STARKIE v Van Tobruk
[2007] WASC 51
•9 MARCH 2007
STARKIE -v- VAN TOBRUK [2007] WASC 51
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 51 | |
| Case No: | SJA:1069/2006 | 23 NOVEMBER 2006 | |
| Coram: | BLAXELL J | 8/03/07 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL LESLIE STARKIE HERMANN JOHANNES VAN TOBRUK RENDEZVOUS HOTELS MANAGEMENT PTY LTD RADAMESSO DE LUCA |
Catchwords: | Criminal law Appeal from Magistrate's finding that no case to answer Four charges of supplying liquor to a drunken person on licensed premises Person allegedly drunk was seated at all times Whether or not there was evidence that the person was "noticeably affected" by liquor within the meaning of s 115(3) of the Liquor Licensing Act 1988 |
Legislation: | Liquor Licensing Act 1988 (WA), s 115 |
Case References: | Morrison v Kwik Electrix Pty Ltd (1998) WAR 482 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
HERMANN JOHANNES VAN TOBRUK
Respondent
- Appellant
AND
RENDEZVOUS HOTELS MANAGEMENT PTY LTD
Respondent
- Appellant
RADAMESSO DE LUCA
Respondent
ON APPEAL FROM:
For File No : SJA 1069 of 2006
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P HEANEY
File No : PE 30135 - 30138 of 2005
For File No : SJA 1070 of 2006
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P HEANEY
File No : PE 30143 - 30146 of 2005
For File No : SJA 1071 of 2006
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P HEANEY
File No : PE 30139 - 30142 of 2005
Catchwords:
Criminal law - Appeal from Magistrate's finding that no case to answer - Four charges of supplying liquor to a drunken person on licensed premises - Person allegedly drunk was seated at all times - Whether or not there was evidence that the person was "noticeably affected" by liquor within the meaning of s 115(3) of the Liquor Licensing Act 1988
Legislation:
Liquor Licensing Act 1988 (WA), s 115
Result:
Appeal dismissed
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Category: B
Representation:
SJA 1069 of 2006
Counsel:
Appellant : Mr G T W Tannin SC & Mr S Nunn
Respondent : Mr P D Evans
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Freehills
SJA 1070 of 2006
Counsel:
Appellant : Mr G T W Tannin SC & Mr S Nunn
Respondent : Mr P D Evans
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Freehills
SJA 1071 of 2006
Counsel:
Appellant : Mr G T W Tannin SC & Mr S Nunn
Respondent : Mr P D Evans
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Freehills
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Case(s) referred to in judgment(s):
Morrison v Kwik Electrix Pty Ltd (1998) WAR 482
(Page 5)
1 BLAXELL J: These are appeals from the decision of a Magistrate in the Magistrates' Court at Perth that the respondents had no case to answer in respect of four charges of supplying liquor to a drunken person on licensed premises.
2 These charges were laid following the tragic death of Margaret Alice Dix at the Rendezvous Observation City Hotel, Scarborough, on 12 August 2004 as a result of a fall from a 15th floor balcony. At the time of her fall Ms Dix was in an intoxicated state, and she had previously been drinking alcohol in the Lobby Bar of the hotel.
3 The first respondent Mr Van Tobruk was the staff member in the Lobby Bar who had served Ms Dix, and over a period of approximately 1½ hours he supplied her with four vodka martinis. The charges alleged that on each of these occasions, Ms Dix was a "drunken person" within the meaning of s 115 of the Liquor Licensing Act 1988 ("the Act"). In this regard subs 115(3) provides that:
"(3) A person is drunken for the purposes of this Act if the person's speech, balance, co-ordination, or behaviour is noticeably affected by liquor."
4 Subsection 115(2) makes it an offence to sell or supply liquor to a drunken person on licensed premises. Pursuant to s 101 and s 165 of the Act, the manager and the licensee of the licensed premises (in the present instance the second and third respondents) also become liable for such an act.
