BHULLAR v THE COMMISSIONER OF POLICE [2019] NZHC 3397

BHULLAR v THE COMMISSIONER OF POLICE [2019] NZHC 3397 [18 December 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2019-463-98[2019] NZHC 3397IN THE MATTER of s 159 and 153 of the Sale and Supply ofAlcohol Act 2012IN THE MATTER of an appeal by TS & RK Bhullar Limitedagainst a decision suspending for 48 hourson-licence in respect of premises at 557 TeNgae Road, Rotorua, known as "OwhataThirsty Liquor" and suspending for 56 daysthe Managers Certificate of JASWINDERSINGHBETWEEN TS & RK BHULLAR LIMITEDFirst AppellantJASWINDER SINGHSecond AppellantAND THE COMMISSIONER OF POLICERespondentHearing: 17 December 2019Appearances: J Wiles for AppellantsD J McWilliam for RespondentJudgment: 18 December 2019JUDGMENT OF LANG J[on appeal against orders suspending on-licence and managers licence]This judgment was delivered by me on 18 December 2019 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] The first and second appellants are the licensee and manager respectively of anon-licence liquor store operated from premises in Rotorua and known as "OwhataThirsty Liquor".[2] On 25 September 2019, the Alcohol Regulatory and Licensing Authority (theAuthority) found that the second respondent, Mr Jaswinder Singh, had sold liquor toa person who was intoxicated in breach of s 248(1) of the Sale and Supply of AlcoholAct 2012 (the Act).1 To recognise this breach the Authority granted an application bythe police for orders suspending the licensee's on-licence for 48 hours from18 November 2019 until 20 November 2019. The Authority made a further ordersuspending Mr Singh's manager's certificate for a period of 56 days commencing on17 November 2019 and ending on 11 January 2020.[3] The licensee and Mr Singh appeal against those orders. The orders have beensuspended pending determination of the appeal.Approach on appeal[4] The appellants advance their appeal under s 159 of the Act. This provides aright of appeal to the High Court against any decision of the Authority if theproceedings concerned commenced in the Authority's jurisdiction. There is no disputethat the decisions that are the subject of the present appeal were made in proceedingsthat commenced in that jurisdiction.[5] Every such appeal is by way of rehearing.2 The rehearing is conducted on thebasis of the evidence given before the Authority, a transcript of which has beenprovided for the purposes of the appeal.3[6] The fact that the appeal is by way of rehearing means conventional appellateprinciples apply. In short, the appellants are entitled to this Court's opinion as to1 Jones v TS and RK Bhullar Ltd [2019] NZARLA 182-183.2 Sale and Supply of Alcohol Act 2012, s 161(1).3 Section 161(2).whether the Authority's decision was correct. The onus remains on the appellants,however, to demonstrate reviewable error on the part of the Authority.4The hearing before the Authority[7] In short, the case for the police was that at approximately 2.30 pm on theafternoon of 10 December 2018 Mr Jaswinder Singh sold a bottle of Black Heart rumto a man who was in an obviously intoxicated state. In doing so both he and thelicensee committed an offence against s 248 of the Act, which makes it an offence tosell liquor to a person who is intoxicated.[8] The police adduced evidence from four witnesses during the hearing before theAuthority. Three gave evidence orally, whilst the evidence of a fourth was read intothe record by consent. Mr Jaswinder Singh gave evidence on his own behalf andMr Tarsem Singh gave evidence on behalf of the licensee.Mr Jason Macdonald[9] Mr Jason Macdonald, the Duty Manager at Super Liquor Colonial liquor storein Rotorua, gave evidence that at about 2.25 pm on 10 December 2018 a man cameinto his store in a dishevelled state. The man had earlier caught his attention when hehad driven his green Holden Commodore station wagon into the gutter outside thestore. He said the man had wet marks on the front and back of his pants indicating hehad soiled himself. Once inside the store, Mr Macdonald could see that he was veryunsteady on his feet. He was swaying back and forth as he was looking at productson the shelf, and at one stage was required to put his hand on a display behind him toretain his balance.[10] Mr Macdonald approached the man after he had picked up a bottle of rum.Mr Macdonald took the bottle out of his hands and put it back on the shelf. As hebegan talking to the man, Mr Macdonald observed that he was slurring his words and"mumbling nonsensically". Mr Macdonald refused to sell liquor to the man and askedhim to leave the store. He also asked whether somebody could come and pick him up4 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR at [4].because he believed the man was a danger to the public if he was to continue drivinghis motor vehicle. The man mumbled that it wasn't Mr Macdonald's job to do that.