Police v Philip [2021] PGDC 125; DC6080 (2 September 2021)

DC 6080

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No. 615 of 2021

CB No. 1033 of 2021
BETWEEN

THE POLICE
Informant

AND

TONY PHILIP
Defendant

Boroko: Seth Tanei

2021: 2^nd of September
      

SUMMARY OFFENCE – Keeping Licensed Premises open for the Sale of Liquor During Prohibited Hours – s 104 (1)(b) – Liquor Licensing Act

SUMMARY OFFENCE- Trial- Keeping Licensed Premised Open for the Sale of Liquor During Prohibited Hours– Elements of the Offence Discussed – Prosecution has not proven its case beyond reasonable doubt – Defendant found not guilty.

Cases Cited

The State v Takip Palne [1976] PNGLR 90

References

Legislation

Liquor Licensing Act

Counsel

Constable Tarrabie Agu, for the Informant

Tony Philip, the Defendant In Person

RULING ON VERDICT

2^nd September 2021

S Tanei: The Defendant pleaded not guilty to one count of Selling Liquor During Prohibited Hours contrary to section 104 (1) (b) of the Liquor Licensing Act.

2. Trial was concluded on 19^th July 2021.
   
3. The Court then adjourned for parties to make submissions on verdict.
   
4. Submissions on verdict were made on 4^th August 2021.
5. This is my ruling on verdict.
   

CHARGE:

6. The Police allege that on 5^th April 2021, the Defendant, being the Licensee of the premises known as 2/4 Trading Beer Store, did keep his licensed premises open during prohibited hours from 10 pm to 10 am for the sale of liquor.
   

ISSUES:

7. The Court is faced with the following issue;
   
   1. Whether the Defendant sold liquor during prohibited hours.
      

THE LAW

8. Section 104 (1) (b) of the Liquor Licensing Act provides that;

“ (1) A licensee who, during prohibited hours—

(b) keeps his licensed premises open for the sale of liquor; .......

.....is guilty of an offence.

Penalty: Immediate cancellation of the licence and a fine not exceeding

K1, 000.00 and in default of payment of the fine, imprisonment for a term of six months, and the court has no discretion to make a lesser order or to impose a lesser sentence.”

9. It is important to know the elements of the offence itself. Section 104 (1)(b) of the Liquor Licensing Act has the following elements;
   1. A licensee – The prosecution must identify the licensee.
   2. During prohibited hours – The sale must occur during prohibited hours.
   100. Keeps his premises open for the sale of liquor - The Premises must be proven to be open during that time.
        
10. In order for the Court to find the Defendant guilty of the offence, the Prosecution’s evidence must satisfy all the elements of the offence and the Court must be satisfied beyond reasonable doubt of such (The State v Takip Palne [1976] PNGLR 90)
    

EVIDENCE

11. Prosecution called three (3) witnesses;
    1. Constable Sebastian Savitas

He is the Informant in this proceeding. He is a Police Officer bearing the rank of Constable. He is attached to Fox 200, Zone 2 Command, NCD. He testified that he was on duty on Monday 5^th April 2021. He testified that it was Easter Monday, a Public Holiday at 11.00 pm to 11.30 pm at Two Four Market, they stopped a 5 door vehicle with Registration HAS 462, upon suspicion when they saw that the people in the vehicle were drunk. He said there were restrictions per the covid19 protocols regarding the sale and consumption of alcohol. He then enquired as to where these people got the liquor and they told them that they bought it at the Defendant’s store. They then told those people to lead them to the store which they did. They then went to the Defendant’s store where they found the window counter closed but not locked. They pushed open the counter window and took photos. They did not see anyone there. The Defendant was not there as well. The next day the Defendant was arrested and charged for keeping his store open during prohibited hours.

In cross-examination, it was put to the witness that the Defendant was not there at that time and the witness confirmed that. However, he said people sold beer but they escaped when they saw the police.

2. Eric Tarabu

He is a Policeman attached with Fox 205 Task Force Unit. He was on duty on that night. He testified that he was the driver of the police vehicle at that time. They were patrolling Gerehu Stage 2. When they drove by 2-4, they saw a Toyota Landcruiser (5 Doors) maroon in colour with Registration HAS 462 parked there. Those in the car acted suspicious when they saw the Police car. He drove past and when he reached the roundabout at Gerehu Secondary School the vehicle drove past him. He followed the vehicle and stopped it at Gerehu Bus Stop and his colleagues went down and searched the vehicle. They found a 12 pack SP stubby and a 6 pack Chiller on four suspects. They enquired as to where they got the beer and the driver of the vehicle told them that they bought it at 2-4 and he was willing to show them where they bought it. They then drove to the Defendant’s store. When they arrived there everyone escaped when they saw the Police car. He said they found the counter window shut but not locked. They then pushed it open and took pictures,

In cross examination, it was put to him that he did not see the Defendant there and he confirmed that the Defendant was not there but said that people sold beer there at his store and they escaped when they saw the Police.