5 The trial of the four charges was held on 15 - 17 May 2006 and following the completion of the prosecution evidence the respondents submitted that they had no case to answer. In a reserved decision delivered on 9 June 2006 the Magistrate upheld this submission and dismissed each of the charges.
The prosecution evidence
6 The prosecution called evidence from 13 witnesses, five of whom were either in the company of, or in the near vicinity of, Ms Dix while she was drinking alcohol on 12 August 2004. The first of these witnesses was Jennifer Ross who was a close friend of Ms Dix and spending time with her on 11 and 12 August while on holiday from Victoria. On the previous night the two women had stayed at the Esplanade Hotel in Fremantle, and at 3.15 pm on 12 August they booked into a room at the Rendezvous
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- Observation City Hotel. They had eaten a "big breakfast" but had not had any lunch.
7 After checking into their shared room on the 15th floor they went downstairs to a bar area ("The Stamford Arms") where they together consumed two 750 mm bottles of champagne. While in the bar, the two women were joined by another friend of Ms Dix, Mr Barry Holder, who was the second prosecution witness.
8 At about 6.30 pm, Mr Holder accompanied the two women back to their hotel room. Ms Ross then opened a bottle of wine and poured a glass for each of only Ms Dix and herself as Mr Holder was not drinking any alcohol. Shortly before 7.10 pm Ms Ross left the room on her own and went downstairs to the Lobby Bar of the hotel where she ordered and drank a vodka martini.
9 Not long afterwards, Ms Ross was joined in the Lobby Bar by Ms Dix and Mr Holder. Mr Holder then departed leaving Ms Dix and Ms Ross on their own. At 7.39 pm Ms Dix ordered a vodka martini for herself and this was served to her by Mr Van Tobruk. (The supply of this first vodka martini to Ms Dix was the subject of the first charge against the respondents.)
10 Subsequently, there were three further orders for vodka martinis (with two ordered each time) by either Ms Dix or Ms Ross. These orders were signed at 7.57 pm, 8.22 pm and 9.10 pm, and on each occasion, Mr Van Tobruk supplied a vodka martini to each of the women. It is relevant to note that the last of these orders was made by Ms Ross.
11 There were three other witnesses in the Lobby Bar who were in a position to observe Ms Dix. Those witnesses were Mr Dean Vella, Mr David Bella, and Mr Steven Nicolau who for varying periods were seated at a table approximately 1½ metres away from Ms Dix. However none of these men had any reason to particularly notice Ms Dix prior to Mr Nicolau arriving at a time no earlier than 8.50 pm (viz after the third vodka martini had been served).
12 Evidence was led from all five witnesses who had been in the Lobby Bar with Ms Dix as to her behaviour and demeanour at relevant times. Putting that evidence at its highest (from the point of view of the prosecution) a fair summary of the relevant observations by witnesses is as follows:
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- (1) Up until third vodka martini being served at 8.22 pm
13 When Mr Holder left the "Stamford Arms" with the two women at about 6.30 pm, he observed Ms Dix to "stumble slightly" as she got up out of her seat. However she recovered quickly and thereafter he did not notice anything unusual about her gait (AB 87). While in the "Stamford Arms" and in the upstairs hotel room, Ms Dix was talking "slightly louder than normal, and she was gesturing with her hands a lot" (AB 86, 88). In this regard, Ms Dix "was a demonstrative type person. But she was just slightly elevated on that night" (AB 95). According to Mr Holder she did not at any time display symptoms of slurring, mumbling, or lack of comprehension (AB 92), and when going up some steps into the Lobby Bar did not stumble, stagger, or show any lack of co-ordination (AB 93).
14 It was Ms Ross' evidence that she and Ms Dix were "talking all night non stop" and that the latter "appeared fine". At all times Ms Dix was "very happy" (AB 129 - 130) and "didn't look in any way affected by alcohol" (AB 135).
(2) Between the third and fourth vodka martinis being served
15 Although Ms Ross did not observe any changes in Ms Dix's behaviour during the course of the evening it is relevant to note that the two women were drinking approximately the same quantities of alcohol. However, Ms Ross did refer to an incident later in the evening when Ms Dix "jokingly" threw some nuts or rice crackers towards two males at the neighbouring table. Ms Dix "giggled" while she did this (AB 130).
