Willis v Brimin Gem Pty Ltd
[2006] QDC 296
•24 March 2006
DISTRICT COURT OF QUEENSLAND
CITATION: Gifford v Meshlawn Pty Ltd & Anor [2006] QDC 295
PARTIES: MICHAEL JAMES GIFFORD
Appellant
v
MESHLAWN PTY LTD
First Respondent/Defendant
and
JOHN FRANK HUNJADI
Second Respondent/DefendantFILE NO: Appeal No. D005/05
PROCEEDING: Appeal
ORIGINATING COURT:
Magistrates Court, Southport
DELIVERED ON:
24 March 2006
DELIVERED AT:
Southport
HEARING DATE: 10 March 2006
JUDGE: Newton DCJ
ORDER: Appeals dismissed
CATCHWORDS: JUSTICES – APPEAL FROM – Liquor Act – whether promotion by nightclub may encourage rapid or excessive consumption of liquor – evidence – whether weight and credibility sufficient to discharge onus of proof
Liquor Act 1992
COUNSEL: Mr D J Lang for the appellant
Mr C F C Wilson for both respondentsSOLICITORS: Crown Law for the appellant
Messrs Hopgood & Ganim for both respondents
These appeals involve prosecutions in respect of a nightclub promotion which offered cheap drinks between 8pm and midnight on 27 November 2003 during “schoolies week”. The Magistrate dismissed the charges against both defendants and awarded costs in their favour. The appellant appeals against the decisions of the Magistrate in respect of Meshlawn Pty Ltd and Mr Hunjadi and also appeals against the costs orders.
The complaint of Michael James Gifford against Meshlawn Pty Ltd made on 16 March 2004 was “that between the 26th day of November 2003 and the 29th day of November 2003 at Cocktails and Dreams, Shops 60-62, The Mark, 5-15 Orchid Avenue, Surfers Paradise in the Magistrates Court District of Gold Coast, in the said State, one, Meshlawn Pty Ltd, licensee, did, on premises, namely, Cocktails and Dreams, engage in a promotion that encouraged the rapid or excessive consumption of liquor”. The charge was further particularised as follows:
“The practice engaged in by the licensee, Meshlawn Pty Ltd –
Serving, supplying and promoting liquor without taking appropriate action to discourage rapid or excessive consumption of liquor by advertising and supplying $2.00 spirits until midnight and allowing patrons to stockpile these spirit drinks.”
The complaint against the second respondent was in identical terms.
The Magistrate dismissed both complaints and ordered the appellant, Michael James Gifford, to pay to both defendants a total of $4,250.00 costs.
As it had been alleged that at all times Meshlawn Pty Ltd was the licensee of premises known as Cocktails and Dreams, Shops 60-62, The Mark, 5-15 Orchid Avenue, Surfers Paradise under the Liquor Act 1992 and John Frank Hunjadi was Meshlawn Pty Ltd’s nominee for the premises, the complaints were heard and determined together. These appeals, similarly, were heard together.
The main ground of appeal relied on by the appellant in each case was that the learned Magistrate erred in fact and/or law by not taking the evidence adduced at the hearing into account or not placing any or sufficient weight on the evidence adduced.
Section 148A of the Liquor Act 1992 (“the Act”) relevantly provides:
“(1) This section imposes obligations on licensees and permittees in the conduct of business on licenses premises or premises to which a permit relates for –
(a) maintaining a safe environment for patrons and staff of the premises; and
(b) ensuring liquor is served, supplied and promoted in a way that is compatible with minimising harm from the use of liquor and preserving the peace and good order of the neighbourhood of the premises.
(2) The licensee or permittee must not engage in a practice or promotion that may encourage rapid or excessive consumption of liquor.
Maximum penalty – 100 penalty units.”
Section 41 of the Liquor Regulation 2002 refers to acceptable and unacceptable practices and promotions for the service, supply and promotion of liquor with reference to s 148A(2) of the Act. It provides as follows:
“(1) The following are examples of unacceptable practices or promotions that, for section 148A(2) of the Act, may encourage rapid or excessive consumption of liquor –
(a) promoting or conducting an activity that encourages rapid or excessive consumption of liquor or discourages a patron from monitoring or controlling the patron’s consumption of liquor;
Examples for paragraph (a)-
§ promoting or conducting skolling games
§ promoting the consumption or drinks known as ‘laybacks’
§ promoting the consumption of liquor from a water pistol
(b) supplying liquor to a person on condition that the person is required to promote or conduct an activity that encourages rapid or excessive consumption of liquor or discourages a patron from monitoring or controlling the patron’s consumption of liquor;
(c) serving, supplying or promoting liquor in a container that encourages rapid or excessive consumption of liquor or discourages a patron from monitoring or controlling the patron’s consumption of liquor;
Examples for paragraph (c)-
§ serving liquor in a yard glass for consumption at 1 draught
§ serving liquor in a test tube shaped glass without providing a stand on which the glass can be placed
(d) serving, supplying or promoting liquor without taking appropriate action to discourage rapid or excessive consumption of liquor;
Example for paragraph (d)-
§ promoting free or discounted liquor without providing an appropriate number of staff or security persons to monitor and control patrons’ consumption of liquor
(e) serving or supplying liquor to a patron while holding the patron’s financial institution access card or other property pending payment for the liquor, in a way that discourages the patron from monitoring or controlling the patron’s purchase of liquor.
