General Distributors Limited v De'Ath
[2014] NZHC 1485
•30 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-000214 [2014] NZHC 1485
UNDER the Sale of Liquor Act 1989 IN THE MATTER OF
an appeal against a decision of the Alcohol Regulatory and Licensing Authority at Auckland
BETWEEN
GENERAL DISTRIBUTORS LIMITED First Appellant
PAUL TU'UNGAFASI Second Appellant
AND
RACHAEL DE'ATH and
PETER NORMAN RICHARDSON Respondents
Hearing: 1 May 2014 Counsel:
D S McGill and A E Malone for the Appellants
A M Adams and J E L Carruthers for the RespondentsJudgment:
30 June 2014
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 30 June 2014 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Duncan Cotterill, Auckland
Meredith Connell, Auckland
GENERAL DISTRIBUTORS LTD and ANOR v DE'ATH and ANOR [2014] NZHC 1485 [30 June 2014]
[1] The respondents in this appeal against a decision of the Alcohol Regulatory Licensing Authority (“the Authority”) apply for leave to adduce further evidence in the appeal. The application is opposed.
[2] The appeal challenges the Authority’s decision that the appellants had sold liquor to an intoxicated person in breach of s 166(1) of the Sale of Liquor Act 1989 (“the 1989 Act”). As a consequence of this decision, the first appellant’s liquor licence for the Countdown Supermarket at Takapuna (“the supermarket”) was suspended for one week. The second appellant’s general manager’s certificate was suspended for 30 days.
[3] The respondents contend that the appellants did sell liquor to an intoxicated person, and so the Authority was right to find against the appellants and to suspend the licence.
[4] The incident that led to the appellants being before the Authority occurred on
19 August 2012. A customer purchased alcohol from the supermarket. He was observed by persons who saw him driving his motor vehicle to and from the supermarket carpark. They were concerned enough about what they observed to contact the New Zealand Police (“police”). Shortly after leaving the supermarket carpark in his vehicle, the customer was stopped by the police, subjected to breath testing procedures and was later arrested for driving with an excess breath alcohol that was more than three and a half times over the legal limit.
[5] Before the Authority, the respondents adduced evidence from:
(a) Constable Colbert, who was the officer who breath-tested and arrested the customer on 19 August 2012.
(b) Peter Richardson, who is a liquor licensing inspector for the Auckland
District Licensing Agency. He visited the supermarket on 20 August
2012 and secured CCTV footage that, in his opinion, showed the customer in an intoxicated state.
(c) Rachael De’Ath, who is a police constable working as an alcohol harm reduction officer stationed at the Takapuna District Headquarters. She did not become involved until the day after the incident, so she saw nothing on the day of the incident.
The proposed fresh evidence
[6] The respondents now want to adduce evidence from the two persons who contacted the police on 19 August 2012. They are John Clive Wright and Warat Wattanah Supachan. The respondents have filed affidavits from those persons, which set out the fresh evidence that the respondents want to have admitted.
[7] In his affidavit, Mr Supachan deposes that he and Mr Wright drove separately to the supermarket, where they met in the carpark. At the time they were both employed as security guards by Platform 4 Security. They discussed what they would purchase and agreed that Mr Supachan would go into the supermarket to make the purchases while Mr Wright remained in the car park. Mr Supachan said that as he was walking to the supermarket, he noticed someone drive into the carpark. Mr Supachan describes the driver making a number of poor attempts to park his vehicle. Mr Supachan describes the driver exiting his vehicle and walking, in what Mr Supachan opines was an intoxicated state, to the supermarket. While he was in the supermarket, Mr Supachan saw the driver select a pack of beer. Mr Supachan saw the driver/customer pay for the beer at the check-out counter. Mr Supachan describes how the driver/customer appeared to him at the check-out counter. He then describes this person leaving the supermarket, entering his vehicle and driving off in a clumsy fashion that was suggestive of him being intoxicated. Mr Supachan spoke with Mr Wright about what they each had seen. Mr Wright contacted the police, then they both followed the driver/customer in one of their vehicles, and kept watch on him until the police arrived.
