Hartill v Vivian - [2000] WASCA 263

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HARTILL -v- VIVIAN [2000] WASCA 263

CORAM: SCOTT J

HEARD: 23 AUGUST 2000

DELIVERED : 15 SEPTEMBER 2000

FILE NO/S: SJA 1079 of 2000

BETWEEN: RUPERT JAMES HARTILL
Appellant
AND
LEONA ANNETTE VIVIAN
Respondent

FILE NO/S :SJA 1080 of 2000

BETWEEN :RUPERT JAMES HARTILL
Appellant
AND
QUALITY ENTERPRISES PTY LTD
Respondent

Catchwords:

Liquor law - General - Penal provisions - Liquor Licensing Act 1988 - Permitting a drunk person to be on licensed premises - Whether respondent corporation in existence - Milne v Thirsty Point Pty Ltd [1999] WASCA 100 - Insufficient evidence to establish intoxication - Magistrate took all evidence into account - No error demonstrated - No miscarriage of justice

Legislation:

Justices Act 1902, s 199

Liquor Licensing Act 1988, s 115, s 101, s 172

Road Traffic Act 1974

Result:

Appeal dismissed

Representation:

SJA 1079 of 2000

Counsel:

Appellant: Mr G T W Tannin & Ms M J Garnett
Respondent: Mr T F Percy QC & Ms A Farina

Solicitors:

Appellant: State Crown Solicitor
Respondent: D G Price & Co

SJA 1080 of 2000

Counsel:

Appellant: Mr G T W Tannin & Ms M J Garnett
Respondent: Mr T F Percy QC & Ms A Farina

Solicitors:

Appellant: State Crown Solicitor
Respondent: D G Price & Co

Case(s) referred to in judgment(s):

Milne v Thirsty Point Pty Ltd [1999] WASCA 100

Case(s) also cited:

Douglas-Brown v Commissioner for Police, unreported; FCt SCt of WA; Library No 950012; 16 January 1995
Holden v Sainken, unreported; SCt of WA; Library No 970700; 12 December 1997
Jackson v Dyball (1993) 74 A Crim R 10
May v Sullivan (1955) 92 CLR 654
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482

