Charles v. Grierson - [1908] HCA 66

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF 1908. MELBOURNE,

Licensed premises-Presence thereon "in contravention of" provisions of the Act- Oct. 9, 12,

Purpose of presence-Licensing Act 1906 (Vict.) (No. 2068), sec. 76. Griffith C.J.,

The words "in contravention of the provisions of this Act" in sec. 76 (2) of the Licensing Act 1906, mean " in prosecution of a purpose inconsistent with observance of the provisions of this Act."

7 CLR 19

So held by the Court (O'Connor J. dissenting). Therefore, where a person went into a hotel on a Sunday (when the sale of liquor is prohibited) with the object of obtaining liquor, but was unsuccessful, his presence there was in contravention of the provisions of the Act, and he was properly convicted of having been found on licensed premises at a time when such premises should not be open for the sale of liquor to the public.

Decision of Madden U.J.: (Charles v. Grierson, (1908) V.L.R., 234; 29 A.L.T., 222), reversed.

APPEAL from a judgment of Madden C.J. in the Supreme Court of Victoria.

At the Court of Petty Sessions, Geelong, an information was heard whereby John Charles, a Licensing Inspector, charged James Grierson for that he on Sunday, 26th January 1908, not being a bond fide lodger, weekly or other boarder, traveller, inmate or servant, was found on certain licensed premises, viz., the Terminus Hotel at Geelong, at a time when such premises should not be open for the sale of liquor to the public, contrary to the provisions of the Licensing Act 1906.

At the hearing of the information evidence was given that Grierson and two other men entered the hotel by an open street door at half-past ten on the morning of the Sunday in question, passed through the house into the back yard, where they met the licensee; that they asked him if there was "any chance of a drink," and that he replied No hope;" and that after being on the premises for about three minutes, the three men went out of the back gate into a lane where they were met by the police. The three men admitted that they had gone to the hotel for the purpose of getting liquor, but that they had not obtained any. Grierson, having been convicted and fined, obtained an order nisi to review on the ground that his presence on the premises was not in contravention of the Act.

The order nisi was heard by Madden C.J. who made the order absolute and quashed the conviction Charles v. Grierson 1. The informant now appealed to the High Court.

Meagher, for the appellant. The meaning of the words "in contravention of the provisions of this Act" in sec. 76 (2) of the

1(1908) V.L.R., 234 ; 29 A.L.T., 222.

7 CLR 20

Licensing Act 1906 is 'in opposition to" or " inconsistent with

the provisions of the Act, or else for the purpose," or with the intention" of…

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.

Continue reading Charles v. Grierson

Details

AGLC: Charles v. Grierson [1908] HCA 66
Case: [1908] HCA 66
Decision Date: 21 October 1908

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant, John Charles, a Licensing Inspector, had charged the respondent, James Grierson, with being found on licensed premises on a Sunday when the premises should not be open for the sale of liquor to the public, contrary to the Licensing Act 1906. Grierson had entered the hotel with the admitted purpose of obtaining liquor but was refused. The Supreme Court had quashed Grierson's conviction, finding his presence on the premises was not in contravention of the Act.

The central legal issue before the High Court was the interpretation of the phrase "in contravention of the provisions of this Act" as used in section 76(2) of the Licensing Act 1906. This sub-section stipulated that a person found on licensed premises during prohibited hours would be liable to a penalty unless they could satisfy the court that they were a bona fide lodger, boarder, traveller, inmate, or servant, or that their presence was not in contravention of the Act. The court had to determine whether "in contravention of" meant actively breaching a specific prohibition in the Act, or if it encompassed being present on the premises with a purpose inconsistent with the Act's provisions, even if no specific breach was completed.

The majority of the High Court, comprising Griffith C.J., Barton J., and Isaacs J., held that the words "in contravention of the provisions of this Act" meant "in prosecution of a purpose inconsistent with observance of the provisions of this Act." They reasoned that this interpretation was necessary to give operative effect to section 76(2), as a narrower construction would render the provision inoperative. The majority considered that the legislature intended to create a new offence based on mere presence, unless excused, and that the purpose of the presence was relevant to whether it was "in contravention." O'Connor J., dissenting, held that "in contravention" required a breach of a specific prohibition or direction within the Act, and that the respondent's presence for the purpose of obtaining liquor, which was refused, did not constitute such a contravention.

The appeal was allowed, the order of the Supreme Court of Victoria was discharged, and the order nisi to review was discharged with costs.

Orders