Elcham v Commissioner of Police

[2001] NSWSC 614

Reported Decision: 53 NSWLR 7
125 A Crim R 162

New South Wales

Supreme Court

CITATION:	Elcham & Anor v Commissioner of Police & Ors [2001] NSWSC 614
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 11679/00
HEARING DATE(S):	10/10/00;3/11/00;15/12/00;8/2/01
JUDGMENT DATE:	27 July 2001
PARTIES :	Joe Elcham & Anor v Commissioner of Police & Ors
JUDGMENT OF:	O'Keefe J

LOWER COURT JURISDICTION :	Licensing Court of NSW
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Denis A Collins

COUNSEL :

Mr M J Heath - For Plaintiffs
Mr M S Spartalis - For Defendant

SOLICITORS:

For Plaintiffs
Adam Stack & Co
Bondi Junction NSW

For 1st Defendant
Michael N Holmes
NSW Police
Darlinghurst NSW

For 3rd Defendant
I V Knight
Crown Solicitor
Sydney

CATCHWORDS:

Licencing Law - Closure order for short term - Jurisdictional requirements - Satisfaction of authorised justice, not applicant, required - Matters to be proved - Onus of proof - Standard of proof - Difference between satisfaction, belief and suspicion - Effect of accumulation of events - Necessary - Possession, use and sale of drugs on licensed premises - In charge of licensed premises applies to servant as well as person

LEGISLATION CITED:

Liquor Act 1982 ss 104A;104B;104C;116B;125;125E;126
Controlled Operations Act 1999
Queensland Criminal Code s.679

CASES CITED:

George v Rockett (1990) 170 CLR 105
Coco v The Queen (1993-1994) 179 CLR 427 at 436-437
Parker v Churchill (1985) 9 FCR 316 at 322
Commissioner of Police v Atkinson (1991) 23 NSWLR 495
The Commonwealth and Post-Master General v The Progress Advertising and Press Agency Co Pty Limited (1910) 10 CLR 457
Ronpibon Tin NL v Federal Commissioner of Taxation (1948-1949) 78 CLR 47
Federal Commissioner of Taxation v Snowden & Willson Pty Limited (1958) 99 CLR 431
Federal Commissioner of Taxation v Broken Hill Proprietary Co Limited (1967-1969) 120 CLR 240
State Drug Crime Commission of NSW v Chapman (1988) 12 NSWLR 447
Pelechowski v Registrar of Court of Appeal (NSW) (1999) 198 CLR 435
Attorney General v Walker (1849) 3 EX 242 ;154 ER 833
Deatons Pty Limited v Flew (1949) 79 CLR 370
Martin v Osborne (1936) 55 CLR 367
Hindmarch and Anor v Commissioner of Police and Ors (Master Malpass, Supreme Court, 4 December 1998, unreported except in Butterworths Unreported Judgments, BC 9806455)

DECISION:

Summons dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CORAM: O’KEEFE J.

DATE: Friday, 27 July 2001

NO: 11679/00 - JOE ELCHAM & ANOR v COMMISSIONER OF POLICE AND ORS.

JUDGMENT

INTRODUCTION

1    By summons filed on 3 July, 2000 Joe Elcham and Holiyear Pty Limited (the plaintiffs) sought declarations that an order made by a Magistrate on 30 June, 2000 that resulted in the closure of the Embassy Nightclub, Double Bay for a period of three days from 11 p.m. on 1 July 2000, was made without jurisdiction and was void and of no effect. In addition, orders were sought quashing and setting aside the order of the Magistrate.

2    In the proceedings the plaintiffs initially joined not only the Commissioner of Police, but also the Director of Liquor and Gaming and the Magistrate who had made the order. The proceedings against the Director of Liquor and Gaming were later discontinued. The Magistrate entered a submitting appearance. The Commissioner of Police (the defendant) is therefore the only party remaining in the proceedings to contest the orders sought by the plaintiff.

3    On 3 July, 2000 Joe Elcham (Mr Elcham) sought an order restraining the defendant from acting on, implementing or enforcing the order which had been made by the Magistrate, but it was refused by Sperling J. In lieu he gave directions as to the filing of process in the matter.

4    The Notice of Motion pursuant to which leave was granted to file the summons was supported by an affidavit of Mr Elcham of 2 July, 2000. At the hearing in which final relief was sought parts of that affidavit were read which identified Mr Elcham as the licensee of the premises and a director and shareholder of Holiyear Pty Limited trading as Embassy Restaurant/Nightclub.. Counsel for the plaintiffs also tendered the notice referred to in the summons, a Notice to Produce addressed to the defendant and a Notice to Produce addressed to the Magistrate. He then tendered the response from the defendant and a limited part of an affidavit sworn on 30 August 2000 by Detective Chief Inspector Grimmond. (DCI Grimmond)

BACKGROUND

5 The notice referred to in the summons had been made in reliance on s.104A of the Liquor Act, 1982 (the Act). It was dated 30 June, 2000 and duly signed by the issuing Magistrate as an authorised justice under the Act. On its face it authorised DCI Grimmond:

“(1) To enter between the hours of 11 p.m. on 1st day of July 2000 to 4th day of July 2000 the licensed premises known as : Embassy Nightclub.

Address: 1st Floor, 16 - 18 Cross Street, Double Bay
Being a licensed premises

AND

(2) There by notice on the licensee or a person apparently in charge of the licensed premises order the licensee to close the licensed premises from the time specified as
11:00 p.m. 1st day of July 2000 to 11:00 p.m. 4th day of July 2000.

(3) This order does not close the premises for more than 72 hours. This order requires the closure of the said premises …”

6    The notice drew to the attention of the recipient that a penalty of 50 penalty units or imprisonment for six months or both, applied should the licensee fail to comply with the order contained in the notice.

7    The Notice to Produce addressed to the defendant required him to produce :

“All material, including documents and statements provided to the (Magistrate) for the purpose of the (Magistrate) making an order under s.104A Liquor Act dated 30 June 2000.”

8    In answer to such Notice to Produce the defendant advised that he would not claim public interest immunity in respect of any documents produced to the court by the Magistrate and attached a document entitled “Application for Short Time Closure of Embassy Nightclub Restaurant located at 1st Floor, 16 - 18 Cross Street Double Bay.” The response stated:

“This is the only document which falls within the Notice to Produce.”

9    No doubt to cover the contingency that non-documentary material had been placed before the Magistrate, counsel for the plaintiffs relied upon part of paragraphs 5 and 6 of the Affidavit of DCI Grimmond. The relevant portions of the such affidavit were in the following terms:

“5. … I made an application to Magistrate Dennis (sic) A Collins of the Licensing Court located at 323 Castlereagh Street, Sydney, pursuant to s.104A of the Liquor Act, 1982. Annexed hereto and marked with the letter “J” is a copy of my application.
6. After reading the Application the Magistrate and I had a conversation in words to the following effect
Magistrate Collins: “What is the penalty for selling drugs?”
Grimmond: “I think around 5 years imprisonment and a fine”.”

10    The above material left open a possibility of further conversation having taken place between the Magistrate and DCI Grimmond. However, when counsel for the defendant tendered the whole of the affidavit sworn by DCI Grimmond, it became apparent that there was no further discussion between DCI Grimmond, as applicant for the order, and the Magistrate. The affidavit contains no suggestion that there was any material other than that referred to above placed before the Magistrate.

