Moki v Police

[2012] NZHC 105

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000352 [2012] NZHC 105

BETWEEN  WILLIAM RIHARI MOKI Appellant

ANDPOLICE Respondent

Hearing:         7 February 2012

Appearances: S Blake for Appellant

A Longdill for Respondent

Judgment:      7 February 2012

ORAL JUDGMENT OF FOGARTY J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

S Blake, PO Box 72-433, Papakura, Auckland

MOKI V POLICE HC AK CRI-2011-404-000352 7 February 2012

[1]      Mr Moki appeals against a conviction for breaching a liquor ban contrary to s 239 of the Local Government Act 2002.  He was convicted by two Justices of the Peace  sitting  in  the  Papakura  District  Court  following  a  defended  hearing  on

14 September 2011.  He was fined $200 together with Court costs.

[2]      The written grounds of appeal are that the prosecution failed to properly prove the Bylaw which created the liquor ban and secondly, that the prosecution could not prove that Mr Moki was drinking liquor without taking a sample from the can he was drinking from and having it analysed.  As this step was not taken the information should have been dismissed.

[3]      Mr Blake did not pursue failure to properly prove the Bylaw, so the issue on this appeal is whether or not there is  an obligation on the prosecution to have analysed the contents of the liquor in the can which was taken from the appellant in order to prove that it contained alcohol.

[4]      Under s 147 of the Local Government Act, local authorities have the power to make Bylaws for liquor control purposes.  Liquor is defined in s 147(1) as having the meaning given to it in the Sale of Liquor Act 1989. That definition is as follows:

Liquor  means  any  fermented,  distilled,  or  spirituous  liquor  (including spirits, wine, ale, beer, porter, honeymead, stout, cider, and perry) that is found on analysis to contain 1.15 per cent or more alcohol by volume.

[5]      In  any  criminal  prosecution  the  standard  of  proof  is  proof  beyond  a reasonable doubt, unless Parliament has substituted another standard or qualified it. The  “proof  beyond  reasonable  doubt  standard”  is  a  common  law  standard, established by Viscount Sankey LC in Woolmington v DPP.[1]   As Cross on Evidence New Zealand ed Part 2.1 points out:

Rules allocating burdens of proof are really rules of procedure or substantive law and not rules of evidence.

In the absence of any intervention by Parliament, judges are guided by common law decisions as to how to apply the proof beyond a reasonable doubt standard.

[1] Woolmington v DPP [1935] AC 462 (HL).

[6]      The  burden  of  Mr Blake‟s  argument  is  to  persuade  the  Court  that  the definition of “liquor” appearing in s 147 of the Local Government Act carries within it a statutory requirement that alcoholic liquor can only be proved if it is found on analysis to contain 1.15 per cent more alcohol by volume.   Section 147(1), when including the definition of liquor in the Local Government Act and the definition of liquor in the Sale of Liquor Act, does not expressly say that it is a requirement on prosecutions that liquor needs to be analysed before it can be proved in a Court of law to be alcohol.  The principle argument by the Crown in opposition to the appeal is that a Court can reliably rely on the labelling of commercially produced and bottled or canned alcohol.

[7]      In this case the alcohol concerned was a can of bourbon and coke.   The labelling on the can advised that its content was eight per cent alcohol.  It is common place in our society to rely without any doubt on labelling of commercially produced goods.   As Ms Longdill pointed out, the New Zealand domestic law provides for labelling of consumables and includes a section providing for the labelling of alcoholic beverages and food containing alcohol.

[8]      Mr Blake supports his argument by relying upon submissions made by the police and the Attorney-General to the Law Commission Issues Paper Addressing the Reform  in  New  Zealand  Liquor  Laws  2009.    At  paragraph  16.37  the  police submission says:

Section 147 of the Local Government Act 2002, in respect of BoLB, assigns “liquor” the definition provided by the SoLA.  Namely, Liquor means any fermented, distilled, or spirituous liquor (including spirits, wine, ale, beer, porter,  honeymead,  stout,  cider,  and  perry)  that  is  found  on  analysis  to contain 1.15 percent or more alcohol by volume.  Adopting this definition requires analysis to establish that any given substance is in fact liquor.  [L D Nathan & Co Ltd v Hotel Assn of NZ [1986] 1 NZLR 385 (CA)]

[9]      The decision in L D Nathan does not support that submission.   The L D Nathan  case  concerned  the  Hotel Association  of  New  Zealand  endeavouring  to challenge the sale in supermarkets of low alcohol beer.   L D Nathan were selling beer containing alcohol, but less than 1.15 per cent.  It was obviously open for the Hotel Association to challenge the level of percentage of alcohol in such beverages. There is nothing in that decision of the Court of Appeal which says that prosecutions

cannot proceed on the basis that any liquor said to have been alcoholic has to be analysed  first  and  the  analysis  presented  to  the  Court.    I  am  confining  that submission to prosecutions under the Local Government Act.

