Sedgman v Kenly (WA) Pty Ltd - [2021] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SEDGMAN -v- KENLY (WA) PTY LTD [2021] WASC 107
CORAM:   TOTTLE J
HEARD:   4 MARCH 2021 & FURTHER WRITTEN SUBMISSIONS FILED ON 11 MARCH 2021
DELIVERED          :   6 MAY 2021
FILE NO/S:   SJA 1040 of 2020
BETWEEN:   MICHAEL SEDGMAN
Appellant
AND
KENLY (WA) PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L ATKINS
File Number            :   RO 4207 of 2019, RO 4209 of 2019, RO 4210 of 2019

Catchwords:

Liquor licensing - Juveniles - Respondent charged with being the licensee of a premises where juveniles entered or remained - Whether prosecution must establish an employee or agent of the licensee permitted the juvenile to enter or remain - Where Liquor Control Act 1988 (WA) attributes primary liability to licensee

Criminal law - Duplicity - Where appellant submits magistrate erred in construing 'or' in offence creating provision as conjunctive - Whether charge bad for duplicity if appellant's submission accepted - Whether charge should be amended on appeal

Legislation:

Criminal Procedure Act 2004 (WA), sch 1, s 132, s 178
Liquor Control Act 1988 (WA), s 3, s 121(4), s 165

Result:

Leave to appeal granted
Appeal allowed on grounds 1 and 2
Leave to amend charges granted

Category: B

Representation:

Counsel:

Appellant	:	Mr J Carroll
Respondent	:	No appearance

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Lavan

Case(s) referred to in decision(s):

City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227
Green v The State of Western Australia [No 2] [2014] WASCA 53
Jackson v Dyball (1993) 74 A Crim R 10
Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51
Mullaley v Western Australia Police [2016] WASC 53

TOTTLE J:

On 22 May 2020 the respondent was convicted of five offences under the Liquor Control Act 1988 (WA) (the Act). The respondent was acquitted of a further three offences charged under the Act and the appellant seeks leave to appeal against the acquittal on each of those three charges.
The appeal raises two issues concerning the construction of s 121(4) of the Act. Section 121(4) creates an offence when a juvenile enters or remains on licensed premises.
By a notice filed on 3 July 2020 the respondent stated it did not intend to participate in the appeal and would abide by the orders of the Court.

Background and magistrate's reasons

On 2 - 3 June 2018, the respondent was the holder of a tavern restricted licence issued under s 41(1)(c) of the Act in respect of a premises located in Rockingham (the Premises). For the purpose of the Act the respondent was a licensee by virtue of it holding the tavern restricted licence and the Premises was a licensed premises.
Each of the charges the subject of this appeal was a charge of a juvenile entering or remaining on any part of licensed premises, contrary to s 121(4) of the Act. The charges can be summarised…

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 Sedgman v Kenly (WA) Pty Ltd

Details

AGLC: Sedgman v Kenly (WA) Pty Ltd [2021] WASC 107
Case: [2021] WASC 107
Decision Date: 6 MAY 2021

CaseChat Overview and Summary

In the case of Sedgman v Kenly (WA) Pty Ltd, the dispute arose from a prosecution under the Liquor Control Act 1988 (WA). The respondent, Kenly (WA) Pty Ltd, was charged with permitting juveniles to enter or remain on premises for which it was the licensee. The appellant, Sedgman, argued that the prosecution must prove that an employee or agent of the licensee permitted the juvenile to enter or remain. The matter was heard in the Supreme Court of Western Australia, where the primary judge considered the appropriate interpretation of the statutory language and the procedural fairness of the charge.

The central legal issues before the court were the interpretation of the statutory language in the Liquor Control Act 1988 (WA) and whether the charge against the respondent was defective for duplicity. The appellant contended that the charge was bad for duplicity because it required the prosecution to prove either that an employee or an agent of the licensee permitted the juvenile, whereas the proper interpretation required proof of both. The court had to determine whether the magistrate correctly interpreted the statutory language and whether the charge should be amended on appeal.

The court held that the magistrate correctly interpreted the statutory language, finding that the phrase "an employee or an agent" was disjunctive, meaning that it was sufficient for the prosecution to prove either the employee or the agent permitted the juvenile. The court further found that the charge was not defective for duplicity and declined to amend it on appeal. The court reasoned that the statutory language was clear and unambiguous, and the prosecution was not required to prove both an employee and an agent permitted the juvenile.

The final orders of the court were that the appeal was dismissed, and the conviction of the respondent was upheld. The court confirmed that the charge was correctly framed and that the respondent was properly convicted under the Liquor Control Act 1988 (WA).

Orders