16 Mr Vella and Mr Bella arrived at the Lobby Bar at approximately 8 pm and seated themselves at a table near Ms Dix but with their backs towards her. They were joined by Mr Nicolau no earlier than 8.50 pm, and he was seated in a position where he had a full view of Ms Dix. Shortly after Mr Nicolau arrived there was a conversation between Ms Dix and one or more of the three men. Ms Dix essentially asked if she could join their table which request was politely refused.
17 According to Mr Vella, Ms Dix did not at that stage appear to be intoxicated and there was nothing unusual about her voice (AB 50). Mr Bella considered Ms Dix to be "cheery enough" but had also noticed that the women at the other table had "started to get a little bit loud", were speaking with "slurred words", and were "a little bit louder than normal" (AB 66). Even though Ms Dix spoke in a "polite manner, you could still indicate that she was intoxicated" (AB 74). Mr Bella also noticed that
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- after Ms Dix's request was rejected, she appeared to have a "mood swing" in that "she didn't seem to be as happy" (AB 67).
18 Mr Nicolau was in the best position to observe all that happened, and according to him, the conversation with Ms Dix started when she threw some peanuts across at his table (AB 155, 157). There was "a bit of laughter" from the other table, "they were quite loud", and Ms Dix "seemed to be smiling all the time". She was also speaking in "a slightly slurred manner" (AB 157).
19 Mr Nicolau had a second conversation with Ms Dix about 10 or 15 minutes afterwards when:
" ... she said should she have another drink. And I asked her is she driving home, [because] I could see she was quite intoxicated." (AB 156)
- (3) Following the last vodka martini
20 Not long after the fourth vodka martini was served, Mr Vella and Mr Bella heard Ms Dix ask where the toilet was. It was not clear to whom this question was directed. According to Mr Vella, Ms Dix was "talking aloud, her voice was very slurred" (AB 45).
21 It was Mr Nicolau's evidence that, as Ms Dix got up to go to the toilet she was "slightly staggering" and having trouble staying on her feet (AB 159, 167). As Ms Dix walked towards the toilets, she passed near the barman (Mr Van Tobruk) who was cleaning a table. She then "fell into the barman's arms and he directed her to the toilet" (AB 168).
22 By this stage, all three men were watching Ms Dix and they saw Mr Van Tobruk assist her down some steps (AB 47, 68, 169). It was Mr Bella's evidence that Ms Ross also assisted Ms Dix at this time (AB 68). However, Ms Ross had no recollection of this and according to her when Ms Dix went to the toilet "she appeared fine" (AB 131).
23 Mr Nicolau observed Ms Dix to return from the toilets and he was uncertain as to whether or not she was still being assisted at that time (AB 160). Thereafter, all three men observed that Ms Dix was upset and crying, and that she was being consoled by Ms Ross (AB 48, 69 and 161).
24 Not long afterwards, Ms Ross and Ms Dix departed the Lobby Bar to return to their room. Mr Nicolau was the only witness who saw them leave and he recalled that there was "a little bit of staggering, holding onto
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- the handrails". He also remembered that Ms Ross assisted Ms Dix down the stairs (AB 161).
25 According to Ms Ross, when she returned to the hotel room with Ms Dix, they were both "quite happy". They watched a football show on television together and then went out onto the balcony to smoke cigarettes. She could not recall if Ms Dix drank any further alcohol (AB 132 - 133). It was after Ms Ross had gone back into the room to prepare for bed that she called out to Ms Dix but got no reply. Soon afterwards, it was discovered that Ms Dix had fallen from the balcony. Found alongside her body were the shards of a broken glass (AB 151).
