Mondello v McEwan
[2004] WASCA 225
•1 OCTOBER 2004
MONDELLO -v- McEWAN [2004] WASCA 225
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 225 | |
| Case No: | SJA:1069/2004 | 27 SEPTEMBER 2004 | |
| Coram: | JENKINS J | 1/10/04 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Order of dismissal quashed, Matter remitted to the Court of Petty Sessions Geraldton | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN EZIO MONDELLO GLADYS MAE McEWAN |
Catchwords: | Liquor Sale of liquor to a juvenile Defence under the Liquor Licensing Act 1988 (WA), s 125(1)(c) not applicable to an offence on licensed premises Whether respondent properly charged as the licensee of the licensed premises |
Legislation: | Liquor Licensing Act 1988 (WA), s 3, s 35, s 35B, s 100(3)(a), s 100(7), s 101(1), s 101(2), s 121(1), s 122, s 125, s 125(1)(c), s 165(1), s 172(1)(c) |
Case References: | Anderson v Basile [1979] WAR 53 Belel Pty Ltd v Baxter [2001] WASCA 225 Nelson & Ors v Bond, unreported; SCt of WA (White J); Library No 930343; 17 June 1993 Abalos v Australian Postal Commission (1990) 171 CLR 167 Bropho v State of Western Australia (1990) 171 CLR 1 Devries v Australian National Railways Commission (1993) 177 CLR 472 Dorrington v G (A Child) (1992) 16 MVR 453 Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 Fox v Percy (2003) 214 CLR 118 Hayes v Wilson; ex parte Hayes [1984] 2 Qd R 114 Hedge v Thurstun [2001] WASCA 43 Higgon v O'Dea [1962] WAR 140 Holden v Sainken, unreported; SCt of WA (Scott J); Library No 970700; 12 December 1997 Jones v Hyde (1989) 85 ALR 23 Kalgoorlie Regional Traffic Control v Fostinelli [1974] WAR 3 Keeley v Kjellgren (1966) WAR 149 Mathews v Foggitt Jones Ltd (1926) 37 CLR 455 Meiklejohn v Central Norseman Gold Corporation (1996) 89 A Crim R 311 Mitchell v Myers (1955) 57 WALR 49 Mousell Brothers Ltd v London and North-Western Railway Company [1917] 2 KB 836 R v Australasian Films Ltd (1921) 29 CLR 195 Surman v South Australian Police (1996) 65 SASR 421 Thompson v His Honour Judge Byrne (1999) 196 CLR 141 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 Trade Practices Commission v Gillette Company (No 2) (1993) 45 FCR 466 Waugh v Kippen (1986) 160 CLR 156 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
GLADYS MAE McEWAN
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : DR KING SM
File Number : GN 3933 of 2003
Catchwords:
Liquor - Sale of liquor to a juvenile - Defence under the Liquor Licensing Act 1988 (WA), s 125(1)(c) not applicable to an offence on licensed premises - Whether respondent properly charged as the licensee of the licensed premises
(Page 2)
Legislation:
Liquor Licensing Act 1988 (WA), s 3, s 35, s 35B, s 100(3)(a), s 100(7), s 101(1), s 101(2), s 121(1), s 122, s 125, s 125(1)(c), s 165(1), s 172(1)(c)
Result:
Appeal allowed
Order of dismissal quashed
Matter remitted to the Court of Petty Sessions Geraldton
Category: B
Representation:
Counsel:
Appellant : Mr S M Murphy
Respondent : Mr I L K Marshall
Solicitors:
Appellant : State Solicitor
Respondent : Alison Camp
Case(s) referred to in judgment(s):
Anderson v Basile [1979] WAR 53
Belel Pty Ltd v Baxter [2001] WASCA 225
Nelson & Ors v Bond, unreported; SCt of WA (White J); Library No 930343; 17 June 1993
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Bropho v State of Western Australia (1990) 171 CLR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dorrington v G (A Child) (1992) 16 MVR 453
Douglas-Brown v Commissioner of Police (1995) 13 WAR 441
(Page 3)
Fox v Percy (2003) 214 CLR 118
Hayes v Wilson; ex parte Hayes [1984] 2 Qd R 114
Hedge v Thurstun [2001] WASCA 43
Higgon v O'Dea [1962] WAR 140
Holden v Sainken, unreported; SCt of WA (Scott J); Library No 970700; 12 December 1997
Jones v Hyde (1989) 85 ALR 23
Kalgoorlie Regional Traffic Control v Fostinelli [1974] WAR 3
Keeley v Kjellgren (1966) WAR 149
Mathews v Foggitt Jones Ltd (1926) 37 CLR 455
Meiklejohn v Central Norseman Gold Corporation (1996) 89 A Crim R 311
Mitchell v Myers (1955) 57 WALR 49
Mousell Brothers Ltd v London and North-Western Railway Company [1917] 2 KB 836
R v Australasian Films Ltd (1921) 29 CLR 195
Surman v South Australian Police (1996) 65 SASR 421
Thompson v His Honour Judge Byrne (1999) 196 CLR 141
Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715
Trade Practices Commission v Gillette Company (No 2) (1993) 45 FCR 466
Waugh v Kippen (1986) 160 CLR 156
(Page 4)
1 JENKINS J: This is an appeal from the decision of a learned Stipendiary Magistrate sitting in the Court of Petty Sessions at Geraldton on 16 June 2004 whereby he dismissed complaint no GN 3933/03 containing one count of selling liquor to a juvenile.