[11] After the man drove away, Mr Macdonald immediately contacted the policeand gave them a description of the man's vehicle. He told the police that the man wasintoxicated and was driving in an easterly direction on Te Ngae Road. A short timelater the police contacted Mr Macdonald to say they had found the person and he hadbeen processed for drink driving.[12] Mr Macdonald said he keeps an incident book to record noteworthy events thatoccur in his store. He made an entry in the incident book about this encounter.[13] The police subsequently contacted Mr Macdonald and uplifted a copy ofCCTV film footage showing the interaction between Mr Macdonald and the man whocame into the store. This was played when Mr Maconald gave evidence at the hearingbefore the Authority.Senior Constable Jones[14] The next witness for the police was Mr Peter Jones, formerly a SeniorConstable stationed at Rotorua. On 10 December 2018 he was working a late shift ina patrol vehicle. At about 2.30 pm the police received a call from the Owhata MedicalCentre expressing concerns about the sobriety of a male person who was about to leavethe medical centre. The medical centre gave the police the man's details, as well asthe registration number of his green Holden Commodore motor vehicle. Theregistration number was [redacted].[15] Senior Constable Jones then set out to locate the vehicle. A short time later hereceived a call from a CIB vehicle confirming that the occupants of that vehicle hadseen the green Holden Commodore vehicle leaving a liquor store carpark on the cornerof Coulter and Te Ngae Roads. At 2.39 pm Senior Constable Jones located andstopped this vehicle near the airport. As he initially spoke with the driver, theconstable observed that he was extremely intoxicated. He was slurring his words andhis breath smelled like methylated spirits. Senior Constable Jones also noted that thedriver was unsteady on his feet and had obviously urinated in his pants. He had alsolost control of his bowels and had soiled himself as he got out of his vehicle. He didnot seem to be aware this had occurred.[16] Roadside breath screening procedures confirmed a positive result for alcoholand at 2.45 pm Senior Constable Jones required the driver to accompany him to theRotorua Police Station. An evidential breath test administered at 3.09 pm returned areading of 1017 micrograms of alcohol per litre of breath. Senior Constable Jonessuspended the driver from driving immediately and charged him with driving withexcess breath alcohol.Detective Katherine Murphy[17] The evidence of Detective Katherine Murphy was read to the Authority byconsent. She confirmed that at about 2.55 pm on 10 December 2018, she and anotherdetective became involved in the search for the intoxicated driver who had left themedical centre. They came across the vehicle after Senior Constable Jones hadstopped it. They then stopped to assist Senior Constable Jones, who was obtaining thedriver's details. Detective Murphy observed that the driver of the vehicle wasunsteady on his feet and appeared to have soiled himself.[18] After Senior Constable Jones had taken the driver back to the police station,Detective Murphy went to the Thirsty Liquor Store in Owhata where she spoke toMr Jaswinder Singh. She asked him about a sale he had just made to the driver of agreen Holden Commodore motor vehicle, and Mr Singh acknowledged having madethe sale. Mr Singh told the detective that the driver of the vehicle was a regularcustomer who came into the store about three times a week. He said that on thisoccasion the man had purchased a bottle of rum. Detective Murphy said she then toldMr Singh that this person had just been stopped for suspected drink driving, and sheasked him why he had served a possible drunk driver. She said Mr Singh told her hehad observed no signs of intoxication on the man.Sergeant Pauline Jones[19] The final witness for the Police was Sergeant Pauline Jones, who also presentedthe case on behalf of the Police. She gave evidence about discussions she held withMr Jaswinder Singh between 12 and 18 December 2018 regarding CCTV footage thatcameras installed in and around his store may have captured regarding the sale ofliquor to the driver of the green Holden Commodore motor vehicle. Efforts to obtainthe footage were unsuccessful, but Mr Singh confirmed he had sold this person a bottleof Black Heart Rum and a 1.5 litre bottle of coke. Mr Singh was adamant that the manhad not been intoxicated at the time of this transaction.