11 Annexure “J” to the affidavit of DCI Grimmond consisted of an application for an order under s.104A of the Act. Having referred to the premises in respect of which the order was sought and the licence number attaching to such premises, the applicant stated:

“I swear/solemnly, sincerely and truly declare and affirm that:
1. I have reasonable grounds for believing that there is, or within 72 hours there will be on or in the premises, a serious breach of the Liquor Act 1982 has occurred or is likely to occur on the premises and that the closure of the premises is necessary to prevent or reduce a significant threat or risk to the public interest;
2. The reasonable grounds I rely upon are:
(a) a threat to public health or safety, or
(b) a risk of substantial damage to property, or
(c) a significant threat to the environment, or
(d) a risk of serious offences (having a maximum penalty of not less than two years imprisonment) being committed on the premises
(e) other
being …(blank)……………………………………”

12 It is clear that the first page of Annexure “J” is a pro forma from which irrelevant matters had been either deleted or not completed. It should be noted that the paragraph numbered 1 (set out in paragraph 11 hereof) repeats a modified form of s.104A (2)(b) of the Act substituting for the satisfaction of the authorised justice referred to in that section, the satisfaction of the applicant, notwithstanding that s.104A(2)(b) is concerned with the satisfaction of the Magistrate, not the applicant. It includes a number of possible bases, expressed as alternatives, on which an order may be made.

13 Paragraph 2 of the first page of the application (also set out in paragraph 11 hereof) is modelled on s.104A(3) except that in that section there is no equivalent of paragraph 2(e) in the application.

14    The document referred to in the response by the defendant to the plaintiffs’ Notice to Produce was appended to and formed part of the application. It comprises 3 pages and sets out the circumstances on which DCI Grimmond relied. This document consists of a litany of matters in respect of which it is said:

“Police have received information in respect to the supply and self-administration of prohibited drugs within the Embassy Nightclub” and “ … reports have been received in relation to patrons becoming seriously affected by unknown substances”

15    The matters referred to in the body of this document relate to the dates 30 April, 1999, 8 May 1999, 29 May 1999, 15 July 1999, 2 August 1999, 13 November 1999, 27 December 1999, 29 April 2000, 3 June 2000, 17 June 2000 and 23 June 2000. In respect of a number of these dates the police had received information, or had observed matters indicating, that prohibited drugs were sold or used or that facilities were provided on the premises for the use of prohibited drugs, including cocaine. In addition, the document contains information that on 25 March 2000 two female minors attended the Embassy Nightclub. They claimed that they had consumed two drinks containing unknown liquor purchased from the bar and that later in the evening both of them began vomiting in the toilet area, were unable to walk and were removed from the premises. Both required medical attention and were conveyed to a hospital by ambulance. Furthermore, the document contained an assertion that on 3 June 2000:

“A total of 6 breaches were issued to the licensee for the offence of Minor on Nightclub premises not being accompanied by an adult.”

16    The document placed before the Magistrate (authorised justice) also indicated that two lots of prohibited drugs, one cocaine, the other methylamphetamine had been purchased on the premises by under cover police who were part of an authorised controlled operation under the Controlled Operations Act, 1999. The document further stated that material purchased on the premises on 17 June 2000 by under cover police who were part of the controlled operation was found to be cocaine in one instance, ecstasy in another.

17    Annexure “J” contains statements that:

“The results of the Controlled Operation and police observation within the premises corroborate the information previously given to police by members of the public.”
and
“Community outrage in respect to the easy availability and usage of prohibited drugs is receiving widespread media and political attention. As outlined above it is evident that the supply and use of prohibited drugs is frequently occurring within the Embassy Nightclub to the knowledge of the management and the staff of the premises.”
and
“The implications of the widespread use of prohibited drugs has led to deaths and serious permanent injury.”

18    Annexed to the affidavit of DCI Grimmond are statements by a number of police officers. They deal with instances in which under age females had been seen and spoken to in respect of their presence in the Embassy Nightclub and the purchase by and supply to them of alcoholic liquor. These statements were not put before the authorised justice.

19    Also included in the material that forms part of Annexure “J” is a charge sheet relating to Edwin Ah Loh, a waiter who was arrested on 21 July 2000 and was then charged with an offence of supplying the drug ecstasy between 17 and 18 June, 2000 at Double Bay, which on the evidence took place in the Embassy Nightclub, Double Bay. The supply is alleged to have taken place when the person charged sold drugs to an under cover police officer. There is no other material before the court to suggest that any other arrests were made. Indeed, the inclusion of the material relating to Mr Loh rather suggests to the contrary.

THE PLAINTIFFS’ CASE

20 The case made on behalf of the plaintiffs is that the nature of the power conferred by a Notice under s.104A is draconian. Furthermore, the order contemplated by the section is one which does not require or contemplate the giving of notice to the licensee who, and whose business, may be affected by the service of such notice. Furthermore, no verification, whether by oath or statutory declaration, is required as a condition of obtaining such an order. The making of the order involves a significant intrusion on the business, personal and proprietary rights of a citizen and as a consequence there should be a very high degree of satisfaction in the mind of the authorised justice before acting under the section. It was submitted that the evidence did not support the conclusion to which the authorised justice had to come in order to make the order.

21    The order, so it was submitted, is not dissimilar in its effects on private rights from a search warrant. As a consequence, what was said by the High Court in George v Rockett (1990) 170 CLR 105 is germane to the power to make, and the making of, an order under s.104A.

22 Counsel for the plaintiffs then submitted that the material placed before the authorised justice was not such as could properly have satisfied the him that the requirements of s.104A had been complied with. He argued that the evidence did not provide material on which the authorised justice could be satisfied that a serious breach of the Act had occurred, or that at the time of the application such a breach was likely to occur on the premises. In this regard he pointed out that except for the matters on 25 March 2000 and the notices which were given on 3 June 2000 there was no evidence of breaches of the Act, and that there is no evidence as to the date or dates to which the six notices served on 3 June 2000 related. Thus there was lack of contemporanity in relation to any breaches of the Act relied upon by the applicant, and it was submitted, no breaches which had occurred could be characterised as making the closure of the premises “necessary” within the meaning of s.104A(2)(b).

23 In relation to the drug offences the plaintiffs’ counsel boldly stated that, while serious, they involved breaches of statutory provisions dehors the Act and thus did not qualify for consideration under s.104A(2)(b).

24 The plaintiffs also attacked the notice of 30 June 2000 on a number of other bases. First, it was argued that such a notice should not be used as an adjunct to a covert operation. Second, an order made under s.104A may not come into effect on a date later than the date on which the order is made. Such an order would be inconsistent with the necessity referred to in s.104A(2)(b) and with the need for immediacy which it was said was part and parcel of the section.

25    It was further submitted that nothing that was placed before the authorised justice justified or supported a conclusion that the closure of the premises was necessary to prevent or reduce a significant threat or risk to the public interest.