Ground of Appeal
2 The single ground of appeal is that the learned Magistrate erred in law in dismissing the complaint in that, having found each of the elements of the offence alleged in the complaint to have been proven, he erred in finding that the defence contained in the Liquor Licensing Act 1988 (WA) ("the Act"), s 125(1)(c) applied to the offence.
Notice of Contention
3 A week before the hearing of the appeal the respondent filed a notice of contention which contends that the decision of the learned Magistrate to dismiss the complaint was correct as the respondent:
"(a) was not on duty when the offence was alleged to have been committed;
(b) was not the licensee or the manager of the licensed premises;
(c) did not permit the sale or supply of liquor;
(d) did not sell or supply the liquor;
(e) was merely residing at the premises at the time the alleged offence was committed and not undertaking any managerial duties."
4 On these grounds the respondent seeks an order that the appeal be dismissed in any event.
Details of the Charge and Proceedings
5 The complaint alleged that on 2 August 2003 at Geraldton the respondent "being the licensee of the licensed premises known as the Blue Heelers Tavern, sold a substance, namely liquor, to a juvenile, namely Geoffrey Kevin Hancock, on the said licensed premises" contrary to the Act, ss 121(1), 165(1) and 101(1).
6 The matter was listed for hearing in the Geraldton Court of Petty Sessions on 16 June 2004. The respondent pleaded not guilty and a trial
(Page 5)
- ensued. At the conclusion of the trial, after the learned Magistrate heard submissions from the prosecutor and counsel for the respondent, he dismissed the complaint on the basis that the defence in the Act, s 125(1)(c) had been established.
Factual Background
7 The prosecution case comprised the evidence of two lay witnesses and two police officers. The two lay witnesses were Geoffrey Kevin Hancock and Brody John Smith. They each gave evidence that on 2 August 2003 they were the occupants of a car driven by Mr Smith. There were two other occupants in the rear passenger area of the car. The car had "P" plates displayed at the front and the rear of the vehicle. Mr Smith drove into the drive-in bottle shop of the Blue Heelers Tavern in Geraldton. Mr Hancock, who was seated in the front passenger seat of the vehicle, ordered a quantity of liquor from an employee of the tavern, Alexander McEwan, who also happened to be the respondent's son. He was not asked for proof of his age and he did not volunteer it. He was given the liquor and he paid for it. Mr Smith then drove off. All of the occupants of the car were juveniles. Mr Smith and Mr Hancock were each 17 years of age. Mr Hancock's and Mr Smith's evidence was accepted by the Magistrate.
8 A short distance away from the bottle shop the car was stopped by two police officers attached to the Alcohol and Drug Advisory Unit. This occurred at approximately 6.20 pm. The two police officers, Stephen Ezio Mondello and Scott William McDonald, gave evidence at the hearing. The police ascertained the above facts from the occupants of the car and then drove back to the Blue Heelers Tavern. As their evidence is important as to what occurred next I intend to set it out in full. In cross-examination Constable Mondello's evidence was as follows:
"MS CAMP: You didn't attend to the disturbance across the street prior to that - - prior to re-attending at Blue Heelers Tavern?---Yeah, you're right and I have actually no recollection of that but you have since - - you have now jogged my memory. I don't think we attended to a disturbance, we pulled up there for the purpose of speaking to the staff about the juveniles and the liquor and on arrival there was some yelling. I do recall now, there was some yelling and screaming going on across the road, which, as two uniformed officers, we couldn't ignore, and I don't recall the details of that but, you are quite right, I do
(Page 6)
- remember there was a little bit of yelling and screaming that we sorted out first.
