RICHARDSON V NEW ZEALAND POLICE HC BLE CIV-2011-406-000085

RICHARDSON V NEW ZEALAND POLICE HC BLE CIV-2011-406-000085 28 June 2011IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYCIV-2011-406-000085UNDER the Sale of Liquor Act 1989IN THE MATTER OF a determination of the Liquor LicensingAuthority Number [2011] 274-275 dated 5April 2011BETWEEN MICHAEL JAMES RICHARDSONAppellantAND NEW ZEALAND POLICERespondentHearing: 20 June 2011Counsel: Appellant in personH J Boyd-Wilson for RespondentJudgment: 28 June 2011In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.30pm on the 28th day of June 2011.RESERVED JUDGMENT OF GENDALL J[1] This is an appeal against a decision of the Liquor Licensing Authority (theAuthority) delivered on 5 April 2011, cancelling the Manager's Certificate of theappellant and ordering that the on-licence of premises situated at 18 High Street,Picton known as "Mikey's Bar" be suspended for six weeks commencing 1 May2011. That decision followed upon a defended hearing at Blenheim on 22 March 2011.[2] When the appeal was called Mr Richardson appeared in person. He wanted an adjournment on the basis that he had been trying to obtain the services of a lawyer but had not been able to do so because he lacked funds. He said this arose in part because of the legal costs he had incurred in previous proceedings before the Liquor Licensing Authority heard in May/June 2010.1[3] There is material on the Court file to the effect that in the first week of May 2011 the appellant was advised by the Court of the hearing date of 20 June 2011. He was told that if he required legal advice he should see a community law office immediately. Given the time that has elapsed since the filing of the appeal the request for the adjournment was declined. As it happened, during the course of Mr Richardson's submissions he made it clear that his financial position was poor and that he could not in any event engage a lawyer on a fee paying basis.[4] The appeal proceeded on the basis of the matters contained in Mr Richardson's notice of appeal, being largely matters of fact. But also on the further ground that he felt that the presentation of his case before the Authority was jeopardised because he did not have a lawyer representing him as he had not sufficient funds to engage one.[5] The suspension of the on-licence had been completed, so no appeal was pursued against that order.Background[6] The New Zealand Police at Blenheim applied for suspension or cancellation of the on-licence, and the General Manager's Certificate of the appellant, alleging breach of provisions of the Sale of Liquor Act 1989 (the Act). These were that the appellant as manager had failed to conduct the licensed premises in a proper manner and sought suspension or cancellation of the on-licence, as well as the General Manager's Certificate, on the basis that:1 [2010] NZLLA PH 849-841, 11 August 2010.the bar had been conducted in breach of the provisions of the Act and conditions of the licence;the conduct of the appellant as licensee is such to show that he is not a suitable person to hold the licence; andthe bar had been used in a disorderly manner so as to be obnoxious to the neighbouring residents or to the public.[7] Particulars included breach of licence conditions, including permitted hours of operation (7.00am to 1.00am with a courtyard being closed for sale and consumption of liquor after 10.00pm) and the requirement to make food available.[8] Further, there was evidence of intoxication by patrons at the bar over a three week period in October 2010, abuse of Council staff and members of the public, and disorderly behaviour of patrons said to be obnoxious and disturbing to neighbouring residents or the public.Evidence[9] Evidence was given at the hearing by a number of persons, which is recorded in the reserved decision of the Authority. It can be summarised as follows.Operation of premises in breach of the licence[10] Police officers' evidence was that at 1.10am on 1 October 2010 three persons were located consuming liquor in the courtyard in breach of licence requiring that activity cease there at 10.00pm. On 12 November 2010 at 10.46pm and on 17 December 2010 at 10.22pm and later that day at 10.50pm a number of patrons were observed to be consuming liquor in the courtyard area.[11] There was evidence that on 23 and 24 October 2010 patrons were consuming alcohol outside the licence hours and as late as 1.50am.[12] A condition of the licence required that a range of food choices be readily available at all times the premises are open and menus must be visible and a minimum of three types of food available. The evidence was that on 17 December 2010 at 8.45pm no food was available and the kitchen was closed. An employee of the bar advised the police that there had not been food available for three days. Later that night and the following day no cooking equipment was turned on. Evidence was given that later over the next week, although at times there were pies in a pie warmer no cooking equipment was turned on and although there were frozen items in the kitchen a range of food was not available.