Dalziell-Kernohan v Thakur [2007] NZLLA 161 (1 March 2007)

Last Updated: 23 February 2010

Decision No. PH 161/2007 –
PH 162/2007

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 or cancellation of off-licence number 015/OFF/02/02 issued to the partnership of JAGDISH PRASAD THAKUR and USHMA THAKUR in respect of premises situated at 64 Cameron Road, Hamilton, known as “Cameron Road Foodmarket”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number 015/GM/483/05 issued to JAGDISH PRASAD THAKUR

BETWEEN JAMES ROBIN DALZIELL-KERNOHAN

(Police Officer of Hamilton)

Applicant

AND JAGDISH PRASAD THAKUR and USHMA THAKUR (trading in partnership)

First Respondent

AND JAGDISH PRASAD THAKUR

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms P A Ballard

HEARING at HAMILTON on 16 February 2007

APPEARANCES

Senior Constable J R Dalziell-Kernohan – NZ Police – applicant
Mr J P Thakur – for first and second respondents
Mr T P van der Heijden – Hamilton District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority are two enforcement applications. The first application is for the cancellation or suspension of an off-licence issued to the partnership of Jagdish Prasad Thakur and Ushma Thakur in respect of premises situated in Hamilton known as “Cameron Road Foodmarket”.

[2] The ground for the application is that the premises have been conducted in breach of s.155(1) of the Act. This section creates an offence for any licensee or manager to sell or supply liquor or allow liquor to be sold or supplied to any person under the age of 18. It is also alleged that the premises have been conducted in breach of a condition of the licence which requires the licensee to ensure that no minors are sold or supplied with liquor.

[3] The second application is for the suspension of a General Manager’s Certificate issued to Mr Jagdish Prasad Thakur. The grounds for the application is that Mr Thakur has failed to conduct licensed premises in a proper manner.

[4] Both applications are based on the ground that on 12 July 2006 a controlled purchase operation was conducted. A 17-year old volunteer visited the premises and was able to purchase a six-pack of beer. It was alleged that the sale was aggravated by the fact that there had been a similar incident on 11 November 2005 when a 16 year old volunteer had been able to purchase a bottle of sparkling wine. On that occasion the sale had been made by Mr Thakur who was the duty manager at the time. As a consequence of an agreed result we suspended the off-licence for a period of 24 hours and we suspended Mr Thakur’s General Manager’s Certificate for a period of two weeks. See decision LLA 70-73/2006 Dana McDonald v Primo Vino Limited and Others.

[5] The allegation in respect of Mr Thakur’s General Manager’s Certificate includes the fact that at the time of the sale he was not only the sales person but also the duty manager.

[6] It is fair to say that Mr Thakur was under some form of confusion in the way that the process and the hearing developed.

[7] The evidence shows that the volunteer was born on 7 March 1989. At the time of the controlled purchase operation on 12 July 2006, he was aged 17 years and 4 months. The volunteer is a large young man. He is quite tall and bulky. On the other hand the photograph and the description by the Constable who was assisting the operation shows that he has a young face that was described by the Constable as a baby face.

[8] The young man entered the foodmarket at about 4.15 pm on 12 July 2006. He selected a six-pack of stubbies. The Constable was also in the store keeping an eye on him. There was only one person behind the counter and that was Mr Thakur. There were very few other people in the store. No words were exchanged between the buyer and the seller. Mr Thakur asked the volunteer if he wanted a bag. The Constable returned to the foodmarket about three hours later. He showed Mr Thakur a photograph of the volunteer and Mr Thakur then said he thought the person was 25 to 30 years of age.

[9] In his evidence Mr Thakur stated that there was never any intention to sell liquor to minors. He had never had any complaints. He thought that the Police had tried to trick him. He said that he looked the person in the face and thought he was in his mid 20s and as a consequence he did not ask for identification. He accepted that this was an error of judgment on his part. He said that since the second incident they now check for identification of anyone looking 25 years or younger, and that he has even requested identification from people who are older, in order to be safe rather than sorry. He requested that his manager’s certificate be suspended but not the off-licence because that would impact on his customers.

[10] The first issue to be resolved is whether Mr Thakur has been able to establish a defence or even a satisfactory explanation for the allegation. Under s.155(4) of the Act it is a defence if Mr Thakur establishes that he believed on reasonable grounds that the person to whom he made the sale had attained the age of 18. In such a case the onus is on Mr Thakur to show that that is what he believed and that he had reasonable grounds for that belief. Reasonable grounds could include the size of the young volunteer although it is clear that his face gave his age away. Although Mr Thakur said he looked at the face he did not make any comment to the purchaser. He did not ask any questions. It is beyond our logical comprehension that he could be so persuaded as to not seek some form of identification. In short we do not believe that Mr Thakur has reached the threshold necessary to show the belief or to show reasonable grounds for such belief.

[11] Therefore we are satisfied that:

• [a] The premises were conducted in breach of s.155(1) of the Act;
  
• [b] The premises were conducted in breach of the condition of the licence which requires Mr Thakur as a licensee to ensure that the sales are not made to intoxicated persons or minors; and
  
• [c] Mr Thakur failed to conduct the licensed premises in a proper manner.
  

[12] The next issue is whether it is desirable for suspension orders to be made in respect of the General Manager’s Certificate and/or the licence. In terms of desirability we have to take into account that the majority of illegal sales in this country are made by off-licensed premises where the sale of liquor is not the primary business. Notwithstanding the fact that the age has been reduced now for seven years, proprietors of foodmarkets/groceries are still very lax in the way they control the sale of liquor.

[13] The off-licence is a privilege. It carries a large number of responsibilities. Breaches of the Act in relation to sales to minors are very serious. It is clear to us that that seriousness has not got through to some aspects of the hospitality industry.

[14] In this case matters are exacerbated by the fact that in February 2006 orders were made for the suspension of the off-licence and the General Manager’s Certificate. Taking into account as best we can, the explanation given by Mr Thakur, we believe that it is desirable to make orders to act as a deterrent not just to Mr Thakur but to other similar off-licensed premises. This type of activity must stop.

[15] Accordingly it is our view that the off-licence issued to the partnership should be suspended for one week and that the General Manager’s Certificate should be suspended for a month. For the reasons given the off-licence is now suspended for one week from 7.00 am on Monday 26 February 2007, and the General Manager’s Certificate issued to Mr Thakur will be suspended for one month from Monday 26 February 2007.

DATED at WELLINGTON this 1st day of March 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

Jagdish Thakur.doc(aw)