26 On behalf of the defendant it was submitted that the public interest is not concerned merely with preventing breaches of the Act, whether they be serious or otherwise. As is clear from s.104A(3) circumstances in which there may be a significant threat or risk to the public interest, including relevantly to the present case a threat to public health or safety and a risk of serious offences being committed on the premises, are also the concern of the section. Such serious offences are not, so the defendant contends, limited to breaches of the Act and there can be no doubt that the sale of prohibited drugs , including cocaine and ecstasy is a serious offence. Furthermore, the defendant submits that there was evidence before the authorised justice which showed that sales of prohibited drugs had taken place in the Embassy Nightclub on numerous occasions and was likely to occur again in the reasonably proximate future.

APPLICABLE LAW

27 The statutory warrant for orders of the kind involved in the present case is to be found in s.104A of the Act. It was introduced into the Act in October, 1996 together with ss.104B, 104C and 104D by Act No 42 of 1996. It provides as follows:

“ 104A Order by authorised justice for short-term closure of premises
(1) An authorised justice may, by notice served on a licensee or a person apparently in charge of licensed premises, order the licensee to close the licensed premises from a time specified in the order until a later specified time.
(2) An authorised justice may only make an order under this section:
(a) on the application of the Director or the commissioner of Police, and
(b) if the authorised justice is satisfied that a serious breach of this Act has occurred, or is likely to occur, on the premises and that the closure of the premises is necessary to prevent or reduce a significant threat or risk to the public interest.
(3) Without limiting the generality of subsection (2), circumstances in which there may be a significant threat or risk to the public interest include circumstances in which there is:
(a) a threat to public health or safety, or
(b) a risk of substantial damage to property, or
(c) a significant threat to the environment, or
(d) a risk of serious offences (having a maximum penalty of not less than 2 years imprisonment) being committed on the premises.
(4) An order must not require the closure of premises for a period longer than 72 hours.
(5) An order may require the closure of premises until specified conditions are met but must not require closure for a period longer than 72 hours.
(6) A licensee must not fail to comply with an order made under this section.
(7) Two or more orders closing the same premises may not be made under this section in any period of one week.”

28 The section is included in Part 6 of the Act which is headed “Licensed Premises”. Part 6 deals with a number of matters relating to the control of licensed premises and the protection of good order in and in the environs of such premises. Such matters range from controls of reception areas within licensed restaurants (s.88), through defining the boundaries of licensed premises (s.90), gaming related advertising (s.91A, s.92), breath analysis equipment (s.97), restrictions on licensed premises(s.101), exclusion of persons from licensed premises (s.103), procedures for dealing with complaints about undue disturbance of the quiet and good order of a neighbourhood (s.103) to the closing of premises where there is or is likely to be a breach of the peace in the neighbourhood of such premises (s.105). Sections 104A, 104B, 104C and 104D were added to Part 6 to give additional control over licensed premises in relation to activities within them.

29 Like s.104A, 104C deals with the closure of licensed premises. An order made under that section may be for a period of up to six months. However, s.104C requires the order to be made by the Licensing Court rather than by an authorised justice. Furthermore, the court may only make an order under s.104C if the licensee or manager of the premises is the subject of an investigation under s.66A of the Act or of a police investigation or if a complaint has been made in relation to the licensee or manager or close associate of the licensee (s.104C(1)). In addition, before an order can be made under that section three conditions must be fulfilled. The first is that the licensee must have been given notice of the application for closure. The second is that an opportunity to appear and be heard must be have been afforded. The third is prescribed in s.104C(2)(c), which is in the following terms :

“(c) the court is of the opinion that a serious breach of this Act has occurred, or is likely to occur, on the premises and that the closure of the premises is necessary to prevent or reduce a significant threat or risk to the public interest.”

30 This provision is identical with that in s.104A(2)(b), except that the opinion of the court is substituted for the satisfaction of an authorised justice.

31 In both s.104A and s.104C, the public interest is widely defined. The definitions are in identical terms (s.104A(3); s.104C(3)).

32 There is no express prescription of the basis for the satisfaction of an authorised justice in s.104A nor is there any express prescription of the basis for the formation by the court of the opinion referred to in s.104C. However, the fact that s.104C provides for an order by the Licensing Court (s.4) carries with it the implication that properly admissible evidence is required before the powers conferred by s.104C can be exercised. Since no criminal sanction is attached to the making of a closure order, the onus on the applicant would be the civil onus.

33 In the absence of any like context from which a similar inference could be drawn, it would seem that the legislature intended that an order under s.104A, which is limited to a duration of 72 hours, may be obtained on a basis which is summary and less onerous in the evidentiary sense than that required by s.104C. This conclusion gains some limited support from s.104B which provides, inter alia, that an application under s.104A may be made by telephone and that facsimile transmitted material must be used, but only if the facilities to do so are readily available for that purpose (s.104B(1) and (3)).

34 Another provision that may cast some light on the purpose of and procedure under s.104A is s.104B(2). It provides that:

“(2) An authorised justice must not issue an order under s.104A on an application made by telephone unless satisfied that the order is required urgently and that it is not practicable for the application to be made in person.”

This subsection suggests that whilst “necessary” in s.104A(2(b) may involve urgency, urgency is not a pre-requisite for the application of that subsection.

35 The purpose of ss.104A and 104C appears to be to ensure that licensed premises are conducted in accordance with law and to enable any significant threat or risk to the public interest arising out of the use of the licensed premises to be prevented or reduced. In short, the purpose of both sections is to protect the public interest, whether that be in the form of public health or safety, protection of property or the environment or the prevention of or reduction in the risk of serious offences being committed in licensed premises. Such a characterisation of the sections would call for an approach to their construction which is beneficial rather than restrictive. However, an order made under s.104A is likely to have a detrimental effect, perhaps a seriously detrimental effect, upon the person operating the licensed premises and perhaps on the owner of such premises, if such owner is not the operator. As a consequence the approach to the application of the sections needs to take such considerations into account. As the sections impact on the rights of citizens to earn their livelihoods and use valuable premises; Coco v The Queen (1993-1994) 179 CLR 427 at 436-437 an approach to the establishing of the matters required by the sections which could enable the powers provided for in those sections, especially s.104A, to be used as an instrument of oppression, perhaps of corruption, in the hands of certain police is to be avoided. I hasten to add that no such suggestion is made in relation to the officers involved in the present case. Considerations of such a kind cause me to conclude that the approach by the authorised justice (and by the court) to the application of s.104A ought to be along the lines discussed in George v Rockett (supra) in relation to search warrants. In that case the High Court adopted the words of Burchett J in Parker v Churchill (1985) 9 FCR 316 at 322, namely:..

“The duty, which the justice of the peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the right formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.”

36    Section 679 of the Queensland Criminal Code is the statutory basis for the issuing by a Magistrate of a search warrant in Queensland. It provides that :

“If it appears to a justice, on complaint on oath, that there are reasonable grounds for suspecting that there is in any house … or place -
(a) …
(b) anything whether animate or inanimate and whether living or dead as to which there are reasonable grounds for believing that it will of itself orby or on scientific examination, afford evidence as to the commission of any offence; or
(c) anything as to which there are reasonable grounds for believing that it is intended to be used for the purpose of committing any such offence;
he may issue his warrant …”

37    In George v Rockett (supra) the High Court held that the introductory words of s.679, “if it appears to a justice” :

“impose on a justice to whom an application for a search warrant is made the duty of satisfying himself that the conditions for the issue of the warrant are fulfilled.” (supra at 111)

38    It was also held that the provision of the statute requiring “reasonable grounds” for the relevant state of mind “requires the existence of facts which are sufficient to induce that state of mind in a reasonable person” and that it must appear to the issuing justice, not the person seeking the warrant, that reasonable grounds for the relevant suspicion and belief exist.

