D.P.P. -v- Callaghan, [2008] IEHC 24 (2008)

Docket Number:2007 909 SS
Party Name:D.P.P., Callaghan
Judge:O''Neill J.
 
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Neutral Citation Number [2008] IEHC 24

THE HIGH COURT [2007No. 909 SS]

IN THE MATTER OF SECTION TWO OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEENTHE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF SUPERINTENDENT GERRY CADDEN)

PROSECUTOR ANDBARRY CALLAGHAN

DEFENDANT JUDGMENT of O'Neill J. delivered the 31st day of January, 2008.

This matter comes before the Court as a consultative case stated pursuant to

s. 52 of the Courts (Supplemental Provisions) Act, 1961. The questions posed by the learned District Court judge concern the application of s.20 of the Intoxicating Liquor Act, 2003 [the Act of 2003] This section is in the following terms:

"(1) A licensee shall not supply intoxicating liquor on the licensed premises at a reduced price during a limited period on any day

(2) In subsection (1), "reduced price" means a price less than that regularly being charged for the intoxicating liquor during an earlier period after 10.30am (12.30pm on a Sunday) on the day concerned.

(3) A person who contravenes subsection (1) is guilty of an offence under this section and liable on summary conviction to a fine not exceeding -

(a) for a first offence, 1,500, or

(b) for a second or any subsequent offence, 2,000."

The facts as proved, admitted or agreed and recited in the case stated may be summarised as follows.

The defendant appeared before the District Court at Kells, County Meath, on the 14th day of December 2006 to answer a complaint set out in a summons bearing Case Number 2006/664425 on which he was charged with having unlawfully sold intoxicating liquor at a reduced price during a limited period on the 25th June, 2006, at The Arches, Farrell Street, Kells, County Meath, a licensed premises, he being the holder of an on-licence attaching to the said premises contrary to s. 20 (1) of the Intoxicating Liquor Act, 2003.

The licensed premises in question consisted of two distinct parts. One of these was a lounge bar known as The Arches which was arranged in the normal fashion for a lounge bar with tables and comfortable chairs, banquette seating, an open fire and the like. The other portion of the premises was arranged as a nightclub known as Kactus and it connected to the lounge bar portion of the licensed premises. The nightclub portion was arranged and furnished in an entirely different manner to the lounge bar. There was no natural light, the seating was not of the comfortable type in the lounge bar and from the time it opened at 11.00pm at night, loud music was played. The two portions of the premises were all part of the one licensed premises and the defendant was the nominee of the licensee, Jacunda Limited. He had been running the premises for three or four years. The two portions of the premises were run on a different basis. Each had its own storeroom for the alcohol sold on each portion of the premises. Stocktaking was done separately in respect of the two portions of the premises and management accounts in respect of each portion of the premises were compiled separately but were merged into one set of accounts at the year end. There was some overlap of staff between the lounge and the nightclub, but extra staff were required to service the nightclub portion of the premises.

On the night of the 24th June, 2006, Garda Finn and Garda Stynes were on plainclothes duty. At approximately 11.00pm on that night, they entered The Arches portion of the licensed premises on Farrell Street and ordered two drinks, a bottle of Smirnoff Ice and a pint of Budweiser. Garda Stynes paid for the drinks; the bottle of Smirnoff Ice cost 4.70 and the pint of Budweiser cost 3.80, a total of 8.50. When they finished these drinks, they ordered a second round of the same drinks, which again cost a total of 8.50. After they had finished these drinks, they exited The Arches portion of the premises through the front doors and entered the basement portion, i.e. the Kactus nightclub, through a separate door. They paid an entry charge of 10.00 each. They arrived in the nightclub portion at approximately 12.30am in the early hours of Sunday 25th June, 2006 and when they got there, they ordered the same drinks again, namely a bottle of Smirnoff Ice and a pint of Budweiser. On this occasion they were charged a total of 5.00 for the two drinks, 2.50 for each drink.

Sergeant Martin Barrins was on duty in the early hours of Sunday morning the 25th June, 2006, when he received a call from Garda Finn who informed him that prices charged on the ground floor of the Arches licenses premises were different to the prices being charged in the basement nightclub portion of the same premises. Sergeant Barrins entered the licensed premises in uniform at 1.16am on Sunday 25th June, 2006. There he met the manager of the premises, Mr Peter Molloy. Mr Molloy confirmed the prices of drinks being charged in the Kactus nightclub portion of the licensed premises and directed Sergeant Barrins' attention to a sign at the back of the bar setting out that all drinks in that...

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