[10]     The police submission also goes on to say (at paragraph 16.39):

In all cases where the charge is defended analysis is required to establish proof that the substance is in fact liquor for prosecutions of BoLB.  Other methods of proof are not sufficient to establish the fact.

[11]     For offences committed under the Sale of Liquor Act 1989 it is not necessary for the prosecution to prove that the beverage contains 1.15 per cent or more of alcohol per volume unless the defendant raises it in writing as an issue at least 20 working days before the hearing.  This obviates the need for analysis of the beverage to be undertaken in the vast majority of cases prosecuted under that Act.   That provision does not apply to offences committed under the Local Government Act.

[12]     I turn now to the facts  of this case.   They are usefully collected in the decision of the Justices of the Peace:

Mr Moki, you are charged with consuming alcohol in a public place in an area which is in the control of a liquor ban.  The police must prove beyond a reasonable doubt that you did, in fact, commit that offence.

We heard from Constable Richard Bracey, who is stationed at Papakura, that on the evening of 16 June 2011 he was in a mobile patrolling unit in Papakura, in King Edward Avenue around the Central Park area.  He gave in evidence that he saw two people in the park and identified one of them as being you.   He observed that you were carrying an open can of Codys 8 percent bourbon and coke and that he saw you drinking from it.  He stopped and told you that you were drinking alcohol in a banned area.  He smelt it on your breath.  He said you had bloodshot eyes and were slurring your words. He  tipped  the  contents  of  the  can  out  and  he  said  it  smelt  strongly  of bourbon.

He then arrested you, as he needed to speak to you on other matters as well, and you admitted that you had been drinking.  You went back to the station and were very co-operative.   He stated that the area was well signed as a liquor ban area and that it was well publicised in the local media.   He produced as exhibit 1 from the Papakura District Council Liquor Ban in Public Places bylaw 2008 to support that.

In cross-examination he admitted that the contents of the can had not been analysed.   He also stated that he had not written in his notes that you had admitted drinking.  The constable, on questioning, was not sure how long it took before you were taken back to the police station and interviewed.  He

also stated that he was not presenting evidence of the contents of the can and he was not analyst and it had not been analysed.

In questioning from the Bench he was asked about his experience in this area and he stated that he did his fair share of patrolling the liquor ban areas, that he recognised the distinct smell of bourbon in this can.  It was commonly picked up in the liquor ban area and he was confident that he could distinguish such.

Despite the evidence Mr Blake said in his submissions that the alcohol content had not been analysed, we find that generally speaking in common practice this is not done by the police in such a minor offence, and indeed it would be a big onus to analyse every can of alcohol that was found to be being consumed in a liquor ban area, and is not common practice to our knowledge.

We find that the evidence of constable Bracey was submitted in good faith and was sure of his evidence.  We find that the charge is proven beyond a reasonable doubt and we invite submissions as to penalty.

[13]     This set of facts can be contrasted with an example I posed in oral argument. What would the position be if the constable had apprehended a 16 year old girl, carrying an open can of Codys, but saying „no it‟s actually not bourbon and coke, I poured that out and simply filled it with coke because I wanted to appear to be drinking in front of my friends‟?  In my view that would be a completely different context and had the constable simply poured the contents out on the ground, and was not able to support his evidence with an admission from the girl that she had been drinking or by smelling alcohol on her breath etc., then there might well have been a reasonable doubt arising from the context and the evidence as to whether or not the contents of the can were alcohol.

[14]     In my view, the reasoning of the Justices of the Peace is immaculate.  It has persuaded me that they were correct in finding it was proved beyond reasonable doubt that Mr Moki had been drinking alcohol in a banned area.

[15]     There  was  some  discussion  between  the  Court  and  counsel  as  to  the significance of the Attorney-General‟s submissions to the Law Commission on this subject as that included some discussion of reverse onus of proof.  My analysis of the situation is this.  Where Parliament seeks to impose specific rules going to the discharge of the burden of proof beyond reasonable doubt, such as are found in the Sale of Liquor Act imposing on the defendant an obligation to raise in writing a

challenge, then Parliament can, as it were, manufacture a Bill of Rights problem and in that sense perhaps, depending on the section, reverse the onus of proof.   But, where Parliament leaves the question of onus of proof with the Judges applying common  law  principles,  these  issues  do  not  arise.    The  proper  understanding therefore  of  the Attorney-General‟s  submissions  was  that  they were  against  the proposed content of the Alcohol Reform Bill and are irrelevant to the law as it is now.   It is not the function of this Court to anticipate law reform.   Quite to the contrary.  It is an obligation on the prosecutor and an entitlement to the defendant to be tried on the law as it is at the time of the incident against which the person is being charged.

[16]     For these reasons the appeal is dismissed, but I do thank counsel for the quality of the submissions that have been advanced and which has enabled me to deliver an oral judgment today.