Mark Malcolm Mader v Regina

[2017] NSWDC 100

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Mark Malcolm Mader v Regina [2017] NSWDC 100
Hearing dates:	26 April, 8 May 2017
Date of orders:	10 May 2017
Decision date:	10 May 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The appeal against conviction is allowed. 2 I set aside the conviction and the penalty imposed by the Magistrate
Catchwords:	CRIMINAL LAW – conviction appeal – liquor licensing – failure to properly display prescribed notice – failure to comply with conditions of license – compliance with regulations – advertisement APPEAL – conviction – not guilty – interpretation – legislative provisions – regulations PROCEDURAL – de novo hearing - evidence – notice of motion to adduce fresh evidence – refusal of magistrate to admit evidence – witnesses recalled OTHER – alcohol – shot
Legislation Cited:	Crimes (Appeal and Review) Act 2001 s.18(1) Liquor Act 2007 ss.3, 11(2), 91, 149 Liquor Regulation 2008 Cl. 53ZA, 53ZB, 53ZC Liquor Amendment (Sydney CBD Entertainment Precinct Plan of Management) Regulation 2014
Cases Cited:	Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Dyason v Butterworth [2015] NSWCA 52 AG v Director of Public Prosecutions [2015] NSWCA 218 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Certain Lloyds Underwriters v Thelander (2012) 87 ALJR 131 O’Sullivan v Truth and Sportsman Limited (1957) 96 CLR 220 Smith v Day [2003] NSWCCA 159 Newcastle City Council v GIO General Limited (1997) 191 CLR 85 Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531 Boyle v Smith [1906] 1 KB 432 Commissioner of Police v Cartman [1896] 1 QB 655
Category:	Principal judgment
Parties:	Mark Malcolm Mader (Appellant) Regina (Respondent)
Representation:	Counsel: Mr R Hood (Appellant)     Solicitors: Sylvester & Browne Lawyers (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/00020293
Publication restriction:	None

Judgment

Mark Malcolm Mader (the appellant) appeals against the conviction entered by her Honour Magistrate McIntyre at the Downing Centre Local Court on 22 August 2016. The appellant was convicted of one count of Licensee fail to comply with conditions of a licence contrary to section 11(2) Liquor Act 2007.

1. The appellant was the licensee of licensed premises known as the Midnight Shift Hotel located at 85-91 Oxford Street, Darlinghurst (the hotel). The hotel is located within the Sydney CBD Entertainment Precinct and as a result its licence is subject to the conditions provided for by Liquor Amendment (Sydney CBD Entertainment Precinct Plan of Management) Regulation 2014. Clause 53ZC Liquor Regulation 2008 provides:

The licensee of CBD subject premises must not promote or publicise or cause to be promoted or publicised by any means (at the CBD subject premises or elsewhere):

1. the supply of any free or discounted drinks (including but not limited to, a “shot”, a “shooter” or a “bomb”) that are designed to be consumed rapidly at the CBD subject premises, or

2. any inducement (such as a prize or free giveaway or similar incentive) to purchase any drink designed to be consumed rapidly at the CBD subject premises.

2. Between 15 November 2015 and 20 November 2015 the hotel’s Facebook page advertised an R&B Hip Hop Ladies night referred to as “Climax” intended to take place on 20 November 2015. In the picture and the text, there was contained a promotion of a “$5 shot”. A “shot” is a drink designed to be rapidly consumed, usually in one mouthful. The shot relevant to these proceedings is a mixture of vodka and schnapps served in a shot glass. The hotel usually charged $9 for the drink.

3. On 20 November 2015 Constable Claxton saw the hotel’s Facebook page and went to the hotel to investigate. At the hotel he spoke to the duty manager, Kamal Rad. Mr Rad told Constable Claxton that he was unaware of the promotion. He showed Constable Claxton that the shot was entered in the point of sale system used by the hotel at its usual price of $9 and not at the promoted price of $5. He told Constable Claxton that the marketing and promotions manager, Penny Clifford was responsible for maintaining the hotel’s Facebook page. Mr Rad removed the promotion of the event from the hotel’s Facebook page whilst Constable Claxton was speaking to him.

4. On 1 December 2015 Constable Claxton conducted an interview with the appellant. The questions and answers were typed during the course of the interview and signed by the appellant at the conclusion of it. The appellant told the police that Penny Clifford was responsible for the maintenance of the Facebook page. He usually checked it about once per week. He stated that Ms Clifford did not have his or the operations manager’s permission to advertise the shots at a discounted rate.

5. The police did not try to speak to or interview Ms Clifford.

The relevant law

6. The applicable principles to be applied in determination of the appeal are as follows.

7. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].

8. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].

9. Whilst the magistrate’s reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].

10. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

11. The powers of the District Court are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28].

12. The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason.

13. The term “error” has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of “error” in the ordinary meaning of that term: AG at [34] per Basten JA.

Analysis of the Magistrate’s reasons

14. The Magistrate decided that the Licensee was responsible for the actions of Ms Clifford, describing that as a matter that was “obvious” and necessary as a matter of community expectation.

15. The Magistrate did not make any attempt to interpret the words of the Liquor Act 2007 or the Liquor Regulation 2008 according to the relevant principles to determine what was required to constitute a breach of the licence condition. The Magistrate fell into error by failing to do so.

16. There was no dispute on the evidence and the Magistrate made no relevant credit findings. I am in the same position as the Magistrate to make the determination that is required in this appeal.

Material considered in the appeal

17. The prosecution tendered the transcript of the proceedings before the Magistrate together with the Exhibits before the Local Court.

18. Sergeant Thompson and Constable Claxton were called and cross-examined pursuant to leave granted to lead fresh evidence on the appeal by her Honour Judge Sweeney on 20 February 2017.

19. The crux of the cross-examination was to the effect that the police did not seek to interview or to make any enquiry of Ms Clifford, before commencing proceedings. The police proceeded on the basis that the appellant as licensee of the hotel was responsible for what was published on the Facebook page.

Consideration

20. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] the plurality of the High Court stated:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of provision, in particular the mischief it is seeking to remedy. (footnotes omitted)

21. In Certain Lloyds Underwriters v Thelander (2012) 87 ALJR 131 at [24] French CJ and Hayne J stated:

the context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all provisions of the statute”. That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are sure guides to its meaning than the logic with which it is constructed”. (footnotes omitted)

Contextual analysis

22. The sale or supply of liquor to the public is regulated by the Liquor Act 2007. The Act grants licences to persons who are fit and proper persons to act as licensees. Hotel licences relevantly authorise the sale of liquor by retail on the licensed premises for consumption on the licensed premises. Licence conditions are imposed by the licence pursuant to a decision of the Independent Liquor and Gaming Authority (ILGA), the Act and the Regulations. A licensee must comply with the any conditions to which the licence is subject: section 11(2) Liquor Act 2007. A failure to observe a condition of the licence subjects the licensee to a criminal sanction of a fine of $11,000, 12 months imprisonment or both.

23. Section 3 Liquor Act 2007 provides:

(1)   The objects of this Act are as follows:

(a)   to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community,

(b)   to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality,

(c)   to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries.

(2)   In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following:

(a)   the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour),

(b)   the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor,

(c)   the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life.

24. Section 91 Liquor Act 2007 provides that a licensee is responsible at all times for the personal supervision and management of the conduct of the business of the licenced premises under the licence. If the licensee is a corporation the licensed premises must have an authorised manager, who is responsible in the same way as a licensee. Section 91(2) provides that if it is an element of an offence under the Act or regulations is an act or omission of the licensee that the manager is responsible for the offence as if he or she was a licensee.

25. Section 149 Liquor Act 2007 provides that the licensee is guilty of an offence if an employee or agent of the licensee in contravention of the Act or Regulations sells or supplies liquor on the licensed premises.

The proper construction of clause 53ZC Liquor Regulation 2008

26. The text of clause 53ZC of the regulations is a provision seeking to limit the activities of the licensee, in that the licensee must not promote or publicise a drink designed to be consumed rapidly or cause such a drink to be promoted or publicised. So much is evident from the ordinary meaning of the words used.

27. The Act in section 91(2) contemplates that an element of certain offences under the Act or regulations is an act or omission of the licensee.

28. An examination of the regulations that apply to Sydney CBD subject premises demonstrates that some of the regulations are directed towards control of the activities of the licensee whilst others are directed towards the licensee “or a staff member”: for example clause 53ZE requires a licensee to maintain a register to record certain events and clause 53ZH requires the licensee or a staff member to exclude a person from entry to premises if the staff member sees the person drinking in an alcohol prohibited area outside the premises. Others are stated in terms of prohibition without specifying a person that is the subject of the prohibition: for example clause 53ZA requires the removal of glass from patrons in the general late period and clause 53ZB prohibits the sale of certain drinks in the general late trading period.