SCOTT J: By order of Hasluck J of 26 May 2000 these two appeals were heard together. As will become apparent that order was appropriate because the respondents were charged on separate complaints but with similar offences arising out of the same incident.
The first complaint in appeal SJA 1079 of 2000 alleged that the respondent, being the approved manager of the licensed premises known as the Port Kennedy Tavern, permitted Darrin Andrew Fox ("Fox") to be drunk on the licensed premises contrary to s 115(1), s 101(1) and s 172 of the Liquor Licensing Act 1988.
The second complaint in appeal SJA 1080 of 2000 alleged that Quality Enterprises Pty Ltd, being the licensee of the licensed premises known as the Port Kennedy Tavern, permitted Fox to be drunk on the licensed premises contrary to s 115(2), s 101(1) and s 172 of the Liquor Licensing Act 1988.
The two charges were heard together and ultimately both charges were dismissed, although for very different reasons.
The charge against Quality Enterprises Pty Ltd was dismissed following a submission of no case to answer because her Worship concluded that the prosecution had failed to establish the existence of the defendant. Whilst it is true that the prosecution failed to tender a certified copy of a certificate of incorporation establishing the existence of the corporate entity, her Worship appears not to have considered other evidence in the prosecution case, which was capable of sustaining the inference that the corporate entity was in existence as at the date of the alleged offence.
Had her Worship been informed of, or turned her mind to, the considerations referred to by Wheeler J in Milne v Thirsty Point Pty Ltd [1999] WASCA 100 she may have concluded that the corporate entity was in existence at the relevant time. Neither the prosecutor nor defence counsel referred to this decision in argument. In that case Wheeler J said at 5:
"The existence of Thirsty Point Pty Ltd was not proven by means of a certificate of incorporation, as provided for in s 79 of the Evidence Act. That is not the exclusive means by which incorporation may be proven. Incorporation of a company may also be proven by parole evidence: Cuevas v Freeman Motors Ltd (1975) 8 ALR 321 at 324, Lipke v Goombungee Co-operative Dairy Co Ltd [1980] St R Qd 108.
The evidence from which the incorporation and existence of Thirsty Point Pty Ltd could be inferred was as follows. It appeared by its counsel at the Court of Petty Sessions in response to a summons directed to that entity. Mr Bahr in his record of interview made reference to Thirsty Point Pty Ltd as the licensee and stated that he was a director of that company. Mrs Bahr, an employee of the respondent, said in her record of interview that 'the licence is under Thirsty Point Pty Ltd trading as Thirsty Point Liquor Store'. There were tendered before his Worship, applications for extended trading permits on a variety of dates sent to the licensing authority which were made out in the name of Thirsty Point Pty as licensee, and in one of which an CAN number was also given. There was in my view ample evidence that there was in existence a corporation by the name of the respondent."
In this case also, in my opinion, there was evidence from which the relevant inference could be drawn. The respondent, Leona Annette Vivian ("Vivian"), in the record of interview tendered in evidence spoke extensively of the existence of Quality Enterprises Pty Ltd and of her involvement with that company. In the record of interview Vivian told police officers that the licensee of the premises was Quality Enterprises Pty Ltd and that she was the approved manager. She said that she was the only director of the company. Vivian also said that the company, Quality Enterprises Pty Ltd, paid the staff on behalf of the tavern and paid her, the approved manager, as an employee of the company. In addition, Vivian accepted that as the approved manager and the sole director of the company she was responsible for the activities of the tavern.
When, at the end of the record of interview, reference was made to the charges that the police were going to prefer, it became clear that the charges were preferred against both Quality Enterprises Pty Ltd and Vivian as the approved manager. Vivian accepted that course as being appropriate.
Those factors referred to by Wheeler J in Milne v Thirsty Point Pty Ltd (supra) were also present in this case in that the company appeared by counsel in the Court of Petty Sessions and the licence under the Liquor Licensing Act 1988 which related to the premises at the relevant time, was in the name of the corporate entity, Quality Enterprises Pty Ltd with Vivian shown as the approved manager. That licence was current at the time of the events the subject of the complaint.
As I have indicated, the transcript makes clear that her Worship accepted a no-case submission in relation to the complaint against Quality Enterprises Pty Ltd because a certified copy of the certificate of incorporation of that company was not tendered in evidence. In so concluding, in my view, her worship was in error, because she failed to take into account other evidence from which the inference could be drawn that Quality Enterprises Pty Ltd was in existence at the date of the conduct alleged. However for reasons to which I will come, I have reached the conclusion that the charges against both Quality Enterprises Pty Ltd and Vivian could not be sustained in any event, so that the failure by her Worship to consider that other evidence at the end of the day, is not material.
The charge against each of the respondents has been set out earlier in these reasons. As can be seen from the complaints, in each case it was alleged that each respondent "permitted Darrin Andrew Fox to be drunk on the licensed premises".
In dealing with that aspect of the prosecution's case, her Worship concluded after a detailed analysis of the evidence: "I cannot find, on the evidence before me, sufficient evidence to find that he was drunk, at the time."
In relation to that aspect of the case, there was considerable evidence as to the intoxication of Fox, some of which pointed one way and some of which pointed the other. It is not necessary to detail that evidence in the course of these reasons other than to say that there was a considerable body of conflicting evidence on that issue. Whilst there was clear evidence that on the night the subject of the complaints, Fox was behaving in an inappropriate and abnormal manner, there was conflicting evidence as to the cause of his behaviour. As I have already said, it is not necessary to outline that evidence in detail, but significantly, in the record of interview between Vivian and the police who interviewed her, Vivian described in detail Fox's unusual behaviour, and some of the bizarre things that he was saying in the course of the evening. For example, Vivian said to the police officers that one of her staff had come and said to her husband in her hearing, "there's a weirdo at the other end of the bar. He thinks those bikies - he wants you to kick him out because he reckons the bikies have come to kill him. I think he was talking about two quite - these guys that were sitting there. He reckons the bikies are trying to kill him and he's being stupid. He wants you to evict him and/or this she said 'I don't want to serve him any more'."
There is no doubt that Fox was behaving abnormally, both in what he was saying and what he was doing, and at one stage shortly prior to his being ejected from the licensed premises, he urinated in the bar.
