Hastie v Westbury [2003] NZLLA 91 (28 February 2003)

Last Updated: 20 February 2010

Decision No. PH 91/2003

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 suspension of on-licence number 060/ON/2/2002 issued to LEONARDUS FRANCISCUS AARTS in respect of premises situated at 181 Ferry Road, Christchurch known as “The Embankment”

BETWEEN RAY HASTIE

(Police Officer of Christchurch)

Applicant

AND LINDA JOYCE WESTBURY

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at CHRISTCHURCH on 30 January 2003

APPEARANCES

Mr P J Egden - for respondent
Mr M Ferguson – Christchurch District Licensing Agency Inspector – to assist
Sergeant J F Armstrong – New Zealand Police – applicant

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Constable Raymond William Hastie for the suspension of an on-licence. The on-licence is in respect of a licensed premises situated at 181 Ferry Road, Christchurch known as “The Embankment”. The base licence was issued to Leonardus Franciscus Aarts, but he has sold the business. A Ms Linda Joyce Westbury began trading under a temporary authority which was issued on 2 April 2002. Pursuant to s.24(4) of the Act, as the holder of a temporary authority, Ms Westbury has the same duties, obligations and liabilities as the holder of the on-licence to which the temporary authority relates. The basis of the application for suspension is that the licensed premises have been conducted:

• [a] in breach of the provision of the Sale of Liquor Act which refers to the presence of a manager on licensed premises;
  
• [b] in breach of the conditions of the licence. The particular breach alleged relates to condition (b) of the on-licence which reads:
  

(b) No liquor is to be sold or supplied on Good Friday, Easter Sunday, Christmas Day or before 1.00 pm on Anzac Day to any person other than persons who are present on the premises for the purpose of dining.

[2] The evidence before us came from Martin Ferguson, a District Licensing Agency Inspector, and from Constable Hastie who has a responsibility for liquor licensing in the Hagley/Ferry ward of Christchurch City.

[3] Constable Hastie and Mr Ferguson carried out a combined monitoring visit of licensed premises after midnight on Thursday 25 April last year. At about 12.40 am on this Thursday 25 April 2002, (Anzac morning), they observed that “The Embankment Tavern” appeared to be open for business. On entry, they both noticed a female bar staff member serving a beer or lager, and a bourbon and coke. They did not interview the person who was served with the liquor to ascertain whether that person was present for the purpose of dining. They stated that they did not see anybody consuming food in the bar. They checked the kitchen to find that the kitchen in fact was open, and that there was some pizza in the oven. The oven was was lukewarm. It was their view that the kitchen itself was no longer in use. Although the fryer had been used, there was no effort being made to use the kitchen area for the preparation of food.

[4] Mr Ferguson acknowledged that in the fridge there was food which would have been available for the preparation of meals other than the snack bar menu, which is normally associated with a tavern operation.

[5] The issue before us was whether there had been a sale or supply of liquor as alleged. The only evidence of such sale or supply was the sale of two glasses to one person. It is true that Mr Ferguson stated that there was a female serving behind the bar, but there was no other evidence that liquor was being sold or supplied.

[6] In cross-examination, Mr Ferguson was asked about an area to the rear of the premises where there were tables. It was suggested to him that there were table cloths and condiments for food. He said that he could not recall such items. He said that from memory the tables had on them jugs and glasses, but he was not sure. There was a band playing. It is quite clear that the premises were being left open in breach of s.170 of the Act, although this is not the breach relied upon by the Police.

[7] At the conclusion of the evidence, Mr Edgen raised the issue as to whether or not the Police had proved on the balance of probabilities, that the person who was served or supplied the liquor was not there for the purpose of dining. In the light of the warm pizza and in the light of the items in the fridge, one cannot rule out the possibility that at some time prior to the arrival of the Police, the person had not been served with a meal.

[8] We accept that there must be a time limit for a post prandial drink. On the evidence before us we are unable to say whether or not a meal was served either prior to or after midnight on the day in question. It seemed to us therefore, that in those circumstances the required proof was insufficient albeit that such proof was ‘on the balance of probability’. We accept the argument that this is an inquiry rather than an adversarial court case. Nevertheless, we are not prepared to force persons to give evidence to see whether the particular case can be established. Having looked at the matter in the round, we accept the submission. We find that the allegations have not been established to the required standard. In the same way we were unable to say that there was sufficient proof to establish that the certified manager who had left temporarily, had not appointed a temporary manager.

[9] For these reasons therefore, the application will be dismissed.

DATED at WELLINGTON this 28th day of February 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Aarts.doc(afw)