Dalziell-Kernohan v Jas & Jas Holdings Limited and Dillon [2007] NZLLA 889 (14 September 2007)

New Zealand Liquor Licensing Authority

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Dalziell-Kernohan v Jas & Jas Holdings Limited and Dillon [2007] NZLLA 889 (14 September 2007)

Last Updated: 14 February 2010

Decision No.PH 889/2007
PH 890/2007

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 of off-licence number 015/OFF/04/03 issued to JAS & JAS HOLDING LIMITED in respect of premises situated at 973 Heaphy Terrace Hamilton known as “Kiwi Liquor”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager’s Certificate number 015/GM/47/04 issued to BIRINDER SINGH DHILLON

BETWEEN JAMES ROBIN DALZIELL-KERNOHAN_
(Police Officer of Hamilton)

Applicant

AND JAS & JAS HOLDING LIMITED

First Respondent

AND BIRINDER SINGH DHILLON

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum : Ms J D Moorhead
Mr P M McHaffie

HEARING at HAMILTON on 14 August 2007

APPEARANCES

Sergeant J R Dalziell-Kernohan – NZ Police-applicant
Mr B S Dhillon – second respondent and on behalf of first respondent
Mrs C Fouhy – Hamilton District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are two applications to be determined by the Authority. The first is an application for the suspension of the off-licence issued to Jas & Jas Holding Limited in respect of the premises situated at 973 Heaphy Terrace, Hamilton, known as “Kiwi Liquor”. The second application is for the cancellation or suspension of the General Manager’s Certificate issued to Birinder Singh Dhillon. Both applications were made by Sergeant J R Dalziell-Kernohan on 29 March 2007 following a controlled purchase operation conducted in Hamilton in July 2006. Sergeant Dalziell-Kernohan has responsibility for Liquor Licensing in the Hamilton District.

[2] The grounds for the application under s.132 (as amended by consent) are that the licensed premises have been conducted in breach of s.155 of the Act (allowed sale or supply of liquor to a person under 18 years of age) and that the conduct of the licensee is such as to show the licensee is not suitable to hold the licence (in particular being the third occasion when liquor was sold to a minor from these premises). The grounds for the s.135 application (as amended by consent) are that the manager has failed to conduct the licensed premises in a proper manner and that his conduct is such as to show he is not a suitable person to hold the certificate (being the third sale to a minor by the manager).

Background

[3] Both the premises and the manager have been the subject of two previous decisions before the Authority arising from sales to minors in controlled purchase operations.

[4] In LLA PH 797-810/2005 the off-licence was suspended for 24 hours and the General Manager’s Certificate suspended for two weeks. The controlled purchase operation had taken place over two days in September 2005 resulting in 22 of the 32 premises visited making a sale to the under-age volunteers. Seven of the premises were the subject of 14 applications for the suspension of both off-licences and managers certificates which were dealt with in that decision by consent and on the papers.

[5] Decision LLA 713-714/2006 was also a decision made on the papers without the need for the parties to attend a public hearing. This was the second time that both the premises and the manager, Mr B S Dhillon, failed a controlled purchase operation by making a sale to the under-age volunteer. The sale was made without the volunteer being challenged as to age or asked to provide identification. The off-licence issued to Jas & Jas Holding Limited was suspended for four days and the General Manager’s Certificate for four weeks. The Authority commented in this decision that “... should a third breach of like nature occur, we would expect that the respondents would be brought before us to explain their actions”.

[6] In relation to that sale Mr Dhillon also appeared in the Hamilton District Court on 19 January 2006 and was convicted of allowing liquor to be sold to a minor. He was fined $500 plus court costs.

The Hearing

[7] Constable T P Hubbard gave evidence that he assisted in conducting a controlled purchase operation on 12 July 2006. He produced a photograph of the male volunteer taken on the day. A copy of the volunteer’s driver’s licence was also taken by the Constable which shows his date of birth as being 7 March 1989. He would therefore have been aged 17 years and 4 months when the controlled purchase operation took place.