[8] Mr Wright’s affidavit confirms Mr Supachan’s evidence to the extent that Mr Wright was able to observe the driver/customer from where Mr Wright was stationed in the carpark.
[9] When Mr Supachan and Mr Wright spoke to the police on 19 August 2012, each provided the police with their names and contact details. Neither of them spoke to the police again about the incident. Mr Supachan said that he did not respond to any messages that the police left on his cellphone. He ceased working for Platform 4 Security in April 2013 and changed his telephone number in October 2013.
[10] Mr Wright left Platform 4 Security in March 2013 and changed his cellphone number then, as his previous cellphone belonged to his former employer. In June 2013, he sold his house and moved to Belmont. He did not speak to the police again after the incident and he did not respond to any messages that they left on the cellphone number he had given to them. Mr Wright says that when he was the security manager at Platform 4 Security, most of the security guards working there did not check their cellphone messages because it cost them money personally.
[11] Mr Wright deposes that the next that he knew of this matter was when a friend pointed out an article in The North Shore Times on 13 February 2014 about “Countdown” appealing a decision made against it. Mr Wright read the article and thought that he was the observer mentioned in it. He contacted the Authority because, in his opinion, there was no way any reasonable person could have thought the driver/customer was not intoxicated. He says he was contacted a few days later by the police.
Relevant law
[12] The respondents’ application to adduce fresh evidence is brought in reliance on s 161 of the Sale and Supply of Alcohol Act 2012 (“the 2012 Act”) and on r 20.16 of the High Court Rules.
[13] Section 161(1) of the 2012 Act provides that every appeal is to be by way of rehearing and provides in s 161(4) that the Court has full discretionary power to hear and receive further evidence on a question of fact, either by oral evidence or by affidavit.
[14] Section 162 of the 2012 Act sets out the right of appeal to the High Court of any party to any proceedings before the Authority, who is dissatisfied with a determination of the Authority as being erroneous in point of law. Whilst the offence was committed under the now repealed 1989 Act, the parties are agreed that the appeal provisions of the 2012 Act are applicable.
[15] The appellants point to the traditional view that where there is an appeal on a question of law only, there is no power under the High Court Rules to admit further evidence: see Schier v Removal Review Authority [1999] 1 NZLR 730 (CA). The appellants note that there is no right of appeal on findings of fact, though they acknowledge that s 161 of the Act contemplates there being some circumstances where questions of fact will be considered by the Court on appeal. So, their opposition to the application has challenged its merits.
[16] The appellants accept that r 20.16 of the High Court Rules permits the introduction of new evidence on appeal if there are special reasons for hearing the evidence.
20.16 Further Evidence
(1) Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.
(2) In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.
(3) The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.
(4) Further evidence under this rule must be given by affidavit, unless the court otherwise directs.
[17] Section 161 does not sit easily with the right of appeal provided in s 162. However, I consider the appellants are right to acknowledge that the presence of s 161 indicates that the 2012 Act clearly contemplates some circumstances where questions of fact will be considered by the Court on appeal.
[18] I consider that the exercise of the discretion in s 161 of the 2012 Act to admit fresh evidence is best guided by the principles for the admission of fresh evidence that are applied under r 20.16. No one argued that the exercise of the discretion in s 161(4) should be approached more liberally than would be the case under r 20.16.
[19] The test under the High Court Rules for the admission of fresh evidence on appeal is well established, the Court must be satisfied that:
(a) The fresh evidence is cogent; (b) Likely to be material; and
(c) Could not have reasonably been available at the time of the first hearing.
There is no difference between how the test is applied now and how it was applied under the former r 716 of the High Court Rules.
Discussion
[20] The first step is to identify the issue that the fresh evidence is sought to address. One of the issues to be determined in the general appeal is whether the Authority erred in finding at [15] of its decision that the driver/customer was displaying sufficient signs of intoxication that both the duty manager and the check- out operator should have noticed this.
[21] The appellants contend that the legal test for s 166(1) of the 1989 Act is subjective, and that the Authority erred in law by failing to ask the right question: namely, what did the check-out operator and manager know about the driver/customer’s state of intoxication. The evidence of the check-out operator and duty manager at the hearing before the Authority was that they did not see signs of intoxication to the extent that it warranted a refusal to sell alcohol to the driver/customer.
