The original conviction was overturned by Judge Alice Doyle without contest at Kilkenny Circuit Court recently and represents a vindication of Kilkenny publican Charlie Malzard’s innocence.
Charlie, who runs Malzard’s in Stoneyford – the only pub in the village – is a VFI stalwart of over 30 years standing with 21 years on the NEC. He has been elected to the Federation’s Management Committee nine times and was Vice President to Gay Nevin in 1990-1991.
The NCA took the case against Charlie after an Agency inspector removed samples from a bottle of Smirnoff vodka for testing on July 30th 2007.
Following its laboratory analysis of the sample, the NCA successfully prosecuted him in the District Court in October 2008 for watering down his vodka. However Charlie immediately set in motion an appeal.
He maintained that there had been a mistake made on the initial sample analysis “as I was certain from day one that there was nothing wrong with our vodka because I’d broken the seal on it myself just half-an-hour before the inspector came in and that was the bottle they sampled”.
In the meantime he’d had his own sealed sample analysed to find that the vodka was indeed of the requisite strength.
But it was not until two weeks before the appeal court hearing last month that the prosecution informed Charlie’s solicitor that his appeal would not be contested based on an analysis of the second sample in the NCA’s possession. The result of this sample has not been made public “… but it has been privately ascertained that the sample was full strength,” says Charlie, thus backing up his protestation of innocence.
Charlie told Drinks Industry Ireland of the suffering caused by this miscarriage of justice which has now been quashed.
Since the original prosecution in October 2008 and the subsequent media campaign by the NCA on foot of that, he says, Charlie and his wife Mary had gone through a “living Hell”.
He told Drinks Industry Ireland, “If you were five generations in a business – I joined my father here in 1953 and we never had a conviction under the licensing laws in that time – and you’re charged with something like that knowing you’ve done nothing wrong, it felt like I was letting down the five generations past as well as the two to come”.
Despite the odd disparaging remark, however, Charlie’s customers remained loyal throughout this testing period.
The VFI too supported his case, particularly VFI Chairman Pat Carroll and VFI Chief Executive Padraig Cribben “who was supportive in anything I asked him to do”.
Despite and during the wait for the appeal, Malzard’s remained on the NCA website in its ‘name & shame’ section.
Padraig Cribben was particularly critical of this, commenting, “It is incomprehensible that an organisation like the National Consumer Agency could leave the original findings on its website up until the last minute when it was clear that there was an appeal in hand and that there were question-marks over the original findings.
“This smacks of vindictiveness and of a policy to pursue an agenda rather than to act in a fair and even-handed manner. This whole episode has caused tremendous stress and strain to the Malzard family which is both unwarranted and unfair. There has to be a balance between the requirement to keep the consumer informed and due diligence and justice. It would appear that some organisations see it more important to pursue an agenda rather than to behave in an objective manner and this is not acceptable. I am now calling on the National Consumer Agency to give similar prominence and time to the new situation as they gave to the original findings. Charlie Malzard has been a stalwart of the Federation both in Kilkenny and nationally for many years and the Federation are delighted to see his good name being vindicated and his reputation upheld.”
County Kilkenny VFI Chairman Pat Carroll was present in court to witness the successful appeal. He added, "I am delighted for the Malzards; they are a fine, upstanding family and I knew they were 100 per cent innocent from day one".
In criticising the way in which the matter had been dealt with by the District Court, presiding Judge Alice Doyle unusually ordered that the criminal case and its subsequent appeal costs – which run into several thousand €uro – be awarded to the Malzard family and she ordered that the NCA website reference be removed.
As a result of the case, Charlie believes that, “First of all, if any publican has a visit from the NCA, they should check their credentials and keep your own sample that is given to you in a sealed bottle and bag in a very safe place. We gave ours to our solicitor.
“We asked a number of laboratories to test the sample but they were unable to assist us for one reason or another,” he stated, “When the results came back from the UK, the NCA wouldn’t accept them.”
The Malzards are taking legal advice and may make a claim for damages to their business as a result of the NCA’s activities.
Other than a brief summation of the case to date and the brief comment, “Arising out of discrepancies from the test results of the samples, the Agency took the decision not to object to the appeal and notified the defendant’s legal representative”, the NCA was unavailable for further comment when approached by Drinks Industry Ireland.