…
MS CAMP: All right. Having recollected attending to that incident, senior constable, would you be able to say then how long it might have been before you actually re-attended at Blue Heelers and spoke to the staff there?---We pulled up at Blue Heelers and, as I say, until you mentioned this I had - - I actually had no recollection of it, but I know we pulled up at Blue Heelers - - I think we parked on the street where we generally park, popped out of the vehicle, there was some screaming and yelling going on, which I'm aware of, and we remained at the - - basically, the footpath at the entrance to the drive-through and I have no idea how long it took us to deal with that incident. I feel as though it was a matter of - - I don't know, it could have been - -anything I'm saying is a guess, but it wasn't any - - it wasn't a huge big long extended drawn out thing, it could only have been 5 or 10 minutes, I'm sure.
Mm. All right. Well, could it have been between 8.30 and 8.40 that you re-attended at Blue Heelers?---I would definitely think not, but to be - - quite honestly, my recollection of that incident was absolutely nil until you - -until you've just raised it now.
Mm hm?---But I don't remember leaving - - leaving there again. My honest recollection is that we returned straight there - -
All right--- - - dealt with the yelling and shouting match in the street and then went straight in and spoke to Alexander and [the respondent].
Have you made any note of what time you would have re-attended at the - - ?---I don't believe I made - - other than the infringement notice itself, but I think that might have the time of the offence listed on it.
Yes?---I have made notes at the time that we spoke to the drivers of the - - sorry, the driver of the vehicle.
Mm. All right. Well, the evidence from [the respondent] and Alexander McEwan today will be that their recollection is that you spoke to them; you and Constable McDonald spoke to them
(Page 7)
- at about 8.30 to 8.40 that evening, which would have been, I think, about 2 hours after the sale of the liquor?---Well, as I say, it - - I've said, my recollection is that we returned straight there; we did deal with an incident in the street and then we spoke to Alexander and [the respondent].
All right?---I'm not - - I certainly wouldn't say that they're wrong because somebody may be able to say to me, 'Steve, do you remember that you did this as well?', and it will - - I mean we're talking about an incident that happened over a year ago - -"
9 My assessment of Constable Mondello's evidence is that he did not know how much time elapsed prior to him and Constable McDonald attending at the Blue Heelers Tavern. His belief was that it was not a long period and could have been as short as five or 10 minutes. However, because he could not clearly recall he could not say that a person who suggested that he had not attended the tavern until 8.30 pm – 8.40 pm was wrong.
10 Constable McDonald gave the following evidence about the same issue:
"All right. So how long was there between seeing the vehicle then the second time, say, and re-attending at the Blue Heelers Tavern?---Well, a number of events had occurred in between; obviously we stopped the vehicle, we spoke to them, and then when we were going to attend there, we had to deal with another person in regards to another matter, which happened across at the Restaurant, also we observed another vehicle which we later stopped with regards to another matter, and then we re-attended so I can't give the exact times but it would be approximately an hour or so.
MS CAMP; So that was - - you've mentioned, I think, two other jobs, if I could put it that way, that you attended to, prior to going back to the tavern?---Well, we were actually in - - in going to the tavern and these have presented themselves and obviously being police officers we had to deal with the matter then and there.
Could it have been between around about 8.30 or 8.40 by the time you got to speak to Alexander and [the respondent]?---As I said, I'm not 100 per cent sure what time it is, I mean,
(Page 8)
- approximately at the time the infringement was issued, unfortunately, being in this location I haven't got the infringement in front of me."
11 It subsequently turned out that the infringement notice did not state the time at which it was given to the respondent.
12 I conclude from Constable McDonald's evidence that he could not give an exact time as to when he and Constable Mondello attended at the Blue Heelers Tavern but it would have been approximately an hour or so after they observed Mr Smith's car in the drive in bottle shop. There was no dispute that that was at approximately 6.20 pm.