[22] To meet the appellant’s argument for a subjective test of knowledge on the facts, the respondents want to have evidence to the effect that the signs of the driver/customer’s state of intoxication were so obvious that the duty manager and check-out operator must have seen them. This is the key inference to be drawn from the fresh evidence. If it were admitted, it would give the respondents an evidential platform from which they could invite the appellate court to disregard the evidence of the duty manager and check-out operator. I cannot see how the fresh evidence could be wanted for have any other purpose. There is already ample evidence before the Court to prove that the driver/customer was very intoxicated that night, so the fresh evidence is of no help here. However, whilst the level of intoxication may be beyond doubt, that is a different issue from whether the duty manager and check-out operator knew of this at the time.
[23] The next step is to determine whether the fresh evidence is cogent and likely to be material. Mr Wright’s evidence is cogent, but I do not consider that it is likely to be material to the determination of the appeal. All that he can narrate are his observations of the driver/customer when he entered and left the carpark. That he may have appeared intoxicated to Mr Wright on those occasions is not material to the issue of whether the duty manager and the check-out operator necessarily would have observed how intoxicated the driver/customer was.
[24] Mr Supachan’s evidence regarding the state of the driver/customer in the supermarket carpark and his manner of comporting himself when he was in the aisle of the supermarket is not likely to be material to the question now in issue, which is focused on how the driver/customer appeared before the check-out operator and the duty manager.
[25] Mr Supachan’s evidence of what he observed of the driver/customer while this person was in the check-out line to purchase the beer is likely to be material to the question now in issue. Providing that the duty manager and the check-out operator had much the same view as Mr Supachan, his evidence would help to prove what must have been apparent to the duty manager and the check-out operator. In this way it could directly contradict their evidence that there was nothing about the
driver/customer’s appearance to notify them that he was so intoxicated that they
should refuse to sell alcohol to him.
[26] The appellants argue that Mr Supachan’s evidence is largely opinion evidence and is, therefore, inadmissible. They are correct, regarding the present form of the evidence, but it should be possible for Mr Supachan to outline the behaviours that he observed of the driver/customer at the check-out counter that led Mr Supachan to opine that the driver/customer was noticeably heavily intoxicated.
[27] The appellants also argue that Mr Supachan’s evidence is not cogent. There is CCTV footage of the check-out counter that does not show Mr Supachan in the same frame of view as the driver/customer at the check-out. The respondents argue that the frame is very narrow and that Mr Supachan’s evidence shows that he was in close proximity at another check-out counter and was able to view how the driver/customer appeared. The dispute over the cogency of Mr Supachan’s evidence can only be properly assessed after hearing more evidence about his ability to get a good view of the driver/customer at the check-out counter.
[28] The appellants rightly argue that the dispute regarding Mr Supachan’s ability to properly perceive the driver/customer at the check-out counter means that if Mr Supachan’s evidence were admitted in the appeal, there would need to be cross- examination of him: see s 92 of the Evidence Act 2006. Further, that cross- examination would not simply be limited to Mr Supachan.
[29] The check-out operator’s evidence was that the driver/customer did not appear intoxicated to her. If Mr Supachan’s evidence contradicted her evidence, this would go to an assessment of her reliability and credibility, as well as requiring an assessment of his reliability and credibility. Thus, the respondents would need to cross-examine the check-out operator and the duty manager on the points where their evidence contradicted Mr Supachan’s evidence: see s 92 of the Evidence Act. Thus, the introduction of evidence from Mr Supachan would require cross-examination of existing witnesses, as well as of Mr Supachan.
[30] Further, before any additional cross-examination occurred, the appellants may need to be given the opportunity to lead additional evidence from the check-out operator and the duty manager (or other witnesses) to address Mr Supachan’s evidence on what would have been apparent to them. Had the fresh evidence been called at the hearing before the Authority, the appellants would have had full notice of it before they opened their defence and so the decisions that they made regarding the evidence that they would call may have been different.
[31] The arguments that the appellants make regarding the consequential impact of permitting the fresh evidence to be admitted are sound. The respondents have no answer for them.
