Countdown loses appeal over serving drunk man

Countdown lost its appeal over serving a drunk man in its Hamilton store. Photo / File

Supermarket giant Countdown lost its challenge to a liquor ban after it served a drunk man liquor in a Hamilton store.

Justice Simon Moore in the Hamilton High Court dismissed an appeal by Countdown owner General Distributors which challenged the finding that a male customer was intoxicated when he was in the supermarket.

The police successfully applied to the Alcohol Regulatory and Licensing Authority for the suspension or cancellation of a Hamilton Countdown's off-licence for selling alcohol to an intoxicated person. The authority suspended the off-licence for five days.

Judge James Weir of the authority ruled that the Countdown on the corner of Anglesea and Bridge streets sold liquor to a man who was visibly intoxicated on August 30, 2014.

But the supermarket business appealed that on the grounds there was no sufficient proof that the man was intoxicated by alcohol.

The judge said the authority was entitled to draw an adverse inference in the circumstances and he also cited a complaint from witness Jacqui Graham, who described seeing a "staggering and unbalanced" man standing near wine shelves when she walked into the store.

Judge Moore cited Jacqui Graham's evidence of the man's intoxication and how he had served himself at the self-service checkout. She has worked extensively in community drug and alcohol anti-dependency services and programmes, he said.

"Mrs Graham saw the man picking up wine but assumed he would not be served because it was plain to her that he was drunk," Judge Moore said.

She told an assistant: "You can't serve that man intoxicated. It's against the law and he's really drunk. If he goes out and kills someone it will be your fault."

The young assistance had looked flustered and said she did not know what to do. By this time, the man was leaving the supermarket.

Countdown claimed the authority had reached a conclusion which it could not have reasonably come to, based on the evidence. Countdown argued that had the authority correctly applied the standard of proof, there was insufficient evidence available for it to conclude that the customer in question was intoxicated by alcohol.

The judge cited the definition of intoxication which requires the person to be observably affected by alcohol: "While it is perhaps possible that what Mrs Graham observed was in fact a psychiatric or neurological presentation, I am not satisfied that this is a reasonable possibility having regard to all of the circumstances," the judge wrote.

The police were entitled to costs, he decided.