13 The constables gave evidence that on attending at the Blue Heelers Tavern they spoke to the bottle shop attendant, Alexander McEwan. They then had a conversation with the respondent. Constable Mondello's evidence adequately sets out the substance of that conversation:
"I asked [the respondent] if George was available to speak to, and [the respondent] replied words to the effect, 'George is not here tonight', or 'George is not here. I'm managing the pub this evening.' I asked [the respondent] if she gave her staff instructions in relation to asking for identification and proof of age, and [the respondent] said that she has instructed her staff to ask for identification in any instance where the staff member thought somebody may be under 18. I then had a conversation with - - a brief conversation with Constable McDonald, and he issued Alexander McEwan with a liquor infringement notice, charging him with selling liquor to a juvenile on a licensed premises.
Constable McDonald then issued [the respondent] with an infringement notice, using the provisions of the Liquor Licensing Act. In particular, sir, we considered 101 and 165. I then said to [the respondent] that if George wished to speak to us about the incident, that he could contact us at the police station, or that we would pop back down to the hotel and speak to him there. [The respondent] asked us not to speak to George, because he'd be very angry, and she said that she would prefer to tell him in her own time and in her own way."
14 The learned Magistrate accepted the constables' evidence of the conversation that they had with the respondent. In the above conversation
(Page 9)
- "George" is a reference to the licensee of the Blue Heelers Tavern, George Edward Roberts.
15 Four witnesses gave evidence on behalf of the respondent. The first was Alexander McEwan, the respondent's son. He admitted to selling alcohol to Mr Hancock at approximately 6.20 pm. In respect to the lapse of time between the sale and the attendance of the police Mr McEwan's evidence was as follows:
"Okay. What do you recall of that incident?---A car came through, I served them, the police came a half - - or - - police came a bit later and said that they were under age and they were charging me with serving them - - someone under age."
16 Mr McEwan gave evidence that he did not know who was the manager of the tavern when this incident occurred. He said that the respondent was the manager of the bottle shop and that she was the one that he answered to all the time. As far as he was concerned the respondent and Mr Roberts were his bosses at the time. Retracting somewhat from the earlier evidence he had given, he said that he could not recall the elapsed time between when he sold the liquor and when the police attended and spoke to him. He said that it was not straight away.
17 The respondent was the second witness for the defence. She gave evidence that at the relevant time she was in her flat at the tavern cooking tea. She said that she worked at the tavern during the day and that she was off duty probably between the hours of 5.00 pm and 8.00 pm whilst she was cooking and eating her evening meal. She said that she left the flat and went to the bottle shop between 6.00 and 6.30 pm to get a packet of cigarettes but she then returned to the flat to finish cooking her meal. It was accepted that she lived in a flat at the tavern with Mr Roberts in a de facto relationship.
18 The respondent acknowledged that she did all of the administrative work for the hotel and if the licensee was not there she would deal with whatever needed to be dealt with.
19 The respondent said that at about 8.00 pm she came back on duty and spoke to her son. She said that they saw the police dealing with another incident over the road and that when they were finished the officers came and spoke to her and her son. She said that they spoke first to her son and she relieved him in the bottle shop whilst that occurred. As to the conversation that took place between her and the police officers she gave the following evidence:
(Page 10)
- "All right; and what did you - - what did the police ask you when you - - when they first spoke to you?---When they first spoke to me they said that they'd charged Sandy and they said, 'Who's in charge? Is George here?' And I said, 'George is not here – he's down the flat – and I'm in charge at the moment.'
MS CAMP: Okay. So, where was George at that time?---He was down in the flat.
Okay; and what happened after you'd had that discussion with the police?---I went back down and told George that Alexander and myself had both been charged with serving the minor.
Okay. Now, when you were given the infringement notice by the police did you have any - - did you say anything to them?---When I read the infringement notice it said that I allowed my staff to serve alcohol to a juvenile and I did say to Constable McDonald that I couldn't accept it because I hadn't allowed that to happen. I was down in my flat cooking tea. I wasn't even there at the time it happened.
Right; and what time did you understand the offence had happened?---At about half past six.
All right; and when did you become aware of - -?---Twenty past six.
- - of that fact - - of that matter?---Just - - I don't really recall when I became aware of that matter, that - - that it had happened at half past six because it was about quarter past eight, twenty past eight when I was actually charged with it.
HIS WORSHIP: Who was in charge of the premises at twenty past six that evening?---George was.