[8] At approximately 4.50 pm on 12 July 2006 the Constable and the volunteer arrived at “Kiwi Liquor” and both entered the premises. The Constable said he stayed in view of the checkout and saw the volunteer return to the checkout with a four pack of "Woodstock" bourbon bottles. He said the volunteer was not asked for identification and that the only words exchanged related to the cost of the "Woodstock" bourbon.

[9] Mr Birinder Dhillon was identified as the person behind the counter who made the sale.

[10] The Constable returned to the premises about 6.33 pm and spoke to another staff member but Mr Dhillon had already left. The Constable returned on 23 July and spoke to Mr Dhillon who admitted serving the volunteer but said that he thought the volunteer had looked about 25 years old.

[11] We were informed that all 10 of the premises visited during this controlled purchase operation sold liquor to this volunteer.

[12] We viewed a recording from the television programme “Target” which aired on TV3 last year. The segment featured a 16 year old attempting to purchase liquor from “Kiwi Liquor”. The transaction was not completed and no sale took place. The recording was not formally produced in evidence and does not form part of our decision making.

[13] The volunteer was not called to give evidence and we were informed that he was away overseas.

[14] Mr Dhillon gave evidence and did not dispute that he served the volunteer or that it was liquor that was sold. He did question whether the Constable had been in the store at the time. He said there was no record of his presence in the security photos that he produced in evidence. He also questioned whether the Constable could have overheard the conversation as he said there was music playing. These matters are of little relevance however given his earlier admissions.

[15] The main point of Mr Dhillon’s defence was that he said he thought that the volunteer did not look underage. He also said that he had served this individual on previous occasions. He said that he only bought that brand. He also said that he recognised him because he was one of three or four boys that came in to the shop who were quite tall. His son is quite tall and he compared them to his son. In his estimation the volunteer was over six feet in height.

[16] Mr Dhillon’s son Kevin Dhillon also gave evidence. He was present when the sale was made. He said that he recalled seeing the volunteer on three or four previous occasions and that he was the only person who would buy that brand. He recalled that on these occasions the volunteer had produced a New Zealand drivers licence as identification. Kevin Dhillon is aged 20 and is six feet four inches in height. He thought that the volunteer was an inch or two shorter than that and therefore stood out because he was tall.

[17] Kevin Dhillon thought that he had seen the volunteer in town and that he may have played rugby against him but was not sure.

[18] Measures have been taken since the latest incident. A computer system has been installed which requires the operator to scan and where appropriate to enter identification details. We were told that identification is now double checked by the staff.

[19] Mr Dhillon filed submissions prior to the hearing. He said in the submissions that the volunteer had a mature appearance and that he had believed he looked over 25. He said he had been misled into making the sale. He also said that he had served the volunteer on three previous occasions when a New Zealand driver’s licence had been provided.

[20] He has been the manager of “Kiwi Liquor” for four years during which time there has been six Police controlled purchase operations. He said that on four of these occasions no sale was made. Included with the submissions were copies of two letters from the Police confirming that controlled purchase operations had been conducted in October 2006 and again in March 2007 and that no sales had been made to the underage volunteers at “Kiwi Liquor”. He also drew attention to a Waikato Times article dated 27 January 2007 that referred to an earlier decision of the Authority regarding the same volunteer in the 12 July 2006 operation.

[21] Sergeant Dalziell-Kernohan made brief closing submissions. He referred to the Alcohol Advisory Council of New Zealand (ALAC) guidelines in regard to controlled purchase operations, as being the model that the Police follow. He accepted that the Police could not refute the evidence given by Mr Dhillon and his son as to previous dealings with the volunteer, as he was not available to give evidence.