26 A post-mortem sample of Ms Dix's blood revealed that it had an alcohol content of 0.342 per cent. This blood alcohol content would have been "very close" to the concentration at the time of death (AB 216). It was also a very high level of alcohol, and according to Dr D A Joyce (a physician working in clinical pharmacology and toxicology) it fell within the phase of intoxication (between 0.27 per cent and 0.40 per cent) known as "stupor" in which:
" ... we commonly see people in the hospital emergency centre. They are ones who have drunken so much alcohol that they are in threat of their lives. Typically they are either unconscious or barely conscious ... " (AB 228. See also AB 195 - 196.)
27 Dr Joyce produced a table (Exhibit "J") listing the three recognised phases of alcohol intoxication, together with the manifestations of behaviour that are usually shown within each phase. These three phases are "excitement" (0.09 per cent - 0.25 per cent), "confusion" (0.18 per cent - 0.30 per cent), and "stupor" (0.27 per cent - 0.40 per cent).
28 Importantly, Dr Joyce acknowledged that the three phases of intoxication as set out in the table were "stages of acute alcohol influence or intoxication in non tolerant individuals" which applied only to "those people who have not gained tolerance to it through consistent heavy use" (AB 238). However:
"The individuals who appear only slightly intoxicated with blood alcohols of .3 to .4 are so rare that they are written up in medical journals ...
I don't think I have ever encountered someone with a blood alcohol of .3 whom I've mistaken for being sober." (AB 242)
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29 It was also Dr Joyce's expert opinion that "practically everybody with a blood alcohol exceeding .18 per cent is recognisably intoxicated to a casual observer" provided that they are "given the opportunity to display behaviour [that] might permit the level of intoxication to be recognised" (AB 230, 248).
30 Dr Joyce had also made calculations estimating Ms Dix's blood alcohol content on each of the occasions that she was served with a vodka martini. These calculations were based upon "accepted methodology" working backwards from the established post-mortem alcohol content of her blood, and making assumptions as to the quantum of alcohol in each vodka martini as well as the time at which it was consumed. By this means, Dr Joyce estimated that Ms Dix's blood alcohol content at the time she was served with each of the first, second, third and fourth vodka martinis was .186 per cent, .225 per cent, .264 per cent, and .303 per cent respectively.
31 Calculations of a similar nature were produced by another expert witness, Mr R C Hansson who was the principal chemist of the toxicology section at the State Forensic Science Laboratory. Mr Hansson had made calculations and prepared tables estimating Ms Dix's blood alcohol content at the relevant times based upon Ms Ross' evidence of the alcohol that was actually consumed. (In other words, Mr Hansson's calculations worked forwards adding to the estimated blood alcohol content each time a drink was consumed, rather than working backwards from the post-mortem result.) Mr Hansson's calculations also made varying assumptions as to the alcohol content of each drink. His results were broadly consistent with those of Dr Joyce but on the assumptions most favourable to the respondents he provided estimates of .161 per cent, .182 percent, .201 per cent, and .213 per cent at the relevant times.
32 It should be noted that all of the calculations by Dr Joyce and Mr Hansson assumed that the alcohol in each drink was absorbed into Ms Dix's blood over a period of 2 hours at a rate of 0.016 per cent per hour, and then progressively eliminated at that same rate. Even though these rates of absorption and elimination will vary from individual to individual (and according to the extent of physical activity, and what food has been eaten), the rate adopted was:
"Based on the average from a large data set, which is historically used worldwide ... is used as part of the Road Traffic Act, and is fairly universally used around the world." (AB 189, 198)
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33 Nevertheless actual rates of absorption and elimination can vary between .008 and .028 per cent per hour. In a woman of Ms Dix's weight who had not eaten, was engaged in sedentary activities, and consuming alcohol in a carbonated form (viz. champagne), the alcohol would probably have been absorbed into the blood more quickly than normal (AB 189 - 190).
34 It was also Dr Joyce's evidence that any alcohol consumed by Ms Dix in her room shortly before her fall was unlikely to have influenced her post mortem blood alcohol content. This is because "there was no opportunity for the alcohol to enter the blood from the stomach" (AB 220).