MS CAMP: And have you at any stage informed the police officers that you weren't in charge of the premises at the time the offence is alleged to have occurred?---Yes. When they gave me the infringement notice at half past eight or twenty past eight I told them that I wasn't there at that time, I was cooking tea in the flat."
20 In cross-examination the respondent denied that she had given the police the answer that she asserted she had given them in
(Page 11)
- examination-in-chief. Rather, she said that she did not recall the police asking to speak to George. She said that at 6.20 pm that evening George would have been somewhere in the hotel but he was not with her in the flat.
21 The third witness for the defence was the licensee, Mr Roberts. He gave evidence that he was at the tavern on 2 August 2003 doing general duties. He said that from approximately 4.30 pm onwards he was in the bar area. He testified that he knew that at approximately 6.00 pm the respondent went to cook tea and that he stayed running the hotel until she advised him that the meal was ready. He said that he was in charge of the hotel at about 6.20 pm on 2 August. He said that he believed that they had their meal sometime after 7.00 pm and that he remained sitting in the dining room doing book work whilst the respondent returned to the hotel, and in particular the bottle shop.
22 In cross-examination he said that shortly after 8.30 pm the respondent came to see him and told him that she and her son had been charged. It seems that Mr Roberts has a farm and he denied being at the farm after lunch time that day.
23 The final witness for the defence was Philip Adrian Arlow who was a current bottle shop attendant at the tavern. He was on duty between 10.00 am and 5.00 pm on 2 August 2003 and at the latter time the respondent's son commenced work.
24 There was evidence given by the defence witnesses in respect to the sale of the liquor and purported compliance with the Act, s 125(1)(c). There is no need for me to detail that evidence because it is irrelevant to the issues raised in the appeal.
The Magistrate's Reasons
25 Immediately following the close of the evidence and submissions the Magistrate gave his reasons for decision. After referring to the sections specified in the complaint and the definition of licensee in the Act, s 3 the learned Magistrate concluded that it would be proper to allege in the complaint that the respondent was the licensee of the premises if the evidence established that she was permitted by the licensee to conduct, supervise or manage the business carried on under the licence.
26 He then referred to the evidence of Mr Roberts to the effect that he was the licensee and manager pursuant to the Act, s 35. He also referred to his evidence that he was in a de facto relationship with the respondent
(Page 12)
- and that together they ran the hotel. He concluded that the Act, s 101(1) was broad enough to cover not only a person appointed under the Act as a manger but a person permitted by the licensee to conduct, supervise or manage the business. Thus it was broad enough to encompass the situation where Mr Roberts is the licensee and manager but at the same time permits the respondent to be involved in the conduct, supervision or management of the business.
27 He then found the facts in accordance with the evidence of Mr Hancock and Mr Smith. He concluded that "on the face of it" an offence of supplying liquor to a juvenile was committed. He then found:
"I consider that the [respondent] comes within the provisions of the section as I have stated, given the interpretation section of the Act and the other sections to which I have referred earlier; and also having regard to a conversation that took place between the police officers attending and the [respondent]."
28 He then considered the discrepancies in the evidence between the police officers and the respondent and concluded, as he was entitled to do, that the conversation took place as stated by the officers.
29 The learned Magistrate then referred to the Act, s 125. Although he did not refer to a particular subsection it is clear that he was considering subsection (1)(c). It is also clear that he accepted that the subsection applied to the complaint. After considering the meaning of the phrase "proper diligence", which appears in the subsection, and the evidence called by the respondent he concluded that "proper diligence" had been shown and that it was, therefore, appropriate to dismiss the complaint.
Resolution of the Ground of Appeal
30 The appellant asserts that the Act, s 125(1)(c) does not apply to licensed premises and, by its terms, only applies to regulated premises.
31 The Act, s 125(1)(c) states as follows:
"(1) It is a defence to a complaint for an offence against this Division relating to the sale or supply of liquor to a juvenile to show –
…
(c) where the offence is alleged to have occurred on regulated premises, if the defendant is the
(Page 13)
- licensee, occupier or manager of the regulated premises and did not personally sell or supply the liquor, that –
(i) the business was not conducted in such a way as to entice juveniles to the part of the premises where the liquor was sold, supplied or consumed; and
(ii) that proper diligence was exercised to prevent the sale, supply or consumption of liquor in contravention of this Division."
