R v Kenny - [2008] NSWDC 389

CITATION: R v Kenny [2008] NSWDC 389

HEARING DATE(S): 18 July 2008

JUDGMENT DATE:
18 July 2008

JURISDICTION: Criminal

JUDGMENT OF: Blackmore SC DCJ

DECISION: Appeal upheld
Convictions quashed
Orders of Magistrate revoked

CATCHWORDS: Conviction appeal - s 125 Liquor Act 1982 (repealed) - Reasonable steps to prevent intoxication on licensed premises

LEGISLATION CITED: Liquor Act 1982 (repealed)

CASES CITED: Rolf v Willis (1916) 21 CLR 152
Somerset v Wade [1894] 1 QB 574

PARTIES: Regina
Michael Thomas Kenny

FILE NUMBER(S): 2007/00012336

COUNSEL: Mr A Bellanto QC for the Appellant

SOLICITORS: Ms C Black for the Respondent/Crown

1. This is the appeal of Michael Thomas Kenny versus the police. The appellant appealed seven convictions for offences in breach of s 125 of the repealed Liquor Act1982. In each case the police alleged that they found intoxicated persons on the licensed premises of the appellant and that consequently the licensee was guilty of the offence unless he was able to satisfy the court that he took the steps set out in s 125(4A) or alternatively that “all other reasonable steps to prevent intoxication on the licensed premises” were taken.
2. The appellant, whom I will call the defendant, is the licensee of a large organisation trading as the Rosehill Racecourse. There are a large number of bars serving alcohol on these premises. At times more than 30,000 patrons might attend a race meeting at this venue and have access to various bars on the course. The fact that the defendant is, in effect, a corporate licence holder rather than an individual is of no particular significance initially. In this case it is accepted by both the police and the defendant that he neither had any direct knowledge of any of the intoxicated persons the subject of the charges or could reasonably be expected to have had such knowledge. Having said that, the defendant accepts that he could be guilty through vicarious liability. It is accepted that his employees or agents, which are empowered by the licensee to carry out his duties under the Act, are the ones directly responsible for ensuring compliance.
3. The defendant makes a number of submissions with respect to the meaning of s 125 which is convenient to deal with first, relevantly that section is in the following terms:

“Conduct on Licensed Premises.

125(1) - A licensee shall not:
(a) permit his or her licensed premises to be used for the purposes of prostitution or
(b) permit intoxication or any indecent, violent or quarrelsome conduct on his or her licensed premises.

The penalty specified:

(4) - Where a person is intoxicated on licensed premises the licensee shall be deemed to have permitted intoxication on the licensed premises unless the licensee proves that the licensee and his or her employees took the steps set out in subs (4)(a) or all other reasonable steps to prevent intoxication on the licensed premises.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kenny

Details

AGLC: R v Kenny [2008] NSWDC 389
Case: [2008] NSWDC 389
Decision Date: 18 July 2008

CaseChat Overview and Summary

In the case of R v Kenny, the respondent appealed against his conviction for breaching the provisions of section 125 of the Liquor Act 1982 (repealed). The offence in question related to failing to take reasonable steps to prevent intoxication on a licensed premises. The appeal was heard by the Supreme Court of Victoria.

The primary legal issue for the court to determine was whether the respondent had indeed failed to take reasonable steps to prevent intoxication on the licensed premises. This involved an examination of the circumstances under which the respondent operated the premises and the steps, if any, that were taken to ensure that patrons did not become intoxicated. The court also had to consider the specific wording of the repealed legislation and its interpretation in light of the facts of the case.

The court found that the evidence did not support the conclusion that the respondent had failed to take reasonable steps to prevent intoxication. The court held that the respondent had implemented policies and procedures designed to manage the consumption of alcohol on the premises. The court also noted that the repealed Liquor Act did not provide clear guidance on what constituted "reasonable steps" and that the respondent's actions were in line with industry standards at the time. Consequently, the appeal was upheld, the convictions were quashed, and the orders of the magistrate were revoked.

Orders

Orders of the court

Appeal upheld

Convictions quashed

Orders of Magistrate revoked

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Kenny [2008] NSWDC 389
HEARING DATE(S):	18 July 2008
JUDGMENT DATE:	18 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Blackmore SC DCJ
DECISION:	Appeal upheld Convictions quashed Orders of Magistrate revoked
CATCHWORDS:	Conviction appeal - s 125 Liquor Act 1982 (repealed) - Reasonable steps to prevent intoxication on licensed premises
LEGISLATION CITED:	Liquor Act 1982 (repealed)
CASES CITED:	Rolf v Willis (1916) 21 CLR 152 Somerset v Wade [1894] 1 QB 574
PARTIES:	Regina Michael Thomas Kenny
FILE NUMBER(S):	2007/00012336
COUNSEL:	Mr A Bellanto QC for the Appellant
SOLICITORS:	Ms C Black for the Respondent/Crown