39    The High Court pointed out that the material on which the magistrate came to the required state of mind had to be made on oath in a complaint which contained facts to found the relevant state of mind. The required state of mind in that case was one of “suspicion and belief” in relation to the matters specified in the section. Suspicion is different from belief . To give rise to a suspicion requires much less than is required to establish a fact. As the High Court said:

“ Suspicion … ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking : I suspect but I cannot prove’…some factual basis for the suspicion must be found “ ( supra at 115 ).

Whereas

“(b)elief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may … leave something to surmise or conjecture.”( supra at 116).

What is necessary to induce a state of belief is more than is required to arouse suspicion but less than is required to establish a state of fact. However,

“the objective circumstances sufficient to show a reason to believe something, need to point more clearly to the subject matter of the belief (than is the case in relation to suspicion) , but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists”.. ( supra at 116) (parenthesis added).

40 The wording of s.104A of the Act is different from that s.679 of the Queensland Criminal Code. Under s.104A reasonable grounds for suspicion are not enough; nor is belief. A higher threshold is mandated. What is required by s.104A before an order can be made is that the state of mind of the authorised justice is one of satisfaction in relation to the various matters specified in s.104A(2)(b). The facts put before the authorised justice by the applicant must be such as to be capable of satisfying a reasonable person of the matters required by the statute and must in fact so satisfy the authorised justice.

41    Other differences between the situation dealt with in George v Rockett (supra) and the present case include that there is no requirement in s.104A for there to be a complaint, and that the applicant is not expressly required to bring the mind of the authorised justice to a state of satisfaction by material which is on oath

42 Just as the comparison between s.104A of the Act and s.679 of the Queensland Criminal Code is relevant to the construction of the Act, so too is the comparison between s.104A (2)and 104C(2). As already stated s.104C requires a curial hearing and determination, rather than the performance of an administrative function. The conditions imposed by s.104C go to the jurisdiction of the Licensing Court to make the order. This is because the section provides that:

“The court may only make an order under the section if …”

43 The same is true in respect of the making of an order by an authorised justice under s.104A. The conditions imposed by s.104A(2) must be fulfilled before the authorised justice has jurisdiction to make the order provided for by the section (Coco v The Queen (1993-1994) 179 CLR 427; Commissioner of Police vAtkinson (1991) 23 NSWLR 495 at 503-504 per Gleeson CJ). However, as Gleeson CJ pointed out in Commissioner of Police v Atkinson in determining the question of jurisdiction:

“It is the authorised justice’s satisfaction as to the relevant facts, rather than the facts themselves, that forms the basis of jurisdiction to issue a search warrant. By hypothesis we are dealing with applications that are made ex parte and in circumstances of actual or claimed urgency, and the criteria of urgency and practicability are very much matters of impression upon which different views may be held.” (supra at 505)

The same can be said in relation to “urgency” as required by s.104B(2).

44 Section 104A(2)(b) requires the authorised justice to be satisfied of the following:

1. That a serious breach of the Act has occurred or is likely to occur.

2. That such breach has occurred or is likely to occur on the licensed premises in respect of which the application for closure has been made.

3. That the closure of the premises is necessary:

(a) to prevent; or

(b) to reduce

a significant threat or risk to the public interest.

45 As indicated above, the provisions of s.104A require the authorised justice to be “satisfied” in relation to the three conditions which are precedent to jurisdiction under the section. Being satisfied does not require the subject matter of the satisfaction to be formally proved. What is required is that there be a rational basis founded on the material put before the authorised justice on which a reasonable person could be satisfied as to the matters specified in s.104A(2)(b) and on which the authorised justice is in fact satisfied.

46 It is essential therefore that there be put before the authorised justice material that is capable of satisfying a reasonable person of the jurisdictional pre-conditions referred to above and which in fact will satisfy the authorised justice of such pre-conditions. The degree of satisfaction does not depend upon strict or formal proof of the facts underlying the pre-conditions. Nor does it depend upon the material put before the authorised justice being such as would be admissible in a court or in proceedings under s.104C. What is required is more than suspicion, conjecture surmise or belief. The state of mind produced by the material must be affirmative. Whilst this does not necessarily require formal proof of the facts, such proof or evidence of such facts would be likely to put the matter beyond argument. The onus of producing the relevant state of mind in the authorised justice lies on the applicant for the order. The standard of proof is the civil standard.

NECESSARY

47 Counsel for the plaintiffs submitted that the word “necessary” is used in s.104A(2) in the sense of essential, that is that, in effect, no other means is open to prevent or reduce the significant threat or risk to the public interest. Thus he argued that absent the antecedent taking by the defendant of other steps, e.g. prosecutions, that may be available to prevent or reduce a significant threat or risk to the public interest, it could not be said that the making of a closure order was necessary and unless such condition was fulfilled the authorised justice had no jurisdiction to make the order.

48    The word “necessary” is capable of a wide range of meanings. The dictionaries indicate that such meanings relevantly include indispensable, requisite, needed, needful, convenient, appropriate, essential. Essential is the strongest or highest meaning to be attributed to “necessary”. Essential conveys that something is “absolutely necessary, indispensably requisite” (The Oxford English Dictionary (1989) Vol X; New Oxford Dictionary (1998) p.629).

49    The decided cases have also afforded a wide range of meanings to the word “necessary”. A convenient starting point is the now authoritative decision of Pollock CB in Attorney General v Walker (1849) 154 ER 833 in which he said:

“The rule I am prepared to lay down is this, … that in this (as in every other case), the word “necessary” does not mean absolutely necessary, but reasonably necessary with reference to the circumstances of the case.” (supra at 838)

50    In The Commonwealth and Post-Master General v the Progress Advertising and Press Agency Co Pty Limited (1910) 10 CLR 457, Higgins J in the course of considering the meaning of the word “necessary” in a provision of the Post and Telegraph Act 1901 which empowered the making of regulations for “all other matters and things which may be necessary for carrying out this Act or for the administration thereof” said:

“Now the word necessary may be construed liberally not as meaning absolutely or essentially necessary, but as meaning appropriate, plainly adapted to the needs of the department - to the ‘carrying out’ of the Act or its ‘efficient administration’ (supra at 469)

Together with the other members of the Court he held that a regulation which imposed a penalty on any person who without appropriate authority prints, publishes or circulates any list of the subscribers connected to any telephone exchange commits an offence was not authorised by the relevant section of that Act.

51    In Ronpibon Tin NL v Federal Commissioner of Taxation (1948-1949) 78 CLR 47 at 56 the decision of Higgins J was adopted by Latham CJ, Rich, Dixon, McTiernan and Webb JJ in relation to the word “necessary” as used in s.51(1) of the income tax legislation then in force. They attributed the meaning of “clearly appropriate or adapted for” to the word.

52    In Federal Commissioner of Taxation v Snowden & Willson Pty Limited (1958) 99 CLR 431 Dixon CJ considered the word “necessary” as used in of the same income tax legislation. He too applied the approach of Higgins J in the Commonwealth and Post Master General v Progress Advertising and Press Agency Co Pty Ltd (supra) in relation to its meaning, i.e. “as not meaning essentially necessary but as meaning appropriate, plainly adapted to the needs of a department carrying out an Act” (supra at 437).