[20] On 4 January 2019, Sergeant Jones met with Mr Jaswinder Singh andMr Tarsem Singh. On this occasion they showed her CCTV footage of the man afterhe had entered the Owhata Thirty Liquor store. Sergeant Jones said the footage wasof very limited duration, and only showed the driver entering the store and thenstanding by the counter. She said the wet patch on the front of the man's pants wasclearly visible in this footage.Mr Jaswinder Singh[21] Mr Jaswinder Singh confirmed in evidence that the driver of the green HoldenCommodore motor vehicle had purchased a bottle of rum and coke. He was not ableto observe any wet patch on the man's trousers because of the height of the counter.He said the man was able to use his Eftpos card to pay for the rum and coke withoutany difficulty. He refused an offer of a plastic bag and said words to the effect "noneed for a bag – save the planet". The man also spoke to another customer who wasstanding behind him. He then thanked Mr Jaswinder Singh for offering him the plasticbag and bowed in a theatrical way as he turned away from the counter. Mr JaswinderSingh was adamant that there was nothing about the man's speech or appearance toindicate he was intoxicated or under the influence of alcohol.[22] Mr Jaswinder Singh also produced CCTV film footage showing the manentering the shop, making the purchase and paying for it. This was played during thecourse of his evidence.Mr Tarsem Singh[23] Mr Tarsem Singh then gave evidence about the CCTV film footage and alsoexpressed his general satisfaction with Mr Jaswinder Singh's competence in meetinghis obligations under the Act.Relevant principles[24] The object of the Act is set out in s 4(1), which provides:4 Object(1) The object of this Act is that—(a) the sale, supply, and consumption of alcohol should beundertaken safely and responsibly; and(b) the harm caused by the excessive or inappropriate consumptionof alcohol should be minimised.[25] In the present case the object set out in s 4(1)(a) is relevant. As I have alreadyrecorded, the sale of liquor to an intoxicated person is an offence under s 248 of theAct. Unlike its predecessor, the Sale of Liquor Act 1989, the Act now definesintoxication. Section 5 of the Act provides:Intoxicated means observably affected by alcohol, other drugs, or othersubstances (or a combination of 2 or all of those things) to such a degree that2 or more of the following are evident:(a) appearance is affected;(b) behaviour is impaired;(c) co-ordination is impaired;(d) speech is impaired.[26] Mr McWilliam submits on behalf of the police that it is possible to proveintoxication by taking into account factors beyond those referred to in the statutorydefinition. I accept that submission to a limited extent. By way of example, the resultsobtained from an evidential breath or blood test may assist in proving that observablesymptoms of intoxication were caused by alcohol rather than by some other factorsuch as physical or mental infirmity.5 It will not be possible to prove that a person wasintoxicated when liquor was purchased, however, unless two or more of the observablesymptoms set out in the definition are shown to be evident at or about the time of thepurchase.[27] As the Authority observed, the issue of whether a person has reached a state ofintoxication must be determined objectively and having regard to all the availableevidence.6 As in any civil proceeding, the standard of proof is on the balance ofprobabilities. The consequences of a finding against the appellants in the present caseare significant, however, because the appellants stand to lose financially if the ordersare permitted to remain in force.[28] An application for the suspension of a liquor licence or manager's licence isundoubtedly penal in nature. Stronger evidence is therefore required before proof tothe required standard is achieved.7 This led Woolford J to observe in GeneralDistributors Ltd v De'Ath that the standard of proof in such cases must be very closeto that of a criminal prosecution.8The Authority's decision[29] In summarising the relevant law, the Authority noted that the applications forsuspension relied on ss 280(3) and 285(3) of the Act. These provide:280 Variation, suspension, or cancellation of licences other than speciallicences(3) The grounds on which an application for an order may be made are asfollows:(a) that the licensed premises have been conducted in breach of anyof the provisions of this Act or of any conditions of the licenceor otherwise in an improper manner:(b) that the conduct of the licensee is such as to show that he or sheis not a suitable person to hold the licence:5 General Distributors Ltd v Police [2015] NZHC 2386 at [60].6 Jones v TS and RK Bhullar Ltd, above n 1, at [86].7 Triveni Puri Ltd v Commissioner of Police [2012] NZHC 2913 at [24]-[25], citing Z v DentalComplaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [102] per McGrath J.8 General Distributors Ltd v De'Ath [2014] NZHC 3378, [2015] NZAR 171 at [4].(c) that the licensed premises are being used in a disorderly mannerso as to be obnoxious to neighbouring residents or to the public.285 Suspension or cancellation of manager's certificates(3) The grounds on which an application for an order under this sectionmay be made are as follows:(a) that the manager has failed to conduct any licensed premises ina proper manner:(b) that the conduct of the manager is such as to show that he orshe is not a suitable person to hold the certificate.