Surfers Paradise Rock & Roll Cafe Pty Ltd & Pikos v Gittos

[2009] QDC 200

[2009] QDC 200

DISTRICT COURT

SURFERS PARADISE ROCK & ROLL CAFE PTY	Appellants
LTD
and
MICK PIKOS
and
GRANT DARREN GITTOS	Respondent
SOUTHPORT ..DATE 16/03/2009

APPELLATE JURISDICTION

JUDGE NOUD

No 577 and 578 of 2007

ORDER The appellants were convicted of a number of offences following a summary trial in the Magistrates Court. The date of the convictions was 1 November 2007.	1
The appellant, Surfers Paradise Rock and Roll Cafe Pty Ltd,	10
was convicted of two offences. It was convicted of the offences of contravening a condition of a permit under the Liquor Act. The dates of the offences were 25 March 2006 and 13 May 2006.
20
The appellant, Mick Pikos, was convicted of two offences also. They were the same offences as those of which the appellant, Surfers Paradise Rock and Roll Cafe Pty Ltd, was convicted.
Mr CFC Wilson appeared for the appellant; Mr R Frigo for the	30
respondent. The respondent, Grant Darren Gittos, is the
respondent to all appeals. Both sides have provided written
submissions and there has been oral argument. The relevant
condition, condition 114, is set out on page 2 of Mr Wilson's
outline.	40
The appeals are by way of rehearing on the evidence before the
Magistrate. The legal principles are set out at pages 2-4 of
Mr Frigo's submissions. I have reminded myself and have
sought to apply those principles where relevant to the present	50
case. I respect the Magistrate's findings of fact.

2 ORDER 60

The exhibits tendered in the Magistrates Court have been lost.

1

On my information, they were lost in the Magistrates Court.
However, with the cooperation of counsel, that difficulty has
been overcome, as the record of the hearing in this Court will
bear out. Some evidence was not recorded in the Magistrates

Court, but, again, as the record in this Court will show, that	10
difficulty has been overcome as well.
The prosecution called five witnesses. The defence did not give evidence. The respondent himself gave evidence before the Magistrate. He gave evidence about events on each of the	20
relevant dates, namely 25 March 2006 and 13 May 2006. Four other witnesses were called. All the witnesses were persons with powers and responsibilities under the Liquor Act.
Mr Hayes and Mr Matthew gave evidence about the events of 25	30
March 2006. Ms Jameson and Mr Cipriano gave evidence about the events of 13 May 2006. I have read all the evidence and have had regard to the exhibits tendered in this Court.
The material facts are these: the approved area where the	40
adult entertainment was taking place was enclosed by a curtain
and a chequered plate door which had a window in it. This
door was on a hinge such that it would open when required and
then close automatically. The window had been covered over by
13 May 2006. The curtain was made of a lace type material	50
which, as the Magistrate found, was not opaque.

3 ORDER 60

Leading up to these enclosures there was a corridor. In order
to see into the approved area one had to walk from the
corridor past a sliding door which was open at all times.
When one passed the sliding door one would walk a couple of

paces up to the chequered plate door. From that point one was	10
only a few paces away from the curtain.
As of 25 March 2006 one could see into the approved area if
the chequered plate door was open. Also one could see through
the window of the chequered plate door, although, as I have	20
pointed out, that was not possible on 13 May 2006.
Now, I have said that one could see into the approved area.
That was possible, of course, if the curtain was moved to one
side. It was also possible, however, to see through the	30
curtain itself. That is what the Magistrate found and that finding should not be disturbed, in my opinion, but it is at this stage of the case, in my view, where difficulty arises.
The reason for that is that it is difficult to determine on	40
the evidence the degree to which one could see through the
curtain. The witnesses, which is not unexpected, gave varying accounts. Ms Jameson, for instance, seems to suggest that the curtain provided little or no obstruction to visibility, but,
in my opinion, the case should not be approached on that	50
basis.
I will return to this subject. First it is necessary to

4 ORDER 60

determine what "prevent" means. The Magistrate was of the

1

view that it meant totally stopping visibility. His Honour
might well be right, but, with respect, I take a different
view. I have had the benefit of argument directed to the
purposes of the Liquor Act, as the record will bear out. I

have been referred to section 3 and section 3A of the Act. I	10
think the word "prevent" is difficult to classify.
After hearing argument, especially in relation to the purposes
of the Act, I think it must mean something less than that
applied by the Magistrate. It is no easy task to state	20
precisely what the word means, but I think it means that there is a requirement to fully enclose the approved area in such a way that makes it very improbable that a person outside can see inside the approved area.
30
Applying that test to the circumstances of the present case,
it first must be appreciated that it was possible to see into
the approved area. It further must be appreciated that, as
Mr Frigo points out, it is possible to so enclose the area
such that it is extremely unlikely, if not impossible, for	40
people to see in.
I am mindful of all that, but, in my opinion, it is not
determinative, nor is it determinative to try and ascertain
what the Chief Executive approved or disapproved. That	50
aspect formed part of Mr Wilson's argument.