53    In Federal Commissioner of Taxation v Broken Hill Proprietary Co Limited (1967-1969) 120 CLR 240 it was said by Kitto J that in the context of s.122 of the Income Tax and Social Services Contribution Assessment Act 1936-1964, the adjective “necessary”, when qualifying the noun “plant”, was “referring to that practical kind of necessity which is a matter for the judgment of businessmen” (at 247). He also said that the word “necessary” connoted that which “is clearly appropriate or adapted for” the particular purpose (id). On appeal this was adopted by Barwick CJ, McTiernan and Menzies JJ, who described it as “a wide meaning” (supra at 274).

54    In State Drug Crime Commission of NSW v Chapman (1988) 12 NSWLR 447, Allen J considered a section of the State Drug Crime Commission Act 1985 which proscribed the production in any court of any document that had come into a person’s possession in the exercise of functions under that Act. The proscription was subject to an exception “where … it is necessary to do so … for the purposes of a prosecution”. In such a setting Allen J said (at 452):

“As to the word ‘necessary’ it does not have, in my judgment, the meaning of essential. The word is to be subjected to the touchstone of reasonableness.
The concept is one as to what reasonably is necessary in a common sense way”.

He then explained what Pollock CB said in Attorney General v Walker (1849) 3 EX 242; 154 ER 833 as follows:

‘It may be stated as a general rule that those things are necessary for the doing of a thing which are reasonably required or which are legally ancillary to its accomplishment.’”

55    In Pelechowski v Registrar of Court of Appeal (NSW) (1999) 198 CLR 435, Gaudron, Gummow and Callinan JJ considered the meaning of the word “necessary” as used in relation to the concept of jurisdiction by implication. They said:

“The term “necessary” in such a setting as this should be understood in the sense given by Pollock CB in Attorney General v Walker (1849) 3 EX 242 at 255 - 256; 154 ER 833 at 838 - 839, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement …. In this setting the term “necessary” does not have the meaning of ‘essential’; rather it is to be ‘subjected to the touchstone of reasonableness’ ( State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447 at 452”(supra at 452)

56    From the foregoing it can be seen that in a range of situations which may involve cost to a party, e.g. denying tax deductions, which involve criminal proceedings, e.g. prosecution for breaching a regulation, which may impinge upon the success or otherwise of a prosecution, e.g. by allowing or denying production of documents and which go to jurisdiction, as was the case in Pelachowski v Registrar C of A (supra), there is a strong tendency not to ascribe to the word “necessary” the strict logical meaning of essential or absolutely necessary, rather to temper its meaning by reference to concepts of reasonableness, common sense and appropriateness to the accomplishment of the relevant statutory purpose.

57    The trend of the decided cases is thus to the contrary of the strict approach to the meaning of “necessary” advocated on behalf of the plaintiffs.

58    However in determining the appropriate meaning of the word “necessary” in a given case it is essential to look at the context in which it is used, the purpose of the legislation and its effects.

59 In the present case it is true to say that an order under s.104A is likely to have detrimental economic or business effects. But these may be no more adverse than the denial of a significant tax deduction. In addition, it does not involve any direct criminal sanctions. The purpose of an order under s.104A is the protection of the public interest as defined in s.104A(3). By allowing the application and order to be made ex parte, albeit for a quite limited period, the section , in my judgment stresses the predominance of the protection of the public interest over the private detriment which may flow from the making of an order. Protection of the rights of the citizen is effected by the interposition of the authorised justice between the police and the citizen, and the recognition by the authorised justice of the duty which is imposed on such justice in applying the section.

60 For these reasons, I am of opinion that the word “necessary” as used in s.104A(2)(b) of the Act is not to be understood in the sense of essential or absolutely necessary. It is to be understood by reference to reasonableness, common sense, appropriateness to the accomplishment of the statutory purpose of s.104A of the Act - a meaning which has been endorsed by successive decisions of the High Court.

ANALYSIS

A. Has there been or is there likely to be a serious breach of the Act on the premises?

61    In the light of the conclusions to which I have come above, it is necessary to determine in the first instance whether the material put before the authorised justice was capable of satisfying the first and second pre-conditions referred to in paragraph 44 above.

62    An examination of that material shows that :

(i) The matters alleged in respect of 25 March 2000 involved two female minors being on the licensed premises of the Embassy Nightclub whilst not in the company and immediate presence of a responsible adult. Prima facie such presences would constitute breaches of s.116B(1)(c) of the Act. A breach of this section attracts a maximum penalty of fifty penalty units. Furthermore, prima facie, the matters alleged would also constitute breaches of s.116B(2)(c) of the Act since the removal of the female minors from the licensed premises was clearly not immediate, as required by that section. A breach of s.116B(2) also carries a maximum penalty of fifty penalty units.

Both categories of offence are subject to the defence provided for in s.116B. However, the onus is on the person being prosecuted to establish the matters set out in s.116B(3) and there was no material before the authorised justice to suggest that there was any system in place for verifying the age of entrants or that the females in question were apprentices or trainees who had entered the premises for the purpose only of receiving training. The material put before the authorised justice did certainly not make out such a defence.
Although it was submitted on behalf of the defendant that the material put before the authorised justice in respect of 25 March 2000 would also be sufficient to satisfy the authorised justice of a breach of s.125(3) of the Act, which prohibits a person from selling or supplying liquor to any person who is at the time in a state of intoxication, I do not accept that this is correct. However, the prima facie breaches of ss.116B(1)(c)and (2)(c) could properly be regarded as serious.

(ii) The information concerning 27 December 1999 was no doubt directed at establishing a breach of s.125E of the Act. That section is concerned, inter alia, to prohibit the possession, use or sale of prohibited drugs on licensed premises. However, in order to establish any of the offences under this section it must be shown that the licensee permitted the acts proscribed by the section or that a servant of the licensee or a person, other than the licensee, in charge of the premises permitted the licensed premises to be used for the possession, use of sale of any substance that such servant or person suspects of being a prohibited plant or prohibited drug.

Section 125E(2) and (2A) and s.126(2) of the Act make it an offence for certain categories of persons to permit licensed premises to be used for the sale of stolen goods or drugs or substances suspected of being prohibited drugs or the playing of unlawful games. Each of these sections uses a common phrase, namely: “a servant of a licensee or a person, other than the licensee, in charge of licensed premises shall not permit …”. In determining whether or not an offence under s.125E(2) or (2A) has been committed it is necessary to determine whether the words “in charge of licensed premises” qualify not only “a person other than the licensee”, but also “a servant of the licensee.” Put another way, the question is: do the sections make it an offence for any servant or only a limited category of servants to act in the manner proscribed? In my opinion, it is the latter. The words “in charge of licensed premises” qualify both a servant of a licensee and a person other than the licensee.
My reasons for so concluding are that a servant who was not in charge of the licensed premises would not ordinarily have the power to prevent the licensed premises being used for one of the activities proscribed by the sections. He would not ordinarily have the authority to command a person to cease doing such an act. Nor would he have the authority to require such a person to leave the licensed premises ( Deatons Pty Limited v Flew (1949) 79 CLR 370). Having no power to prevent particular conduct, it could not be said that an ordinary servant permits to occur particular conduct which such servant cannot prevent.
In view of this conclusion, taken alone, the material placed before the authorised justice in respect of 27 December, 1999 would not be sufficient to satisfy a reasonable person that a breach of s.125E of the Act had occurred on the licensed premises on that date.


