Stokes, v Mullane [2005] NZLLA 42 (28 January 2005)

Last Updated: 17 February 2010

Decision No. PH 42/2005 -
PH 43/2005

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 cancellation of on-licence number 001/ON/036/2003 and off-licence number 001/OFF/016/2003 issued to TERENCE GILBERT MULLANE in respect of premises situated at Shop 1, Taipa Mall, State Highway 10, Taipa, known as “Taipa Tavern”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for cancellation of General Manager’s Certificate number 01/GM/079/2002 issued to TERENCE GILBERT MULLANE

BETWEEN PETER KAREL STOKES
(Police Officer of Kerikeri)

Applicant

AND TERENCE GILBERT MULLANE

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at KERIKERI on 20 and 21 January 2005

APPEARANCES

Sergeant P G Masters – N Z Police – applicant
Mr M B Dodds – for the respondent - in opposition
Mrs L A Little – Far North District Licensing Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are effectively three applications for consideration by the Authority. The first two applications are brought by the Police pursuant to s.132 of the Act. The Police seek the cancellation of the on and off-licences issued to Mr Terence Gilbert Mullane. The premises which are the subject of both licences, are situated at Shop 1, Taipa Mall, in Taipa. The business trades under the name of “Taipa Tavern”. The on-licence allows for trading to 11.00 pm Sunday to Tuesday, and to 1.00 am the following day on Wednesday to Saturday. The off-licence has trading hours to 10.00 pm.

[2] The application is based on the following grounds:

• (a) That the licensed premises have been conducted in breach of the following provisions of the Act
  

Section 168(1)(a) (Allowing any intoxicated person to be or to remain on licensed premises)

Section 171 (Allowing persons on licensed premises outside licensing hours)

Section 172A(b) (Failing to ensure manager on duty)

Section 175(4) (Refusing to admit a member of the Police to licensed premises)

Section 176 (Refusing to supply particulars or supplying false particulars)

[3] The particulars relied upon to support the application, relate to the Police attendance at the “Taipa Tavern” on 20 and 22 August 2004. Following these visits Mr Mullane faced certain charges under the Sale of Liquor Act and the Summary Offences Act, and was due to appear in the District Court. The charges have yet to be dealt with. It was alleged that Mr Mullane had shown contempt and disregard for his duties and obligations as a licensee and holder of a General Manager’s Certificate. It was also contended that having been found twice in a grossly intoxicated state, alcohol abuse formed a considerable part of Mr Mullane’s life. Accordingly, it was alleged that he was not a fit and proper person to hold a licence. The applications were filed with the Authority on 26 August 2004.

[4] The second application is brought pursuant to s.135 of the Act. The Police seek the cancellation of the General Manager’s Certificate issued to Mr Mullane. The grounds for the application are that Mr Mullane has failed to conduct the licensed premises in a proper manner, and that his conduct has been such as to show that he is not a suitable person to hold the certificate.

[5] The particulars relied upon to support the application were the same as outlined in the application for cancellation of the on and off-licences issued to Mr Mullane.

[6] During the course of the hearing, we heard a considerable amount of factual evidence, much of which was disputed. In some cases it was difficult for us to determine where the truth lay. In any application brought under s.132 and/or s.135 of the Act, the Police carry the onus of proving the allegations. In assessing the weight of the evidence, we are conscious that the allegations must be proved on the balance of probabilities. When the existence of a licence or a General Manager’s Certificate rests on findings of fact, we will always be concerned to ensure that what is alleged is proved.

The First Incident on which the Applications are Based

[7] Mr Terence Gilbert Mullane has been the licensee of the “Taipa Tavern” since 10 December 2001. He has no previous convictions, and has had no problems either with the Police or the District Licensing Agency up until August 2004.

[8] John Albert Thorne is a Senior Constable at Kerikeri. He has served in the Police for 30 years. For 16 years he was a Police Sergeant. In the last two and a half years he has taken on traffic duties. At 10.20 pm on Friday 20 August 2004, he and Constable A S Gould had set up a checkpoint on State Highway 10 at Taipa. This was virtually opposite the “Taipa Tavern” carpark. While at the checkpoint he heard a male person abusing them, and asking whether they didn’t have anything better to do. The person suggested in obscene terms that they leave. Quite clearly the person was very annoyed at the presence of this checkpoint and said so.