[32] The appellants also rely on the principle that, in general, evidence that could reasonably have been available at the time of the first hearing should not be admitted on appeal. They say that as Mr Wright and Mr Supachan gave the police their details on 19 August 2012 and were willing witnesses, their evidence could reasonably have been available for the hearing.
[33] The respondents argue that the evidence of Mr Wright and Mr Supachan was not reasonably discoverable. The respondents contend that following 19 August
2012 when Mr Wright and Mr Supachan gave their contact details to the police, the respondents had no reason to contact them between that night and early November 2012 when the respondents filed applications in the Authority because:
(a) The police had a very strong case against the driver/customer for driving with excess breath alcohol, without evidence from Mr Wright and Mr Supachan;
(b)The driver/customer pleaded guilty to driving with excess breath alcohol on 21 September 2012; and
(c) Resolution discussions between the respondents and the appellants, which began positively on 20 August 2012, ended unsuccessfully on
10 October 2012.
The respondents argue, therefore, that the relevant timeframe for assessing whether the evidence was reasonably discoverable or not is from mid-October 2012 to the date of the hearing before the Authority, which was December 2013.
[34] The respondents rely on Constable De’Ath’s evidence that she was the only person working in the Alcohol Harm Reduction Unit at Takapuna Police Headquarters at the end of 2012. Until mid-December 2012, she attempted to contact Mr Wright and Mr Supachan by calling and leaving messages on their cellphones. From mid-December 2012, she was on sick leave, having undergone foot surgery and contracting pneumonia. On her return to work in March 2013, she only worked two to three hours per day; and from April 2013 to June 2013, she was on sick leave, having undergone wrist surgery. When she returned to work in June 2013, she only worked four hours per day. From June 2013 until the hearing before the Authority, Constable De’Ath again tried to contact Mr Wright and Mr Supachan by calling and leaving messages on their cellphones. Neither returned those messages.
[35] The respondents submit that the matter before the Authority was not a criminal prosecution and the witnesses were not suspects. Therefore, the respondents say it is unsurprising that Constable De’Ath did not employ police methods of locating witnesses that are familiar to that forum, such as searching for them by means other than telephone calls.
[36] The evidence of Constable De’Ath reveals that the police either did not or were not, due to resourcing, able to give the prosecution of this matter before the Authority the attention that it required. I have sympathy for Constable De’Ath’s personal circumstances. The force of those circumstances made it impossible for her to do all that was required for the respondents to have a comprehensive case put before the Authority. The fact that the respondents’ evidence before the Authority was not as comprehensive as it might have been appears to me to be due to the fact that once she was out of action, no one else appeared to have taken over her role full- time. Policing liquor licensing is an important role of the police and the Auckland District Licensing Agency. The simple fact is that in this case, the benefit of calling evidence from Mr Wright and Mr Supachan seems to have been overlooked by the
respondents. Those responsible for the actual preparation of the case against the appellants before the Authority appear to have focused their attention on establishing the fact that the driver/customer was heavily intoxicated, and failed to consider whether they had to prove that the relevant supermarket staff had actual knowledge of this level of intoxication.
[37] There are sound policy reasons for the rule that fresh evidence that was reasonably available at the first hearing cannot be introduced on appeal. This is a long-standing, well established principle: see Comalco New Zealand Ltd v Television New Zealand Ltd (1996) 10 PRNZ 573 (HC) at 579:
I accept that the jurisdiction is to be exercised sparingly and the cogency, relevance and possible effect of the evidence on the result, must be taken into account. Generally speaking, the appeal should not be turned into a new case. It is also important that the evidence should not have been available at the earlier hearing by the exercise of reasonable diligence. I accept also, however, that the test should not be put so high as to require the circumstances to be wholly exceptional. Every case must be considered in relation to its own circumstances.
[38] The appellants rely on a passage from a decision I delivered in Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC), where I said (at [22]):
It has always been said that the discretion to admit fresh evidence should be sparingly used and not to provide litigants with an opportunity to bolster their case on appeal. Here, the appellant is attempting to do just that. Furthermore, it is attempting to bolster the prosecution case by covering a point, which is only peripheral to the appeal’s resolution. The appeal is from a disciplinary hearing. It is for the appellant as prosecutor to determine its case and to prove its case. To allow it the opportunity to bolster its case on appeal, by introducing new evidence to cover a matter that initially had not formed part of its strategy, would be contrary to the way the discretion in r 716 should be exercised …
The appellants submit that these principles are similarly applicable to an application under s r 20.16 and to the present case.
