Loye v Portage Licensing Trust [2003] NZLLA 491 (21 July 2003)

Last Updated: 18 July 2010

Decision No. PH 491/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for the suspension of on-licence number 006/ON/16/2000, issued to PORTAGE LICENSING TRUST in respect of premises situated at 27 Glenmall Place, Glen Eden, Auckland known as “Players III”

BETWEEN JASON PETER LOYE

(Police Officer of Auckland)

Applicant

AND PORTAGE LICENSING TRUST

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at AUCKLAND on 10 June 2003

APPEARANCES

Senior Constable J P Loye – New Zealand Police – for applicant
Mr E R Price and Ms S Simmers – for respondent
Mr C G Taylor – Waitakere District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an application to suspend the on-licence issued to Portage Licensing Trust which operates a bar in Glen Eden, Auckland known as “Players III”.

[2] The grounds for the application are that the licensed premises have been conducted in breach of the following provisions of the Sale of Liquor Act 1989; s.166 (sale or supply of liquor to intoxicated person) and s.167 (allowing person to become intoxicated).

[3] It was also alleged that the licensed premises had been conducted in breach of the following conditions of the licence:

• (a) The licensee must implement and maintain the steps proposed in the application for the licence aimed at promoting the responsible consumption of liquor.
• (b) The licensee must ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited persons are observed and must display appropriate signs adjacent to every point of sale detailing the statutory restrictions on the supply of liquor to minors and the complete prohibition on sales to intoxicated persons.
  

[4] Briefly, it is alleged that about 5.00 pm on Friday 19 July 2002 Mark, William Hemi left home to go to “Players III” for a drink with a friend. Afterwards, they intended to go to another bar to have some games of pool. By 8.30 pm it is alleged that Mr Hemi was intoxicated. He left “Players III” and went to another bar where he fell asleep, and he was asked to leave. He was escorted from the premises by friends, but he left the area alone at about 11.10 pm. At 11.50 pm the Police were advised of a fatal train accident. Mr Hemi’s body was found under a carriage. An analysis of Mr Hemi’s blood revealed that it contained 418 milligrams of alcohol per 100 millilitres of blood. The legal limit for driving a motor car is 80 milligrams of alcohol per 100 millilitres of blood. Mr Hemi normally drinks “Steinlager”. While he was at “Players III” he was seen to pick up and consume another person’s “Wild Turkey” drink. When Mr Hemi went out drinking he was always known to have at least one cannabis cigarette during the night. While he was at “Players III” it is alleged that he drank 15 to 20 handles of beer.

[5] The Coroner’s report of 7 October 2002 said:

“Observations:

Mark William Hemi was run over by a train near Glen Eden on 19 July 2002, suffering multiple injuries from which he died instantly. After an evening spent socialising with friends he walked towards home, taking, for him, an unusual route across the Auckland-Helensville railway line. He was under the influence of a large amount of alcohol, and either fell or lay down heedlessly between the tracks. Mr Hemi was known for choosing to sleep where he wished, including in the open air from time to time. It is also possible that he was suddenly taken ill.

He was an engaging personality with many skills in music and art, and his mental health was never in question.

The crew of the train is not responsible in any way for this tragic death.

The thorough police investigation reveals that there are no suspicious circumstances.”

Background

[6] Senior Constable Jason Peter Loye is the Police Liquor Licensing Officer for the Waitakere City District. He described Mr Hemi’s movements on Friday 19 July 2002. He produced a handwritten statement taken by the Police from Mr Hemi’s de facto partner, Fiona Elizabeth Ramsay, which had been an exhibit in the Coroner’s Court. In that statement she described their relationship, the time they spent at “Players III” and another premises known as “Spoilers”. She said that she saw Mr Hemi drinking with his friends at “Players III”, and she could tell that “he had had quite a lot to drink.” She said that when they left at about 10.30 pm and went to “Spoilers”, Mr Hemi “was walking OK”.