[13] There was further evidence that the appellant had been abusive to Council staff (in particular parking wardens, and members of the public) on 21 August, 23 August and 15 September 2010. There was evidence of an especially disorderly event at 3.00am on 15 August 2010 when approximately 10 men were fighting outside the bar premises and when these were visited by the police at 4.00am that morning a middle-aged woman was discovered adjacent to the bar in an extremely intoxicated condition, the evidence being that that had arisen through consuming alcohol at the bar. Generally, the evidence was that of all the licensed premises in Picton, these bar premises created the most problems for the police.[14] On an earlier occasion in 2004 the police had applied to suspend or cancel the on and off-licences issued to the appellant in respect of his licensed premises on the basis that they were being used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public. That application was declined.[15] Later, in mid-2010 when the appellant applied for renewal for on and off-licences in respect of the premises and his General Manager's Certificate, this wasopposed by the police and a number of civilians. The licences were renewed in a decision of the Authority dated 11 August 2010 but the licence hours were amended and limited and a condition was imposed that no liquor be sold or consumed in the courtyard area after 10.00pm on any night. The Authority then said that there weresome "concerns as to the suitability of the licensee" and said:22 At [75].We make it perfectly clear to the applicant that the premises will no doubt continue to be closely monitored over the next 12 months. If the complaints persist then the existence of the licence may need to be considered. It is also open to the agencies to bring an application for suspension or cancellation under s 132 of the Act at any time.[16] The Authority concluded at that time that it would be unreasonable to refuseto renew the Manager's Certificate on the evidence that was currently before it but that it had concerns as to the appellant's suitability and as to the manner in which hemanaged the premises in regard to noise, so it was not prepared to renew theManager's Certificate for the full period, it being renewed only to expire on 30 July2011.[17] In his evidence before the Authority, the appellant did not dispute most of the grounds, but contended that he had been unreasonably subject to surveillance by the police and complaints by neighbouring residents (Mr and Mrs McLean) were exaggerated. He contended that he had been victimised and worked hard to educatepatrons "getting used" to the licence conditions and hours and he claimed that foodwas always available.The Authority's decision[18] The Authority concluded that each of the grounds had been made out "clearlyon the balance of probabilities". It then turned to consider whether in terms ofss 132(6) and 135(6) it was desirable to make orders. It concluded that of all the allegations its findings that persons were allowed to become intoxicated on the premises was the most serious breach. It found it clearly established that the police officers had located intoxicated persons on several occasions. The Authority noted the appellant in his capacity as licensee and manager had been before the Authority on four previous occasions, observing that the 2004 hearing involved applications which were "long on allegations but short on proof". It went on to note theAuthority's decision of 2010 when the on-licence and General Manager's Certificatewere renewed, despite opposition, "there was evidence of disorder and assaults from persons leaving the premises, intoxicated patrons, and underage drinkers".3 It went3 [2011] NZLLA PH 274-275, 5 April 2011.on to refer to the warning given to the appellant by the Authority on that occasion and it said:4The overall impression gained by the Authority of the respondent's evidencewas that he has been experiencing considerable difficulties asserting control over the premises. He talked of trying to adjust to the new hours and educate his patrons. He noted that his patrons are still getting used to the new licence hours. All of this indicated that the patrons seem to have been in control rather than the respondent.[19] The Authority also said that there had been:5Flagrant breaches of the Act and licence have occurred under his watch as a duty manager. His evidence indicates a total inability to assert control. Themere suspension of his General Manager's Certificate is unlikely to achieveany improvement in his ability to exercise control of the licensed premises.