(iii) The facts put before the authorised justice in respect of 13 November 1999 would appear to be directed at establishing the same general types of offences dealt with paragraph 62(ii) above. Moreover, merely observing plastic bags containing white residue on the floor would not be a sufficient basis for satisfaction in relation to any of the offences under s.125E. Similarly the fact that trained police officers observed persons “snorting white substances in the toilet” would not of itself be sufficient to establish that the licensee, servant or other person referred to in the section had permitted the possession, use or sale of any prohibited drug on the licensed premises.

(iv) The information provided to the authorised justice in respect of 2 August 1999 is different from that relating to the two preceding dates. The information went to “the availability of booths” in the premises which were being hired to patrons for a fee of $200. The precise nature of the booths is not detailed and whether they were used on this particular date is not clear from the material annexed to the application. The statement that “the booths would be used to administer prohibited drugs” does not establish that they were so used and given an absence of observation of the kind referred to in respect of 13 November 1999, I do not think that the material concerning 2 August 1999 taken alone would be sufficient to establish in the mind of a reasonable person satisfaction as to a breach of s.125E of the Act.

(v) The information provided to the authorised justice concerning 15 July 1999 would appear to be directed towards establishing the sale of substantial parcels of prohibited drugs on the licensed premises. Taken alone there is nothing in the material relating to this date to establish that there was any permission from the licensee or other relevant person referred to in s.125E. Therefore taken alone the material would not be sufficient to satisfy a reasonable person that breaches of s.125E of the Act had been committed.

(vi) The material concerning 29 May 1999 is in a like situation. It is vague and does not assert that the licensee or servant or other person in charge of the licensed premises had permitted the possession or use of cocaine in the Embassy Nightclub.

(vii) The material concerning 8 May 1999 is in a different category. The information was not merely that cocaine was being used in the Embassy Nightclub, but that it was being used in booths that were suitable for the administration of prohibited drugs and were hired out to patrons for $200. From that material an inference could be drawn that prima facie either the licensee or a servant or other person in charge of the licensed premises was permitting that part of the licensed premises to be used for the possession and use of a substance suspected of being a prohibited drug. This would be sufficient, prima facie, to satisfy a reasonable person of a breach of s.125E of the Act. Such a breach could, in my opinion, properly be regarded by such a person as serious.

(viii) The material relating to 30 April 1999 taken alone would not indicate an offence under s.125E. The employee referred to in the information is clearly not the licensee and is not said to be a servant or person in charge of the licensed premises.

(ix) The material placed before the authorised justice relating to 3 June 2000, whilst not specifying the date or dates on which the alleged offences occurred in respect of which the six breaches were issued, would be capable of satisfying a reasonable person that underage drinking had occurred at the Embassy Nightclub on or about that date in breach of s.116B of the Act.
(xi) The further events of 3 June 2000 put before the authorised justice would be adequate for a reasonable person to be satisfied that cocaine and methylamphetamine had been sold on the premises that night. Furthermore the observation by police of “a female sitting in a booth located near the DJ box and snorting a substance with the aid of an instrument similar to a tube or pipe whilst in the presence and apparent observation of a security officer employed by the Embassy Nightclub” is material from which a reasonable person could be satisfied that the licensee, servant or person in charge of the premises by doing nothing, e.g. not giving and enforcing instructions to security personnel to prevent such an act, was permitting it. Prima facie that would constitute an offence under s.125E of the Act.

(x) The material relating to 29 April 2000, although showing a serious state of affairs in relation to the availability of drugs in the Embassy Nightclub and the commission of serious drug offences on such premises, does not of itself implicate the licensee or a servant or person in charge of the licensed premises. Taken alone it would not, in my opinion, be sufficient to satisfy a reasonable person, that persons in the relevant categories permitted the possession or use on the licensed premises of a substance that such persons suspected of being a prohibited drug or drugs. It would not therefore of itself be sufficient to found a satisfaction concerning the commission of an offence under s.125E.

(xii) The events of 17 June 2000 which involved undercover police making purchases of cocaine and ecstasy at the Embassy Nightclub would be sufficient to satisfy a reasonable person that a serious drug offence had occurred in the relevant licensed premises. However, taken alone they would not be a sufficient basis for a reasonable person to be satisfied that the licensee, servant of the licensee or other person in charge of the premises had permitted the possession, use or sale on the licensed premises of a substance that was suspected of being a prohibited drug.

(xiii) The statement put before the authorised justice in respect of 23 June 2000, was sufficient to produce satisfaction in a reasonable person that a serious offence had occurred at the Embassy Nightclub, namely that a sale of a drug that was probably ecstasy had been made to undercover police operatives. However, that a member of the bar staff was seen to be continually negotiating with other males in the toilet area and to be continually sniffing in a manner consistent with the self-administration of cocaine, taken alone, would not be sufficient material on which a reasonable person could be satisfied that the licensee or servant or other person in charge of the licensed premises permitted the possession, sale or use on the licensed premises of a substance suspected of being a prohibited drug.

63    Whilst a single act, event or circumstance may not of itself be sufficient to establish some other act, event or circumstance which must accompany the first act, event or circumstance if breach of a relevant law is to be established, the addition of further acts, events or circumstances may provide circumstantial evidence or material that may give rise to proof of knowledge or other relevant state of mind. In Martin v Osborne (1936) 55 CLR 367 it was said by Dixon J, with whom Latham CJ agreed, that:

“If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference … The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued … the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.” (supra at 375);

and:

“The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved.” (supra at 276)

See also Perry v The Queen (1982) 150 CLR 580 at 610-611 per Brennan J; R v Grills (1956) 73 WN (NSW) 303 at 304-305 per Street CJ).

64    This reasoning, which related to criminal prosecutions, applies with even greater force to a situation in which all that is required is for the authorised justice to be satisfied of certain matters which themselves do not have to be strictly proved as facts (George v Rockett, supra at 116; Commissioner of Police v Atkinson supra at 503-504).

65    Whilst only a limited number of the events referred to in paragraph 62 above, if taken alone, would be sufficient to cause a reasonable person to be satisfied that a serious breach of the Act had occurred on the licensed premises, taken together they could form a basis for satisfaction that there was widespread possession, use and sale of prohibited drugs in the Embassy Nightclub and that such a situation had extended over a significant period, at least something in the order of 18 months. Furthermore, the renting of the booths which were, on the material before the authorised justice, such as could be used to administer prohibited drugs and were in fact used for that purpose, could form a basis on which a reasonable person could be satisfied that the licensee or a servant or other person in charge of the licensed premises was permitting such use and possession.

66    The authorised justice was entitled to consider the totality of the material put before him. Thus, based on the frequency with which drugs were sold or used in the premises the subject of the application he could properly be satisfied that the facts asserted would not be likely to have occurred with the frequency or in the circumstances revealed, unless they were accompanied by another fact, namely that nothing was done by the licensee, or servant or other person in charge of the licensed premises to prevent the sale and use of drugs on the premises. This is especially true in relation to the circumstances in which members of the security staff whose function it was to keep order and prevent lawlessness were aware of what was occurring. In such a situation it would be open to the authorised justice to apply the maxim that silence murmurs assent and to infer relevant permission.

