TS & RK Bhullar Limited v Commissioner of Police

[2019] NZHC 3397

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-98

[2019] NZHC 3397

IN THE MATTER

of s 159 and 153 of the Sale and Supply of Alcohol Act 2012

IN THE MATTER

of an appeal by TS & RK Bhullar Limited against a decision suspending for 48 hours on-licence in respect of premises at 557 Te Ngae Road, Rotorua, known as “Owhata

Thirsty Liquor” and suspending for 56 days the Managers Certificate of JASWINDER SINGH

BETWEEN

TS & RK BHULLAR LIMITED

First Appellant

JASWINDER SINGH
Second Appellant

AND

THE COMMISSIONER OF POLICE

Respondent

Hearing:

17 December 2019

Appearances:

J Wiles for Appellants

D J McWilliam for Respondent

Judgment:

18 December 2019

JUDGMENT 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 Registrar Date……………

BHULLAR v THE COMMISSIONER OF POLICE [2019] NZHC 3397 [18 December 2019]

[1]    The first and second appellants are the licensee and manager respectively of an on-licence liquor store operated from premises in Rotorua and known as “Owhata Thirsty Liquor”.

[2]    On 25 September 2019, the Alcohol Regulatory and Licensing Authority (the Authority) found that the second respondent, Mr Jaswinder Singh, had sold liquor to a person who was intoxicated in breach of s 248(1) of the Sale and Supply of Alcohol Act 2012 (the Act).1 To recognise this breach the Authority granted an application by the police  for  orders  suspending  the  licensee’s  on-licence  for  48  hours  from  18 November 2019 until 20 November 2019. The Authority made a further order suspending Mr Singh’s manager’s certificate for a period of 56 days commencing on 17 November 2019 and ending on 11 January 2020.

[3]    The licensee and Mr Singh appeal against those orders. The orders have been suspended pending determination of the appeal.

Approach on appeal

[4]    The appellants advance their appeal under s 159 of the Act. This provides a right of appeal to the High Court against any decision of the Authority if the proceedings concerned commenced in the Authority’s jurisdiction. There is no dispute that the decisions that are the subject of the present appeal were made in proceedings that commenced in that jurisdiction.

[5]    Every such appeal is by way of rehearing.2 The rehearing is conducted on the basis of the evidence given before the Authority, a transcript of which has been provided for the purposes of the appeal.3

[6]    The fact that the appeal is by way of rehearing means conventional appellate principles apply. In short, the appellants are entitled to this Court’s opinion as to

1      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.4

The hearing before the Authority

[7]    In short, the case for the police was that at approximately 2.30 pm on the afternoon of 10 December 2018 Mr Jaswinder Singh sold a bottle of Black Heart rum to a man who was in an obviously intoxicated state. In doing so both he and the licensee committed an offence against s 248 of the Act, which makes it an offence to sell liquor to a person who is intoxicated.

[8]    The police adduced evidence from four witnesses during the hearing before the Authority. Three gave evidence orally, whilst the evidence of a fourth was read into the record by consent.  Mr Jaswinder Singh gave evidence on his own behalf and   Mr Tarsem Singh gave evidence on behalf of the licensee.

Mr Jason Macdonald

[9]    Mr Jason Macdonald, the Duty Manager at Super Liquor Colonial liquor store in Rotorua, gave evidence that at about 2.25 pm on 10 December 2018 a man came into his store in a dishevelled state. The man had earlier caught his attention when he had driven his green Holden Commodore station wagon into the gutter outside the store. He said the man had wet marks on the front and back of his pants indicating he had soiled himself. Once inside the store, Mr Macdonald could see that he was very unsteady on his feet. He was swaying back and forth as he was looking at products on the shelf, and at one stage was required to put his hand on a display behind him to retain 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 he began 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 asked him to leave the store. He also asked whether somebody could come and pick him up

4      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 driving his 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 police and gave them a description of the man’s vehicle. He told the police that the man was intoxicated and was driving in an easterly direction on Te Ngae Road. A short time later the police contacted Mr Macdonald to say they had found the person and he had been processed for drink driving.

[12]   Mr Macdonald said he keeps an incident book to record noteworthy events that occur 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 of CCTV film footage showing the interaction between Mr Macdonald and the man who came into the store. This was played when Mr Maconald gave evidence at the hearing before the Authority.