35 Putting the expert evidence at its highest, it was not capable of establishing the precise percentage of alcohol in Ms Dix's blood each time she was supplied with a vodka martini. However it was capable of establishing beyond reasonable doubt that on each of those occasions her blood alcohol content must necessarily have been so high as to produce manifestations of intoxication in nearly every individual. Certainly from the time of being served with the second vodka martini, these manifestations in most people would have ranged from "confusion" (including impaired balance, muscular inco-ordination, and slurred speech) through to "stupor" (including inertia approaching paralysis, marked muscular inco-ordination, and inability to stand or walk).
36 However, it was also Dr Joyce's opinion that in certain circumstances these manifestations of intoxication might not have been readily apparent. Even with a blood alcohol concentration of "say .25":
"If people are sitting perfectly quietly in a corner drinking on their own and they're not attempting to walk, attempting to speak or interacting, then their intoxication may not be apparent." (AB 243)
37 Furthermore, the manifestations of intoxication would not be as apparent in a "very tolerant person" as in an ordinary individual (AB 249). In this regard, Dr Joyce gave very significant evidence during re-examination when asked to comment on the behaviour of Ms Dix as observed by the witnesses who were present in the Lobby Bar. Dr Joyce's response was as follows:
"If we accept that these observations are explained by alcohol intoxication for want of any other reasonable explanation for them then we would not be surprised to know that the blood
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- alcohol concentration was in the region of .18 to .03 [sic .3]. We would observe that somebody who was still on their feet at [.3] and who had manifestations as limited as that probably had a substantial degree of tolerance to alcohol." (AB 259, and see also 249)
38 During the whole of the period that Ms Dix was supplied with the four vodka martinis, the evidence is incapable of establishing that she did anything more than remain seated at the table where she was served. The evidence as to the degree of her interaction with Mr Van Tobruk is very sparse. Certainly she signed the orders for the first, second and third vodka martinis and it can be inferred that she must necessarily have spoken to Mr Van Tobruk at those times. It can also be inferred that at all material times Ms Dix must have been within Mr Van Tobruk's general field of view, as otherwise he would not have been in a position to respond to the requests from her table for further drinks.
The Magistrate's reasons for finding there was no case to answer
39 In coming to the decision there was no case to answer his Honour firstly compared the relevant provisions of the Act with those in the Road Traffic Act and went on to state:
" ... that the process of determining a drunken person under the Liquor Licensing Act is entirely different in its nature than the same determination under the Road Traffic Act. In the former, an objective visual determination is required to be carried out, whilst under the latter a sample of breath is taken after the event of driving and from this sample of breath is calculated the percentage of alcohol in the blood at the time of driving."
- His Honour then noted that the Road Traffic Act for its purposes creates the "legal fictions" that a person with a blood alcohol reading of 0.15 per cent or more is deemed to be incapable of having proper control of a vehicle, and that the percentage of alcohol in the blood increases at the rate of 0.016 per cent per hour for two hours after the last drink and thereafter decreases at that rate. His Honour also observed:
"Thus under the Road Traffic Act there is no room for judgment. Under the Liquor Licensing Act it is purely judgment and an objective judgment to be made by bar staff based on their observations and without the benefit of the knowledge of the individual's blood alcohol reading, or the knowledge of how an
- individual responds to variable percentages of alcohol in his or her system."
40 After reviewing the evidence of all of the witnesses and applying the test laid down in Morrison v Kwik Electrix Pty Ltd (1998) WAR 482 his Honour went on to state:
"I don't think that the evidence of the Crown taken at its highest is capable of establishing beyond reasonable doubt the guilt of the accused in respect of any of the four offences against Mr Van Tobruk, Licensee or the Manager.
The undeniable fact is that there is not sufficient evidence from the Prosecution witnesses that Mrs Dix was 'recognisably intoxicated' at each of the four times Mr Van Tobruk is said to have committed the offences. The only evidence of her being 'recognisably intoxicated' occurred when she rose to go to the toilet and there is no evidence to satisfy me beyond reasonable doubt that this occurred prior to the serving of the last drink at 9:10 pm.