What I have to do is this: I have to apply my understanding of what "prevents" means. I then have to ask myself whether I am satisfied beyond reasonable doubt that the appellants, given 5 ORDER 60

1

the circumstances of the present case, failed to fully enclose
the approved area in a way that prevented a person outside

from seeing inside the area.

10

Now, it is the position, in my opinion, that the appellants
may well have committed offences. That, of course, is not the
test. Applying the above stated test to the circumstances of
this case - and those circumstances were fully discussed in

argument - I am not satisfied beyond reasonable doubt that the	20
appellants on the relevant dates failed to fully enclose the approved area in a way that prevented persons outside the area from seeing inside the area.
In reaching this conclusion, I have departed from the	30
Magistrate as to his understanding of what "prevents" means and it is thus open to me to consider all the evidence whilst respecting the Magistrate's assessment of the witnesses. Indeed, I have a duty to do this, as I understand.
40
In doing that, I have come to the conclusion that whilst one
could see through the curtain, the view through the curtain was not as clear as it would have been without the curtain. However, determining what exactly could be seen is a matter of
degree. This is where doubts in my mind have arisen as to	50
whether offences were committed and, of course, it is not
simply a matter of what the curtain obscured.

6 ORDER 60

One has to have regard to all the evidence. That is, the

1

evidence about the chequered plate door, the layout of the
approach to the premises and the accounts of the witnesses as
to the lack of clarity about objects behind the curtain and so
on.

10

Because of these factors doubts, as I say, have arisen in my
mind as to whether offences were committed. Thus, applying the relevant standard of proof, I am not satisfied offences were committed. I have discussed with counsel the orders that

should be made in the event of the appeals being allowed.	20
What should happen to the fines imposed by the Magistrate was not discussed, but I think they should be set aside if the appeals are allowed.
I shall now proceed to make orders which seem to me to follow,	30
having regard to the above reasons and findings, but I invite counsel's comments after I have made the orders if counsel consider it necessary to make such comments. For the above reasons, I order as follows:
40
1. The two appeals are allowed.
2. All convictions imposed on the appellants in the

Magistrates Court are set aside.

3. The findings of guilty by the Magistrate are 50

set aside and not guilty verdicts in respect of all

charges are entered.

4. The appellants are discharged on all charges which they

7 ORDER 60

faced in the Magistrates Court. 1

5. The fines imposed by the Magistrate are set aside.

. . .

10

HIS HONOUR: Mr Wilson, for the successful appellants, seeks

costs. He has drawn my attention to the relevant law.

Special orders need to be made if more than a stated amount in

the relevant legislation is to apply. But that can only be

20

done in certain circumstances.

In the first place, Mr Frigo has drawn my attention to section

158A of the Justices Act. I have considered that, although I

must say, rather briefly. The parties have had the	30
opportunity, though, to adjourn this question of costs if they
so wished and to put in written submissions. They have
thought it unnecessary to do so and I certainly do not insist
on that. The issue can be decided now.	40
I have had regard to that provision, namely section 158A in
the time that has been available to me and after having done
so, I am of the opinion that, in the circumstances of this
case, the respondent should pay the costs of the appellants.	50
The respondent should pay the appellants' costs, at first
instance, and on appeal. That is the view that I take after

giving the matter that consideration.
16032009 T(6)5/JG(SPT) M/T SOUT15 (Noud DCJ) 8 ORDER 60

1

The question then arises as to the quantum of the fees. The appellants are limited unless a special order is made. That is no reason in itself for making a special order. What is required is a judicially exercised discretion in the matter

10

having regard to special difficulties, complexities or
importance.

In my opinion there has been special difficulty and complexity in the present case. I take this view because of the

20

difficulty in defining the concepts relevant to the
application of the condition 114 which has been the focus of

my reasons for judgment.

That might seem like a short point but it is an important one,

30

it has special difficulty, and in turn, special difficulty issue that arose in the Magistrates Court.
because it involves questions of statutory interpretation, and
it also then is connected with the facts that were before the

40

I do not think it is an every day sort of case, using the
experience that one acquires, and having listened especially
to Mr Frigo in this regard, I think this case should be

regarded as an exceptional one and that the normal rule should

50

not apply.

9 ORDER 60

16032009 T(6)6/LIN(SPT) M/T SOUT15 (Noud DCJ)

So, in relation to costs, the orders for these reasons are as	1
follows:

I order that the respondent pay the appellants' costs of the appeal and of and incidental to the appeal, and of

10

and incidental to the proceedings at first instance.

I order that the scale of costs prescribed under schedule

2 of the Justices Regulations [2004] not apply.

20

I order that the costs of and incidental to the the proceedings in this Court be assessed if not agreed.

...

30

HIS HONOUR: I set aside that order where I said that the costs in the Magistrates Court and this Court be assessed.

...	40
HIS HONOUR: I think it should be the Magistrates Court scale
for the Magistrates Court, and the District Court scale. See
if you can agree on what that is, and do a draft order,
initial it, and send it to me.	50
...

10 ORDER 60

16032009 T(6)6/LIN(SPT) M/T SOUT15 (Noud DCJ)

HIS HONOUR: Those orders that I have already made stand. 1

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11 ORDER 60