Senior Constable Jones

[14]   The next witness for the police was Mr Peter Jones, formerly a Senior Constable stationed at Rotorua. On 10 December 2018 he was working a late shift in a patrol vehicle. At about 2.30 pm the police received a call from the Owhata Medical Centre expressing concerns about the sobriety of a male person who was about to leave the medical centre. The medical centre gave the police the man’s details, as well as the registration number of his green Holden Commodore motor vehicle. The registration number was [redacted].

[15]   Senior Constable Jones then set out to locate the vehicle. A short time later he received a call from a CIB vehicle confirming that the occupants of that vehicle had seen the green Holden Commodore vehicle leaving a liquor store carpark on the corner of Coulter and Te Ngae Roads. At 2.39 pm Senior Constable Jones located and stopped this vehicle near the airport. As he initially spoke with the driver, the constable observed that he was extremely intoxicated. He was slurring his words and his breath smelled like methylated spirits. Senior Constable Jones also noted that the driver was unsteady on his feet and had obviously urinated in his pants. He had also

lost control of his bowels and had soiled himself as he got out of his vehicle. He did not seem to be aware this had occurred.

[16]   Roadside breath screening procedures confirmed a positive result for alcohol and at 2.45 pm Senior Constable Jones required the driver to accompany him to the Rotorua Police Station. An evidential breath test administered at 3.09 pm returned a reading of 1017 micrograms of alcohol per litre of breath. Senior Constable Jones suspended the driver from driving immediately and charged him with driving with excess breath alcohol.

Detective Katherine Murphy

[17]   The evidence of Detective Katherine Murphy was read to the Authority by consent. She confirmed that at about 2.55 pm on 10 December 2018, she and another detective became involved in the search for the intoxicated driver who had left the medical centre. They came across the vehicle after Senior Constable Jones had stopped it. They then stopped to assist Senior Constable Jones, who was obtaining the driver’s details. Detective Murphy observed that the driver of the vehicle was unsteady 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 to Mr Jaswinder Singh. She asked him about a sale he had just made to the driver of a green Holden Commodore motor vehicle, and Mr Singh acknowledged having made the sale. Mr Singh told the detective that the driver of the vehicle was a regular customer who came into the store about three times a week. He said that on this occasion the man had purchased a bottle of rum. Detective Murphy said she then told Mr Singh that this person had just been stopped for suspected drink driving, and she asked him why he had served a possible drunk driver. She said Mr Singh told her he had observed no signs of intoxication on the man.

Sergeant Pauline Jones

[19]   The final witness for the Police was Sergeant Pauline Jones, who also presented the case on behalf of the Police. She gave evidence about discussions she held with

Mr Jaswinder Singh between 12 and 18 December 2018 regarding CCTV footage that cameras installed in and around his store may have captured regarding the sale of liquor to the driver of the green Holden Commodore motor vehicle. Efforts to obtain the footage were unsuccessful, but Mr Singh confirmed he had sold this person a bottle of Black Heart Rum and a 1.5 litre bottle of coke. Mr Singh was adamant that the man had not been intoxicated at the time of this transaction.

[20]   On 4 January 2019, Sergeant  Jones  met  with  Mr  Jaswinder  Singh  and  Mr Tarsem Singh. On this occasion they showed her CCTV footage of the man after he had entered the Owhata Thirty Liquor store. Sergeant Jones said the footage was of very limited duration, and only showed the driver entering the store and then standing by the counter. She said the wet patch on the front of the man’s pants was clearly visible in this footage.

Mr Jaswinder Singh

[21]   Mr Jaswinder Singh confirmed in evidence that the driver of the green Holden Commodore motor vehicle had purchased a bottle of rum and coke. He was not able to 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 without any difficulty. He refused an offer of a plastic bag and said words to the effect “no need for a bag – save the planet”. The man also spoke to another customer who was standing behind him. He then thanked Mr Jaswinder Singh for offering him the plastic bag and bowed in a theatrical way as he turned away from the counter. Mr Jaswinder Singh was adamant that there was nothing about the man’s speech or appearance to indicate he was intoxicated or under the influence of alcohol.

[22]   Mr Jaswinder Singh also produced CCTV film footage showing the man entering the shop, making the purchase and paying for it. This was played during the course of his evidence.