32 Plainly for the subsection to apply to an offence it must be alleged to have occurred on regulated premises. "Regulated premises" are defined by the Act, s 3, to mean premises to which the Act, s 122 applies. Section 122 commences with the following words:
"(1) For the purpose of this Act premises which are not licensed premises but which are of any of the kinds following are deemed to be regulated premises."
33 The plain meaning of these provisions is that the Act, s 125(1)(c) does not apply to an offence which is alleged to have occurred on licensed premises.
34 The Act, s 3 defines "licensed premises" to mean:
"The premises specified or defined by the licensing authority in relation to a licence, protection order or permit as the building or place to which that licence, order or permit relates."
35 There was no issue between the parties at the hearing of the complaint that the offence was alleged to have taken place at the Blue Heelers Tavern and that the tavern, including the drive-in bottle shop, were licensed premises. The prosecution did not adduce formal evidence of this element but as I have said there was no dispute between the parties that the sale of the liquor occurred on licensed premises. As the respondent's counsel conceded at the hearing of the appeal the appellant was entitled to rely upon the averments in the complaint. The Act, s 172(1)(c) states that in proceedings for an offence under the Act an allegation in the complaint that any premises named in the complaint were on a specified date licensed premises shall be accepted as proof of that allegation in the absence of proof to the contrary. The respondent did not
(Page 14)
- adduce evidence contrary to the averment in the complaint that the place where the relevant sale of liquor took place was the licensed premises known as the Blue Heelers Tavern. Consequently I am satisfied that the offence was alleged to have taken place on licensed premises and that the evidence established that the offence, if it was committed, took place on licensed premises. Thus the Act, s 125(1)(c) did not apply to it.
36 The respondent sought to rely upon a single Judge decision of this Court in the matter of Nelson & Ors v Bond, unreported; SCt of WA (White J); Library No 930343; 17 June 1993. That case determined an appeal against a conviction for an offence under the Act, s 121(1)(c) of selling liquor to a juvenile on licensed premises. The appeal turned on the construction of the Act, s 125(1)(c). The respondent does not appear to have disputed the applicability of the Act, s 125(1)(c) to the offence. Consequently there is no discussion in the case as to whether it did or did not apply to the offence and the appellate Judge appears to have assumed that it did.
37 The respondent in this case asserts that as the learned appellate Judge applied the defence in Nelson (supra), so the learned Magistrate was correct in applying it to the present case at first instance. The appellant points out that the Act, s 125(1)(c) was differently worded when Nelson (supra) was decided. The difference being that in 1993, subsection (c) commenced with the words "if the defendant …" whereas the words "where the offence is alleged to have occurred on regulated premises …" have now been inserted at the commencement of the subsection. Whatever was the position in 1993, I am satisfied that the subsection presently only applies to offences alleged to have occurred on regulated premises which by definition do not include licensed premises. Consequently the decision in Nelson (supra) does not govern this appeal.
38 For these reasons the ground of appeal has been made out.
Resolution of the Notice of Contention
39 Thus I must consider whether in any event the appeal ought to be dismissed because the respondent has made out the matters in the notice of contention.
40 The notice of contention asserts that as the evidence from the respondent and Mr Roberts was to the effect that the respondent was not on duty at the time Mr McEwan sold liquor to Mr Hancock and as she was not the licensee or manager of the tavern she could not be found guilty of the offence contained in the complaint. I do not need to consider
(Page 15)
- subparagraphs (c) and (d) of the notice of contention because the appellant has never alleged that the respondent could be found guilty on either of these two bases.
41 Before turning to the facts I will set out the relevant provisions of the Act. The offence creating provision is the Act, s 121(1) which states:
"(1) Subject to this Act, where liquor is sold or supplied to a juvenile on licensed premises –
(a) the licensee;
(b) the manager of the licensed premises;
(c) any other person by whom the liquor is sold or supplied; and
(d) any person who permits the sale or supply,
each commit an offence."
"(1) Where under this Act –
(a) a requirement is made of a licensee; or
(b) an element of an offence is an act or omission on the part of a licensee,
a person appointed as manager, or permitted by the licensee to conduct, supervise or manage the business carried on under the licence on any premises is responsible as though that person were also a licensee of those premises and is liable accordingly, and a complaint may be made out against the person for the offence."
(Page 16)
- "(2) A person who is not a manager of licensed premises but is permitted by a licensee to conduct, supervise or manage the business carried on under the licence, shall, for the purposes of any prosecution for an offence under this Act arising out of the conduct of the business, be deemed to be, and is liable as though that person were, the manager of the premises concerned."