[20] The Authority concluded that his General Manager's Certificate should becancelled. When dealing with the licence the Authority noted that the appellant had appeared on four previous occasions when his conduct was criticised. The Authority referred to s 132(6) of the Act which entitled the Authority to vary or revoke any condition of licence, impose a new condition, cancel the licence or suspend the licence for a period not exceeding six months. It did not consider that the existing conditions needed to be reconsidered and concluded that to cancel the licence would be draconian. It said:6... if conscientious and effective duty managers are employed by the licensee and the licensee supports them then there is no reason to prevent the licence from continuing.[21] Nevertheless, it suspended the on-licence for six weeks commencing 1 May 2011 to enable the licensee to make the appropriate appointments and to recognise the transgressions.[22] In support of the appeal the appellant contended that, as I said, he found it hard to represent himself before the Authority and believed that he was prejudiced in not having representation. Secondly, he contended that because he had had previous appearances before the Authority they, together with the police, had pre-judged the4 At [26].5 At [27].6 At [28].case against him. Thirdly, he contended at an earlier hearing before the Authority another licensee received only a warning and no order was made affecting herManager's Certificate and that, he said, should have been the position in his case.Fourthly, he submitted that the evidence adduced by the police was not completely reliable because of discrepancies as to details such as times and dates of events and names of persons interviewed by the police and he challenged details of the evidence as it related to an individual intoxicated patron who the appellant said was beingused as a "scapegoat". He submitted the police had singled him out for particularscrutiny as had neighbours who were civilian witnesses, and who, he submitted, had exaggerated complaints and had enlisted others to, wrongly, support those complaints.[23] In a general way the appellant made the point that because the Authority in its decision of 11 August 2010 limited or reduced the conditions in relation to trading hours, this meant that the operation of the premises became very quiet and that supported the contention that the incidents complained about either could not have happened as described or were greatly aggravated.Discussion[24] The grounds upon which these applications could be made are contained in s 132(3) of the Act, namely:the licensed premises are being conducted in breach of provisions of the Act or of any conditions of the licence or otherwise in an appropriate manner;the conduct of the licensee is such as to show that he is not a suitable person to hold a licence;the licensed premises are being used in a disorderly manner so as to be obnoxious to a neighbouring residence or to the public.[25] The police called 11 witnesses in support of the applications before the Authority. The appellant himself gave evidence and was cross-examined. He cross- examined three police officers, although their evidence was not subject to substantial challenge and the Authority observed that the appellant did not dispute most of the grounds.[26] The civilian witness, who had been a complainant on several occasions, was not cross-examined.[27] It is a matter of fact whether the evidence established the breaches of the statutory and licence conditions. If there was sufficient evidence for the Authority to reach its factual conclusions then it is not open to this Court to disagree with those factual findings, unless they are clearly wrong. Whilst the appellant disputes the accuracy of the evidence of the 11 witnesses, the Authority was entitled to accept in a large measure the allegations. Certainly, nothing has been tendered to this Court to support the proposition that false evidence was given.[28] A two-step process was required. Once the Authority made its factual findings then it had to turn its mind to whether based upon those facts that it found proved it was "desirable" for orders to be made. Obviously, the prior history of matters which affected the licensed premises and the appellant's Manager's Certificate were not matters that were required to be ignored. The Authority had before it the background history of the appellant's management of thepremises having been considered by the Authority four times since 2004 and most recently in August 2010 upon the renewal of the on-licence and General Manager'sCertificate. The police opposition at that time led to evidence of disorder and assaults being presented from persons leaving the premises whilst intoxicated and of underage patrons. The action of the Authority in declining to cancel or suspend the on-licence or the General Manager's Certificate may well be seen to have been benevolent. It seems that, from reading the decision, the Authority felt the grounds of proof were insufficient to justify the stern orders that the police sought. Whilst it was said that in many respects hearsay evidence was given, that may go more to its weight rather than admissibility in proceedings before the Authority.