[9] Although it was dark, there was light from a Service Station in the area. Senior Constable Thorne could see what the person was wearing, and he was able to gauge his age. He walked over to the car park as the person disappeared into the tavern. While talking to a member of the public, he then saw the person come out of the side bar door and walk down the ramp towards him. He had a good view of him from about five metres.

[10] The Constable then entered the bar and noted about six to eight persons there. There was no one behind the bar. He tried to locate the duty manager but was unable to do so. Mr Mullane then came through a door in the bottle store area. The Constable recognised him as the person who had earlier called out the abuse. At that time, he had been wearing a dark jacket, but this had been removed. Senior Constable Thorne ascertained that he was the licensee. He then required him to answer some questions under the Sale of Liquor Act. He found that Mr Mullane was obstructive, and continued to be abusive. He clearly resented his being there. Mr Mullane continually walked away when he was being spoken to. In the Constable’s view Mr Mullane was grossly intoxicated. He said that he smelt of alcohol, and was slurring his words.

[11] Mr Mullane said that the duty manager had “scarpered”. He then said that his name was Brett Henare. He told the Senior Constable several times to leave, using obscene language, and offered other forms of abuse, particularly about the Senior Constable’s status as a traffic officer. He continually denied that he was the person who had first offered the abuse in the car park. In fact he mentioned the matter before the subject was raised by the Senior Constable.

[12] Mr Mullane then led the Senior Constable out of the side door of the tavern. Having done so, he then suddenly stepped back inside, holding the door so that it could not be opened. This form of obstruction did not last long. Eventually, after a number of warnings, Mr Mullane was arrested for obstruction. When looking for keys to lock up the building, the Constable noticed under the counter in the bottle store area, a black vest similar to the one worn earlier by Mr Mullane. The name of the tavern was on the vest. Mr Mullane asserted that there were a number of similar jackets which he had given away to staff members as promotional material for the tavern.

[13] Later at the Kaitaia Police Station, Mr Mullane admitted he was intoxicated. He said that he was “allowed to get pissed as it was his night off.” He declined to say where he had been drinking, and refused to give the name of the duty manager. He had a support person who was present when the arrest took place, and who accompanied him to the Police Station. Mr Mullane was bailed into the care of the support person’s wife.

[14] We heard from Constable A S Gould who was not able to assist in any material way. He confirmed that they were abused as they were operating the checkpoint. He described the male and gave an age estimate. He confirmed that Senior Constable Thorne had walked over to speak to the person. After waiting 10 minutes he drove over to the carpark and saw his colleague in the bar. By this time Mr Mullane had been arrested.

[15] Mr Mullane gave evidence, and his testimony was supported by other witnesses. He confirmed that this Friday night was his night off. He said he was drinking with other patrons. He said that the duty manager was Ms Emma Liefting, but that a patron had removed her name from the notice board, and replaced it with a fishing club notice.

[16] Ms Liefting gave evidence that it was reasonably quiet that night, and she had gone home at about 9.30 pm to have a meal. She was living about a two-minute walk away at the time, and intended to return at about 10.30 pm. She acknowledged that when she left, she did not arrange for anyone to take over the duty manager’s responsibility. When she returned, she was just in time to see Mr Mullane being placed in a Police car, so she returned home.

[17] Mr Mullane knew that Ms Liefting had gone home for a meal. He received that advice just before he met with the Senior Constable. He gave evidence that he gave that information to the Senior Constable, but we were unable to accept that he did so. Mr Mullane denied any suggestion that it was he who had started the incident. He said that it was a group of youngsters. However, all the evidence points to the original abuser being a single male in light trousers with a dark jacket, aged in his 50’s. Mr Mullane clearly fitted that description.

[18] Mr Mullane must have been affected by alcohol because he thought that the Constable had three or four other Police Officers with him when he came into the tavern. He acknowledged that he lost patience with the Constable. He said that this was because he wanted to talk with him in the wholesale area, but this request was refused. As a consequence he proceeded to abuse the Constable.

[19] This version of events was to some extent confirmed by a Mrs Elizabeth Anne Baker, although she had a slightly different recollection. She is a regular patron of the tavern. She remembered becoming aware that the Police were at the side door. She saw Mr Mullane go to the side door and heard him ask the Police to go round to the main front door. She then heard the Police say that they were coming in, and wanted the door opened. This is not what was actually alleged by Mr Mullane. The weakness in Mrs Baker’s evidence is that she heard none of the other critical statements by either Mr Mullane or the Constable. She was critical of the Constable’s demeanour, but heard nothing untoward from Mr Mullane, apart from his questioning the Constable about being a “Traffic Cop” and not a real policeman.

