MacPherson [2007] NZLLA 913 (18 September 2007)

Last Updated: 25 January 2012

Decision No.PH 913/2007

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by NICHOLA JANE MACPHERSON pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Dr J Horn

HEARING at CHRISTCHURCH on 3 September 2007

APPEARANCES

Ms N J MacPherson – applicant
Ms A R Batcheler – Ashburton District Licensing Agency Inspector – in opposition
Sergeant G J Russell – NZ Police – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Nichola Jane MacPherson for a General Manager's Certificate. The application was filed with the agency in October 2006.

[2] Ms MacPherson fulfils the majority of the criteria set out in s.121 of the Act. She is the holder of the Licence Controller Qualification. Pursuant to the Criminal Records (Clean Slate) Act 2004, she has no convictions recorded against her. She has had recent experience in controlling licensed premises in that she has been a temporary manager of the premises known as the "Hinds Tavern" for approximately one day a week since October of last year.

[3] There are adverse reports from the Police and District Licensing Agency Inspector based on a lack of disclosure about the convictions that existed at the time of the application. After the application was filed, there was an interview between the applicant and the Inspector and the Police. The parties had a different perception of what was said at the interview. The concerns raised relate to the applicant's character and reputation, and in the end, suitability.

[4] Ms MacPherson is a mature person. She is 43 years of age. She had worked for some time in the kitchen of the "Hinds Tavern". Her employer thought sufficiently highly of her to encourage her to apply for a General Manager's Certificate.

[5] He helped her to complete the form. She disclosed to him that she had had problems but they were historical in nature. She indicated that since the last conviction a period of 10 years had elapsed. Accordingly the question about whether there were convictions was answered in the negative.

[6] It so happens that the last matter was in November 1999. Therefore by approximately one month Ms MacPherson was still eligible to have her convictions disclosed. The Police found the convictions and the interview took place.

[7] As stated earlier the parties have a different recollection of the interview process. Both the Inspector and the Police thought that Ms MacPherson was being dishonest. From their perspective, Ms McPherson mentioned that she did not know why she had put ‘no’ in the form. She did say that her employer had helped her fill out the form, and initially, she refused to accept that she had convictions. She also had differing explanations for why the convictions were not disclosed.

[8] It seems that the Clean Slate Act, which had been discussed with her employer, may not have been discussed at the meeting. On the other hand Ms MacPherson stated that she often has difficulty with meetings such as this. After observing her in the witness box we can understand that she became quite confused. It was because she gave differing accounts that the Police were concerned about her own suitability. They contended that she might turn a blind eye to illegal incidents. On the other hand she presented quite well in the witness box, and seems to have a good understanding of her responsibilities as the holder of a certificate.

[9] The application was supported by her employer, the manager of the "Hinds Tavern". He saw fit to come to the hearing to explain that in his view Ms MacPherson is a suitable person to hold the certificate. He also explained that he advised Ms McPherson that it was unnecessary to disclose the past if a period of 10 years had elapsed. He established that there was no intent to deceive.

[10] As stated earlier, Ms MacPherson now qualifies under the Clean Slate Act and any incidents in the past can no longer have a relevance to our determination. This is an application that has truly been overtaken by a period of nearly 12 months since it was filed. During that time Ms MacPherson has had an opportunity to gain confidence to work as a duty manager. Bearing in mind that any grant is for a probationary period of 12 months, we think the time has come for her now to step up in the role.

[11] Accordingly we propose to grant the application.

DATED at WELLINGTON this 18th day of September 2007

B M Holmes
Deputy Secretary

Nichola MacPherson.doc