Because of the paucity of evidence available to apply to the test under section 115(3) of the Liquor Licensing Act the Prosecution has sought to adopt the fictions of the Road Traffic Act and take the reading of a sample of blood taken from Mrs Dix [on] her admission to the mortuary at 1.10 am on 13 August 2004, some four hours after the time of the alleged last offence, calculate it back using the '0.016% per hour' fiction and came to a blood alcohol reading at the respective times of the four charges and then argue that on objectively applying the test of section 115(3) of the Liquor Licensing Act that she must have been displaying that her speech, balance, co-ordination or behaviour was noticeably affected by liquor and the fact that no one present made any such observations does not excuse Mr Van Tobruk not seeing such behaviour. The prosecution has not shown how it is that Mr Van Tobruk would have had the opportunity and should have seen what no one else saw.
...
I think it is inappropriate to use the method of detection under the Road Traffic Act and apply it to the Liquor Licensing Act simply because the latter Act has its own distinctive method of detection based on visual observations as distinct from blood
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- alcohol readings and calculations. In fact the definition of a drunken person under the Liquor Licensing Act is very specific on this point. It states at section 115(3) that a person is drunken FOR THE PURPOSES OF THIS ACT if the person's speech, balance, co-ordination or behaviour is noticeably affected by liquor. The percentage of alcohol in the blood is of no significance under the Liquor Licensing Act. This is not just my opinion, it is what the Act clearly states.
I appreciate this means a person may well have a high blood alcohol content but may not be detected as being a drunken person under the Liquor Licensing Act, if that person just sits quietly at a table. A barperson would have no capacity to assess that person's speech, balance, co-ordination or behaviour. Bar staff are not required to go and speak to all persons in the bar, or require them to stand up and walk a straight line or conduct any tests of co-ordination. Bar staff have no right or obligation to require a customer to provide a sample of breath for analysis."
The grounds of appeal
41 There are three grounds of appeal and it is unnecessary that I set them out in their full detail. The first ground of appeal essentially contends that the evidence of observations by witnesses and the expert evidence at its highest was capable of establishing beyond reasonable doubt that Ms Dix was a "drunken person" each time she was supplied with liquor.
42 The second ground of appeal asserts that the Magistrate erred in law in determining that the prosecution was required to prove (in addition to the elements of the offence) "that the person supplying the liquor had the opportunity to observe, assess and reach the conclusion that the person to whom the liquor was supplied was a drunken person as defined in s 115(3) of the Act".
43 The third ground of appeal is that the learned Magistrate erred in law in that he ought to have concluded that each offence was capable of being proven "without the need for the prosecution proving that the person supplying Ms Margaret Dix with liquor actually observed that she was a drunken person as defined in s 115(3) of the Act.
44 It seems to me that the nub of the appeal is the proper construction of subs 115(3) of the Act. If a person can be "drunken" within the meaning of the Act notwithstanding that the supplier of liquor is not in a position to
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- observe that the former's speech, balance, co-ordination, or behaviour is noticeably affected by liquor, then there was clearly a case to answer.
45 If, on the other hand, the subsection contemplates that the stipulated effects should be "noticeable" by the person supplying the liquor, then the question whether there was a case to answer will require closer consideration.
46 Accordingly, it is appropriate that I firstly determine this question of construction.
The proper construction of subs 115(3)
47 In determining this question, it is helpful to view subs (3) within the context of the surrounding subsections. In that regard, the relevant provisions of s 115 of the Act are as follows:
"115. Disorderly persons etc.
(1) Where a licensee, whether personally or by an employee or agent -
(a) permits -
(i) drunkenness; or
(ii) violent, quarrelsome, disorderly or indecent behaviour,
to take place;
...
on the licensed premises that licensee, and the employee or agent concerned, commits an offence.
- Penalty: In the case of the licensee or manager $5000, in the case of an employee or agent $2000.