[30] The Authority observed that the test for suspension involves a two-stageprocess, in which it was required to be satisfied not only that the grounds set out in s280(3) and 285(3) had been established, but also that it was desirable to make an orderfor suspension.9[31] The Authority also observed that the offence of selling or supplying alcohol toan intoxicated person under s 248(1) of the Act is a strict liability offence.10 Whereno defence is advanced based on absence of fault, proof of the act of selling liquor toan intoxicated person is therefore sufficient to establish the offence. The Authoritynoted that knowledge, intent, or recklessness on the part of a licensee or manager asto a person's level of intoxication does not need to be established and proof of grossintoxication is not required.11[32] The Authority concluded its exposition of the legal issues relevant to theapplication by noting that the assessment of intoxication was a matter of fact to bedetermined objectively based on the evidence before it.129 Sale and Supply of Alcohol Act 2012, ss 280(5) and 285(5).10 Citing General Distributors Ltd v De'Ath above n 8, at [32]-[34].11 Jones v TS and RK Bhullar Ltd, above n 1, at [83].12 Citing General Distributors Ltd v De'Ath, above n 8, at [37].[33] The Authority decided that the police had proved the man was intoxicatedwhen he purchased rum from the appellants' store in the following paragraphs of itsdecision:13[87] The evidence before the Authority establishes that at 2.25 pm thecustomer in question was dishevelled and had wet marks on the front and backof his pants. He was seen driving into a gutter while driving a green Holdenstation wagon whose number plate matches that of a car stopped at 3.00 pm.The male was unsteady on his feet and was swaying back and forth whilelooking at products on the shelf. The evidence is that he smelled and wasslurring his words and mumbling nonsensically.[88] A few minutes later at 2.30 pm the male purchased rum and coke fromthe Owhata Thirsty Liquor. The video in the Owhata Liquor Store shows themale made a somewhat flamboyant bow on making his purchase.[89] Subsequently, the uncontested evidence of Mr Jones is that when themale was stopped thirty minutes later at 3.00 pm he was slurring his wordsand smelled of methylated spirits. He was unsteady on his feet and had wethimself, which was showing on the front of his pants. As he underwent breathtesting procedures, the male soiled himself on getting out of the car andseemed unaware that he had done so. Breath testing procedures returned apositive result for alcohol. Detective Murphy's evidence corroborated theevidence of Mr Macdonald and Mr Jones that the male was unsteady on hisfeet, and that he appeared to have soiled himself. There was a wet stain on histrousers and the back of his trousers also appeared to have old dirty stains onthem.[90] That the male was intoxicated at 2.25 pm and at 3.00 pm isestablished, there being two or more observable signs that the person wasaffected by alcohol at both times. Given this, it is entirely implausible that themale was intoxicated five minutes after showing signs of intoxication at 2.25pm, only to do so again at 3.00 pm. While he may have had a drink after 2.30pm, the Authority is satisfied that given he was observably intoxicated at 2.25pm, he would have been similarly affected five minutes later.[91] Contrary to the submission of Mr Wiles, it is not necessary for thePolice to prove that the respondents should have been able to observe signs ofintoxication at 2.30 pm.[92] As already noted, mens rea does not need to be established and therespondents have not argued a no-fault defence.Grounds of appeal[34] Mr Wiles challenges the approach taken by the Authority on several bases. Hesubmits the Authority erred in law at [91] because it was necessary for the police toprove the existence of observable signs of intoxication whilst the man was in the13 Jones v TS & RK Bhullar Ltd, above n 1.appellants' shop. He also submits the Authority erred because it failed to identifywhich of the statutory symptoms necessary to establish intoxication had been provedto the required standard. In addition, he submits the Authority failed to confrontMr Jaswinder Singh's evidence that the man who purchased the rum from himdisplayed no obvious signs of intoxication. It also failed to analyse whether the CCTVfootage taken from the appellants' liquor store supported or contradicted Mr Singh'sversion of events.Decision[35] The wording of the statutory definition makes it clear that at least two or moreof the prescribed symptoms of intoxication must be observable and evident before aperson will be intoxicated for the purposes of the Act. It is therefore necessary todetermine when those symptoms must be observable and evident.