggestion made on behalf of the defendant that a finding that an area is enclosed or open cannot be made without the use of an open area calculation or area percentage calculation. It is not a requirement of the Act. I do not suggest that such a calculation or calculator would never be of assistance, nor do I suggest that it may not be used but the absence of it is not fatal to the prosecution. Indeed, in the Cancer Society of New Zealand Inc case, Hansen J concluded that determination of the open space in that case by reference to the open area calculation alone was an error. In coming to that conclusion, Hansen J also noted that the use of guidelines to promote a consistent approach among enforcement officers was entirely appropriate as long as extraneous considerations were not introduced. Ms Cooper used the Ministry’s guidelines in this case in reaching her decision and when providing her

_{opinion in Court today.}

3 [2016] NZDC 24847 at [44]

[18] The area in question is clearly fully enclosed by three walls and a ceiling. There is only one access door to the area. The fourth wall does have the two openings I have described and as depicted in the photographs. While these two openings are substantial when compared to the size of that one wall, they are insignificant when considered against the remainder of the space which, as I have said, is enclosed by three walls and a ceiling. I suspect even on a measurement-based test promoted by Mr Miller and used in some overseas jurisdictions, the area would be regarded as substantially enclosed but I need not come to such a conclusion because that is not a requirement in the New Zealand jurisdiction. I also suspect that non-smoking patrons in that area would be unable to escape the smoke from other patrons smoking in that area.

[19] Based on Ms Cooper’s evidence, her description of the area and its characteristics and the photos of the area that have been produced, I am satisfied that the area in question is substantially enclosed and therefore, an Internal Area as defined in the Act. . By definition, that means it is an Open Area. The prosecution has therefore proved beyond reasonable doubt that the area in question is not an Open Area. That being the case and there being no dispute the defendant is a licensee of the premises and there being no dispute that the defendant failed to take all reasonably practical steps to ensure that no one smoked in that internal area, I am satisfied that the charge has been proved beyond reasonable doubt and I find the defendant guilty.

P A H Hobbs

District Court Judge