Newell v Owens [2008] NZLLA 1287 (5 September 2008)

New Zealand Liquor Licensing Authority

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Newell v Owens [2008] NZLLA 1287 (5 September 2008)

Last Updated: 7 February 2010

Decision No. PH 1287/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 for suspension or cancellation of General Manager’s Certificate number 068/GM/128/04 issued to PHILIP JAMES OWENS

BETWEEN KEITH PHILIP NEWELL

(Police Officer of Queenstown)

Applicant

AND PHILIP JAMES OWENS

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr P M McHaffie

HEARING at QUEENSTOWN on 26 August 2008

APPEARANCES

Sergeant K P Newell – NZ Police – applicant
No appearance by or on behalf of respondent
Ms T J Surrey – for Queenstown-Lakes District Licensing Agency Inspector – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application brought by the Police for the suspension or cancellation of a General Manager’s Certificate issued to Philip James Owens. Mr Owens was granted his certificate in March 2004. The certificate was renewed in May of this year and is current until 2011.

[2] The applicant is based on the ground that Mr Owens’ conduct had been such as to show that he is not a suitable person to hold the certificate.

[3] The application was originally due to be heard at the Queenstown hearings in April 2008. At that time Mr Owens was in Auckland and it seems that he was working there. Through his lawyer he obtained an adjournment of the application. This was on the basis that he wanted to come to Queenstown to put forward his side of the story.

[4] The application for an adjournment was granted. At that time it was suggested that a six week suspension of the certificate might be appropriate if the matter could be resolved amicably.

[5] In the event there has been no such resolution. The evidence is that Mr Owens left the country on 21 May last for family reasons. The evidence also indicates that he intends to return to New Zealand and continue to work in the hospitality industry.

[6] The facts show that at about midnight on 30 December 2006, Mr Owens was a duty manager at licensed premises in Queenstown. There was an altercation outside the bar between door staff and a group of tourists. One of the tourists was knocked to the ground and was apparently unconscious. There was a plain clothes Constable in the area. He was carrying a Police radio, his Police identification card and the spray that he is issued with. He saw the unconscious man and went to help. He then became involved in the confrontation between the door staff and the tourist group. He called for backup but was manhandled by members of the door staff, one of whom swung a wooden chair at him. He continued to say he was a Police officer and to show his identification card.

[7] Mr Owens approached the constable and grabbed him by the shirt and told him to let go of members of the staff. The officer repeated that he was a Policeman. He was heard to have told Mr Owens this on at least five separate occasions. His identification card and his radio were knocked to the ground and the radio has not been recovered. Mr Owens proceeded to abuse the Constable indicating that he thought he was intoxicated. Mr Owens was then arrested for obstruction and assault. He continued to be abusive. He later acknowledged that he knew that the Constable was a Police officer but insisted that he was off-duty.

[8] Eventually he pleaded guilty in the Queenstown District Court to a charge of assault and obstruction. He was discharged without conviction in respect of the obstruction charge and the assault charge was withdrawn. Under s.106 of the Sentencing Act 2002 the Judge obviously found that a conviction would be out of proportion to what had happened on this night.

[9] In effect what happened from a licensing point of view, was that the duty manager completely ignored the plain clothes Policeman’s attempt to create order out of disorder. His behaviour was completely at odds with the sort of behaviour we would expect from a duty manager. If there is not mutual respect between duty managers and the Police, then it is unlikely that the object of the Act can be achieved. The whole essence of licensing depends on mutual respect between the industry and the monitoring agencies. If any duty manager supports his staff rather than the Police in situations like this, then clearly their suitability comes into question.

[10] We seriously considered cancelling the certificate. However, in the light of the history of the matter, and the circumstances surrounding the request for an adjournment, and Mr Owens’ intention to return to this country, we have decided that a suspension is more appropriate. The General Manager’s Certificate issued to Philip James Owens is accordingly suspended for the maximum term of six months commencing on Tuesday 26 August 2008.

DATED at WELLINGTON this 5th day of September 2008

B M Holmes
Deputy Secretary