Matlows LPV Limited v Police HC Napier CRI 2007-441-004

[2007] NZHC 1749

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2007-441-004

MATLOWS LPV LTD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         23 May 2007

Appearances: Appellant in person

R Collins for the respondent

Judgment:      23 May 2007

(ORAL) JUDGMENT OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 609, Napier

Copy to:

J Wiltshire, 146 Hastings Street, Napier

MATLOWS LPV LTD V NZ POLICE HC NAP CRI 2007-441-004  23 May 2007

Introduction

[1]      This is an appeal by Matlows LPV Ltd (the company) against a conviction under s 165 of the Sale of Liquor Act 1989 (the Act) on the basis the company was the licensee of licensed premises and had sold liquor at a time when the licence did not authorise sale.

[2]      After a hearing before Justices of the Peace on 18 January 2007, at which Mr Wiltshire represented the company, the company was convicted and fined $500 and $130 in court costs.  The company appealed.

Grounds of appeal

[3]      The notice of appeal was filed by Mr Wiltshire on behalf of the company on the grounds that:

I believe that  Matlows  LPV Ltd,  as the licensee,  should  not  have been charged retrospectively when the Police made no attempt to ascertain, question, find, or charge the Manager on duty on the night in question.  That would have been normal Police procedure.

Matlows LPV Ltd acted within the law when appointing a Bar Manager who held a current Bar Manager’s License.

The Bar Manager was aware of his responsibilities regarding the Sale of Liquor Act.  The licensee has been found guilty vicariously with no similar charge or conviction to the Bar Manager.

[4]      The company, again through Mr Wiltshire, filed points of appeal in the High Court elaborating on the grounds referred to in the notice of appeal.   For the respondent, a careful written submission was presented by Mr D J O’Connor, who very fairly and properly indicated that the respondent did not oppose the appeal.

Appeal not opposed

[5]      The basis upon which the appeal was not opposed was that, when the matter was dealt with in the Court below, the attention of the Justices of the Peace was not

drawn to s 181 of the Act either by the prosecution or on behalf of the company.  It seems that nobody turned their mind to the provisions of that section.

[6]      Section 181 of the Act provides that:

The licensee  of  any  licensed  premises  shall  not  be  responsible  for  any offence against this Act committed by any manager of those premises except where the licensee is a party to the offence.

[7]      It  is clear  from a  review  of the  notes-of-evidence  that  no  evidence  was adduced before the Justices of the Peace to establish that the company was a party to the offence.   Mr Collins, who appeared for the respondent today, confirmed that there was no material on file which would have supported the involvement of the company as a party.  This would, in the normal circumstances, have required proof by the prosecution of one of the matters raised in s 66 of the Crimes Act.

[8]      The  written  submission  for  the  respondent  notes  that  a  licensee  can  be vicariously  liable  for  acts  done  by  employees  or  agents  under  the  delegation principle.    Such  principle  was  developed  and  applied  in  a  restrictive  range  of offences, particularly those concerning breaches of statutes governing the sale of liquor and the conduct of licensed premises.  This was on the basis that such a rule was required to ensure that licensees took adequate steps to perform their obligations and did not seek to avoid them by delegating performance to others:  see Adams on Criminal  Law  at  CA2.28.09,  and  Garrow  &  Turkington’s  Criminal  Law  at CR166.11.

[9]      Mr O’Connor was unable to find any direct authority or commentary on the point.  But he accepted that it was clear that the principle of vicarious liability of a licensee is subject to s 181 of the Sale of Liquor Act.  He referred to an authority on this  point  in  Police  v  Photoimpact  Technology  Limited  HC  AK  AP221/95

4 December 1995, Speight J.

[10]     In the light of the above matters, Mr Collins for the respondent agreed that the appeal should be allowed.

Disposal

[11]     In view of the position very properly adopted by the respondent, I propose to allow the appeal.  The conviction of the company in the District Court on the charge of breaching s 165 of the Act is therefore quashed.

[12]    As the company was represented by Mr Wiltshire as its sole director and shareholder, no question of costs arises.  No order is made.

Stevens J