[20] In fact, the Constable denied any suggestion that such a conversation about speaking in the wholesale area had taken place at all. He said that he spent his time following Mr Mullane, and that Mr Mullane did not want to engage him in any conversation. It was an incident which the Constable said he would remember forever. He acknowledged that in order to keep control of the situation, he was firm, but denied that he was aggressive. He accepted that he became frustrated by Mr Mullane’s refusal to co-operate. Both parties were clearly not “seeing eye to eye”. They may well have intentionally or unintentionally provoked each other. Mr Mullane acknowledged saying that he was Brett Henare, and he also admitted that he walked outside, and then slipped back inside, and closed the door and held it.

[21] In terms of credibility, the Constable has the advantage of being sober. His recollection of the events is likely to be much better than that of Mr Mullane. The majority of the factual matters were accepted by Mr Mullane, and the main discrepancies between the two, were in the interpretation of how the events unfolded. Senior Constable Thorne was a good witness. He was subjected to an intensive cross-examination from which he emerged relatively unscathed. When he was found to have been wrong on any point, he readily acknowledged that this was so. When he was not certain of his recollection of any aspect of the case, he said so.

[22] Mr Mullane went to the extent of alleging some Police violence at the Police Station. Such a serious allegation was not even given the dignity of an inquiry by Mr Mullane’s counsel of the Senior Constable. In summary, all the facts alleged by the Senior Constable dovetailed. They had about them the ring of truth. We are satisfied on the basis of the evidence, and the drawing of appropriate inferences, that the incident happened as described by the Senior Constable. In making this finding, we have taken into account the inherent dangers of making findings of fact based partly on evidence of identification.

[23] In summary, we were led to the conclusion that this was an evening when Mr Mullane had allowed the consumption of liquor to seriously affect his judgement. With the benefit of hindsight, it was perhaps unfortunate that after such a traumatic event, the Constable returned to the tavern the next evening.

The Second Incident on which the Applications are Based

[24] Senior Constable Thorne returned to the “Taipa Tavern” the following night at about 10.00 pm. On this occasion he was again with Constable Gould. They had been speaking to a group of youths in the car park before they entered the tavern. Once again there was no sign on the premises signifying whom the duty manager was. As it happens, Mr Mullane was on duty that night, and had not been drinking. There was some conversation between him and the Police to the effect that there were not many customers and that the Police were frightening them away. This exchange was confirmed by Mr Mullane and Ms Liefting.

[25] Pursuant to the on-licence, the bar was required to close at 1.00 am the following day. A period of 30 minutes “drink up” time is allowed by s.170 of the Act. Between 1.30 am and 1.50 am, there was a group of five people sitting at the bar having staff drinks. This is a normal occurrence. Each member of staff is allowed four free glasses of beer at the end of the evening. Present were:

The licensee, Mr Mullane.

The previous night’s duty manager, Ms Liefting.

Ms Liefting’s fiancée, Mr Craig Thomas Birch.

A regular bar person, Mr Kenneth McRae Adams, and

Ms Faye Leaf, the cleaning lady.

[26] We heard sworn evidence from all of these people other than Ms Leaf. All stated that the doors were shut, and they were having staff drinks. All remembered that a male person who they did not know, and had not seen before, was allowed to use the phone to call his partner to pick him up. He was then asked to leave as he was intoxicated. All the witnesses confirmed that there were no paying customers. Mr Adams stated that he had helped out a couple of times during the night, and was therefore entitled to the free drinks. All the witnesses were adamant that Mr Mullane was not intoxicated.

[27] Senior Constable Thorne was driving past the tavern at about 1.50 am. He and Constable Gould saw a number of vehicles in the car park, and were therefore suspicious that there might be late trading. Senior Constable Thorne saw a grossly drunken man coming down the ramp and into the car park. This person began vomiting. He told the Senior Constable that he had been in the bar several hours although it is not clear what bar he was talking about.

[28] As a consequence of what he had seen, the Constable entered the bar. He believed that there were 12 to 15 people present, and that alcohol was being consumed, and that money was on the bar. He considered that some of the participants were intoxicated. When questioned in cross-examination, the Senior Constable acknowledged that his estimate of the numbers of patrons might have been inflated, and apologised. He also said that Mr Mullane appeared heavily intoxicated. However, on the basis of the evidence given by all four persons who were present in the bar, we are not prepared to draw that conclusion. Certain members of the group were impressive witnesses, and Mr Birch in particular, had only had one drink.

