Gathering and using information and evidence

Alcohol licensing & hearings guide for regulatory agencies

As a statutory agent, your role is to provide the District Licensing Committee (DLC) with information on the applications before them. This section outlines the types of information and evidence you can gather, and how to collect it, store it and use it.

Snapshot of this module

Evidence gathering starts from the time you receive an application and continues through to the hearing and any appeal.

Evidence is the information presented at a hearing to prove an alleged fact and includes written or spoken testimony from witnesses, documents, photographs, maps and videotapes.

You can collect ‘hard’ (quantitative) data such as alcohol-related crash numbers and ‘soft’ data (qualitative) such as changes in drinking behaviour.

You need to work out what the data does and does not say and report these findings clearly.

You can collect a lot of evidence through your work, and if you follow a few simple tips you will ensure that your evidence is of high quality and more likely to stand up under scrutiny at a hearing.

Evidence given before the committee should be factual, relevant and concise.

You need to demonstrate how the evidence relates to the application and the remedy you are seeking.

This module covers

  1. Gathering and using information and evidence
  2. What is evidence?
  3. What kind of information can you collect to support your case?
  4. Interpreting and reporting data
  5. Collecting quality evidence through your work
  6. Where to source your evidence
  7. Interviewing
  8. Security of evidence
  9. The nature of evidence to the District Licensing Committee
  10. Linking the evidence to the application

1. Gathering and using information and evidence

Evidence gathering starts from the time you receive an application and continues through to the hearing and any appeal. You need to collect information for your initial inquiry and report. You should continue to gather information after this to provide the DLC with all relevant evidence at the hearing. For example, you may have conducted a compliance check after lodging your report, and have gathered information that would be useful to the committee in making its decision on the application. You can provide this to the committee through a supplementary report. It can take several months for appeals to be heard by the Alcohol Regulatory Licensing Authority (ARLA) so you need to keep gathering relevant information up until the date the appeal is heard.

2. What is evidence?

Evidence is the information presented at the hearing to prove an alleged fact, including written or spoken testimony from witnesses, and other material such as documents, photographs, maps and videotapes.  In practice, evidence is anything that backs up your opposition.

Evidence should focus on facts and be directly relevant to the application.  Use evidence to highlight how the licence, if granted, would go against the object of the Act.  Evidence gathered over a period of time will be stronger than evidence gathered on just one occasion.  National or international research can be useful if it can be clearly linked to the case at hand.

3. What kind of information can you collect to support your case?

Information on alcohol-related harm can come from a wide variety of sources.  It can be:

  • ‘hard’ data:  these are numeric data, for example alcohol-related crash numbers and numbers of alcohol-related accident and emergency admissions.  These can be broken down, for example, into events involving women, men, and people of a certain age.  These are called quantitative data.  Quantitative data tend to be available in routine collections and can be standardised
  • ‘soft’ data:  these are interpretative and perceptual data that are usually more descriptive and are typically expressed in words rather than numbers.  Soft data can be collected through observations, reported perceptions and viewpoints, stakeholder opinions, people’s stories, surveys, etc.  These are called qualitative data.  An example of qualitative data is observations about changes in drinking behaviour in a particular park or sports club.

A mix of both qualitative and quantitative data-collection methods and the associated qualitative and quantitative data will usually be required to describe and measure alcohol-related harm adequately.

4. Interpreting and reporting data

It is important to make a genuine effort to understand what data says (and does not say) and to report these findings clearly. This will enhance the level of confidence that can be placed in the data you present. All data used as evidence need to be put into the context of the case and you need to be clear about how the data supports your case.

Questions to consider include:

  • How complete is the dataset?
  • What else could be affecting the data?
  • Does the data relate to the specific site or circumstances of the application?

5. Collecting quality evidence through your work

You can collect a lot of evidence through your work eg, via site visits and interviews. Following these simple tips will ensure your evidence is of high quality and more likely to stand up under scrutiny at a hearing:

  • Make full notes at the time of compliance checks (‘contemporaneous notes’) – these can be used in evidence. Do not make notes days or weeks afterwards as the accuracy of your recall can be challenged at the hearing.
  • Contemporaneous notes, supplementary notes on non-compliance matters, renewal reporting outcomes, and any documents related to any graduated response enforcement can all be used as evidence. Make sure all notes and reports are dated, clearly separated from other notes and presented chronologically.
  • Keep your original report and notes if you’re drafting a supplementary report.
  • Statements should be named and dated with the time, contact details, signatures, date of birth, and any other details in full. Any subsequent changes must be initialled.
  • Get peer reviews – work together with colleagues to ensure consistency, quality and best practice.
  • Your brief of evidence must match your recorded notes.
  • Do not allow others to influence any factual changes.
  • You need to keep all records for seven years.
  • Physical evidence for an enforcement application must be kept until the appeal period is finished.

