Peter John O'Neill v William Robert Hughes No. SCGRG 1408 of 1992 Judgment No. 3581 Number of Pages 5 Criminal Law and Procedure

[1992] SASC 3581

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Criminal law and procedure - particular offences offences against public order - Liquor Licensing Act 5.128 - removing intoxicated or disorderly customer from licensed premises - whether "removal" requires actual physical force - whether prosecution of customer for returning within 24 hours is conditional upon complaint made by authorized person who removed customer in the first place - whether removal ineffectual unless authorized person intended to exclude customer for full 24 hour period. Liquor Licensing Act s.128(1). Shepherd v Martin (1991) 55 SASR 367, considered.

HRNG ADELAIDE, 18 August 1992 #DATE 27:8:1992
Counsel for appellant:     Mr A D Wainwright
Solicitors for appellant:    Crown Solicitor
Counsel for respondent:     Mr W Boucaut
Solicitors for respondent: Aboriginal Legal Rights
   Movement Inc.

ORDER
Appeal allowed.

JUDGE1 COX J The respondent was charged in the Port Pirie Magistrates Court on a complaint that alleged that on 11 October 1991 at Crystal Brook -
    (1) being a person who was removed from licensed
    premises namely the Royal Hotel pursuant to subsection (1) of
Section 128 of the Liquor Licensing Act 1985 re-entered said
    licensed premises within 24 hours of being removed from them:
Section 128 of the Liquor Licensing Act 1985.
    (2) behaved in a disorderly manner in a public place, namely
Brandis Street: Section 7(1)(a) of the Summary Offences Act,
    1953.
    (3) resisted a member of the police force in the execution of
his duty: s.6 of the Summary Offences Act 1953. 2. He pleaded not guilty. The case was tried by a Stipendiary Magistrate. His Honour found that there was a case for the respondent to answer. The respondent gave evidence and called witnesses. The learned Magistrate then gave judgement. He accepted the prosecution witnesses but dismissed the charges. On the first count he found that the prosecution was misconceived - the facts alleged and proved by the appellant did not bring the case within s.128 of the Liquor Licensing Act. The second and third counts, in his Honour's view, were dependent on the first and fell with it. The appellant complains that the Magistrate misinterpreted s.128 and that he was in error in treating the three counts as interdependent. Hence the appeal. 3. Section 128 of the Liquor Licensing Act reads -
    "(1) An authorized person may, if necessary, use
    reasonable force to -
    (a) remove from licensed premises any person who is
    intoxicated or behaving in an offensive or disorderly manner;
    or
    (b) prevent the entry of such a person onto licensed
    premises.
    (2) A member of the police force shall, at the request of a
    licensee or a manager of licensed premises, exercise the power
    conferred by subsection (1) in relation to a person who is
    behaving in an offensive or disorderly manner or is intoxicated.
    (3) a person removed from licensed premises under subsection
    (1) who re-enters the licensed premises within 24 hours of being
    removed from them is guilty of an offence.
    (3a) A person -
    (a) who is refused entry to, or prevented from entering,
    licensed premises by an authorized person on the ground that he
    or she is behaving in an offensive or disorderly manner or is
    intoxicated;
    and
    (b) who enters or attempts to enter the licensed premises
    within 24 hours after entry is so refused or prevented, is
    guilty of an offence.
    (4) A member of the police force may arrest, without warrant,
    any person who commits an offence against subsection (3).
    (5) In this section - "authorized person" means -
    (a) the licensee or an employee of the licensee;
    (b) the manager of the licensed premises;
    or
(c) a member of the police force." 4. The evidence showed that on Friday evening, 11 October 1991, the respondent entered the main bar of the Royal Hotel. He was intoxicated and was behaving in a way that could well be regarded as offensive. He was noisy and abusive and bellicose towards other customers, although it is fair to say that some of those customers were abusing him as well. The licensee (Modystach) was in the bar. He knew the respondent. He decided that, because the respondent was getting loud and was picking on his customers, he ought to be removed; otherwise there might be a fight. He approached the respondent and said, "Come on, Billy, that's enough. Get out." The respondent argued at first. The command was repeated and the respondent complied. As he was leaving Constable Nicholson, who was in the bar and had seen what was going on, went across to the licensee and the appellant near the door and said, "You are not allowed to return, Billy, for 24 hours because you have been asked to leave. If you come back in here tonight you will have committed an offence." The respondent, pausing only to abuse the licensee again, left the bar. Ten minutes or so later he returned to the bar and Nicholson arrested him. He resisted the arrest. 5. That summary conforms, I think, with the learned Magistrate's reasons. While he had some sympathy for the respondent he accepted the prosecution witnesses in preference to the defence witnesses. He nevertheless dismissed the first count on the ground, it seems, that even if the licensee was actually exercising the power given to him by s.128 - and his Honour appears to have some doubt about that -, the only person who could take action against the respondent for returning within the prescribed period of 24 hours was the licensee.
    "Having been told to leave the premises by the authorized
    person in Modystach and having returned to those premises I
    would have thought that it must be the same authorized
    person or similar who has to do the complaining ... I would
    have thought that for Nicholson to be acting lawfully he
    must first ask the publican if he wanted the defendant
arrested for a breach of S.128, rather than take it upon
    himself to arrest the defendant. By saying that I make
    absolutely no criticism of the action of Constable
    Nicholson. However, in my mind, he had no authority
    to do what he did and I therefore find that the prosecution
