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CATCHWORDS:	Conviction appeal - s 125 Liquor Act 1982 (repealed) - Reasonable steps to prevent intoxication on licensed premises
LEGISLATION CITED:	Liquor Act 1982 (repealed)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 The appellant appealed seven convictions for offences in breach of s 125 of the repealed Liquor Act1982.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.

(4A) - For the purposes of subs (4) the following are the relevant steps:
(a) asked the intoxicated person to leave the premises;
(b) contacted or attempted to contact a police officer for assistance and removing the persons from the premises;
(c) refused to serve the person any alcohol after becoming aware that the person was intoxicated.”

4. The defendant contends that the section requires proof that the licensee knows of the fact of the intoxication so as to be in a position to permit such intoxication. Without knowledge of the intoxicated person on the premises there is simply no basis for saying that he either did or did not permit such intoxication. In that regard the defendant referred to an old English authority Somerset v Wade [1894] 1 QB 574. In that case, which dealt with liquor legislation, which is in similar terms to s 125(1) of the Act, Matthew J observed:

“In a case where a defendant does not know if the person who was on his premises was in fact drunk he cannot be said to permit drunkenness.”

5. Frankly, there is nothing surprising about this finding, nor am I satisfied that its effect has been replaced by the changes in the legislation. It is not a question of mens rea as such, it involves no more than construing the words of the legislation itself. The word “permit” used in s 125(1) giving the word its usual English meaning entails a person allowing some conduct. It involves a conscious rather than unconscious decision being made as to what has happened, is happening or perhaps even what might happen. In the circumstances in my view the meaning of the word “permit” in s 125(1) of the Act requires some degree of conscious thought being applied to the question of whether an intoxicated person had been, was then or even might be in the future on the said premises. If the licensee, whether individually or vicariously, was not aware of the existence of the intoxication on the premises, it follows that he could not be said to have permitted that intoxication.

6. But, and it is a crucial qualification, that is not the only way in which the offence can be proved under this section. The section provides for further ways of establishing that the licensee permitted intoxication. It is not to say that the word “permit” has a different meaning, all it means is that the aspect of knowledge required in s 125(1) with respect to the word is presumed or deemed to be present when certain conditions are met. It might literally be a fiction but that does not mean that the section is not effective.

7. The conditions referred to are set out in s 125(4). It needs to be understood that s 125(4) only applies where intoxication is detected, therefore the provision by no means covers the whole of the scope of potential liability dealt with under s 125(1). Section 125(1)(b) can have independent operation without any reference to s 125(4). To provide just one example, s 125(1)(b) might allege some future conscious permission being provided by the licensee with respect to intoxication on licensed premises. Be that as it may, it is obvious in this case that the police were relying on a finding of intoxication and that s 125(4) would be relevant. They established, I find, in each of the seven cases before the court that intoxicated persons were on the licensed premises and consequently the police were entitled to rely on the deeming provision in the subsection. In those circumstances the defendant was required to prove either that the steps set out in subs (4A) were taken or in accordance with subs (4) “all other reasonable steps to prevent intoxication on the licensed premises were taken”.

8. The steps referred to in subs (4A) relate to what the licensee did (or perhaps more correctly should have done) after intoxication is detected on the premises. As the defendant correctly, in my view, submitted, none of these steps could actually be undertaken unless the licensee personally or vicariously was aware of the intoxication. But knowledge of the intoxication is not the only issue. At this point unless the steps set out in s 125(4A) are actually taken, then the offence in s 125(1)(b) is made out subject only to the defendant proving that he has taken all other reasonable steps to prevent intoxication. But whether or not the steps outlined in s 125(4A) are taken or not the defendant can still rely on s 125(4), that is, that he took all other reasonable steps to prevent intoxication. That defence does not require that the licensee had direct knowledge of the intoxication.

9. If it is accepted, as it must be in my view, that no matter what steps are taken it will never be possible to prevent some intoxication on a licensed premises. The real question is whether the steps taken to monitor the patrons in an attempt to ensure that intoxication does not occur, are all the reasonable steps that could be taken in the circumstances. In Rolf v Willis (1916) 21 CLR 152 Chief Justice Griffith put the matter in this way:

“In our opinion the phrase reasonable steps to prevent drunkenness means such steps as ought reasonably to be taken by way of precaution against the occurrence of drunkenness on the premises under any circumstances that may reasonably be anticipated and to prevent its continuance when its existence is discovered.”