[36] I do not consider it is necessary for the symptoms to be evident at the exactmoment at which the liquor is sold. Moore J rejected such an argument in thefollowing passage in General Distributors Ltd v Police:14[55] To limit proof to two or more signs of intoxication evident at the point(and moment) of sale cannot be the correct approach to proof under s 248.Enforcement of the provision must be both realistic and practical. The objectof the Act is to minimise the excessive consumption of alcohol. Section 248is one means by which that object may be achieved. The introduction into theAct of the four observable indicia of intoxication was no doubt designed toremove the complexity, clumsiness and uncertainty of the previous means bywhich intoxication was determined.[56] The cases make it plain that the assessment of whether a person isintoxicated at the time of sale may be drawn from a variety of sources andassessments made at different times including both before and after the actualsale. This evidence constitutes the "pool of evidence" available to theAuthority.[37] I consider that the penal nature of the statute means that the symptoms must beobservable and evident at a time when the person who makes the sale can reasonablybe expected to observe them. This may be before the sale is concluded provided theperson making the sale has a reasonable opportunity to observe the purchaser duringthat period. Symptoms that are only evident and observable after the sale are far less14 General Distributors Ltd v Police, above n 5.likely to assist in determining whether the purchaser met the statutory criteria forintoxication at the time of the sale.[38] The evidence in the present case focussed on a period of approximately45 minutes between approximately 2.25 pm and 3.09 pm on 10 December 2018. Itcommenced when the driver of the green Holden Commodore motor vehicle left theOwhata medical centre and the police were notified of the concerns held by the staffof the medical centre regarding his sobriety. It ended shortly after 3 pm when thatperson underwent the evidential breath test at the Rotorua Police Station.[39] The evidence of Mr Macdonald establishes beyond any doubt that the man whoentered his shop at approximately 2.25 pm was intoxicated in terms of the statutorydefinition. That person's speech was slurred, his co-ordination was impaired, and hisappearance was plainly affected. The evidence of Senior Constable Jones thenestablishes that approximately thirty minutes later the same person again met thestatutory threshold of intoxication. His breath was still slurred, and his appearancewas affected. The reading subsequently obtained from the evidential breath test alsoconfirms that the consumption of alcohol had caused these phenomena.[40] The real issue, however, was whether the police could prove that the man alsodisplayed the same symptoms at about 2.30 pm when he entered the appellants' liquorstore and purchased rum. I accept that the evidence of the man's presentation at both2.25 pm and 3 pm would ordinarily provide a reliable platform from which to draw aninference that he was in the same state at 2.30 pm when he purchased the rum.[41] The difficulty in the present case flows from the fact that Mr Jaswinder Singhgave evidence that the man was displaying no symptoms of intoxication when hepurchased the rum. The Authority needed to deal with that evidence in order to reachits decision. The Authority also needed to determine whether the CCTV footage takeninside the appellants' store at the time the sale took place supported the case for eitherthe police or the appellants.[42] The Authority obviously rejected Mr Jaswinder Singh's evidence because itfound it was implausible that the man would be displaying different symptoms at2.30 pm to those he was clearly displaying five minutes earlier and 30 minutes later.But for the CCTV footage I consider the Authority was entitled to reach thatconclusion.[43] The CCTV footage was, however, direct evidence of the manner in which theman presented at the time he purchased the rum. I therefore accept Mr Wiles'submission that the Authority needed to consider whether it supported the case for oneparty or the other. Unfortunately, however, although the Authority referred to thefootage in passing on two occasions15 it did not analyse or reach firm conclusionsabout what it showed. I consider this to be an error in the Authority's reasoningprocess because it was highly relevant to the decision it was required to make.[44] In this respect the Authority also departed from the approach it took in Clementv Jatt Trading Ltd. 16 In that case the Authority observed that the critical time for theassessment of intoxication was when the purchaser of liquor was in the respondents'premises. The Authority then observed:17[18] In terms of the definition of "intoxicated" two or more factors referredto in the definition needed to be observable.[19] The definition refers to "observably affected by alcohol". The onlyevidence of what occurred in the premises is the CCTV DVD. SeniorConstable Mackereth noted when describing the CCTV evidence that thepurchaser's walk was slow and deliberate: thus, his appearance was affected.