67    Even if such an overall or combined approach were not adopted, there was material that was put before the authorised justice which would be sufficient to satisfy a reasonable person that serious breaches of the Act had occurred on the premises. The events of 23 March 2000 and 3 June 2000 are examples.

68 From the foregoing examination of the material put before the authorised justice , I am of opinion that it was sufficient to satisfy a reasonable person that a serious breach of the Act had occurred on the licensed premises, indeed that a number of serious breaches of the Act had occurred. Furthermore, taking all matters together and having regard to the fact that they and other serious offences occurred over an extended period up to a date shortly before the application was made , I am of opinion that it was open to a reasonable person and to such justice to be satisfied that a serious breach of the Act was likely to occur on the premises in the proximate future. These conclusions mean that the first and second conditions precedent to jurisdiction under s.104A(2) were met by the material placed before the authorised justice.

B. Was the closure necessary for the purposes stated in s.104A?

69 Counsel for the plaintiffs argued that before the authorised justice could be satisfied that the making of the order was “necessary” he would have to have evidence that other means, perhaps all other means, open to the authorities had been availed of unsuccessfully. He argued in effect that the procedure provided for in s.104A was one of last resort, that the procedure under s.104A could not be resorted to as a first step and in the absence of any prosecutions for serious breaches of the Act it could not be resorted to. Furthermore, he argued that contemporaneity was of the essence of the concept of “necessary” and that it could not be said to be necessary to make an order under s.104A unless there was a serious breach of the Act that was closely proximate to the time of making of the order.

70    In support of this last mentioned submission he relied on the decision in Hindmarch and Anor v Commissioner of Police and Ors (Master Malpass, Supreme Court, 4 December 1998, unreported except in Butterworths Unreported Judgments, BC 9806455). That case was concerned with an application under s.104A of the Act for an order closing premises known as the Black Market Hotel at Chippendale. The application was triggered by an arrest in the mens’ toilet of the premises of a male person who was in possession of a semi-automatic weapon known as a Jennings J22, .22 calibre pistol. The pistol was on the premises notwithstanding that there was a metal detector scanning device which was designed to detect and was tested as capable of detecting the pistol in question. Whether the person with the pistol had passed through the detecting device with the pistol in his possession, or whether the detecting device had not been activated at the time of such a person’s entry into the premises or whether the metal detector malfunctioned or the person operating it failed, either accidentally or deliberately, to identify the pistol, was not established by the evidence put before the authorised justice. Thus no serious breach of the Act was evidenced by the incident.

71    Other matters put before the authorised justice were that:

(a) some seven months before the application was made a conflict between two bikie gangs at the premises resulted in three people being shot dead and one being wounded on the premises. This is a serious offence under the Crimes Act 1900, but not one which constitutes a breach of the Act.

(b) A serious assault had occurred inside the premises a little over three months prior to the making of the application for the order. That material of itself did not evidence a serious breach of the Act.

(c) On the occasion on which the person with the loaded automatic Jennings J22 pistol was arrested, police who attended the premises heard the sound of a cistern flushing when they announced their presence prior to arresting the male, who at the time was in a toilet cubicle with two other males. Furthermore, a search of the toilet cubicle revealed pieces of aluminium foil located behind the toilet bowls, suggesting drug use and packaging. None of this material of itself evidenced a serious breach of the Act.

72    The only breaches of the Act which were revealed by the material put before the relevant authorised justice were that patrons congregated on the roadway and footpath outside the premises, that entertainment was conducted without the entertainment authority being displayed and that there had been an unspecified breach of a security provision. The scanty material placed before the authorised justice in relation to these matters did not evidence that a serious breach of the Act was involved in any of them.

73 Against this background the Master held that the evidence produced to the authorised justice was “grossly deficient”, that the events relied upon were unrelated and not repetitive, that there was no serious breach of the Act prior to a period of some three months before the order was made and because none of the events after that time, i.e. more proximate to the date of the application, had been shown to give rise to any serious breach of the Act, the jurisdictional pre-conditions to the making of an order under s.104A were not satisfied.

74    In the course of his judgment the Master said:

“Whilst it may be a debateable area, it could be expected that Parliament had in mind there being a nexus between the breach requirements and the threat or risk requirements (viz the serious breach having a causal relationship with the threat or risk). Whatever the position may be, it could be expected to be a difficult task to satisfy the requirements where the circumstances relied upon are of some antiquity.”

75 It was this reference to “some antiquity” which counsel for the plaintiffs relied upon in support of his submission that contemporaneity was of the essence of s.104A(2)(b).

76    In my opinion the use sought to be made by the plaintiffs of the decision in Hindmarch v The Commissioner of Police (supra) is inappropriate and not well founded for a number of reasons. First, the Master did not need to decide, and did not decide, that contemporaneity was of the essence of s.104A of the Act. Second the reference to “circumstances … of some antiquity” relied upon by the plaintiffs was made in the context of a difficulty in satisfying the factual requirements of the section, rather than as an interpretation of the section to the effect that it required a close temporal association between the serious breach of the Act on the one hand and the threat or risk to the public interest on the other. Third, the statement that “it could be expected that Parliament had in mind there being a nexus between the breach requirements and the threat or risk requirements (viz serious breach having a causal relationship between the threat or risk) “was not a decision on a proposition of law by the Master. It was obiter dicta. He described such a proposition as a “debatable area”. He made this even clearer by the sentence which immediately follows the above quote, namely “whatever the position may be”. Fourth, at no point in the judgment does the Master analyse that element of the jurisdictional pre-conditions which includes the word “necessary”. No interpretation is given by the Master to the word “necessary” as it occurs in s.104A(2)(b). Fifth, to the extent that the judgment suggests the need for a causal relationship between the breach requirements and the threat or risk requirements, that is that the serious breach referred to in the first part of s.104A(2)(b) must have some causal relationship with the threat or risk to the public interest referred to in the second part of s.104A(2)(b), it is not a suggestion with which I agree. In my judgment it is not correct. Moreover it is not the ratio decidendi of the case. Furthermore, the language of the section distinguishes between the two; “serious breach of the Act”, is compared with “a significant threat or risk to the public interest”. The public interest includes offences which carry a maximum penalty of not less than 2 years imprisonment. They may or may not be serious breaches of the Act.

77 The argument by the plaintiff first referred to in paragraph 69 of this judgment, does not accord with the wording of s.104A(2)(b). That the authorised justice be satisfied that there has been a serious breach of the Act is not the only prerequisite for the making of an order. It is sufficient if such justice is satisfied that a serious breach of the Act “is likely to occur on the premises.” Satisfaction in relation to this may be arrived at even though no serious breach has yet occurred. For example, there may be information available to the authorities that a particular event which, if done in certain circumstances on licensed premises would constitute a serious breach of the Act, has been planned to occur on certain licensed premises on a particular date. Such material could of itself be capable of satisfying the initial requirements of s.104A(2)(b). Such satisfaction may more readily be arrived at in the presence of antecedent repeated serious breaches of the Act.

