Burns v Tilyard; Van Del Tol v Tilyard
[1988] TASSC 24
•18 March 1988
TASSC [1988] 24
CITATION: Burns v Tilyard; Van Del Tol v Tilyard [1988] TASSC 24; A10/1988
PARTIES: BURNS, Colin Stafford
v
TILYARD, Scott Anthony
VAN DER TOL, Robert Leigh
v
TILYARD, Scott Anthony
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: 69/1987
DELIVERED ON: 18 March 1988
JUDGMENT OF: Nettlefold, Cosgrove and Underwood JJ
Judgment Number: A10/1988
Number of paragraphs: 24
Serial No 10/1988
List "A"
File No 69/1987
COLIN STAFFORD BURNS v SCOTT ANTHONY TILYARD
ROBERT LEIGH VAN DER TOL v SCOTT ANTHONY TILYARD
REASONS FOR JUDGMENT FULL COURT
NETTLEFOLD J
COSGROVE J
UNDERWOOD J
18 March 1988
ORDERS OF THE COURT:
Appeals allowed.
Motions to review granted.
Convictions quashed.
Serial No 10/1988
List "A"
File No 69/1987
COLIN STAFFORD BURNS v SCOTT ANTHONY TILYARD
ROBERT LEIGH VAN DER TOL v SCOTT ANTHONY TILYARD
REASONS FOR JUDGMENT FULL COURT
NETTLEFOLD J
18 March 1988
I have read the reasons for judgment prepared by Cosgrove J. I agree with those reasons and the order he proposes.
Serial No 10/1988
List "A"
File No 69/1987
COLIN STAFFORD BURNS v SCOTT ANTHONY TILYARD
ROBERT LEIGH VAN DER TOL v SCOTT ANTHONY TILYARD
REASONS FOR JUDGMENT FULL COURT
COSGROVE J
18 March 1988
These two appeals were heard together. Each appeal sought to have set aside an order of Cox J dismissing a motion to review orders made by Magistrate K N Dockray in the Court of Petty Sessions Launceston, on the 22 April 1987. The orders, the motion to review and the appeal in each case are separate from each other, but all arise out of an incident at the California Hotel, Launceston on the 4 May 1986, when the two appellants were arrested and forcibly taken into custody by police officers.
As a result of this incident, each of the appellants was charged in these terms:
"That on the 4th day of May 1986, you were required to leave the California Hotel, a licensed establishment at Launceston in Tasmania, by Malcolm POOLE, a responsible person, in the presence of Ray Leslie WILLIAMS, a Police Officer who also required you to leave those premises and you did fail to do so. Contrary to Section 59(8)(a) Licensing Act 1976".
Burns was also charged with assaulting Sergeant Williams and with unlawfully resisting Sergeant Williams. Van Der Tol was charged with assaulting Sergeant Williams, with assaulting Stephen Hortle a senior constable in the Tasmania Police Force, with unlawfully resisting Senior Constable Hortle, with using improper language to Sergeant Williams, and with using improper language to Senior Constable Hortle. The charges, other than those laid under the Licensing Act, were laid under the Police Offences Act 1935, and related to the arrest of the appellants for the commission of the offences created by subs (8) of s59. In each charge, it was an ingredient of the offence alleged that the police officer concerned was "then and there in the lawful execution of his duty". Although no particulars were given of the duty which it was said the police officers were executing, the case proceeded on the basis that they were executing the power of arrest said to be conferred by subs (9) of s59 of the Licensing Act.
The relevant parts of that section are as follows:
"59–(1) No responsible person [defined as ‘the licensee or his representative’] shall allow drunkenness or violent, quarrelsome, or riotous conduct to take place at the licensed establishment.
(2) If a responsible person is charged under subsection (1) with permitting drunkenness, and it is proved that any person was drunk on or at the licensed establishment, the burden of proving that he and the persons employed by the licensee took all reasonable steps for preventing drunkenness on the premises lies on the defendant.
(3) No person shall sell liquor to a drunken person who is at a licensed establishment.
(4) No person shall, at a licensed establishment, procure or attempt to procure liquor for consumption by a drunken person.
(5) No person shall aid a drunken person in obtaining or consuming liquor at a licensed establishment.
(6) Without prejudice to any other right to refuse a person admission to any place or to expel him therefrom, a responsible person or his agent or servant may refuse to admit to, or may expel from, a licensed establishment any person who is—
(a) drunken, violent, quarrelsome, or disorderly;
(b) objectionable as to his behaviour or person; or
(c)not dressed in conformity with any reasonable standard of dress required by the licensee in accordance with subsection (6A).
(6A) For the purposes of subsection (6)(c), a licensee may from time to time, by a notice conspicuously displayed at each entrance to any part of his licensed establishment, require a person wishing to enter or remain in that part to conform to a reasonable standard of dress as specified in the notice.
(7) Any person who, being liable to be expelled from any licensed establishment under subsection (6), fails to leave the establishment when requested to do so by a responsible person or his agent or servant, is guilty of an offence.