[29] I have already referred to the manner in which the Authority disposed of the applications on 11 August 2010, its comments as to concerns about the appellant'ssuitability and the warning that it gave to the appellant and advice that the premises would obviously be closely monitored over the following year. It also said:7... it is obvious that the noise generated has become a serious nuisance to those who live in the neighbouring apartments. We do not accept Mr Richardson's contention that he is being victimised. .... The evidence inthis case was testimony to the applicant's failure to understand and come toterms with the impact the activities were having on the residents of the neighbouring apartments.[30] It further said:8We were not convinced that Mr Richardson's overall response to theconcerns of the residents, the Police and the Council was adequate. He does not appear to have appreciated or heeded the warnings conveyed by the issuing of excessive noise directions or the seizure of equipment.[31] And further:9If intoxicated patrons are leaving the premises, and causing nuisance and disturbance, then that is a further sign of unsuitability. If this happens regularly, then the trading hours may have to be reviewed. The evidence in this case was of general disorder arising from patrons leaving the bar. An earlier closing time will stop, or at least mitigate, the tendency for patrons to loiter around late-night premises. Furthermore, a reduction in hours will also help address the issue of disturbance caused by the use of the courtyard.[32] Bearing in mind those comments, and with the evidence presented on this occasion to the Authority, and the acceptance of it in substance, it is not surprising that the Authority regarded it as desirable to make the orders that it did. Thebackground does not constitute "pre-judging" the appellant or indicate any prejudice to him. Earlier decisions were largely favourable. Nor does it indicate any prejudice or pre-judging of him in determining the present application. Once the facts had been found by the Authority in this case then the background and surrounding evidence and circumstances had to be relevant in determining the "desirability" ofthe continuation of the licence and the certificate. It was more than sufficient to7 [2010] NZLLA PH 849-851, 11 August 2010 at [60].8 At [66].9 At [67].enable the Authority to conclude that Mr Richardson had not heeded the warnings made in August 2010.[33] Even if some members of the Authority had heard applications involving Mr Richardson and his company on previous occasions, there is nothing untoward about that given that the Authority is charged with the task of dealing with licensing applications. Applicants seeking licences and individual managers seeking certificates will frequently come before the Authority and individual members of it who will have to deal with renewals and other licensing matters often in respect of the same applicants. That is how expertise and knowledge and awareness of what is"desirable" in the public interest is obtained and developed. Where the test is whether it is desirable to make orders affecting conditions of a licence orcontinuation of a Manager's Certificate the past history, background and behaviour of the manager as to the operation of the licensed premises are critical factors, just as any sentencing exercise requires a Judge to take into account past behaviour. So,when the Authority has to decide whether or not it is "desirable" to make orders, it must be entitled to have regard not only to its past warnings but its knowledge of the applicant or person before it where such knowledge is relevant to its assessment ofwhat is "desirable". The claim that the Authority was prejudiced is unsustainable.[34] Generally, the Court recognises the expertise of the Authority the powers and functions invested in it to police breaches of the Act and licence conditions. TheAuthority recognised that to cancel the licence would be (as it said) "a draconianresponse" and it seems as though the suspension of the on-licence which commenced on 1 May 2011 has now expired. The appellant says he is endeavouring to sell the business. There is no basis to disturb the Authority's order cancelling the GeneralManager's Certificate. The Court is satisfied by a wide margin there is ampleevidence to demonstrate breaches of the Act and licence conditions and the Authority was entitled to reach the factual conclusions that it did and to exercise its discretion to regard it as desirable to make the orders. Indeed, there is some force in the submission by the respondent that by only suspending the on-licence for a period, as opposed to cancelling it completely, the Authority displayed some leniency towards the appellant.[35] The appeal must fail and is dismissed. In normal circumstances an order for costs against the appellant on this appeal would follow. But given the financial position of the appellant, as he asserted to the Court, any order for costs would impose hardship upon him and accordingly, none is made.__________________________J W Gendall JSolicitors:Crown Solicitor, Nelson for Respondent