44 These sections must be read in light of the definition of the Act, s 3 which defines "licensee" as follows:
"'licensee' means a person who holds a licence or permit under this Act, includes a person who is authorised under section 86 or 87 to carry on business under a licence or as if that person were a licensee, and may in accordance with section 101 include a reference to a person appointed or permitted to conduct, supervise or manage the business."
45 On the basis of these provisions the Magistrate concluded that it was proper to allege that the respondent was the licensee of the premises if the evidence established that she was permitted by Mr Roberts to conduct, supervise or manage the business carried on under the licence.
46 It is implicit that the learned Magistrate's reasoning was that the Act, s 101(2) provided that the respondent was deemed to be and was liable as though she were the manager of the tavern if, although not a manager as defined in the Act, she was nonetheless permitted by Mr Roberts to conduct, supervise or manage the tavern. In turn, the Act, s 101(1) provided that an element of an offence, under the Act, s 121(1) was an act or omission on behalf of the licensee, in this case Mr Roberts, or it made a requirement on Mr Roberts then, as a deemed manager pursuant to the Act, s 101(2) she would be liable for the offence under the Act, s 121(1) as though she was a licensee of the tavern. I do not see any error in this reasoning.
47 The respondent submits that the Act, s 101(1) does not apply as the offence created by the Act, s 121(1) does not contain an element that is an act or omission on the part of a licensee and neither does it make a requirement of a licensee.
48 This issue is not without doubt. The respondent did not cite any authority for its contention. The appellant cited Anderson v Basile [1979] WAR 53 at 54 per Burt CJ for the opposite view. In that case Burt CJ said that a charge which alleged that an absentee proprietor had sold
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- adulterated food under the Health Act was not alleging a sale by an employee for which the defendant was vicariously liable but rather was alleging a sale by the defendant in the sense that he legally sold the food. His Honour made the point that it was still the employee who physically sold the food. Applying Burt CJ's reasoning to the sale of liquor, the prohibited act or omission under the Act, s 121(1)(c), would be that of the employee not the licensee. Consequently Anderson does not appear to assist the appellant in establishing that the Act, s 121(1) contains an element of the offence that is an act or omission on behalf of the licensee. However, it may provide some support for the view that an offence creating provision of this nature imposes a requirement on a licensee even though it is not alleged that the licensee physically sold or supplied the liquor. It would impose a requirement in the sense that it required licensees not to sell or supply liquor to juveniles, in the legal sense of selling or supplying.
49 In this respect the appellant relies upon the Act, s 165(1). It is a standard vicarious liability provision. It does not attribute an employee's or agent's acts or omissions to the licensee, rather it deems the licensee liable for any offence committed by an employee or agent. The appellant's contention is that this provision read with the Act, s 121(1) places a requirement on the licensee not to sell or supply liquor even though the physical act of selling or supplying liquor is done by an employee or agent.
50 The appellant also relies upon the single Judge decision of Belel Pty Ltd v Baxter [2001] WASCA 225 at [26] – [28]. In that case Templeman J decided that it was open to the Magistrate in that case to convict a defendant manager, on the basis of the Act, s 101 and s 165(1), of an offence where the relevant act was committed by an employee. However his Honour did not articulate why that would be so.
51 There are a number of different meanings of "requirement". The most apposite definition is "that which is called for or demanded; a condition that must be complied with" contained in the Shorter Oxford English Dictionary. After considering this definition, the above cases and the wording of the relevant sections I conclude that the Act, s 121(1) imposes a requirement on a licensee in that by creating an offence by a licensee of selling or supplying liquor to a juvenile it imposes a condition or demand on licensees not to sell or supply liquor to a juvenile.
52 Thus, the Magistrate was correct to hold that the respondent may be found guilty of the offence as charged if she was permitted by Mr Roberts
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- to conduct, supervise or manage the business carried on under the licence and a sale of liquor to a juvenile took place when she was so permitted.