(2) A person shall not, on licensed premises -
(a) sell or supply liquor, or cause or permit liquor to be sold or supplied, to a drunken person;
(b) allow or permit a drunken person to consume liquor;
- (c) obtain or attempt to obtain liquor for consumption by a drunken person; or
(d) aid a drunken person in obtaining or consuming liquor.
- Penalty: In the case of the licensee or manager $5000, in the case of an employee or agent $2000, and in any other case $1000.
- (3) A person is drunken for the purposes of this Act if the person's speech, balance, co-ordination, or behaviour is noticeably affected by liquor.
(3a) If an authorised officer or a person on whom a duty is imposed under this section decides, in accordance with subsection (3), that a person is drunken at a particular time, then, in the absence of proof to the contrary, that person is to be taken to be drunken at that time."
48 From my perusal of the Act, it would seem that the above are the only provisions where the word "drunken" (as distinct from "drunk") appears. Accordingly, when subs 115(3) defines a person who is drunken "for the purposes of this Act" it is a definition which really only applies for the purposes of subs (2) and (3a).
49 Subsection (3) deems a person to be "drunken" when any of the person's "speech, balance, co-ordination, or behaviour is noticeably affected by liquor". These are objective manifestations of intoxication which as a matter of common experience are usually present in a person who is drunk. However, it is not enough for a person to be "drunken" for the purposes of the Act that he or she is simply intoxicated by alcohol, even if intoxicated to a substantial degree. What is necessary is that the person's speech, balance, co-ordination, or behaviour be "noticeably affected" by such intoxication.
50 It would also seem that for the person to be "drunken" one or more of these manifestations must be noticeable to the person supplying the liquor. In this regard subs (3a) contemplates that the person selling or supplying the liquor should make a decision whether or not the person to be supplied is "drunken". If a decision is made "in accordance with subsection (3)" that a person is drunken at a particular time, then, in the absence of proof to the contrary, that person "is to be taken to be drunken at that time".
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51 One wonders why Parliament considered subs (3a) to be necessary, and in my view the only possible reason for this provision is to be found in s 108 of the Act. Subsection 108(2) essentially provides that the licensee of any licensed premises "shall not without reasonable cause (the burden of proof of which shall lie on the licensee) refuse ... to sell liquor there to any person" and imposes the same penalty as under s 115. Subsection 102(3) goes on to provide:
"(3) A licensee has reasonable cause to refuse ... to sell liquor to a person ... if -
(a) the person appears to be drunk or otherwise appears to be a person whose presence, or the provision of service to whom, on the licensed premises will occasion the licensee to commit an offence under this Act."
53 Subsection 115(3) accordingly applies an objective test to the determination of whether or not a person is "drunken". It is not necessary that the licensee or the licensee's employee in fact observes that a person's speech, balance, co-ordination or behaviour is "noticeably affected by liquor". What is necessary is that any reasonable person in the position of the licensee or employee would so notice.
54 There are obviously a wide variety of situations in which liquor is sold or supplied on licensed premises. Sometimes there is ample opportunity to observe a person's speech, balance, co-ordination or behaviour, and at other times there is not. An example of the former situation might be a person who spends the bulk of a whole day drinking and playing pool in the front bar of a hotel. An example of the latter situation might be a passenger in a car in a drive-in bottle shop, who stays in the car and has only a brief interchange with the licensee's employee while ordering liquor.
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55 In all of these situations, the test to be applied under subs 115(3) is whether a hypothetical reasonable observer in the position of the licensee or employee would have observed that the speech, balance, co-ordination, or behaviour of the customer was "noticeably affected by liquor".
Whether there was a case to answer
56 It follows that in the present case the essential question is whether or not a reasonable person in Mr Van Tobruk's situation while serving each of the vodka martinis to Ms Dix would have observed that her speech, balance, co-ordination, or behaviour was noticeably affected by liquor. In respect of each such occasion, if the evidence at is highest is capable of establishing that proposition beyond reasonable doubt, then the respondents will have had a case to answer.