[29] In summary, the Senior Constable made a number of assumptions based on what he saw. The evidence given by the four witnesses who were present in the bar, was sufficiently cogent to show that more than one inference could have been drawn from the facts. Furthermore, the witnesses were unanimous in confirming Mr Mullane’s assertion that he did not have a problem with the use and abuse of liquor. It follows therefore that any conclusion about the facts would be of doubtful validity.

The Authority’s Decision and Reasons

[30] Sections 132 and 135 of the Act require a two step approach. First the evidence must be examined to see whether we are satisfied that the allegations have been established. If that is the case, we must then decide whether it is desirable than an enforcement order is made.

[31] In this case we first apply our findings to the allegations that there were several breaches of the provisions of the Act as follows:

(a) Section 168(1)(a) of the Act creates an offence for any licensee or manager of any licensed premises to allow any intoxicated person to be or remain on the licensed premises.

In our view, Mr Mullane was intoxicated on the night of 20 August 2004, and he was allowed to be and remained on the premises. In this case he was allowed to do so by default, due to the absence of the duty manager.

(b) Section 171 creates an offence for any licensee or manager to allow any person to be on licensed premises 30 minutes after the premises are required to be closed for the sale of liquor. There is an exemption for the licensee or the manager or the spouse of any licensee or manager. There is a further exemption for any employee not living on the premises, however, an employee may only remain for 1 hour after his or her employment has ceased for the day.

Mr Mullane and Ms Liefting were therefore entitled to be present. Mr Birch is not Ms Liefting’s spouse, and was therefore technically not entitled to be present. It was not established when Mr Adams helped out, and accordingly, it cannot be proved one way or another whether he was exempt. The same applies to the cleaner. She was clearly not cleaning at the time, but may well have stayed on after finishing work. Although there may have been a technical breach in the case of Mr Birch, we would have thought that in the circumstances an enforcement order would be undesirable.

(c) Section 172A creates an offence for any licensee who fails without reasonable excuse to ensure that section 115 is complied with. Section 115 provides that at all times when liquor is being sold to the public, a manager must be on duty and responsible for compliance with the Act and the conditions of the licence.

In this case, Mr Mullane did not even know that his duty manager had left until he asked where she was, just before he went to meet the Senior Constable. It is true that a Ms Foley was also working at the tavern that night as a barperson. She had completed her training, but she had not made an application for a General Manager’s Certificate. The law was breached on this occasion. The presence of the duty manager could and should have prevented the licensee from getting into an intoxicated state.

(d) Section 175 (4) creates an offence for any person who without reasonable excuse refuses or fails to admit to any licensed premises any member of the Police who demands entry under this section. The alternative offence is to delay unreasonably admitting to any licensed premises any member of the Police who demands entry under this section.

The Police must demand entry to enable them to enter and inspect the premises to ascertain whether the licensee is complying with the Act and the conditions of the licence. Alternatively, they do so where there is reasonable ground to believe that an offence under the Act is being committed.

In this case any refusal or delay was relatively minor, and there was no suggestion that what happened was an attempt to cover up any breach of the Act. The evidence is not clear whether entry was demanded, and if so, under what provision of the Act it was done. There was no evidence as to whether the door was held after such demand had been made. In those circumstances we do not find that the allegation has been established.

(e) Section 176 makes it an offence for any person who having been required by the Police to supply the particulars of the name and address of a person, refuses or fails to supply such particulars, or supplies particulars which are known to be false. The right to request particulars is predicated on a reasonable belief that a person has committed, or is committing, or attempting to commit, an offence against the Act.

In this case, the Senior Constable was unable to ascertain the name of the duty manager. With an intoxicated licensee on the premises, he had every right to request the licensee’s and the manager’s name and address. It is accepted that the particulars which were supplied, were false.

[32] In the third application, the Police seek the cancellation of the General Manager’s Certificate issued to Mr Mullane. The grounds are that he has failed to conduct the licensed premises in a proper manner, and/or that his conduct has been such as to show that he is not a suitable person to hold the certificate. In this case, the issue is Mr Mullane’s personal conduct rather than the way he was conducting the licensed premises since he was off duty at the time.

