Armstrong v Gemmell [2004] NZLLA 98 (19 February 2004)

Last Updated: 20 February 2010

Decision No. PH 098/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM/1356/90 issued to LESLIE JOHN GEMMELL

BETWEEN JOHN FRANCIS ARMSTRONG

(Police Officer of Christchurch)

Applicant

AND LESLIE JOHN GEMMELL

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at CHRISTCHURCH on 10 February 2004

APPEARANCES

Sergeant J F Armstrong - NZ Police - applicant
Mr J M Moran - for respondent

ORAL DECISION OF THE AUTHORITY

[1] In May 2002 the Authority issued its decision in respect of an application to suspend a number of off-licences and General Manager’s Certificates in Christchurch. The decision became known as the “Karara” decision and is recorded under LLA PH 216-220/2002. One of the respondents was the “Woolston Tavern”. It had been the subject of a controlled purchase operation. According to the evidence, a six pack of beer had been sold to a minor by Mr L J Gemmell, who was the duty manager at the time.

[2] The decision records that Mr Gemmell was quite distracted by a number of matters, resulting in his failure to uphold the responsibilities which go with the holding a General Manager’s Certificate. Amongst the orders which were made by the Authority, was the order that Mr Gemmell’s General Manager’s Certificate be suspended for four weeks as a result of the sale which was made.

[3] The “Karara” decision resulted in an appeal to the High Court, and subsequently an appeal to the Court of Appeal. The Court of Appeal gave its decision on 13 June 2003. In paragraph [26], the Court of Appeal stated:

The stipulation that the object of the Act is to establish a reasonable system of control reflects that legislative perception. It also implicitly recognises that if the administration of the Act’s licensing system becomes too heavy-handed, so that it unreasonably inconveniences those wishing to purchase and consume liquor in a manner not giving rise to abuse, that result would be inconsistent with the statutory object.

[4] We have adopted this ruling from the Court of Appeal on the basis that our decisions must not only reflect the object of the Act, but they must also be not unreasonable or heavy-handed.

[5] Against that background, we now deal with an application by the Police for the suspension of Mr Leslie John Gemmell’s General Manager’s Certificate. The ground for the application is that the manager failed to conduct the licensed premises in a proper manner. The evidence, (most of which was accepted by Mr Gemmell’s counsel), showed that on 27 February 2003, there was a further controlled purchase operation in Christchurch run jointly by the Police and Crown Public Health.

[6] One of the volunteers was a young student called “Nicola”, who at the time of the operation was 16 years of age. She was born on 10 June 1986. At about 10.30 pm on 27 February 2003, she entered the “Woolston Tavern” bottle store in Ferry Road, Christchurch. She picked up a four pack of ‘Juel’ passionfruit and orange white rum, and took it to the counter, where she was sold the liquor by Mr Gemmell who was the duty manager at the time. There was apparently very little conversation. Mr Gemmell had no recollection of the sale or the particular circumstances.

[7] As a consequence of the sale being made, actions were taken against the licensee as well as Mr Gemmell. In the interim period of time, the licence has been transferred, and accordingly, the application for the suspension of the off-licence has been withdrawn. The Police elected to proceed with the case against Mr Gemmell. Mr Gemmell’s counsel has accepted that the sale was made and has referred to a number of mitigating circumstances which he has asked the Authority to take into account.

[8] Mr Gemmell is aged 58. He has been involved in the liquor industry for nearly 28 years. During some of that time he has run his own licensed premises, and has been a bar manager for the licensee of the “Woolston Tavern” for approximately 14 years.

[9] Because of the incident on 27 February 2003, he was dismissed from his employment effective from the end of March 2003. We are advised that the main reason for the dismissal was the second sale which he had made, but we do not have any evidence of the background leading to the dismissal. What we do know however is that Mr Gemmell took an action in the Employment Court based on a personal grievance. The claim was resolved by way of mediation. However a lifetime’s work as it were, has been terminated by the second incident. Mr Gemmell’s current intentions are to return to the hospitality industry at some future time.

[10] There are two other factors which Mr Moran has asked us to take into account. The first is that on the evening in question two volunteers were used. After the first sale, the second volunteer was sent in. On that occasion, Mr Gemmell took the opportunity to ask the obvious question about the age of the purchaser. When no identification was offered, no sale was made.

[11] The second matter is that Mr Gemmell was prosecuted in the Christchurch District Court. The case was heard on 15 December 2003. It has been submitted that Mr Gemmell will probably have to meet his own legal costs. The case was run on the basis that the evidence of the volunteer would not be admissible. This argument was based on the submission that the Police had somehow been a party to the offending. This contention was in turn based on the decision of Judge Bidois in the Hawera District Court. That decision has been a matter of some concern and has lead to an amendment to the Act which is currently before Parliament. We assume that the issue of lack of mens rea will have been discussed.

[12] Mr Moran has argued that there has been a considerable amount of hardship and personal trauma for Mr Gemmell as a consequence of his indiscretion. The issue now is whether there needs to be any further deterrent. Mr Moran submitted that in the light of all the circumstances, the Authority should consider declining the application. It is after all, a discretion which must be exercised by the Authority. The Authority has said on a number of occasions that the sale of liquor to minors is an issue of liquor abuse. As a consequence, when there have been sales to minors, a number of managers have had their manager’s certificate suspended.

[13] In this case, Mr Gemmell is no longer currently unemployed in the industry, and the impact of any suspension would have no realistic impact. A period of suspension of six weeks would be in our view, probably appropriate for a second occasion of making a direct sale. It seems to us that the loss of long term employment and all other factors in this case would be a sufficient deterrent to any person to ensure that sales to minors no longer become an issue in the hospitality industry.

[14] It is our view that it would be in these circumstances, unreasonable to make a further order and we therefore decline to do so.

DATED at WELLINGTON this 19th day of February 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Gemmell.doc(afw)