Murphy, re [2008] NZLLA 471 (28 March 2008)

Last Updated: 5 July 2010

Decision No. PH 471/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by STUART WILLIAM MURPHY pursuant to s.123 of the Act for renewal of a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PUKEKOHE on 13 March 2008

APPEARANCES

Mr S W Murphy – applicant
Mr T N Long – Franklin District Licensing Agency Inspector – in opposition
Sergeant G Campbell – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Stuart William Murphy for the renewal of his General Manager's Certificate. Mr Murphy has held his certificate for approximately 10 years. The certificate fell due for renewal on 5 May 2007. More recently Mr Murphy acquired the Licence Controller Qualification.

[2] The criteria which we must take into account in deciding the application are set out in s.126 of the Act. They relate to Mr Murphy's character and reputation and convictions incurred by him since the certificate was last renewed. We are also required to take into account the manner in which Mr Murphy has managed the sale and supply of liquor pursuant to a licence, with the aim of contributing to the reduction of liquor abuse. Finally, we must consider any other matters dealt with in any report received from the Police or the Inspector.

[3] When he filed his application Mr Murphy was asked whether he had been convicted of any offence. He crossed out the yes and the no. The Police found that there had been a conviction for a domestic assault. The first issue was whether the failure to disclose this incident was intentional and aimed at deceit.

[4] Mr Murphy has explained that he did not see the assault as being relevant to his duty as the holder of a General Manager's Certificate. He said he had done the same thing when he had previously applied for renewal of his certificate. This was because of the way in which the assault had come about, as well as the history of his emotional breakup with his former partner, and the ongoing disputes about custody. In other words bringing up the past about his unstable relationship appears to trigger Mr Murphy into not answering the question in a direct way.

[5] Having heard from Mr Murphy, we are satisfied that there was no intent to deceive the Agency. Mr Murphy needs to understand that any further questions of this nature should be answered in a much more straightforward way.

[6] We turn to the assault itself. The incident occurred on 14 August 2006. Mr Murphy's former partner had called at his house. There was an argument about the custody of the child. Mr Murphy advised us that he told his ex partner that she was trespassing and she had to go. She refused. He believed at the time that he was able to restrain her and remove her from the property.

[7] He said that was the extent of the assault. Although he believed at the time that he was allowed to remove a person from his property he has now discovered that an assault is the intentional application by one person on another. He was convicted in the District Court in December 2006, and he was ordered to carry out 50 hours of community work which he has done.

[8] There is a previous matter back in 2001. However, we do not see the particular conviction as preventing Mr Murphy from retaining his General Manager's Certificate. The difficulty that we face is that this is an application for renewal. We have two options, we can refuse the application or we can grant it. There is no application for the suspension of the manager's certificate which would give us the further option of imposing a sanction for the behaviour.

[9] There is a third matter which resulted in opposition to the renewal. This relates to another incident involving the ex partner. This incident occurred in February of last year. It involved a child and the ex partner and trespass notices. Mr Murphy arrived at a residence after the matter to some extent had been resolved. He spoke with a representative from the Police at Pukekohe. Mr Murphy was aggressive. He is clearly subject to a considerable amount of emotion when it comes to dealing with his ex partner. He was given advice as to how the matter could be resolved. He did not agree with the Police and he acted quite inappropriately and made comments to the Police which no holder of a General Manager's Certificate would be justified in making.

[10] Mr Murphy has explained that he has a positive attitude to the Police. We are satisfied that he was ruled by the emotion of the time. It is clear that if he cannot control his emotions in relation to his ex partner in the future, then there are going to be further problems.

[11] There have been no concerns about the way Mr Murphy has managed the sale and supply of liquor in the last three years. About 10 years ago he established licensed premises known as "The Last Post" in Mercer. He ran it for some time on his own. He then leased the business. The latest lessee defaulted on the lease and the place is currently not in use. There is a possibility of Mr Murphy returning to take over the premises but his main focus is on obtaining another lessee. He has used his General Manager's Certificate to assist at licensed premises in Pukekohe and he is also assisting another licensee at this time.

[12] In those circumstances we do not believe that it would be a reasonable response to the evidence to refuse to allow Mr Murphy to continue to be the holder of a General Manager's Certificate. On the other hand he needs to know that he is on a form of probation. If he is going to be able to retain his certificate in the future then he is going to have to be very careful about his personal behaviour.

[13] Our decision is to renew the General Manager's Certificate but for a truncated period which will be two years. This means that the manager's certificate will fall due for renewal on 5 May 2009, in just over 12 months time.

DATED at WELLINGTON this 28TH day of March 2008

S Cunningham
Secretary

Stuart Murphy.doc(aw)