    has not proved its case and accordingly I dismiss count 1 on
    the complaint for that technical reason. It therefore
follows, I \presume, that counts 2 and 3 fall..." 6. With all respect to the learned Magistrate, I think he has put a gloss on the words of s.128 for which there is no justification. If an authorized person lawfully removes a customer by virtue of the power conferred by sub-s.(1), then the customer's return within 24 hours of the removal will constitute an offence under sub-s.(3) regardless of the attitude of the authorized person. To hold otherwise would be to promote in many cases confusion and uncertainty. For instance, the authorized person, be he licensee or hotel employee or police officer, may not be present when the customer comes back. The words of the sub-section should be taken at face value, without reading any implied qualification into them. Mr Boucaut, who appeared for the respondent in this Court, did not argue otherwise. 7. Mr Boucaut argued that the learned Magistrate nevertheless came to the correct decision. There was no removal of the respondent within the meaning of sub-s.(1), because he was not subjected to any physical force, and in any case the licensee did not intend to exclude the respondent from the hotel for 24 hours and so could not be said to have acted in exercise of his s.128 powers. 8. Section 128 was considered by the Full Court recently in Shepherd v Martin
(1991) 55 SASR 367. It was submitted for the defendant in that case than the notion of "remove" in sub-s.(1) required some degree of physical compulsion. It was not necessary to decide the point in Shepherd v Martin because, in the view of the Full Court, there was a degree of physical involvement, anyway, in the escorting of Mrs Martin from the hotel. However, it seems clear from the evidence that the respondent in the present case left peaceably and without anyone actually laying hands upon him. The fact that sub-s.(1) authorizes the use of reasonable force in the removal of the customer does not imply that there cannot be a removal without force. Indeed, it might be argued that the implication is to the contrary. Be that as it may, "remove" is a protean expression. It may as a matter of ordinary usage connote the use of force, perhaps in some contexts it clearly will, but this will not always be the case. I do not think it is here. It would be socially undesirable to hold otherwise. As the Full Court observed in Shepherd v Martin, the interpretation for which the respondent contends would put a discount on politeness. It would tend to provoke a breach of the peace - one of the very things that s.128 is obviously designed to avoid. In my opinion, there may be a removal within the meaning of s.128 without any application of physical force to the person concerned. 9. That does not mean that there are no necessary formalities about the exercise of the statutory power. A mere request to a customer to leave the hotel is unlikely to be enough to bring the case within the section. It must be plain that the customer has been required to leave, that he has no choice in the matter. The compulsion, often with an implied threat of force, will usually be apparent from the circumstances. That was the case here. The licensee went up to the appellant and spoke to him in peremptory terms. He said two or three times, "Get out." The respondent said, "I'm going", and it was about this time when Constable Nicholson approached and said, "You are not allowed to return, Billy, for 24 hours because you've been asked to leave. If you come back in here tonight you will have committed an offence." There was no suggestion from the licensee that this was not what he had in mind at all, that he was not coercing the respondent but merely making a polite request that the respondent could comply with or not as he pleased. Quite the contrary. In my opinion, notwithstanding the absence of any actual physical force, what happened amounted to a removal of the respondent from the hotel within the meaning of s.128. 10. I should say that Mr Boucaut also submitted that there was no relevant removal in this case because the licensee was not shown to have intended to exclude the respondent from the hotel for a period of 24 hours. It may be that this particular licensee thought it significant that he did not use the term "ban" to the respondent or say expressly that the respondent was not to return. He may have considered that he had some sort of discretion in the matter. Nevertheless the unqualified words he directed to the respondent ("Get out") and his actions, judged objectively, coupled with the respondent's compliance, amounted to a removal within the meaning of s.128, as I have held, and I do not think it matters that the licensee might have had an imperfect understanding of his statutory power and the precise legal consequences for the respondent. I have already noted the construction that Nicholson put on the licensee's words when he addressed the respondent at the bar door. It summarized the position under s.128 correctly. The licensee heard what Nicholson said and apparently acquiesced in his interpretation of what was being done. I do not think there is any substance in this ground. 11. For these reasons the appeal against the dismissal of the first count must succeed. 12. The other counts can be dealt with quite briefly. It is obvious that the charge of resisting arrest was dismissed because it related to a purported arrest for an offence under s.128 that the learned Magistrate considered that the respondent had not committed. No other criticism was made of the prosecution case on this count. I think the dismissal of this count must also be set aside. 13. That leaves the charge of disorderly behaviour in the street outside the hotel. It does not appear that any particulars were given of this count, which is a pity because it is very difficult from the evidence to understand precisely what the police allegation was. Mr Wainwright, correctly in my view, abandoned this aspect of the Crown appeal during the course of the argument. 14. The appeal must be allowed and the order of dismissal and consequent orders set aside in the case of counts 1 and 3. The appeal on count 2 is dismissed. The matter is remitted to the learned Magistrate to continue the hearing of the complaint in accordance with this judgement.