29. The use of the word “cause” must be considered to be deliberate by the drafter of the regulation.

30. The use of the word cause in a regulatory offences context was considered by the High Court in O’Sullivan v Truth and Sportsman Limited (1957) 96 CLR 220. The applicable principles can be summarised as follows from the judgment of the plurality at 228 as follows (footnotes omitted). If the charge is of causing an act to be done, it must be shown that the accused had knowledge of the facts. Before a person can be convicted of causing an act he or she must be in a position of control so as to be able to decide whether the act should be done or not and it must be established that he or she gave some order, command, direction or authority to the person doing the act. Causing an act requires the prohibited act to be done with actual or implied authority of the party said to have caused it, or by exerting some capacity the person has in fact or law to control or influence the acts of another. The person must desire that the prohibited act will occur.

31. O’Sullivan has been followed in all but one of the cases it was cited in. In Smith v Day [2003] NSWCCA 159 it was distinguished. In that case the Court of Criminal Appeal decided that in the context of the particular statutory provision that cause meant “to procure or to bring about”, but it did not express any reservations about the correctness of the other applications referred to in O’Sullivan.

32. The provision is intended to encourage and implement harm minimisation by not promoting the rapid consumption of liquor on licensed premises. The provision seeks to ensure that licensees do not promote that activity by publicising the discounting of those types of drinks. The imposition of the prohibition on the licensee is consistent with achieving the object of harm minimisation. In other words the contextual analysis of the provision does not suggest a reading of the provision that is other than required by the plain language of clause 53ZC. No such alternative reading was put forward by the parties.

Application of clause 53ZC

33. It was common ground that the Facebook posts promoted or publicised the supply of discounted shots at the hotel. The question for determination was whether the appellant promoted or publicised the discounted shots or if he caused them to be promoted or publicised.

34. The prosecution did not call evidence to prove that the appellant:

1. was responsible for the promotion of the shots via the publication of the Facebook page; or

2. authorised the promotion of the shots via the publication of the Facebook page and that he wanted that to occur.

35. The only evidence before the Court was what Mr Rad and the appellant told the police in response tho their enquiries that Ms Clifford published the Facebook page and that she was not authorised to promote and publicise the discounted shots. The police did not challenge that evidence by seeking to obtain any information from Ms Clifford. I accept the evidence of both Mr Rad and the appellant as to those matters.

36. It follows that there is no evidence that the appellant promoted or publicised the discounted shots on the hotel’s Facebook page.

37. There is also no evidence that he caused that to occur, by reference to the understanding of that term provided for in O’Sullivan. I would also not be satisfied that he procured or brought about that result, if the interpretation of the word “cause” in Smith is to be adopted, which I do not accept as appropriate in this case.

Were the actions of Ms Clifford sufficient to find the appellant responsible for the offence?

38. The Magistrate accepted below and the prosecution argued on the appeal that the appellant could commit the offence because he was responsible for the actions of Ms Clifford, without more. I do not agree for the reasons that follow.

39. First, for the reasons I have given the ordinary meaning of the words used makes it an element of the offence that the publication had to have been made by the licensee or have been caused to be made by the licensee. The use of the word “cause” covers the situation where the licensee is not the publisher. The licensee must have knowledge and exert authority to bring about the promotion or publication that he or she wants to occur.

40. Second, the use of the word “cause” introduces a limited opportunity for the licensee to be liable for acts of others, including his or her employees. There was no evidence called by the prosecution as to the extent of Ms Clifford’s authority or the other relevant matters.

41. Third, section 149 of the Act does not apply to clause 53ZC because the prohibition does not involve the sale or supply of liquor on the licensed premises.

42. Fourth, whilst section 91 of the Act makes the licensee personally responsible for the management of the conduct of the business of the licensed premises it recognises that there are offences in the Act and the regulations for which an element of the offence is an act or omission of the licensee. I am of the view that clause 53ZC is one such provision.

43. Fifth, the meaning of the language used by the legislature by reference to context cannot be construed in a tortured and unrealistic manner to cover another meaning that is not open: Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113 per McHugh JA, cited with approval in Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531 at [39].

44. Sixth, a licensee is not in general liable for the illegal act of a servant or agent unless it is committed within the scope of their instructions or authority: Boyle v Smith [1906] 1 KB 432 and Commissioner of Police v Cartman [1896] 1 QB 655. The prosecution did not lead any evidence as to the authority of Ms Clifford. For the reasons I have already stated, I am satisfied that she acted outside of the scope of her authority.

Conclusion

45. The evidence is not capable of supporting a finding beyond reasonable doubt that the appellant was in breach of clause 53ZC Liquor Regulation 2008.

46. The orders I make are as follows:

1. The appeal against conviction is allowed.

2. I set aside the conviction and the penalty imposed by the Magistrate.

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Amendments

11 May 2017 - Catchwords - amending description of shot

Paragraph 2 - amending description of shot

Decision last updated: 11 May 2017