Bear v Lynch - [1909] HCA 31

COMPLAINANT, LYNCH

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

OF A. Liquor (Amendment) Act (N.S.W.), (No. 40 of 1905), secs, 17, 19-Person found

on licensed premises during prohibited hours-Liability of licensee---" Lawful purpose - Meno rea. SYDNEY, April 22;

The Liquor (Ameudment) Act 1905, by sec. 17, provides that any person found May 17,21.

on licensed premises at any time when the premises should not be open for the sale of liquor shall be liable to a penalty unless he was at the time a bond fide lodger, servant, inmate, or traveller, or was not on the premises in contra- vention of the provisions of this Act." Sec. 19, by sub-secs. (1), (2) and (3), empowers a police officer to make inquiries of any person found on licensed premises at such a time as to his name and address, and in certain cases to arrest him without warrant, and sub-sec. (4) provides that a licensee upon whose premises any person is so found shall, unless he proves that such person was there " for a lawful purpose," be liable to a penalty.

A person who was not a lodger, servant, inmate or traveller, was found by the police on licensed premises during prohibited hours playing cards with a lodger for money. The only prohibition in either the Principal Liquor Act 1898 or the Amending Act of 1905 with reference to card playing is in sec. 46 of the former Act, which makes it an offence for a licensee to suffer gaming for stakes or any unlawful game to be carried on on his premises. In a prose- cution of the licensee for an offence under sec. 19, sub-sec. (4), it was proved that the licensee had no knowledge of the presence of the stranger on his premises.

8 CLR 593

Held, that the licensee was not guilty of an offence under the section. The words "lawful purpose" in that section mean a purpose not made unlawful by the Liquor Acts, and there is nothing in those Acts making the mere act of gaming for stakes on licensed premises irrespective of the knowledge of the licensee an unlawful act.

Per Griffith C.J.-See. 17 is expressly limited, so far as the test of lawful- ness is concerned, to the provisions of the Amending Act, but

Quare, whether sec. 19, sub-sec. (4), is so limited. Quare, also, whether knowledge or mens rea on the part of the licensee is necessary in order to render him liable under sec. 19.

Per O'Connor and Isaacs JJ.-The doctrine of mens rea has no application, the offence being constituted in such terms as to render the licensee's know- ledge of the person's presence on his premises, or purpose in being there,

Decision of the Supreme Court: Ex parte Lynch, (1908) 8 S.R. (N.S.W.), 636, affirmed.

APPEAL from a decision of the Supreme Court of New South Wales making absolute a rule nisi for a statutory prohibition.

The respondent, Peter Lynch, was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1909] HCA 31
Decision Date: 21 May 1909

CaseChat Overview and Summary

This case involved an appeal from the Supreme Court of New South Wales concerning a licensee, Peter Lynch, who was prosecuted under section 19(4) of the Liquor (Amendment) Act 1905. Lynch was charged for allowing a person, Andrew Melrose, to be on his licensed premises during prohibited hours for a purpose not deemed lawful. Melrose had been found playing cards for money with a lodger on the premises. The licensee contended that he had no knowledge of Melrose's presence or his activities.

The central legal issues before the High Court of Australia were: firstly, the interpretation of "lawful purpose" within section 19(4) of the Act; and secondly, whether the licensee's knowledge or *mens rea* was a necessary element for establishing an offence under that section. The appellant argued that playing cards for money was not a lawful purpose, and that the licensee was strictly liable for any person found on the premises during prohibited hours unless a lawful purpose could be proven. The respondent argued that "lawful purpose" should be interpreted narrowly, and that the licensee's lack of knowledge was a defence.

The High Court, in dismissing the appeal, held that the purpose for which Melrose was on the premises, playing cards for money, was not rendered unlawful by the Liquor Acts. While section 46 of the Principal Act made it an offence for a licensee to *suffer* gaming for stakes, there was no provision making the act of gaming itself unlawful for the player, especially without the licensee's knowledge or permission. Therefore, the licensee had discharged his onus of proving that Melrose was on the premises for a lawful purpose. Regarding *mens rea*, while the Chief Justice expressed reservations about its applicability, O’Connor and Isaacs JJ. concluded that the doctrine of *mens rea* did not apply to this offence, as the legislation imposed strict liability on the licensee for the presence of persons on the premises during prohibited hours, irrespective of their knowledge.

The appeal was dismissed, affirming the decision of the Supreme Court of New South Wales, which had made absolute a rule nisi for statutory prohibition. Consequently, the conviction against the licensee, Peter Lynch, was quashed.

Orders