"A place of resort for the consumption of alcohol"

 Police v MacDonald [2016] NZDC 2371

 

Overview

Dinner party hosts and school ball committees around New Zealand are in a state of uncertainty, after a Napier man was found to have breached the Sale and Supply of Alcohol Act 2012 for hosting a party at a private residence without an alcohol licence.

Section 235 of the Act prohibits the use of unlicensed premises as “a place of resort for the consumption of alcohol”. Although this provision is not new – it previously took the form of s.153 of the Sale of Liquor Act 1989 – it is not often applied to residential premises. But as we explain below, the fairly exceptional circumstances of this particular case (rather than a new or stricter interpretation of the section), is responsible for this outcome, meaning private event organisers have no reason to panic just yet.

Facts

On 4 April 2015, Mr MacDonald hosted a party at a residential property in Napier. The property was owned by Housing New Zealand, and was occupied by a friend of Mr MacDonald’s. The party’s purpose was to promote a DJ. It was advertised on social media as a ‘BYO’ event with a $5 cover charge. Mr MacDonald did not sell or supply alcohol at the party, but he took precautions to prevent underage drinking from occurring (such as requiring that attendees under the age of 18 wear a wristband that identified them as minors). Having checked the Napier City Council website, Mr MacDonald satisfied himself that no alcohol licence was necessary.

The Napier Police met with Mr MacDonald prior to the party, after becoming aware that close to 2,800 people had indicated on Facebook that they would attend. The Police did not discuss alcohol licensing with Mr MacDonald, instead focusing on safety issues (including the presence of security guards, the use of plastic containers, and methods for preventing alcohol consumption by minors). The Police visited the party shortly after 9:00pm, and found that the security staff had lost control of the event. Mr MacDonald agreed to shut down the party. The area was cleared over the following three hours, with twenty arrests made (primarily for disorderly conduct).

Issue

The issue for the Court was whether Mr MacDonald had breached s.235. Given there was no question that the house was an unlicensed premises, the Court needed to determine whether the following elements were present:

  • Whether Mr MacDonald was the occupier, or had or took part in the care, management, or control, of the property;
  • Whether the property was used as a place of resort for the consumption of alcohol; and
  • Whether the defendant allowed the property to be used as a place of resort for the consumption of alcohol.

Mr MacDonald submitted a further “key issue” for the Court’s determination: whether Parliament intended for s.235 to apply to this type of situation. He also argued that even if the charge was established against him, he could rely on the defence of officially induced error, because the Police had advised him that it was “okay” to go ahead with the event.

Was Mr MacDonald an occupier, or did he take part in the care, management or control of the property?

The Court found that Mr MacDonald clearly identified himself to the Police as the person in charge of the event, and having the care, management and control of the property during the event. It was not relevant that Mr MacDonald did not own or occupy the property, as s.235(4) specifically states that a person simply needs to “act as if” he or she were an occupier. This element was therefore established.

Were the premises used as a place of resort for the consumption of alcohol?

The Court referred to the case of Browne v Police, which states that premises are kept or used for the consumption of alcohol if the consumption is a “substantial” purpose of people attending, and such purpose is encouraged or facilitated by the occupier.[1] A “place of resort” need not be a premises traditionally used for alcohol consumption, and can include a one-off use.

The Court found that the publicity surrounding the house party, the requirement that plastic (not glass) containers be brought to the party, the need for security and the provision of wrist-bands to identify those under 18 years of age demonstrated that the consumption of alcohol was to be an “integral part” of the event. That was unfortunate for Mr MacDonald given those measures were in all likelihood aimed at addressing the potential for alcohol related harm. However, such measures are not required for private social gatherings, and went some way to demonstrating the true nature of the event.

Did Mr MacDonald allow the property to be used as a place of resort for the consumption of alcohol?

Mr MacDonald acknowledged to the Court that he knew people would be bringing alcohol to the party. The Court found that Mr MacDonald clearly took steps to facilitate the consumption of alcohol at the event. This meant that all elements of the charge were proved.

Did Parliament intend for s.235 to apply to a situation like this?

Despite the charge having been proved against Mr MacDonald, his counsel argued that s.235 was not intended to criminalise events such as this. They instead submitted that the section was intended to target situations where a club or gang allows patrons to consume alcohol on its premises. In response, the Police submitted that s.235 should apply in this case, as the 2012 Act had brought about a new and stricter regime intended to minimise harm resulting from excessive alcohol consumption. The Court found that s.235 remains in substantially the same format as s.153 under the 1989 Act, and that the Court’s role was simply to determine whether the elements had been established on the facts. It was not necessary to comment on what types of situation the section was (or was not) intended to cover.

Were Mr MacDonald’s actions the result of an officially induced error?

Finally, the Court considered Mr MacDonald’s submission that he should not be convicted because the Police had allowed him to proceed with the event, failing to advise him that the house party required a special alcohol licence. The Court referred to the Crafar Farms decision,[2] in which the High Court held that “officially induced error” was not a substantive defence at New Zealand law. The High Court stated that “[a]t its highest, all that can be said is that “officially induced error” may support an application for discharge without conviction under s.106 of the Sentencing Act 2002.” Mr MacDonald was therefore unable to rely on this argument.

Outcome

The Court held that the charge had been proven against Mr MacDonald, but did not enter a conviction against Mr MacDonald. Instead, the Court adjourned for several weeks, giving a thinly veiled invitation to Mr MacDonald to apply for a discharge without conviction under s.106. Mr MacDonald made this application, and was duly discharged without conviction on 9 June 2016.

Comment

Following this decision, there have been suggestions in the media that s.235 could apply to private dinner parties. With respect, we consider this unlikely, although it appears the Police have used the decision to discourage a number of pre- and post- school ball events.

As the District Court held in this case, the elements of the charge, not the nature of the event, are critical. Event organisers should consider the following factors when determining whether an alcohol licence may be required:

Do I have control of the event? (This can include holding the keys to the premises, and having a relationship with the premises that gives you the right to be present there, and/or take part in the care or management of the premises – including on a temporary basis).[3]

  • Notwithstanding the usual use of the premises, is it being used during the event for the consumption of alcohol?[4],[5]
  • Is the consumption of alcohol a substantial purpose of people attending the premises? (Note that it need not be their primary purpose to qualify under s.235).[6]
  • Is the premises open to the general public, or a particular class of person?[7] (For example, ticket holders).

If some or all of the above factors are present, event organisers are advised to consider whether a special licence may be required under the Act. For example, if alcohol is being sold at an event, the event is ticketed, or an entry fee applies (including a donation where alcohol is being supplied free of charge), a special licence will be required. This can also extend to private social gatherings, particularly if the event is accessible to “the public”. (There is no doubt that in Mr MacDonald’s case, the public general invite on social media was unwise, and brought the party to the Police’s attention.) However, in our view, s.235 will not be satisfied in the case of a private dinner party.

For alcohol licensing advice, please contact Jason Welsh.

 

[1] [1962] NZLR 801, 809.

[2] Crafar and others v Waikato Regional Council HC Hamilton, CRI 2009-419-67.

[3] Malcolm v Police Christchurch High Court, Ap 7/86, 10 March 1986, Hardie Boys J.

[4] Bingham v Coleman (1914) 22 NZLR 989 (SC).

[5] Ashford v Police HC Rotorua AP65/92, 21 September 1992.

[6] Browne v Police [1962] NZLR 801 (SC) Richmond J.

[7] Section 235(5), Sale and Supply of Alcohol Act 2012.

Posted on June 8, 2016 .