Bear v Lynch

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.