Mr Tarsem Singh

[23]   Mr Tarsem Singh then gave evidence about the CCTV film footage and also expressed his general satisfaction with Mr Jaswinder Singh’s competence in meeting his 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 be undertaken safely and responsibly; and

(b)the harm caused by the excessive or inappropriate consumption of alcohol should be minimised.

[25]   In the present case the object set out in s 4(1)(a) is relevant. As I have already recorded, the sale of liquor to an intoxicated person is an offence under s 248 of the Act. Unlike its predecessor, the Sale of Liquor Act 1989, the Act now defines intoxication. Section 5 of the Act provides:

Intoxicated means observably affected by alcohol, other drugs, or other substances (or a combination of 2 or all of those things) to such a degree that 2 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 prove intoxication by taking into account factors beyond those referred to in the statutory definition. I accept that submission to a limited extent. By way of example, the results obtained from an evidential breath or blood test may assist in proving that observable symptoms of intoxication were caused by alcohol rather than by some other factor

such as physical or mental infirmity.5 It will not be possible to prove that a person was intoxicated when liquor was purchased, however, unless two or more of the observable symptoms set out in the definition are shown to be evident at or about the time of the purchase.

[27]   As the Authority observed, the issue of whether a person has reached a state of intoxication must be determined objectively and having regard to all the available evidence.6 As in any civil proceeding, the standard of proof is on the balance of probabilities. The consequences of a finding against the appellants in the present case are significant, however, because the appellants stand to lose financially if the orders are permitted to remain in force.

[28]   An application for the suspension of a liquor licence or manager’s licence is undoubtedly penal in nature. Stronger evidence is therefore required before proof to the required standard is achieved.7 This led Woolford J to observe in General Distributors Ltd v De’Ath that the standard of proof in such cases must be very close to that of a criminal prosecution.8

The Authority’s decision

[29]   In summarising the relevant law, the Authority noted that the applications for suspension relied on ss 280(3) and 285(3) of the Act. These provide:

280     Variation, suspension, or cancellation of licences other than special licences

…

(3)The grounds on which an application for an order may be made are as follows:

(a)that the licensed premises have been conducted in breach of any of the provisions of this Act or of any conditions of the licence or otherwise in an improper manner:

(b)that the conduct of the licensee is such as to show that he or she is 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 Dental Complaints 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 manner so 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 section may be made are as follows:

(a)that the manager has failed to conduct any licensed premises in a proper manner:

(b)that the conduct of the manager is such as to show that he or she is not a suitable person to hold the certificate.

…

[30]   The Authority observed that the test for suspension involves a two-stage process, in which it was required to be satisfied not only that the grounds set out in s 280(3) and 285(3) had been established, but also that it was desirable to make an order for suspension.9

[31]   The Authority also observed that the offence of selling or supplying alcohol to an intoxicated person under s 248(1) of the Act is a strict liability offence.10 Where no defence is advanced based on absence of fault, proof of the act of selling liquor to an intoxicated person is therefore sufficient to establish the offence. The Authority noted that knowledge, intent, or recklessness on the part of a licensee or manager as to a person’s level of intoxication does not need to be established and proof of gross intoxication is not required.11

[32]   The Authority concluded its exposition of the legal issues relevant to the application by noting that the assessment of intoxication was a matter of fact to be determined objectively based on the evidence before it.12

9      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 intoxicated when he purchased rum from the appellants’ store in the following paragraphs of its decision:13

[87]      The evidence before the Authority establishes that at 2.25 pm the customer in question was dishevelled and had wet marks on the front and back of his pants. He was seen driving into a gutter while driving a green Holden station 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 while looking at products on the shelf. The evidence is that he smelled and was slurring his words and mumbling nonsensically.

[88]      A few minutes later at 2.30 pm the male purchased rum and coke from the Owhata Thirsty Liquor. The video in the Owhata Liquor Store shows the male made a somewhat flamboyant bow on making his purchase.

[89]      Subsequently, the uncontested evidence of Mr Jones is that when the male was stopped thirty minutes later at 3.00 pm he was slurring his words and smelled of methylated spirits. He was unsteady on his feet and had wet himself, which was showing on the front of his pants. As he underwent breath testing procedures, the male soiled himself on getting out of the car and seemed unaware that he had done so. Breath testing procedures returned a positive result for alcohol. Detective Murphy’s evidence corroborated the evidence of Mr Macdonald and Mr Jones that the male was unsteady on his feet, and that he appeared to have soiled himself. There was a wet stain on his trousers and the back of his trousers also appeared to have old dirty stains on them.