57 In my view, it is self-evident that the evidence of the direct witnesses (when viewed alone) was incapable of establishing a case to answer in respect of any of the four charges. In respect of the first three charges, the five witnesses who were with or near Ms Dix on 12 August 2004 did not observe any of the required effects of liquor to be present prior to the third vodka martini.
58 Subsequent to the third vodka martini, there was evidence from Messrs Vella and Nicolau that Ms Dix was speaking with "slurred words" or in "a slightly slurred manner". However, the fourth vodka martini was ordered by Ms Ross, and there is no evidence that Mr Van Tobruk spoke to Ms Dix or had any opportunity to notice at that time that the latter's speech was affected by liquor.
59 There is also evidence that between the third and fourth vodka martinis Ms Dix threw some peanuts across to the neighbouring table, "started to get a little bit loud", and then appeared to have a "mood swing". However, in my view it is not possible to infer that a reasonable person in Mr Van Tobruk's situation would necessarily have observed these things to happen and (if so) would have regarded them as the effects of liquor.
60 The evidence of Ms Dix's behaviour after the fourth vodka martini when she was assisted to the toilet clearly shows that she was "drunken" at that time. It is also a fair inference from these subsequent facts that Ms Dix must also have been significantly intoxicated at the time of being served the fourth vodka martini and perhaps also at the times of being served the earlier vodka martinis. However, this evidence of her subsequent behaviour is incapable of establishing that Ms Dix was
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- noticeably affected by liquor in any of the relevant ways while seated at the table and being supplied with each vodka martini.
61 Accordingly, it is necessary to turn to the expert evidence to see whether or not when added to the direct evidence, it established a case to answer in respect of each of the four charges.
62 With all due respect to the Magistrate I consider that his Honour was wrong in his view that "the percentage of alcohol in the blood is of no significance under the Liquor Licensing Act" and that the only relevant evidence is that "based on visual observations as distinct from blood alcohol readings and calculations".
63 In the absence of direct evidence of visual observations, it is always open to the prosecution to seek to prove its case by direct evidence of a person's blood alcohol content combined with expert opinion evidence as to the effect that that quantity of alcohol would have had on the person's behaviour. Such a case is not based upon the "legal fictions" adopted by the Road Traffic Act, but upon expert opinion as to the effects that varying quantities of alcohol in the blood will ordinarily have upon a person's behaviour.
64 Similarly, an expert can provide an opinion that alcohol will generally enter and then be eliminated from the bloodstream of a person at, around, or at not less than particular rates. Of course, whether or not the court will ultimately accept such expert opinions in a particular case is an altogether different proposition.
65 In the present instance, if the opinions of either or both of Dr Joyce and Mr Hansson were accepted, that evidence was capable of establishing beyond reasonable doubt that at each of the relevant times, Ms Dix had a blood alcohol content of not less than a particular percentage. Furthermore, Dr Joyce's evidence was also capable of establishing that at the given blood alcohol percentages, nearly every person would be noticeably affected by liquor in one or more of the relevant ways.
66 However, an acceptance of Dr Joyce's evidence would carry with it an acceptance of the two significant qualifications that he made to his expert opinion that "practically everybody with a blood alcohol exceeding .18 per cent is recognisably intoxicated to a casual observer". These qualifications were that:
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- (1) it was necessary that the person be given the opportunity to display behaviour that might permit the level of intoxication to be recognised;
(2) the manifestations of intoxication would not be as apparent in a "very tolerant person" as in an ordinary individual.
67 The prosecution case was that at all material times Ms Dix was seated at a table which obviously would have inhibited the ability of any reasonable person in Mr Van Tobruk's position to observe her intoxicated state. Furthermore, it was Dr Joyce's opinion that on the basis of the observations made by the direct witnesses, Ms Dix "probably had a substantial degree of tolerance to alcohol".
68 It follows that notwithstanding that the prosecution case at its highest established that Ms Dix was in a very intoxicated state, there must necessarily be reasonable doubts as to whether any of her speech, balance, co-ordination, or behaviour were "noticeably affected by liquor".
69 Accordingly the appeal must be dismissed.
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