78 Second, the closure of the premises is directed towards preventing or reducing a significant threat or risk to the public interest. Public interest is defined in very wide terms in s.104A(3). It includes any threat to public health or safety or a risk of serious offences being committed on the premises. An order under s.104A is prophylactic; preventative not punitive. On the other hand a prosecution is directed at punishment after the event. It does not involve prevention of the event occurring. A prosecution is punitive not preventative in any direct way. Furthermore, it could well be argued by a party seeking to challenge an order made under s.104A that one or two prosecutions are not enough to demonstrate that such avenue for seeking to prevent or reduce significant threats to the public interest had been unsuccessful. If the approach adopted on behalf of the plaintiffs were to be adopted, how many prosecutions would be needed before it could be said that such approach had been unsuccessful and hence exhausted, so that resort could be had to s.104A? Or must resort then unsuccessfully be made to the remedy of injunction before resort can be had to the summary procedures under s.104A? Such an approach would effectively render s.104A nugatory. Considerations of such a kind in my opinion reinforce that the approach advocated on behalf of the plaintiffs is not mandated by the section.

79    The material placed before the authorised justice in the present case revealed that over a not inconsiderable period of time events, some of which constituted serious breaches of the Act, others of which involved acts which could be regarded as detrimental to public health, including the health of minors, had occurred and yet others of which involved serious offences under other legislation had also occurred at the Embassy Nightclub. Events of such a nature extended up to and including the month in which the order was made by the authorised justice. The material put before such justice concerning 3 June 2000 would have been sufficient for a reasonable person to be satisfied that cocaine and methyl amphetamine had been used on the premises on that night in breach of s.125 of the Act. The material relating to 17 June 2000 would have been sufficient to satisfy a reasonable person that a serious offence, namely the sale of cocaine and ecstasy, had taken place at the Embassy Nightclub on that date. The material relating to 23 June 2000, was sufficient to satisfy a reasonable person that the serious offence of sale of what was probably the drug ecstasy had occurred at the Embassy Nightclub on that date.

80    In summary, I am of opinion that the material put before the authorised justice was sufficient to satisfy a reasonable person that there was a threat to the public health from the use of the premises and a risk of serious offences being committed on such premises.

81    The dates of 3 and 17 June 2000 were Saturdays; 23 June 2000 a Friday. Furthermore, an analysis of the material put before the authorised justice shows that some two-thirds of the events referred to had occurred on Friday nights or at weekends.

82    The material presented to the authorised justice was , in my opinion, an appropriate basis on which a reasonable person could be satisfied that further events of the same or similar kind would be likely to occur on the subject premises in the near future, perhaps more likely on a Friday night and over the weekend, but on other days as well.

83 Closing the premises, albeit for a short time over a period which included a weekend would prevent such events occurring on the licensed premises during the period of closure. The events to which the material put before the authorised justice was directed were events that could properly be regarded as involving a threat to public health; for example the health of the persons who purchased and ingested the drugs. Furthermore, such events could reasonably be regarded as involving serious offences within the meaning of s.104A(3)(d) of the Act. These considerations and the fact that the relevant matters had occurred over a substantial period would justify the closure effected by the notice.

84    In these circumstances, I am of opinion that the material put before the authorised justice was sufficient to satisfy a reasonable person, and it clearly did satisfy such justice , that closure of the premises for the period in the order was necessary to prevent or reduce a significant threat or risk to the public interest in the sense referred to in paragraphs 56 and 60 above.

85 The argument on behalf of the plaintiffs that a notice under s.104A of the Act should not be used as an adjunct to a covert operation seems to me to put the cart before the horse. The covert operation involving the Embassy Nightclub revealed and provided evidence in relation to serious offences being committed on the premises and the consequential threats to public health. The minor delay in relation to the operative date of the order was consistent with ensuring that the covert operation was not compromised and that the order would have effect in relation to days of the week on which, as the material before the authorised justice indicated, serious breaches of the Act and serious offences were more likely to occur . The order was not used as an adjunct to the covert operation; rather the covert operation provided further evidence to support the making of the order.

86 The plaintiffs’ argument that an order made under s.104A may not come into effect on a date later than the date on which the order is made is not supported by the wording of the section. There is no express provision in s.104A which delimits the date on which and the time at which an order may be made to come into effect. Let it be assumed that there has been an annual event held by a particular organisation (e.g. a named gang) at particular licensed premises which annual event has always been held on a predetermined long weekend public holiday. Let it be further assumed that on each occasion such event has been held there was a serious breach of the Act which was also an offence which carried a maximum penalty of not less than two years imprisonment. Let it be further assumed that a booking has been made by the same organisation for the holding of an identical event on the licensed premises on the same public holiday, the date for which had crystalised. There is in my opinion nothing in s.104A which would prevent the making of an order in advance closing the relevant licensed premises so as to prevent the event being held, an event which carried with it a significant threat or risk to the public interest, namely of like serious offences being committed on the premises.

87 The argument that an order under s 104A may not come into effect on a date later than the date on which the order is made was put separately from, but was clearly related to, the argument concerning contemporaneity. Clearly if an order is sought by telephone the requirement of urgency in s.104B(2) will probably cause the date and time of making of the order to be closely associated in point of time with the event or situation in respect of which the order is sought. Thus if, in licensed premises in respect of which there had already been a relevant serious breach of the Act, there were to be a total blockage of the sewer servicing such licensed premises with the result that the conveniences were surcharging into the premises and were unable to be used, but the licensee persisted in using the premises without making alternative toilet arrangements, the urgency of the situation would be likely to ensure that any order made under s.104A would have immediate effect. The nature of the necessity involved in such example would bespeak a likely close proximity between the date and time of the making of the order and the date and time of its commencement. However, that arises out of the factual situation to which the statute is being applied, rather than out of a construction of a provision in the statute itself. To imply a limitation on the section of the kind advocated on behalf of the plaintiffs is not called for by the form or purpose of the section. In my opinion this argument fails.

88 The submission that serious drug offences do not involve breaches of the Act and thus do not qualify for consideration under s 104A(2)(b) is, in my opinion, erroneous. It seems to arise out of a conflation of the first part of s.104A(2)(b) and the second part of that sub-section. The first part of s.104A(2)(b) requires that a serious breach of the Act has occurred or is likely to occur. Once one of those threshold is crossed, the consideration of further breaches of the law is that which arises in relation to the significant threat or risk to the public interest. In that context the serious offences do not have to be serious breaches of the Act, or breaches of the Act at all. All that the second part of s.104A(2)(3) requires is that there should be a significant risk of offences which carry a maximum penalty of not less than two years imprisonment being committed on the premises. The possession of a trafficable quantity of prohibited drugs on the premises constitutes a serious offence. Sales of quantities of prohibited drugs are also serious offences. Both types of offences were included in the material put before the authorised justice. Such offences would therefore be material to the consideration of an application under s.104A.

CONCLUSION

89 For the foregoing reasons I am of opinion that the authorised justice had before him material which founded his jurisdiction to make the order under s.104A of the Act and that no error has been shown on his part in making such order. As a consequence the summons should be dismissed.

ORDERS

90    Summons dismissed.

91    7 August 2001

Plaintiffs to pay the defendant’s costs.

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Last Modified: 08/13/2001