[7] Senior Constable Loye referred to an associate of Mr Hemi, Danny Bruce, who was with him when he was drinking at “Players III”. Mr Bruce had indicated that Mr Hemi had drunk 15 to 20 handles of beer. However. Mr Bruce was unco-operative with the Police, and refused to make any written statement. The Police have been unable to locate him since that day. Senior Constable Loye agreed with Mr Price that this aspect of the evidence was dependent on Mr Bruce’s hearsay assertion.

[8] Senior Constable Loye described Mr Hemi’s movements after he “Player’s III” when he went to another premises, fell asleep, then was asked to leave. At about 11.10 pm Mr Hemi left the premises, and continued on his way, alone. At 11.50 pm the driver of an Auckland to Helensville goods train noticed something in the middle of the tracks approximately 100 metres ahead of the train. The driver was unable to stop the train in time, and Mr Hemi was later found under one of the carriages.

[9] Senior Constable Loye produced a copy of the train driver’s and train supervisor’s statements that had been evidence in the Coroner’s Court. Senior Constable Loye said the railway was about 100-150 metres walking distance from “Players III”. He also produced a copy of the toxicology report from the Institute of Environmental Science and Research Limited (ESR) that showed the level of alcohol in Mr Hemi’s blood was more than five times the limit for the driver of a motor vehicle. The report also stated that a “screening test indicated the possible use of cannabis.” Because of the level of alcohol in the deceased’s blood, the forensic toxicologist considered it not necessary to carry out a more definitive test.

[10] Marc Reed Thompson is the manager of “Players III” in Glen Eden. He said that on 19 July 2002 he was on duty until approximately 4.00 pm when Tina Paul took over from him. He said that the bar has closed circuit television running continuously in the premises. The tapes are changed daily, and they are kept for one month before being used again. He said that by the time they became aware of the Police investigation it was too late to retrieve the tape for the 19 July 2002. They were therefore unable to verify Mr Hemi’s condition while he was on the premises or what time he left.

[11] Mr Thompson said that his employer asked him to retrieve the till tapes for the day in question to ascertain what sales of Steinlager there had been. He found the tapes for tills one and two, but till one had not been programmed to record the correct date and time of the transactions. Mr Thompson was able to ascertain that the date recorded on the on the tape of till one as 22 November 1994 related to transactions for 19 July 2004.

[12] Mr Thompson produced a summary of the transactions on the tapes for both tills. He explained how he was able to ascertain the relevant transactions and their time by cross-checking the till tape against the EFTPOS receipts. He said that till one showed that 17 pints of Steinlager had been sold that day and 11 of them had been sold before Mr Hemi arrived at the premises. On till two, 47 pints were sold that day, and 11 of them were sold before Mr Hemi arrived at the premises. It was Mr Thompson’s view that Mr Hemi was unlikely to have been involved in 17 of the sales of Steinlager, and it was also unlikely, that he would have been involved in 15 to 20 of the remaining 30 sales. He formed this view on the basis that Mr Hemi was drinking in a group, and he would have expected Mr Hemi to be involved in multiple rather than individual sales on each occasion. Till one on the other hand, is used by the patrons of the gaming area, and he would not expect Mr Hemi to have made his purchases from there.

[13] On the basis of the information from the till tapes Mr Thompson said that he estimated the last sale to Mr Hemi’s group would have been either 8.12 pm or 8.42 pm.

[14] Mr Thompson produced a map to show the location of Mr Hemi’s home in relation to “Players III”, the premises known as “Spoilers”, and the ”Lucky Break Pool Saloon”. Mr Thompson said that he did not now if Mr Hemi went to the latter premises or not. He said it would not have taken Mr Hemi any more than 10 minutes to walk to the railway line from Glenmall Place where both “Players III” and “Spoilers” are situated.

[15] Tina Collet Paul is a duty manager for the Portage Licensing Trust at “Players III” bar in Glen Eden. She has held that position since July 2002. Prior to that she had worked at the Lincoln Green Hotel and the Peninsula Hotel. She was the duty manager on the night of 19 July 2002.