6. Where to source your evidence

You can source evidence from:

  • floor plans, video, photos
  • local area detail such as noise and graffiti complaints
  • relevant planning and consent information (eg, building certificates or resource consents)
  • other relevant information such as fire and evacuation plans, environmental health (potable water)
  • maps and graphs of premises density
  • witness statements
  • past complaints
  • Police data (both qualitative and quantitative)
  • case law which is current and relevant to the case
  • other relevant information that supports your opposition
  • evidence from non-biased sources such as local schools, Māori Wardens, and community patrols.

7. Interviewing

When carrying out interviews, follow these tips to ensure the information you collect is of the highest quality and can be used in the hearing:

  • Use the ‘What, Where, How, Who and When’ questions and avoid leading the interviewee; let them talk.
  • Lay out statements and interviews clearly so that amendments can be made, identified and initialled.
  • Make clear, unambiguous notes which won’t be easily challenged before the DLC.

8. Security of evidence

Make sure you secure and protect your evidence:

  • Download all photos and videos on return to the office – this avoids loss of evidence or its potential corruption or destruction.
  • Check the quality and make sure it is suitable for presentation as evidence. For example, if important information presented in photos is not clear, you may need to take another set of photos.
  • Sensitive information should be stored or locked with restricted access.

9. The nature of evidence to the District Licensing Committee

Evidence given before the DLC should be:

  • factual or expert advice/opinion where the expert’s credentials have been established
  • as brief and to the point as possible, and
  • directly related to the issue before the committee.

If the relationship between the evidence and the matter before the DLC is indirect, it is important that the connection or relevance of the evidence is spelt out either in the initial mapping out of the case to the committee by the lead agency or in the introduction of the witness. The case for the relevance of the evidence should not be part of the evidence itself.

Sometimes the reports of the statutory agencies are read into evidence to enable cross-examination on their contents. This practice offers a further advantage of ensuring that the committee has the matters covered in the report at the forefront of their minds. It does, however, imply a need for discipline in the preparation of the report so that it meets the factual, concise and relevant criteria described above.

Licensing bodies must consider any local alcohol policy when they make decisions about alcohol licensing applications.

More broadly, decision makers do not have to confine themselves to matters relating to the particular premises or licence, and they can take into account wider factors, such as council policies (My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 564).

10. Linking the evidence to the application

You need to demonstrate how your evidence relates to the application, the grounds for your opposition under the Act, and the remedy you are seeking.

For example, you have an application for a renewal of an off-licence. The applicant wants to extend their opening hours. You are concerned about the level of noise and nuisance outside the premises currently, and consider that extending the hours would increase harm and nuisance by increasing opportunities for accessing alcohol and facilitating continued late night drinking. You could bring evidence about the number of noise complaints relating to the premises or its customers, the number of police visits to the area to deal with drunk and disorderly behaviour, the times of greatest disturbance. The evidence would need to relate specifically to the premises and the behaviour of its customers after purchasing alcohol from the premises. It would also need to link to the remedy you seek ie, a reduction (rather than an extension) of current hours.

International peer-reviewed evidence can be presented and may hold weight, but it needs to be well linked to the case at hand. The person who wrote the evidence will generally not be available for cross-examination. However, the Medical Officer of Health or their delegate has expertise in public health research and may be able to speak to the evidence or respond to questions from the committee.

District Licensing Committees and ARLA have an evaluative role. Their task is to consider all relevant information and come to a decision on the application. In VenusNZ Limited [2015] NZHC 1377 the High Court considered the burden of proof relating to amenity and good order. It found that there is no burden of proof on the parties; rather the parties should bring evidence to the decision makers (the District Licensing Committee or ARLA), who should play an inquisitorial role and make a decision based on the information in front of them.

If you are unsure about how to link your evidence to your case, talk with your colleagues who have expertise in this area. You can also seek information through professional networks.