[20] The Senior Constable observed from the DVD only one sign ofintoxication. If that was all that the Senior Constable was able to observe thenthere is no evidence that the second respondent could have observed any moresigns of intoxication. It is the second respondent's observations that arecritical. If the Police evidence had been that there were at least two of thesigns of intoxication evident, then the second respondent could have beenexpected to have observed them too; and would have needed to have givenevidence to rebut this.[21] The fact that other signs of intoxication were subsequently observedby Senior Sergeant Mackereth and that a high alcohol reading was obtained,are irrelevant.[45] It is therefore necessary for me to consider whether the CCTV footagesupported the case for the police or that for the appellants.15 TS & RK Bhullar Ltd, above n 1, at [50], [72] and [88].16 Clement v Jatt Trading Ltd [2014] NZARLA 744 at [17].17 Clement v Jatt Trading Ltd, above n 16.[46] I begin by observing that I viewed the CCTV footage during the hearing in thecompany of counsel. The footage captured the events that occurred in the shop fromthe point where the man walked up to the counter and placed a large bottle of softdrink on it. It then filmed the whole of the transaction in which the man purchased therum and left the shop. The quality of the footage was excellent, and the camera waspositioned a very short distance away from both Mr Jaswinder Singha and the manwho purchased the rum. This meant they were both clearly visible.[47] Mr Jaswinder Singh said in evidence that he was sitting down when the manentered the store and did not see the wet patch on his trousers because the man cameright up to the counter. The CCTV footage confirmed that Mr Singh only approachedthe man after he had come up to the counter. Thereafter the footage also confirms thatthe man stood very close to the counter so it would not have been possible for MrSingh to see the wet patch on the man's trousers. It was not possible to see the wetpatch on the man's trousers from the CCTV footage as he walked up to the counter oras he left the shop.[48] With one exception I consider the balance of the CCTV footage also largelysupports Mr Jaswinder Singh's version of events. The exception relates to the issueof whether the man's speech was impaired. The man spoke to Mr Jaswinder Singh formore than a minute. The film footage does not record what was said or how the manwas speaking. Given that both Mr Macdonald and Senior Constable Jones observedhis speech was slurred, however, I am satisfied on the balance of probabilities that thismust also have been the case when the man spoke to Mr Jaswinder Singh. Impairedspeech is unlikely, in my view, to suddenly disappear and then reappear within a matterof minutes. This means that one of the four criteria for a finding of intoxication hasbeen shown to be present.[49] It is not possible from the CCTV footage, however, to say that any of the otherstatutory symptoms of intoxication was evident whilst the man was in the appellants'store. The man certainly presents in a slightly unusual manner but that could be dueto any number of reasons besides intoxication. The bow that he made as he turned toleave the shop was also slightly flamboyant but that does not advance matters a greatdeal. He certainly did not appear to be unsteady on his feet as was the case when hewas in Mr Macdonald's store a few minutes earlier. It is also relevant that, althoughthe credit card machine was partly obscured in the CCTV footage, the man did notappear to have any obvious difficulty when using it to pay for the items he hadpurchased.[50] Furthermore, Sergeant Jones challenged Mr Jaswinder Singh in cross-examination regarding his evidence that he did not see any wet patch on the man'strousers. She did not, however, suggest to him that he must also have observed othersigns of intoxication. She did not, for example, suggest the man was unsteady on hisfeet, or that his speech was impaired in any way. Nor did she challenge his evidencethat the man was able to pay for the rum using a credit card without difficulty. As aresult, Mr Jaswinder Singh's evidence was virtually unchallenged on the key issue ofthe man's observable symptoms of intoxication whilst in the appellants' store.[51] It follows that I respectfully take a different view to the Authority regardingthe issue of whether the man met the statutory criteria for intoxication at the time hepurchased the rum. I do not consider the police were able to prove that two or moreof the required observable symptoms of intoxication were evident at that time.Result[52] Both appeals are allowed and the orders for suspension are quashed.Costs[53] The appellants are entitled to a single award of costs from the respondent on acategory 2B basis together with disbursements as fixed by the Registrar.Lang JSolicitors:O'Sullivan Clemens, RotoruaCounsel:J Wiles, Rotorua