100. Victor Siapari
     

He is a Policeman bearing the rank of Constable and is attached with Fox 205. He testified that on the night of the incident he was on duty and was sitting offside the Police vehicle. He said just past 2-4 market, they saw a Toyota Landcruiser with Registration number HAS 462 parked next to Tony Philip’s store. He said he saw some boys there and the store was open. He said when they went closer they closed the store and ran away. He stated that he told the driver to drive straight up to them and the driver followed his instructions. He then saw the 5 door landcruiser drove by. He suspected them to be drunk so they stopped them and checked the car. The passengers were drunk. There was a 12 pack and a 6 pack beer in the car. They then enquired as to where they got the beer and they said they bought it at 2-4. They agreed to lead the police to where they bought it. They were led to Tony Philip’s store. He said there was a similar case against the Defendant in 2020. He tendered copies of the Court documents bearing the name of the Defendant (Exhibits P14 and P15). When they went to the store the Defendant was not there so they took pictures of beer in the store.

During Cross Examination, it was put to the witness that they did not identify who sold the beer and he agreed that they did not identify that person.

12. The Defence had 3 witnesses.
    1. Tony Philip

He is the Defendant in this proceeding. He testified that he was arrested on 6^th April 2021. He stated that on or about March 2021 Police notified him and other liquor retailers and told them to stop selling liquor as a result of Covid19. He said he obeyed those instructions and laid off all of his employees as there was nothing to do. He testified that on 30^th March 2021, he was sick and was suspected of having Covid19 so he was isolated at Rainbow until the date he was arrested. He tendered his medical report (Exhibit D1). He said at that time his Covid19 test results were pending. On 5^th April 2021, he received a call saying that Police opened his store counter. He said he did not go down to Gerehu because he was sick and was unable to move and his covid19 status was unknown. The next day Police Officers went back to his house but he was not there. He then called them and told them that he would come to the station when he is cleared of covid19. Later that afternoon, he was cleared of covid19 so he went and saw the Police at Gerehu Police Station. He was then arrested and charged. He says the pictures from the police show that they forced open the counter window and the beer in the photos are not for sale but were leftovers from previous sales before the lockdown.

In cross examination, he maintained that he was not there and his store was closed all that time.

2. Frank Jim

This witness is an employee of the Defendant. He sells liquor at the Defendant’s liquor store. He testified that because of covid19 lockdown, the Defendant laid them off because the liquor store was closed and there was no work. He testified that he was asleep when the policemen broke and entered the premises. He also said the Defendant was in isolation and was not at home at that time. When he came out he saw Policemen who accused them of selling beer. He said he and others at home were confused as their store was closed. When he came out he saw policemen taking pictures of the empty freezer and the house. Then they went away and returned the next day. He said the store was closed and he did not know why they arrested the Defendant.

During Cross examination she maintained that the Defendant’s store was closed at that time.

100. Philip Opa
     

He is a senior Constable at Gerehu Police Station. He testified that all throughout the lockdown he witnessed the Defendant’s store to be closed. He said he talks to the store keepers and all that time he was told that the store was closed.

During cross examination he was not present on the night of 5^th April 2021 when the incident occurred but he was told by the storekeepers the next day that the store was always closed.

EXHIBITS

1. Exhibit P1 – P9 ; Pictures of the shop taken at night by Police Officers
2. Exhibits P10 –P13; Pictures of the Maroon Landcruiser and one of its passengers

100. Exhibits P14 – P15; Copies of Court Orders of previous cases against the Defendant.

4. Exhibit P 16; 12 pack SP Beer bottles
5. Exhibit P 17; 6 pack Chiller bottles
   

ANALYSIS OF EVIDENCE

13. The Prosecution’s story is that the Defendant as a liquor license holder, kept his store open during the Covid19 lockdown and liquor was sold on 5^th April 2021.
    
14. The Prosecution’s first and second witness’s stories corroborate each other. They testified that that the Defendant’s store was close on that night. However, the third witness story contradicts the first two witnesses. He said he saw the Defendant’s store open.
    