[16] She said that she did not know Mr Hemi, and she had no recollection of him being in the bar on the night of 19 July 2002 or at any other time. She said that if Mr Hemi had passed out or gone to sleep she would have noticed, and dealt with the issue.

[17] Ms Paul said that she knew Fiona Ramsay as a regular patron, and she was on friendly terms with her. Towards the end of the evening Fiona Ramsay said she and her friends were going to “Spoilers” bar which is a late night operation across the road from “Players III”. Ms Ramsay invited Ms Paul to join them which she did at about 11.25 pm after “Players III” had closed. Mr Hemi was not there. It was sometime after that when Ms Ramsay was requested to speak to the Police.

[18] Ms Paul said that she found the claim unbelievable that Mr Hemi had consumed 15 to 20 handles of Steinlager on his own. She said that would amount to almost half the sales for that day. If that was the case she would have noticed either Mr Hemi or a member of his group returning to the bar every ten minutes or so over the three to four hours that they were in the bar.

Authority’s Conclusion and Reasons

[19] The Police case essentially relies on the following points. The assertion of a Mr Bruce, who was unavailable to give evidence, that Mr Hemi had drunk 15 to 20 handles of Steinlager beer at “Players III”. That when Mr Hemi’s partner, Ms Ramsay, saw him at about 8.30 pm she thought “he had had quite a lot to drink”, and when he was run over by a train at about 11.50 pm the alcohol level in his blood was in excess of five times the legal driving limit.

[20] The case for the respondent was that it was unlikely that Mr Hemi consumed 15 to 20 handles of Steinlager beer at “Players III”. When Mr Hemi left the premises at about 10. 30 pm he was “walking OK.” The evidence from Ms Paul, that was not contradicted, was that if Mr Hemi had exhibited signs of intoxication she or her staff would have noticed it. It would also have been apparent if Mr Hemi was buying that much liquor. Mr Hemi later spent some time at the premises known as “Spoilers”. He was asked to leave there apparently because he fell asleep, and it was also suggested that he had offended the dress code of the premises. No evidence was called to confirm exactly why he was removed from “Spoilers” or what his condition was like while he was there. He left on his own at about 11.10 pm. It was suggested that between 11.10 pm and 11.50 pm he could have obtained a drink elsewhere. It was pointed out that there were a number of other licensed premises in the near vicinity. That possibility could not be discounted. There is also the issue of where, when, and how much cannabis was ingested.

[21] We have to say that the evidence for the Police was inconclusive, and based almost wholly on hearsay evidence. Because of this it has not been easy to establish when Mr Hemi left “Players III”. Essentially, we were asked to infer that because Mr Hemi was found with a very high blood/alcohol level he must have had a similar level when he was on the premises at “Players III”. As Mr Price pointed out, the assertion of Mr Bruce was very unreliable, and was totally unsupported by any other evidence. We have said previously, that before we take the serious step of suspending or cancelling a licence on grounds involving intoxication on premises, we would require some positive evidence to that effect. Allowing a person to become intoxicated calls for some evidence that the licensee or barman was aware that the patron had reached a stage where he no longer had control of his faculties. Bald assertions or bare inferences are insufficient.

[22] While hearsay evidence is perfectly admissible pursuant to s.109 of the Act, there needs to be primary evidence to support its admission. After all, applications under s. 132 of the Act specifically give the licensee the opportunity to cross-examine the witness (s.132(5)). It is our view that the suspension or cancellation of any licence based solely on hearsay evidence would be a breach of s.27(1) of the New Zealand Bill of Rights Act 1990. This section provides:

(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights and obligations, or interests protected or recognised by law.

[23] In addition, there was no evidence to support the allegations relating to the alleged breaches of the conditions of the licence.

[24] For the reasons we have expressed above we are not satisfied that there is sufficient evidence to warrant suspension of the on-licence. The application is refused.

DATED at WELLINGTON this 21st day of July 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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