As I have already indicated, from the many witnesses who were called, there was conflicting evidence as to whether Fox's unusual behaviour was occasioned by drunkenness. Some witnesses testified one way and others the other, but it was common ground that Fox had been asked to drink water prior to his ejection from the licensed premises.
In dealing with the question of whether or not Fox was intoxicated, her Worship clearly concluded that she was not satisfied beyond reasonable doubt that Fox was drunk at the time. I should add that in addition to the eye-witness evidence, there was scientific evidence. Fox had been involved in a serious traffic accident some hours after his ejection from the premises, and a sample of his blood taken at 1:18 am the following day was found to contain 0.226 per centum of alcohol. which was calculated back to the time of the accident, which occurred at 11.12 pm on the previous evening, as 0.195 per cent. It is common ground, however, that such analysis which was relevant for the purposes of the Road Traffic Act 1974 had no statutory significance in relation to the Liquor Licensing Act 1988. In addition, there was no evidence as to whether Fox had consumed alcohol, and if so what quantity, between the time he was asked to leave the hotel and the time of the accident.
It is clear from her Worship's reasons that all of these aspects of the evidence were taken into account by her. Whilst it is common ground that Fox was behaving in a most unusual manner on the night in question, the conclusion was open to her Worship that the evidence was not sufficient to satisfy her that Fox was drunk at the time. It is of course quite possible that Fox was affected by drugs or other substances, and that those substances, either on their own or in combination with alcohol, may have caused him to behave as he did.
The grounds of appeal challenge a number of aspects of her Worship's decision. In particular, in relation to her finding that she was not satisfied beyond reasonable doubt that Fox was drunk, grounds 1(b) and (c) of the grounds of appeal in SJA 1079 of 2000 provide:
"(b)the learned Magistrate erred in fact and in law in finding that there was not before her sufficient evidence to enable her to find that Darrin Andrew Fox was drunk between 8.00 pm and 10.00 pm on the date of the offence;
Particulars
(i)the evidence of Andrew Skerritt that Mr Fox was loud and offensive, leaning heavily on the bar and unsteady on his feet;
(ii)the evidence of Rene Heinz that Mr Fox appeared intoxicated, had slurred speech, was swaying and unstable;
(iii)the evidence of Lindsay Huckham that Mr Fox was not standing upright, was swaying and appeared to be a bit tipsy;
(iv)the evidence of Robert James that Mr Fox was behaving aggressively, was uncoordinated, and generally appeared to be drunk; and
(v)the results of a test of Mr Fox's blood taken at 1.18 am on 10 April 2000 indicating that at about 11.10 pm on the date of the offence, Mr Fox's blood alcohol level was 0.195 [per cent].
(c)the learned Magistrate erred in law and in fact in failing to apply section 115(3a) of the Liquor Licensing Act 1988 to the uncontroverted evidence of Rene Heinz and Andrew Skerritt that they had decided that Darrin Andrew Fox was drunken at the relevant time;"
In relation to ground 1(c) of the grounds of appeal, her Worship did refer to the provisions of s 115(3) and s 115(3a) of the Liquor Licensing Act 1988 in coming to her decision (AB 219) and in my view the transcript clearly indicates that her Worship was well aware of that provision.
Sections 115(3) and s 115(3a) provide:
"(3)A person is drunken for the purposes of this Act, if the person's speech, balance, co-ordination, or behaviour is noticeably affected by liquor.
(3a)If an authorized officer or a person on whom a duty is imposed under this section decides, in accordance with subsection (3), that a person is drunken at a particular time, then, in the absence of proof to the contrary, that person is to be taken to be drunken at that time."
As to the matters contained within the particulars of ground 1(b), as I have already indicated, there was a considerable amount of conflicting evidence on the issue as to whether or not Fox was drunk. That issue was a question of fact to be resolved by her Worship after consideration of all of the evidence.
I can detect no error in her Worship's analysis of the evidence or in the conclusion that she reached in relation to that aspect of the prosecution case.
In relation to SJA 1080 of 2000, the grounds of appeal are:
"1The Applicant have leave to appeal against the whole of the decision of Mrs Bennett-Borlase SM given on the abovementioned complaint in the Court of Petty Sessions at Rockingham on the 28th day of April 2000 whereby the learned Magistrate dismissed the Complaint on the ground that:
(a)the learned Magistrate erred in law finding that there was no evidence upon which she could be satisfied of the existence or identity of the Respondent
Particulars
The following evidence was capable of establishing the existence and identity of the Respondent:
(i)Mr T Percy one of her Majesty's Counsel appeared on behalf of Quality Enterprises Pty Ltd at the hearing on 22 and 28 April 2000;
(ii)an admission was made by Leona Vivian in a record of interview conducted on 21 October 1999 that Quality Enterprises Pty Ltd was the licensee of the Port Kennedy Tavern, and that she was a director of Quality Enterprises Pty Ltd; and
(iii)tavern licence no 602-3581-6 in respect of the Port Kennedy Tavern identifying the licensee as being Quality Enterprises Pty Ltd."
In relation to those grounds of appeal, as I have already pointed out, there was evidence which, had it been taken into account by her Worship, was capable of establishing the existence of Quality Enterprises Pty Ltd. Her Worship failed to take that evidence into account or to consider the question of whether the existence of Quality Enterprises Pty Ltd could be inferred from other evidence which she had before her. It was her Worship's view that the failure by the prosecution to tender a certified copy of the certificate of incorporation of that entity was fatal to the prosecution case. I have already dealt with that issue.
Section 199(1)(b) of the Justices Act 1902 provides:
"199 Powers of Court
(1)Upon the hearing of an appeal, the Court may do one or more of the following-
(b)dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred;"
I am of the view that in relation to SJA 1080 of 2000 the appellant's grounds of appeal are made out. The learned Magistrate did err in law in concluding that there was no evidence upon which she could be satisfied of the existence or identity of the respondent. The charges against that respondent would have failed, however, for the same reasons as the charge against the respondent in SJA 1079 of 2000 has failed. For the prosecution to succeed against Quality Enterprises Pty Ltd, it was necessary to prove beyond reasonable doubt that Fox was in fact drunk on the licensed premises and as I have indicated, her Worship's finding was that the prosecution failed to prove that element of the offence beyond reasonable doubt. The case against Quality Enterprises Pty Ltd was equally deficient in that respect. It follows that SJA 1080 of 2000 should also be dismissed, notwithstanding the fact that the grounds of appeal have been made out, as no miscarriage of justice has occurred.
In the end result, both appeals will be dismissed.