The Authority’s Decision and Reasons

[22] The grounds of both the application under s.132 for the suspension of the off-licence and the application under s.135 for suspension or cancellation of the General Manager’s Certificate are based on an alleged breach of s.155 of the Act.

[23] Section 155 in regard to the sale or supply of liquor to minors provides:

(1) Every person commits an offence and is liable to the penalty set out in subsection (2A) who, being the licensee or a manager of any licensed premises,sells or supplies any liquor, or allows any liquor to be sold or supplied, on or from the licensed premises to any person who is under the age of 18 years.

[24] Section 155(4) of the Act provides a defence as follows:

It is a defence to a charge under subsection (1) or subsection (2) of this section if the defendant proves that the person who sold or supplied the liquor believed on reasonable grounds that the person to whom it was sold or supplied had attained the age of 18 years.

[25] When defending a criminal charge of selling to a minor in the District Court, a defendant may prove that he or she believed that the volunteer was 18 years of age or older and that he or she had reasonable grounds for believing this.

[26] The Authority has taken the view when determining enforcement applications, that respondents should be given a similar opportunity to prove that they were misled into making the sale. The onus of proof is on the respondent to establish, on the balance of probabilities, that they believed that the volunteer was of age and that they had reasonable grounds for that belief. This is sometimes referred to as a “safe harbour” defence.

[27] Mr Dhillon seeks to make use of this defence and says that he believed the volunteer was of age. His reasons for this belief were the mature appearance of the volunteer (he thought he looked 25) and his past dealings with him.

[28] Section 155(4A) is also relevant in this case It sets out one of the reasonable grounds of the statutory defence:

Without limiting subsection (4), reasonable grounds exist for the purposes of that subsection if the defendant proves that the person who sold or supplied the liquor had, before or at the time of sale or supply, sighted an evidence of age document of the person whose age is material to the offence, indicating that that person was of or over the age of 18 years.

[29] While no identification was asked for on this occasion Mr Dhillon and his son both said that the volunteer had purchased from the premises previously and had shown a New Zealand drivers licence on these occasions. As the volunteer was not called there was no evidence given to refute this.

[30] The Authority is reported in the Waikato Times article produced by the respondents as agreeing that the same 17 year old male volunteer “looked to be 25”. What the Authority actually said in N K Ahir LLA PH 11113-1115/2006 is reported correctly later in the article that:

“We had the opportunity of seeing a photograph of the volunteer and we agree he looked quite mature.We have also had the advantage of hearing another licensee describe the young man in the same way. There was a considerable amount of disquiet at the way the volunteer had presented”.

[31] In the Ahir decision a differently constituted Authority thought that as a matter of fairness and since the volunteer was not called to give evidence, that the respondent should be given the benefit of the doubt.

[32] We have also had the opportunity of viewing a photograph of the volunteer. We agree that the volunteer appears to be quite mature. For the sake of consistency we believe Mr Dhillon should also be given the same benefit of any doubt.

[33] We have also been told that all of the premises (where liquor was being sold) that were visited during this operation by this particular volunteer, made sales. A 100% strike rate such as this would be considered unusual. This gives us further reason for concern as to the appearance of the volunteer. We note that the ALAC controlled purchase guidelines, produced in June 2004, refer at page 11 to “the volunteer’s look” and says that “volunteers should represent their age group-that is look and act their age” and that they should avoid looking older than they are. There is a further note about “old looking volunteers” and cases that have been compromised because of this.

[34] We find that the defence in s.155(4) applies in the current case. We accept that, on the balance of probabilities, Mr Dhillon did have a belief that the volunteer was of age and that his belief was based on reasonable grounds.

[35] We cannot therefore be satisfied that the grounds of the applications have been established. Even if the grounds had been established we would not have considered it desirable to make any orders for suspension or cancellation in the circumstances.

[36] For the reasons given the applications are declined.

DATED at WELLINGTON this 14th day of September 2007

B M Holmes
Deputy Secretary

Kiwi liquor.doc