15. The Defendants case is that he did not keep his liquor store open at that time. This is because he laid his liquor shop employees off and that the liquor shop was closed due to Covid19 restrictions. His first witness supports this story. Although the third witness was not present on the night of 5^th April 2021, his story supports the Defendant’s case that the store was always closed.
    

UNDISPUTED FACTS

16. From the evidence, the following facts turn out to be undisputed;
    
    1. The Defendant is the liquor license holder of 2-4 Liquor shop
    2. Policemen on duty stopped and searched a 5 Doors Maroon Toyota Landcruiser at Gerehu and those in the vehicle were drunk and liquor was found in the car.
    100. Those in the vehicle volunteered to take the Police to where they alleged to have bought the beer and took them to the Defendant’s store.
    4. The Policemen took pictures of the store and the liquor in the store.
    5. The Defendant was not present at that time
       

DISPUTED FACTS

1. The Defendant kept his store open
2. The Defendant’s employees sold beer at that night.

100. The Police broke and entered the Defendant’s premises.

4. The Police did not identify who sold the beer.
   

FINDINGS

17. In Order for the Court to find the Defendant guilty of this offence, the prosecution’s evidence must satisfy all the elements of the offence. They are;
    1. A licensee – The prosecution must identify the licensee.
    2. During prohibited hours – The sale must occur during prohibited hours.
    100. Keeps his premises open for the sale of liquor - The Premises must be proven to be open during that time.
         
18. Identification is a very important element of this offence. The Prosecution has the onus of proving that the Defendant is a licensee and that it was him who kept the premises open.
    
19. There is no dispute that the Defendant is a liquor licensee. However, none of the Prosecution’s witnesses point out that he was the one who kept his store open during the time specified in the charge. In fact, they all testified that the Defendant was not there at that time.
    
20. Despite not identifying the Defendant as the person who kept his premises open at that time for the sale of liquor, the Defendant can be found guilty if it is proven that one of his employees actually kept the premises open and sold liquor at that time. Section 135(1) of the Liquor Licensing Act provides for that. It states that;
    135. Offence by manager or employee, etc.
         

(1) Anything that, if done by a licensee personally, would be an offence against this Act is also an offence if done by a manager or employee of the licensee, and the manager or employee may be punished accordingly.

21. I do not understand why the Police did not bring in any of those that led them to the Defendant’s store to testify for the purpose of identifying the person who sold them the beer. They would be in the best position to tell us who sold the liquor. However, they have not done so and the Police evidence is left wanting at this point.
    
22. I am not satisfied that the Prosecution has proven this element of the offence.
    
23. The other elements follow from the first element.
    
24. In relation to the second element of Prohibited hours, I find from the evidence that this element has been proven by the evidence. The alleged offence occurred on Easter Monday. It was a Public Holiday and as such normal restrictions as to the sale of liquor apply. Also it was during the Covid19 lockdown and there were awareness on restrictions to the sale and consumption of liquor. Therefore this element is proven.
    
25. In relation to the third element, I am not satisfied that the Defendant kept his premises open. This is because the Police evidence is contradictory. One witness said he saw the store open while two other witnesses said that the store was closed when they drove by.
    
26. I accept the evidence of the Defendant. This is because his evidence is coherent. He testified that he was not there at that time and was in isolation for covid19. His store was closed in March 2021 and all his employees were laid off due to the Covid19 restrictions. This was supported by the second Defence witness who is a storekeeper at the liquor shop. He testified that they were all laid off due to the lockdown. This means that the liquor shop would be closed. The third witness confirmed that the Defendant’s store was always closed.
    
27. I find that the Prosecution’s evidence has not met the elements of identification and keeping the premises open.
    
28. Therefore the prosecution has not proven its case beyond reasonable doubt.
    

CONCLUSION

29. In conclusion, I find that the Prosecution’s evidence has not satisfied all the elements of the offence and have not proven their case beyond reasonable doubt.
    

VERDICT

30. The following are the formal orders of the Court;
    
    1. Tony Philip is found not guilty and is acquitted of the charge of Keeping Licensed Premises Open for the sale of Liquor During Prohibited Hours contrary to section 104 (1) (b) of the Liquor Licensing Act.
       
    2. This matter is dismissed.
       
    3. The Defendant is discharged.
       
    4. The Defendant’s Bail money of K 1, 000.00 shall be refunded forthwith.
       

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In person