(8) A person who, having been required, in the presence of a police officer, by a responsible person or his agent or servant to leave a licensed establishment—
(a)fails to leave the establishment when required to do so by that police officer; or
(b)returns to the establishment during the permitted hours on the day on which he was so required,
is guilty of an offence.
(8A) For the purpose of subsection (8) a day shall be regarded as a period of 24 hours ending at 5.am.
(9) A police officer may expel or help to expel from a licensed establishment a person who commits an offence under subsection (8), and may arrest any such person without warrant.
(9A) A police officer who has reason to believe that a person is guilty of an offence under subsection (8) may arrest that person.
(10) Where a permit authorizes the sale of liquor on any premises or conveyance (not being a licensed establishment) this section has effect as if during the period during which liquor may be sold under the authority of the permit and the period of one hour thereafter the premises or conveyance were a licensed establishment and the holder of the permit the licensee thereof.
(11) A person who contravenes a provision of this section is guilty of an offence.
(12) A person who is guilty of an offence under this section is liable on summary conviction to a penalty not exceeding $200."
In order to establish the commission of the offence created by subs (8), it was necessary for the prosecution to prove in each case that the appellant was a person who,
(a) had been required in the presence of a police officer, by the responsible person or his agent or servant, to leave the licensed establishment, and
(b) had also been required to leave that establishment by the police officer who had been present when the responsible person made the requirement, and
(c) had failed to leave that establishment.
The power to arrest without warrant depended on the commission of an offence under subs (8) and therefore an arrest of that type could not be justified unless the three constituents of the offence created by subs (8) were established. (I put aside for the moment the effect of subs (9A)) .
The primary question to which the minds of Cox J and the members of this court were directed was the nature of the requirements which formed two of these constituents. The secondary, and no less important question was whether the learned magistrate correctly understood that nature and applied a correct understanding of it to the case before him. To resolve these questions it is necessary to consider the ordinary meaning of the word "required" and its meaning in the statutory context under review.
It is noteworthy that the offence created by subs (7) occurs when a person liable to be expelled, fails to leave the establishment when requested to do so by a responsible person or his agent or servant. It is not a constituent of that offence that the responsible person require the patron to leave the licensed establishment, nor that the patron be required to leave by a police officer. The use of the words "required" in subs (8) and "requested" in subs (7), clearly indicates to my mind that the legislature intended to draw a distinction between a request and a requirement, and was not prepared in this Statute, to confer upon police officers the power of arrest without warrant unless the person to be arrested had been required to leave, both by the responsible person and by the police officer, each acting in the presence of the other. The distinction between request and requirement is significant and cannot be glossed over. A judicial officer embarked upon the determination of the question whether the offence created by subs (8) had been committed, could only properly do so if he bore steadily in mind that the constituents of the offence included two requirements.
In The Queen v Brown [1980] Tas SR 121, Neasey J analysed s59, as it then was, and said:
"The difference in wording between subss (7) and (8) is in my opinion intentional and significant. Section 59(8) sets up a separate offence, different from that under s59(7), and which is committed by a person who is required by a responsible person or his agent or servant, in the presence of a police officer, to leave the licensed establishment, and who is in addition required by that police officer to leave and fails to do so.
Section 59(9) then gives power to a police officer (not necessarily ‘that’ police officer, and of course it may take more than one to carry out an expulsion) to expel or help to expel or arrest without warrant a person who commits an offence under subs (8). The power of arrest without warrant is significant. Such a power is not given in respect of an offence under subs (7).
The intention and effect of subss (8) and (9) in my opinion is to create a circumscribed power in police officers to expel from licensed establishments persons in respect of whom the responsible person or his agent or servant takes the formal step specified in subs (8), which is to say a requirement to leave made in the presence of a police officer. The substance of it is that it gives a power to responsible persons, within the meaning of the Act, or their agents or servants, ‘to initiate the expulsion from their licensed establishments, and to request the aid of the police in order to carry out such expulsion, persons whose behaviour they consider to be inimical to the proper and orderly conduct of their establishment; whilst at the same time relieving the police of the responsibility of satisfying themselves before acting that the responsible person, etc., has reasonable cause for taking that action.
In my opinion, the intention manifested by subss (8) and (9) is to make the power of exclusion for which it provides available both in the case where the right to exclude arises under subs (6), and when it arises aliunde, which principally will occur at common law."
In the reasons for judgment given by Cox J supporting the order appealed from, his Honour said:
"It is to be noted that the subsection [(8)] provides that there must be a requirement to leave, not merely a request, articulated by the licensee in the presence of a police officer and a similar requirement, not merely a request, likewise made by that officer".
The Shorter Oxford Dictionary gives as the primary meaning of "request":
"The act, on the part of a specified person, of asking for some favour, service, etc; the expression of one’s desire or wish directly addressed to the person or persons able to gratify it."
The primary meaning of "require" on the other hand, is:
"To ask for (some thing or person) authoritatively or imperatively, or as a right; to demand, claim, insist on having."
It is clear that no valid adjudication of the guilt of a defendant could be made by a tribunal which confused "request" and "requirement", and which failed to bear in mind the necessity of the dual requirements.