[90]      That the male was intoxicated at 2.25 pm and at 3.00 pm is established, there being two or more observable signs that the person was affected by alcohol at both times. Given this, it is entirely implausible that the male was intoxicated five minutes after showing signs of intoxication at 2.25 pm, only to do so again at 3.00 pm. While he may have had a drink after 2.30 pm, the Authority is satisfied that given he was observably intoxicated at 2.25 pm, he would have been similarly affected five minutes later.

[91]      Contrary to the submission of Mr Wiles, it is not necessary for the Police to prove that the respondents should have been able to observe signs of intoxication at 2.30 pm.

[92]      As already noted, mens rea does not need to be established and the respondents have not argued a no-fault defence.

Grounds of appeal

[34]   Mr Wiles challenges the approach taken by the Authority on several bases. He submits the Authority erred in law at [91] because it was necessary for the police to prove the existence of observable signs of intoxication whilst the man was in the

13     Jones v TS & RK Bhullar Ltd, above n 1.

appellants’ shop. He also submits the Authority erred because it failed to identify which of the statutory symptoms necessary to establish intoxication had been proved to the required standard.  In  addition, he submits the Authority failed to confront   Mr Jaswinder Singh’s evidence that the man who purchased the rum from him displayed no obvious signs of intoxication. It also failed to analyse whether the CCTV footage taken from the appellants’ liquor store supported or contradicted Mr Singh’s version of events.

Decision

[35]   The wording of the statutory definition makes it clear that at least two or more of the prescribed symptoms of intoxication must be observable and evident before a person will be intoxicated for the purposes of the Act. It is therefore necessary to determine when those symptoms must be observable and evident.

[36]   I do not consider it is necessary for the symptoms to be evident at the exact moment at which the liquor is sold. Moore J rejected such an argument in the following 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 object of the Act is to minimise the excessive consumption of alcohol. Section 248 is one means by which that object may be achieved. The introduction into the Act of the four observable indicia of intoxication was no doubt designed to remove the complexity, clumsiness and uncertainty of the previous means by which intoxication was determined.

[56]      The cases make it plain that the assessment of whether a person is intoxicated at the time of sale may be drawn from a variety of sources and assessments made at different times including both before and after the actual sale. This evidence constitutes the “pool of evidence” available to the Authority.

[37]   I consider that the penal nature of the statute means that the symptoms must be observable and evident at a time when the person who makes the sale can reasonably be expected to observe them. This may be before the sale is concluded provided the person making the sale has a reasonable opportunity to observe the purchaser during that period. Symptoms that are only evident and observable after the sale are far less

14     General Distributors Ltd v Police, above n 5.

likely to assist in determining whether the purchaser met the statutory criteria for intoxication at the time of the sale.

[38]   The evidence in  the present  case  focussed on  a period  of approximately  45 minutes between approximately 2.25 pm and 3.09 pm on 10 December 2018. It commenced when the driver of the green Holden Commodore motor vehicle left the Owhata medical centre and the police were notified of the concerns held by the staff of the medical centre regarding his sobriety. It ended shortly after 3 pm when that person underwent the evidential breath test at the Rotorua Police Station.

[39]   The evidence of Mr Macdonald establishes beyond any doubt that the man who entered his shop at approximately 2.25 pm was intoxicated in terms of the statutory definition. That person’s speech was slurred, his co-ordination was impaired, and his appearance was plainly affected. The evidence of Senior Constable Jones then establishes that approximately thirty minutes later the same person again met the statutory threshold of intoxication. His breath was still slurred, and his appearance was affected. The reading subsequently obtained from the evidential breath test also confirms that the consumption of alcohol had caused these phenomena.

[40]   The real issue, however, was whether the police could prove that the man also displayed the same symptoms at about 2.30 pm when he entered the appellants’ liquor store and purchased rum. I accept that the evidence of the man’s presentation at both

2.25 pm and 3 pm would ordinarily provide a reliable platform from which to draw an inference 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 Singh gave evidence that the man was displaying no symptoms of intoxication when he purchased the rum. The Authority needed to deal with that evidence in order to reach its decision. The Authority also needed to determine whether the CCTV footage taken inside the appellants’ store at the time the sale took place supported the case for either the police or the appellants.

