Liquor ban prosecutions continue despite legal loophole

UPDATE - Liquor ban prosecutions in Havelock North are continuing despite a legal loophole that may let offenders walk free.

The loophole was discovered with the withdrawal of a charge against Havelock North taxi driver Rex Jones, at least partly because there was no analysis of the contents of a bottle that a passenger had in his car, to prove it contained liquor.

Hastings police licensing sergeant Bob Gordon and four other officers patrolled Havelock North on Saturday night, and one person is expected to be charged with breaching the liquor ban.

Wellington lawyer Alastair Sherriff, hired by the Taxi Federation to defend Mr Jones, said today liquor was a key element in any prosecution for a breach of a ban, along with evidence that a ban was in place and that the liquor was being carried in the area where it was prohibited.

The law under which the bans are imposed, dating back to 1989, states the subject liquor must be "found on analysis to contain 1.15 per cent" or more alcohol.

Mr Sherriff said he didn't think police could prove that, if it hadn't been done on a scientific analysis, and in a judicial conference preceding what was to have been the hearing of the charge against Mr Jones. He told the judge the lack of such proof was a "fatal flaw" in the case.

Soon afterwards he was advised police had withdrawn the prosecution.

The biggest issue in the case was that the taxi driver was being prosecuted, when the passengers alleged to have had the liquor in his car were not.

Under the bylaw it is an offence to carry alcohol into the area being covered by the ban. Mr Jones thinks the responsibility should be taken by the person carrying the alcohol.

"Am I supposed to be a baby sitter for everybody that gets into the taxi? Am I supposed to frisk everybody that gets into the van to make sure that they do not have alcohol?" he said.

Mr Sherriff said whether it was or was not liquor was not an issue for most people, who just wanted to get the matter out of the way, plead guilty and pay the fine.

Statistics were showing that more than half of the people being convicted of breaching liquor bans had no prior convictions.

Police public affairs manager John Neilson told Hawke's Bay Today the law was clear, that where identification of the contents of a bottle or can was an issue -- and in most cases it was not -- police had to get it analysed.

Police have made no moves to pull back from policing the bans, which had been effective in Havelock North and Napier .

Police believe a police officer's "expert" evidence could still be enough to convict, along with other evidence, in many cases.

Liquor bans were expected to be discussed at a regular meeting of Easter police managers today.

In 2002 a High Court judge in Tauranga upheld an appeal against conviction for similar reasons to the case of Mr Jones.

In that case also, the bottles were not kept, and the contents were not available for analysis.

Acting Tasman police district commander Inspector Brian McGurk said the case was a "storm in a teacup".

Mr McGurk said the usual procedure was for officers to tip out the contents of a bottle after getting an admission from the offender that it contained alcohol. Details of the container were recorded.

Mr McGurk said the procedure might be reviewed, and in some cases police might keep a sample.

However, under the Sale of Liquor Act, defence lawyers had only 20 days to say whether they wanted the liquid tested. Police would seek costs if the offender was found guilty.

Mr McGurk estimated that testing would cost a "couple of hundred dollars".

"We are not looking at making any radical changes," he said.

"This is just a technicality. Most people plead guilty, and I am not aware of anyone challenging the charge here.

- NZPA