[33] In our view, Mr Mullane’s conduct as the holder of a General Manager’s Certificate was unreasonable and inexcusable. The worst aspect of the matter was that it showed a sustained form of contempt for the Police, albeit a particular branch of the service. Managers are expected to work with and alongside the enforcement authorities. It is vital that there be mutual respect. There is no question that the ground has been satisfied.

[34] The issues to be considered are whether it is desirable to make enforcement orders. We saw the incident as personal to Mr Mullane, rather than a serious breach of the conditions of the licence. What saved his licence was his spontaneous and sincere apology to the Police, and particularly to Senior Constable Thorne at the end of the hearing. Without apparently consulting with his counsel, Mr Mullane apologised for his behaviour.

[35] In coming to our decision we have also taken into account the submissions made by Mr Dodds. He urged us to take into account the tavern’s record both before the incident, and since. The “Taipa Tavern” has been under considerable Police scrutiny for the last five months, and no untoward incidents have been reported.

[36] So far as Mr Mullane’s General Manager’s Certificate is concerned, there is an important matter of principle here. When Parliament passed the Sale of Liquor Amendment Act 1999, it amended s.115(1) to emphasise the fact that a manager must be on duty at all times when liquor was being sold or supplied. In the future all managers would be responsible for ensuring that the premises complied not only with the Act, but also with the conditions of the governing licence.

[37] Prior to the amendment, this duty had been shared with the licensees. As a result of the amendment, a duty was placed on all licensees to take all reasonable steps to ensure that the manager complied with his or her obligations (s.115 (3)).

[38] The reasoning behind the amendment was to encourage the drive to raise the standards of those charged with the responsibility of supplying liquor to the public. The expectation was that management of licensed premises would be conducted only by persons of integrity, committed to supervising the sale and supply of liquor, and concerned to give new meaning to the term “host responsibility”. The ultimate aim was to achieve the Act’s objective of reducing the incidence of liquor abuse.

[39] Although Deejay Enterprises Ltd LLA 531/97 – 532/97 was decided prior to the amendment, the comments are equally relevant in a modern context. The Authority said:

“The guiding hand or hands on operator of any company, or the potential holder of a General Manager’s Certificate, now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires frequently tug in different directions. The Police cannot be everywhere. Little but a licensee’s or manager’s character and suitability may stand between upholding the law and turning a blind eye. Self-imposed standards in accordance with the law must be set by licensees and holders of General Manager’s Certificates who control and manage licensed premises.”

[40] In Noel Justin Allen LLA 1388/97 the Authority had this to say:

“Following the introduction of a competitive regime on 1 April 1990 under the new Act, the Authority allowed a settling in period. In more recent years, we have endeavoured to gently raise the requisite standards both of licensees and the holders of Manager’s Certificates in order to improve both knowledge of the Sale of Liquor Act, and the conduct of licensed premises. As Dormer, Sherriff, and Crookston “Sale of Liquor” (Butterworths 1990)(sic) state in their text introduction at para 22 “Licences will be easier to get and easier to lose.” Provisions for Manager’s Certificates should, in our view, follow a similar pattern.”

[41] For the reasons given, we intend to cancel Mr Mullane’s General Manager’s Certificate. In doing so we acknowledge that no such finding need be infinite. We are not unaware of the cost and inconvenience that this decision will create for the business. We would have no objection to his re-applying for his certificate in six months time. It may be that a course of re-training will assist him in re-learning his responsibilities, and may give the Police sufficient confidence not to oppose the application.

[42] In the light of this sanction, the applications for cancellation of the on and off-licence will be adjourned for six months, pursuant to the provisions of s.135(7) of the Act. This will give the respondent the opportunity to remedy such matters, as ensuring that there is no intoxication on the premises, that the provisions of s.170 are complied with, that a manager is on duty at all times when liquor is being sold, and notification is made in accordance with the Act. If after six months there are no other reported incidents, then the applications will be deemed to have been resolved. On the other hand, if further breaches of the Act are alleged, then the hearing will be resumed and enforcement orders may follow.

[43] Accordingly, the following orders are made:

• (1) The application to cancel on-licence number 001/ON/036/2003 and off-licence number 001/OFF/016/2003 issued to Terence Gilbert Mullane is adjourned for six months from the date of this judgment.
  

(2) General Manager’s Certificate number 01/GM/079/2002 issued to Terence Gilbert Mullane is cancelled.

DATED at WELLINGTON this 28th day of January 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

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