[42]   The Authority obviously rejected Mr Jaswinder Singh’s evidence because it found it was implausible that the man would be displaying different symptoms at

2.30 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 that conclusion.

[43]   The CCTV footage was, however, direct evidence of the manner in which the man 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 one party or the other. Unfortunately, however, although the Authority referred to the footage in passing on two occasions15 it did not analyse or reach firm conclusions about what it showed. I consider this to be an error in the Authority’s reasoning process 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 Clement v Jatt Trading Ltd. 16 In that case the Authority observed that the critical time for the assessment 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 referred to in the definition needed to be observable.

[19]      The definition refers to “observably affected by alcohol”. The only evidence of what occurred in the premises is the CCTV DVD. Senior Constable Mackereth noted when describing the CCTV evidence that the purchaser’s walk was slow and deliberate: thus, his appearance was affected.

[20]      The Senior Constable observed from the DVD only one sign of intoxication. If that was all that the Senior Constable was able to observe then there is no evidence that the second respondent could have observed any more signs of intoxication. It is the second respondent’s observations that are critical. If the Police evidence had been that there were at least two of the signs of intoxication evident, then the second respondent could have been expected to have observed them too; and would have needed to have given evidence to rebut this.

[21]      The fact that other signs of intoxication were subsequently observed by 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 footage supported 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 the company of counsel. The footage captured the events that occurred in the shop from the point where the man walked up to the counter and placed a large bottle of soft drink on it. It then filmed the whole of the transaction in which the man purchased the rum and left the shop. The quality of the footage was excellent, and the camera was positioned a very short distance away from both Mr Jaswinder Singha and the man who purchased the rum. This meant they were both clearly visible.

[47]   Mr Jaswinder Singh said in evidence that he was sitting down when the man entered the store and did not see the wet patch on his trousers because the man came right up to the counter. The CCTV footage confirmed that Mr Singh only approached the man after he had come up to the counter. Thereafter the footage also confirms that the man stood very close to the counter so it would not have been possible for Mr Singh to see the wet patch on the man’s trousers. It was not possible to see the wet patch on the man’s trousers from the CCTV footage as he walked up to the counter or as he left the shop.

[48]   With one exception I consider the balance of the CCTV footage also largely supports Mr Jaswinder Singh’s version of events. The exception relates to the issue of whether the man’s speech was impaired. The man spoke to Mr Jaswinder Singh for more than a minute. The film footage does not record what was said or how the man was speaking. Given that both Mr Macdonald and Senior Constable Jones observed his speech was slurred, however, I am satisfied on the balance of probabilities that this must also have been the case when the man spoke to Mr Jaswinder Singh. Impaired speech is unlikely, in my view, to suddenly disappear and then reappear within a matter of minutes. This means that one of the four criteria for a finding of intoxication has been shown to be present.

[49]   It is not possible from the CCTV footage, however, to say that any of the other statutory 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 due to any number of reasons besides intoxication. The bow that he made as he turned to leave the shop was also slightly flamboyant but that does not advance matters a great deal. He certainly did not appear to be unsteady on his feet as was the case when he

was in Mr Macdonald’s store a few minutes earlier. It is also relevant that, although the credit card machine was partly obscured in the CCTV footage, the man did not appear to have any obvious difficulty when using it to pay for the items he had purchased.

[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’s trousers. She did not, however, suggest to him that he must also have observed other signs of intoxication. She did not, for example, suggest the man was unsteady on his feet, or that his speech was impaired in any way. Nor did she challenge his evidence that the man was able to pay for the rum using a credit card without difficulty. As a result, Mr Jaswinder Singh’s evidence was virtually unchallenged on the key issue of the man’s observable symptoms of intoxication whilst in the appellants’ store.

[51]   It follows that I respectfully take a different view to the Authority regarding the issue of whether the man met the statutory criteria for intoxication at the time he purchased the rum. I do not consider the police were able to prove that two or more of 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 a category 2B basis together with disbursements as fixed by the Registrar.

Lang J

Solicitors:

O’Sullivan Clemens, Rotorua Counsel:

J Wiles, Rotorua