[39] I agree with the appellants that the comments in Complaints Committee No 1 of the Auckland District Law Society are apposite to the present case. The respondents are now more concerned than they previously were about their evidence regarding how apparent the driver/customer’s intoxicated state have been to the duty
manager and the check-out operator. Thus, they now seek to bolster their case by calling evidence from Mr Wright and Mr Supachan.
[40] The appellants also rely on a passage from a decision of Fogarty J in CH and DL Properties Ltd v Christchurch District Licensing Agency (2010) 20 PRNZ 680 (HC) wherein the appellant sought leave to adduce further evidence on an appeal against a decision of the Liquor Licensing Authority. In considering the appellants’ request to adduce further evidence, Fogarty J commented (at [19]):
Accordingly, if the appellant’s application is successful this Court will on an appeal limited to questions of law receive evidence and have to make findings of fact on matters not canvassed before the Licensing Authority although they are matters very similar to the matters considered by the Licensing Authority in a series of decisions dating back eight years.
[41] The reasoning of Fogarty J is applicable here. If the Authority has erred in law by not applying a subjective test in its assessment of the evidence from the supermarket staff, I cannot see how this can be cured now by the admission of fresh evidence that the respondents could rely upon to argue on appeal for findings of fact that would enable its case to meet the proper legal test.
[42] The fresh evidence is only material to contradicting the evidence of the duty manager and check-out operator, which in turn is only relevant to an argument from the respondents that the appellate court should reject the appellants’ evidence that the supermarket staff had no knowledge of the driver/customer’s level of intoxication. The result of permitting the respondent to take this approach would entail not only the admission of the fresh evidence but also the cross-examination that would have to follow, as well as any additional evidence in chief from the appellants to address the respondents’ fresh evidence. The result would be a completely different hearing from what transpired before the Authority. The hearing would cease to be an appeal. That outcome is contrary to the relevant legal principles.
[43] Should the respondents approach the appeal on the basis that the test for knowledge is an objective one, the admission of the fresh evidence would still be contrary to principle. The respondents already have evidence to support their case in this regard, and the Authority found on the basis of that evidence that the duty
manager and the check-out operator should have noticed that the driver/customer was too intoxicated to purchase alcohol. Therefore, at best the fresh evidence would do no more than bolster the respondents’ case, and at worst it would simply duplicate the existing evidence. Since the appellants do not accept that Mr Supachan’s observations at the check-out counter would be the same as those available to the duty manager and the check-out operator, there would still be the need for cross- examination, and for the appellants to have the opportunity to lead evidence in chief to contradict Mr Supachan’s evidence. The only matter of difference would be that the additional evidence from the respondents would be for the purpose of establishing that, viewed objectively, the supermarket staff should have noticed how intoxicated the driver/customer was.
[44] Therefore, whether the test for knowledge of intoxication is subjective or objective, the reasons for not permitting the admission of the respondents’ fresh evidence are much the same.
[45] In conclusion, the respondents should have realised the importance of Mr Supachan’s evidence on the question of the supermarket staff ’s knowledge. The respondents could reasonably be expected to have found Mr Wright and Mr Supachan before the hearing before the Authority. They were not unwilling witnesses who had gone to ground. The fresh evidence is not material to the respondent’s case as it was run before the Authority, as it would simply be more of the same evidence. The fresh evidence is material to the new case that the respondents want to run before the appellate court, but there are strong public policy reasons against permitting the respondents to change their case so significantly at the appellate stage. It follows that the application to adduce the fresh evidence is declined.
Result
[46] The respondents’ application to adduce fresh evidence is dismissed.
[47] The appellants have been successful. Usually category 2B costs would follow the event in the ordinary way. If the parties cannot agree that this is
appropriate, or if they want to pursue another approach to costs, they should file memoranda setting out their respective positions.
Duffy J
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