Oakley, J.C. v Luff, P.m

[1987] FCA 128

Re: JULIAN CHRISTOPHER OAKLEY
And: PAUL MICHAEL LUFF
No. ACT G11 of 1986
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Neaves J.
Miles J.

CATCHWORDS

Criminal Law - Liquor Ordinance 1975 (A.C.T.) - Offence for holder of permit to sell liquor to a person under the age of 18 years - Permit may be issued by Registrar of Liquor Licences or, in his absence, by the Deputy Registrar - Document issued by officer assuming to act in the matter and describing himself as "Acting Registrar of Liquor Licences" - Whether prosecution had established that defendant was the holder of a permit.

Liquor Ordinance 1975 (A.C.T.), ss.15, 63, 80, 103

HEARING

CANBERRA

#DATE 25:3:1987

Counsel for the appellant : Mr P.L.R. Sheils Q.C.

Solicitors for the appellant : Julian Oakley & Co.

Counsel for the respondent : Mr R.C. Webster

Solicitor for the respondent : The Director of Public Prosecutions

ORDER

The appeal be allowed.

The order of the Supreme Court of the Australian Capital Territory made on 19 February 1986 be set aside and in lieu thereof order that the appeal to that Court be dismissed, the order nisi therein be discharged and the decision of the Court of Petty Sessions dismissing the information laid by Paul Michael Luff against Julian Christopher Oakley and the order of that Court that Paul Michael Luff pay the costs of Julian Christopher Oakley in the sum of $700.00 be affirmed.

The respondent pay the appellant's costs of the appeal to this Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of the Supreme Court of the Australian Capital Territory given in proceedings by way of review from a decision of the then Court of Petty Sessions dismissing an information laid by Paul Michael Luff (the present respondent) against Julian Christopher Oakley (the present appellant). The Supreme Court held that the learned Magistrate erred in dismissing the information and remitted the matter to the Magistrates Court with a direction that the offence charged in the information had been found proved

1. The information alleged that on or about 26 February 1983 the appellant committed an offence against s.103 of the Liquor Ordinance 1975 (A.C.T.) ("the Ordinance") in that he, being the holder of a permit to sell liquor, sold it to a person under the age of 18 years contrary to s.80(1) of the Ordinance.

2. One of the issues before the Supreme Court was whether the respondent had established that the appellant was the holder of a permit under the Ordinance. The question arose in this way.

3. Section 63 of the Ordinance provides that, subject to s.64 to which it is unnecessary to refer, where an application has been made in accordance with s.62, the Registrar of Liquor Licences is to issue to the applicant the permit sought by him. An application for the issue of a permit is to be made by lodging with the Registrar an application in accordance with the prescribed form signed by the applicant and paying the prescribed fee (s.62). Section 15(1) empowers the Minister to appoint a person who is an officer or employee of the public service to be Registrar of Liquor Licences. The Minister may also appoint a Deputy Registrar of Liquor Licences (sub-s.15(3)). Sub-section 15(4) provides:
   
   

"When the Registrar is absent from duty or from the Territory, the Deputy Registrar may exercise the powers, and shall perform the duties, of the Registrar under this Ordinance."

1. What was relied upon to establish that the appellant was the holder of a permit was a document so described bearing date 17 February 1983 and signed by James Gregory Browne. Mr Browne was described in the document as "Acting Registrar of Liquor Licences".

2. It is common ground that, at all relevant times up to 22 February 1983, the respondent was the Registrar of Liquor Licences duly appointed by the Minister under sub-s.15(1) of the Ordinance. On that date his appointment was duly revoked and Mr Browne was appointed Registrar. Between 14 February 1983 and 22 February 1983 the respondent was on leave. On 17 February 1983 when the document purporting to be a permit was signed, Mr Browne had not been appointed pursuant to s.15 of the Ordinance either to the office of Registrar or to the office of Deputy Registrar.

3. In those circumstances, the Supreme Court concluded, a conclusion with which we, with respect, agree, that the document purporting to be a permit was issued by a person who lacked the requisite authority to do so. The Supreme Court, however, went on to conclude that the issue of the permit was valid as the act of a de facto officer and that the appellant thereby became liable to the duties of a holder of such a permit.

4. With respect, we are unable to agree with this conclusion. It was an essential ingredient of the offence charged that the appellant was the holder of a permit. It was necessary for the respondent to prove that essential ingredient and he could not satisfy the onus which rested upon him in that regard by the mere production of the document purporting to be the relevant permit. By describing the person purporting to issue the permit as "Acting Registrar of Liquor Licences" the document showed on its face that it had been issued by a person having no authority to do so. In such circumstances the presumption of regularity is of no assistance.

5. Counsel for the respondent relied upon what has been called the "doctrine of de facto officers". Even if it be ever possible to rely on that doctrine to establish an essential ingredient of a criminal offence, a matter upon which we need not here express a view, the necessary foundation for reliance on the doctrine in this case has not been established. No evidence was adduced before the Court of Petty Sessions or before the Supreme Court to establish that there had been a purported appointment of Mr Browne to any relevant office. It is consistent with the evidence that Mr Browne had simply assumed to perform the duties of the Registrar.

6. On this ground, the appeal should be allowed. Other grounds of appeal were argued by the appellant but, in the light of what has been said, it is unnecessary to consider them further. In taking that course, however, we should not be taken as doubting the correctness of the conclusions reached by the Supreme Court in relation to those matters.

7. The appeal is allowed and the decision of the Supreme Court is set aside. In lieu thereof it is ordered that the appeal to the Supreme Court be dismissed with costs, the order nisi therein be discharged, the decision of the Court of Petty Sessions dismissing the information laid by the respondent against the appellant and the order of that Court that the respondent pay the appellant's costs in the sum of $700.00 be affirmed. The respondent must pay the costs of the appeal to this Court.