Lewis v Powell [2012] NZLLA 1139 (11 October 2012)

Last Updated: 7 November 2012

[2012] NZLLA PH 1139

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number GM875/2009 issued to KATHERINE ANNE POWELL

BETWEEN JOHN ROBERTSON LEWIS

(Police Officer of Wellington)

Applicant

AND KATHERINE ANNE POWELL

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Members: Mr D E Major
Mr R S Miller

HEARING at WELLINGTON on 3 October 2012

APPEARANCES

Sergeant J R Lewis – NZ Police – applicant
Ms C A J Fewkes – for respondent

DECISION OF THE AUTHORITY

[1] This decision relates to an application brought under s.135 of the Act by the Police seeking the suspension or cancellation of the General Manager's Certificate issued to the respondent. Pursuant to s.135(3)(a) of the Act the application alleges that on 21 March 2012 the conduct of the manager was such as to show that she was not a suitable person to hold a General Manager's Certificate. In particular, it was alleged that on 21 March 2012 a controlled purchase operation took place. A 17 year old male volunteer entered the licensed premises known as “Glengarry Wines Kelburn” and was able to purchase a pack of beer for $14.80. The respondent was the duty manager who served the volunteer.

[2] The respondent contends that an offence under s.155(1) of the Act was not committed. She relies upon the defence set out in s.155(4) of the Act which reads:

It is a defence to a charge under subsection (1) or subsection (2) of the 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.

[3] In her evidence, the respondent said that on 21 March 2012 she was working on her own in the premises. She was emotionally distressed as a result of an incident which had occurred a few days previously. She saw the volunteer come into the shop and greeted him. She watched him walk towards the beer fridge. There were no other customers in the store. From her observations, the volunteer appeared to her to be at least 20 years of age. She watched the volunteer select a pack of “Epic” lager which is a boutique or craft beer. It is not the sort of beer that typically young persons purchase. The volunteer appeared confident as he came to the counter with the beer. He offered cash for the beer.

[4] When the volunteer reached the counter, he was asked for his identification. He handed the respondent his driver’s licence. She moved it back and forward in her hand to ensure that it was not a fake. She then looked at the photo and matched the photo on the driver’s licence with the volunteer.

[5] The respondent then deposed:

“Finally I looked at the date of birth and saw that the customer was born in 1994. I recall looking at the month but also having in the back of my mind that 1994 was the “cut off” year. By this I mean that I had stored in my memory people producing driver’s licences with 1994 as the year of birth have just turned 18 or would be about to turn 18.

I recall calculating his date of birth and concluding that he had just turned 18. I now know that I miscalculated in some way and reached an incorrect conclusion.

The reason I can recall everything so clearly is because I was genuinely surprised having looked at his ID to learn that he was only 18 years old. As I said before he appeared mature, confident and I had formed the impression that he was over 20 years old.

[6] In the Authority’s opinion, none of the matters mentioned in the preceding paragraphs are sufficient for the respondent to establish a defence in terms of s.155(4) of the Act.

[7] The respondent then said:

“I recall handing his ID back and saying something to him along the lines of “oh you’ve just turned 18, right?” I don’t know that I was necessarily asking him for confirmation, but I do know there was an upward inflection in my voice and it was phrased as a question.

I clearly recall the customer indicating by body language that he agreed with my question or that he was somehow communicating or nodding in agreement. When I say nodding I don’t mean that he was enthusiastically nodding but he certainly gave me the impression that he was agreeing with what I was saying. I would describe it as a non verbal communication, but I was left pretty certain of what he was saying.”

Thereupon the volunteer handed the respondent a $20 note and the transaction was completed.

[8] The issue is whether by asking for confirmation of her error and the volunteer neither confirming nor denying it but simply proceeding with the purchase, did the respondent have reasonable grounds for believing that the volunteer had attained the age of 18 years. As indicated previously, none of the background material is sufficient to constitute a defence in terms of s.155(4) of the Act. However, it plainly created a mindset on the respondent’s part. With that background, when the respondent asked the volunteer “you’ve just turned 18, right?”, she could have expected some response from the volunteer. The Authority accepts that when the volunteer, without making any comment, immediately preceded with the purchase and handed over the $20, the respondent was entitled to interpret his actions as confirming her impression, namely that he had attained the age of 18 years.

[9] In reaching this conclusion, the Authority has accepted absolutely the testimony of the respondent. She impressed all members of the Authority as being particularly conscientious and truthful.

[10] In the circumstances of this case, the respondent has proved that she believed on reasonable grounds that the volunteer had attained the age of 18 years. Thus the defence afforded by s.155(4) of the Act is established.

[11] The application is refused.

DATED at WELLINGTON this 11th day of October 2012

B M Holmes
Secretary

Katherine Powell.doc(aw)