53 However, that leaves the question as to what facts it was necessary for the Magistrate to find in order to conclude that as at 6.20 pm on 2 August 2003 the respondent was permitted by Mr Roberts to conduct, supervise or manage the tavern. In this respect it is not clear to me that the Magistrate made sufficient findings of fact. In his reasons for decision, the learned Magistrate concludes that the respondent had management responsibilities at the tavern. He appears to find that this is sufficient to prove that she was permitted by Mr Roberts to conduct, supervise or manage the tavern. The appellant concedes that the Magistrate's express findings in this regard would not be sufficient. The appellant's counsel stated that the appellant's case was that the respondent would only be liable for the offence if Mr Roberts was not at the tavern as at the time the sale of the liquor took place and that the respondent was permitted by him to manage the business in his absence. The appellant submits that it is implicit in the Magistrate's findings that he found that Mr Roberts was so absent. I do not agree. It may be that is the case but there is an alternative view which is that the Magistrate thought that Mr Roberts may have been present but that because the respondent was sharing the management responsibilities on this particular evening then that would be sufficient for proof of the offence against her, even if she was cooking a meal at the time the offence took place.
54 I acknowledge that the Magistrate went on to find that he preferred the police officers' version of the conversation between themselves and the respondent and that he also relied upon this conversation to find that the respondent was permitted to conduct, supervise or manage the tavern. However, as the respondent's counsel submits, such a finding is not equivalent to a finding that Mr Roberts was absent from the tavern as at 6.20 pm. What the respondent admitted in that conversation was that she was managing the tavern that "evening" and that as at the time the police spoke to her Mr Roberts was not "here". Some questions remain unanswered. First, by "evening" what hours did she mean? Did the "evening" include the time prior to her return to duty after her evening meal or not? Secondly, when she told the police that Mr Roberts was not "here" did she mean that he was not at the tavern at 6.20 pm? Further, did she mean that he was not in the tavern but in the flat or did she mean that Mr Roberts was away? Alternatively, was she lying to stop the police from speaking to Mr Roberts that evening and telling him her son had committed this offence? It is properly the role of the Magistrate to answer these question and may be others as he has the advantage of seeing and
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- hearing the witnesses. Consequently, the matter should be remitted to him to determine according to law.
55 Although it is unnecessary for me to decide as the appellant's case was and still is that Mr Roberts was absent at the time the relevant sale took place, my view is that as a matter of law the Magistrate was not required to find that Mr Roberts was absent from the tavern, including the flat, at the time the sale occurred in order to convict the respondent. Clearly if the Magistrate found that Mr Roberts was absent, the conclusion that the respondent was permitted by him to conduct, supervise or manage the tavern at that time would be easier to arrive at. However, even if he was present in the flat, it is my opinion that the offence could still be made out. In that case there would have to be evidence to enable the Magistrate to conclude beyond reasonable doubt that despite Mr Roberts' presence in the flat he had permitted the respondent to conduct, supervise or manage the tavern on her own at the time the sale of liquor occurred.
56 I have come to this view because pursuant to the Act, s 100(3)(a) and the definition of "manager" in the Act, s 3 a manager is a person who has been approved as a manager under the Act, s 35B (which is not applicable to the respondent) or a person, in the absence of the approved manager or where there is no such manager, who has been appointed by the licensee to manage the premises for a period of not more than seven days. There is a further clause to subsection 3 which is not relevant. The Act, s 100(7) provides that a manager, presumably as defined by the Act, may, under s 101, be liable as though that person was also a licensee of the premises. In view of that provision and the Act, s 101(1) I can see no work for the Act, s 101(2) unless the type of person there referred to is not a manager as defined by the Act but rather a de facto manager, that is one who has been permitted, by a licensee to conduct, supervise or manage a business carried on under the licence, albeit contrary to the provisions of the Act relating to the appointment of managers. This interpretation accords with commonsense. It would be anomalous if a de facto manager, as I have described such a person, could avoid liability under the Act as a deemed manager or deemed licensee simply because they had not been properly appointed. If a licensee permits someone to act as a manager and that person assumes the responsibilities of a manager it would seem to me to be consistent with the objects of the Act to hold them liable as if they were the manager and deemed licensee of the premises concerned and that this is one of the purposes of the Act, s 101.
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57 On the other hand, it is clear that under the Act there can only be one manager at any one time. The learned Magistrate's findings appear to me to be consistent with a view that the respondent could have been on duty and permitted by Mr Roberts to conduct, supervise or manage the tavern at the same time as he was also on duty. This is not a conclusion that is open under the Act.
Conclusion
58 For these reasons, the appeal should be allowed and the matter remitted to the Court of Petty Sessions at Geraldton to be heard according to law.
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