10. The defendant in his written submissions specifically relies on s 125(4); see para 4 of the submissions. Similarly the defendant relied on that provision in the Local Court. It is a matter about which the defendant carries the onus on the balance of probabilities. In this case the defendant undertook that onus by calling evidence from a Mr Clarke. He provided an extensive statement setting out the steps that are undertaken by way of a precaution against the occurrence of intoxication and to prevent the continuance of it when it is discovered. An accurate summary of the material set out in Mr Clarke’s statement is contained in the defendant’s written submissions from para 45 to 90 and I’ll not repeat it here.

11. Mr Clarke was not called to give evidence in the Local Court hearing itself. Crucially in my view he was not cross-examined to suggest that the steps that had been taken were other than reasonable ones. Moreover there was no suggestion made to him that some other steps could have been taken to prevent intoxication. Frankly, and I am no expert, but the steps taken seemed to me to be comprehensive and reasonable. I cannot think of any obvious weakness in the steps outlined that would have better prepared for the possibility of intoxicated persons being present on the premises. But it is not for the court to make such suggestions in any case, it is a question of evidence. When as here the licensee plainly relies on s 125(4) as a defence and calls extensive evidence to support that defence, it would rarely be adequate to simply allow the evidence of the defendant to pass without any cross-examination whatsoever, unless of course the evidence provided is so woefully inadequate that it can be regarded as obvious that all reasonable steps have not been undertaken.

12. The magistrate did refer to s 125(4) relating to preventing intoxication. But, with respect, he appears to have done so in ways that mixed up that provision with the steps that are to be proved in s 125(4A). As I have noted s 125(4) provides for two separate defences, either one of which can be relied on by the defendant. I note that the Crown accepts that there are two defences created by s 125(4); see para 32 of the Crown’s written submissions. To my mind having regard to the evidence of Mr Clarke, the defendant has established to the requisite standard that he undertook all reasonable steps to prevent intoxication in relation to each of the offences. The fact that intoxication was detected does not of itself establish that those steps were not all the reasonable ones available. Section 125(4) is predicated on a finding of intoxication. The defence would not be sought to be relied on at all if intoxication had not been detected on the premises. In my view it is a complete defence to all of these charges and in the circumstances the defendant should be found not guilty of each of the offence.

13. I should note that the magistrate in his judgment made comments suggesting that he believed that some other reasonable steps could have been undertaken by the defendant to prevent intoxication. None of these matters were put to Mr Clarke. There is an issue of natural justice in making such a finding. Mr Clarke may well have had the answers and good answer to those points. In my view the findings should not have been made unless Mr Clarke was given the opportunity of answering those propositions. Clearly there were intoxicated persons found on the premises on the dates of the offences. If the police wanted to prosecute the defendant there were a number of ways in which they could have acted to strengthen their cases. It is not the court’s role to provide advice in that regard.

14. On the other hand the finding of a relatively small number of intoxicated persons on premises as vast and crowded as these does not appear to support a conclusion that despite the comprehensive plan that was in place to prevent intoxication that the licensee did not concern himself about that intoxication. In my view that was not the case. The magistrate himself noted that, “Whatever else may be proved in this case it is clear to me that this is not a case where no one bothers how the licence is exercised.” That observation was directly related to the evidence of the defendant as to the steps taken to prevent intoxication. I should also say that this decision should not be regarded as an endorsement of the plan prepared by the defendant with respect to preventing intoxication. As noted I am no expert in this regard. It is a matter for the defendant to make sure that a proper plan is in place to ensure that intoxication is not permitted on the premises. As a word of warning if it had been clear that there was widespread intoxication on the licensed premises on any particular day, it may well have been possible to infer that the defendant had not established that all reasonable steps to prevent intoxication were taken despite the plan that was in place. It could thus be concluded on the basis that whatever the plan it was plainly not working. The inference being that some other steps or ought reasonably have been taken even though the court was itself unable to identify what those steps were.

15. It is the duty of the licensee to prevent intoxication. The court does not advise the licensee any more than it does the authorities how to carry out their activities. Having said that, in the circumstances of this case I am satisfied that there was no significant evidence of widespread intoxication and consequently I am not satisfied that the intoxication detected was sufficient to displace the evidence of the comprehensive plan provided through the evidence of Mr Clarke. As previously noted proof to the requisite standard of the fact that the defendant had taken all reasonable steps to prevent intoxication as the defence to all of the charges, I am satisfied on the evidence that the defendant has made that out in each case. In each case the defendant is therefore acquitted.