The learned magistrate who heard these charges reserved his decision from 9 April to 14 April and gave reasons for his decision to convict on all charges. He began those reasons with these words:
"The charges against these defendants were by means of separate complaints but by consent the complaints were heard together. The charges against Mr. Burns are of refusing to leave the licensed establishment the California Hotel when required … . The charges against Mr Van Der Tol are again with refusing to or failing to leave the licensed premises of the California Hotel ... "
His Worship then went on to recite some of the evidence given before him without making any findings of fact. He then said:
"The first question which I have to decide is whether or not Mr Poole requested the defendants to leave the licensed establishment. Mr Poole called the Police. He said that he requested all patrons to leave and on the evidence I am satisfied that he did request both defendants to leave and that they failed to do so. Accordingly I find the first charge in each complaint proved.
As to the remaining matters, the defence case is that there were a large number of Police Officers on a Sunday night in the hotel and no one was asked to leave and there was no disturbance and no unusual event took place. In fact there was seven at least Police Officers in the bar and only about double that number of patrons. It seems to me a rather unusual situation if there was no trouble on foot. Well having heard the evidence I believe that the defendants were provocative and (sic) refusing to leave the hotel when requested to do so by the licensee Mr Poole, by Sergeant Williams and by Sergeant O'Sullivan. As a result I find that the defendants were arrested by Sergeant Williams and resisted arrest. I find that the Officers were acting in the execution of their duty in clearing the hotel after the defendants refused to leave, having been asked by the licensee to leave. Section 59 subsection 9 of the Licensing Act, provides that a Police Officer may arrest any person offending against the section without having a warrant for arrest. I find each remaining matter complaint proved."
As I have said, his Worship made no findings of fact. He made no finding that Mr Poole the responsible person required the defendants to leave the licensed premises. He made no finding that any police officer required the defendants to leave the licensed premises, and he made no finding that the responsible person made his requirement in the presence of the police officer who made the subsequent requirement. In the crucial part of his reasons for judgment, he used the word "requested" three times, the word "asked" once, and did not at any time use the word "required". The inference that he failed to properly direct himself as to the constituents of the offence is unavoidable.
Cox J also was concerned that the magistrate may have misdirected himself and he said:
"For the essential question is not whether the licensee requested the applicants to leave but whether he required them to do so."
His Honour then went on say that upon reading the discussion between the learned magistrate and counsel for the defence during the submission of no case to answer, he was satisfied that his Worship was fully alive to the necessity to prove a requirement. With very great respect, I have to say that I do not find it satisfactory to conclude that because the magistrate applied one test on the 24 February, (when the submission of "no case" was heard), he therefore applied the same test on the 14 April (when he found the charges proved). Nor do I have the same confidence as his Honour that the learned magistrate was, when considering the submission of "no case", fully conscious of the distinction between request and requirement. It is my clear impression that the learned magistrate failed to adjudicate upon these charges in accordance with the relevant law.
His Honour said, without insisting on it, that the question as to confusion in the magistrate's mind between request and requirement, was not a ground of appeal and that s108 of the Justices Act required the applicant to be held to the stated ground I have examined the motion to review and in my opinion, ground 1 of the notice of motion does raise the issue of the confusion in relation to request and requirement. In any event, it was clearly argued before his Honour and before us without any objection from the Crown.
In my view, his Honour should have held that the trial before the magistrate of the charges under the Licensing Act was not a trial according to law, and should have granted the motion to review and set aside the convictions.
As the learned magistrate made no useful decision as to whether the appellants were guilty of the offence created by subs (8) of s59, it must follow that he made no useful decision as to whether the police officer, Sergeant Williams was entitled to arrest the accused without warrant and therefore no useful decision as to whether he was, in reference to the other charges, acting in the lawful execution of his duty. The same comments apply to Senior Constable Hortle. During argument before the learned magistrate, some reference was made to subs (9A) of s59, but it is clear that his Worship placed no reliance upon that in finding the appellant guilty of the charges laid under the Police Offences Act. He relied upon the police officers' entitlement to arrest without warrant under subs (9). The existence of that entitlement was never fairly tried. In my opinion, the trial of each of the defendants in respect of each charge was not conducted according to law, and the convictions should not have been allowed to stand. I would therefore allow the appeals in respect of each charge. It is unnecessary to consider the application for a new trial on the ground of fresh evidence.
However, the question does arise as to whether a new trial should be ordered or whether the convictions should be simply quashed. In view of the fact that the events which gave rise to these charges occurred almost two years ago, that the trial began in February 1987 and concluded in April 1987, and it is now March 1988, I consider that it would not be proper to send the matter back for retrial by another magistrate and I would favour an order quashing the convictions.
Serial No 10/1988
List "A"
File No 69/1987
COLIN STAFFORD BURNS v SCOTT ANTHONY TILYARD
ROBERT LEIGH VAN DER TOL v SCOTT ANTHONY TILYARD
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
18 March 1988
I agree with the reasons for judgment of Cosgrove J. and with the order he proposes should be made.
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