Example for paragraph (e)-
§ holding a patron’s financial-institution access card and serving liquor to the patron on account over several days pending payment when the patron next receives social security benefits.”
In his written submissions, counsel for the appellant identified as the main issue in these appeals whether the first respondent had taken appropriate action within the meaning of that term in s 41(1)(d) of the Regulation. Mr Lang submitted that there was no contest that:
“(a) The First Respondent was the licensee of the premises; and
(b) The Second Respondent was the licensee’s nominee; and
(c) The First respondent engaged in the promotion of selling “$2 drinks” from 8pm to 12 midnight on 27 November 2002;
(d) Every alcoholic drink sold on the night was sold as part of the drink promotion.”
Although it may be accepted that (a), (b) and (c) above are not contentious, the position is different with respect to (d). It was conceded, during argument before me, that not every alcoholic drink sold on the night was sold as part of the drink promotion. Imported beers and top shelf spirits were explicitly excluded from the promotion, and it is this fact that lies at the heart of the difficulties confronting the appellant. The prosecution was required to prove beyond reasonable doubt that the promotion in question may encourage rapid or excessive consumption of liquor. In order to satisfy this onus the prosecution led evidence of the intoxicated condition of a number of patrons and also alleged that the licensee had taken inadequate steps in terms of staff numbers and protocols to effectively discourage excessive alcohol consumption by patrons.
Unfortunately for the prosecution, not one of the seven patrons who had been evicted on the night in question was shown to have been excessively intoxicated as a result of the promotion. Indeed, the police officer who observed the condition of five of the evictees testified that their condition was not excessively intoxicated and no evidence was led to establish that any of these five had consumed any alcohol that had been offered and served as part of the promotion. One patron, a Mr Sharrack (who was undoubtedly excessively intoxicated), was not shown to have participated in any way with the promotion. Another patron, whose eviction was recorded on the register maintained by the first respondent, was evicted at 3am, some three hours after the promotion had finished and no evidence was led at the trial before the Magistrate as to what and how much liquor this person had consumed since the end of the promotion period (12 midnight) and the time of his eviction.
Conversely, the prosecution did not lead any evidence from which the Magistrate could have properly concluded that any of the patrons present in the nightclub who had been taking advantage of the promotion were excessively intoxicated.
The Magistrate was entitled to reject, as he did, the evidence of alleged stacking of drinks as proof of encouragement of rapid or excessive liquor consumption, as it could not be established that groupings of drinks on tables had not been done to enable one person to keep the drinks under close observation to prevent spiking while patrons were on the dance floor. Furthermore, the prosecution could not establish what drinks were intended for consumption by any particular patron.
The appellant was critical of the manner in which the register of incidents was maintained in that inadequate details were recorded in respect of persons evicted or spoken to by staff. However, again, the prosecution was required to confront the difficulty of establishing a link between the promotion and any person recorded in the register. This it was unable to satisfactorily accomplish.
The only error that appears on the face of the reasons for decision of the Magistrate relates to his use of the term “systemic failure” when speaking of the procedures put in place by the licensee. It is not necessary for the prosecution to establish a systemic failure in order to establish that a promotion may encourage excessive drinking. The use of this term by the Magistrate, however, does not, in my view, demonstrate a failure on his part to properly understand the nature of the charges before him. In short, the evidence led by the prosecution was not sufficient to establish beyond reasonable doubt that the promotion may have encouraged excessive or rapid consumption of alcohol by patrons and the Magistrate was, accordingly, entitled to reach the conclusion he did and to dismiss the charges against both respondents.
There are undoubtedly evidentiary difficulties with respect to the licensing, policing and prosecution of premises in relation to charges of this nature. It will seldom, if ever, be sufficient for the prosecution to adduce evidence of one or more excessively intoxicated patrons on the premises during a promotion of the type adopted by the respondents. What must be shown, if the prosecution is to rely on the excessively intoxicated condition of patrons, is some connection between their condition and the promotion in question. That will require closer observation of purchasing, consumption and stacking of drinks than was carried out in relation to this matter.
Where licensed premises run a promotion that offers cheap drinks up until midnight, it cannot simply be assumed that every drink served during the promotion is provided at a reduced cost. Indeed, as the evidence in this case established, the closer one gets to midnight (the hour at which the promotion ceased), the less likely is the licensee to sell cut-price drinks. It is commercially undesirable to do so. Furthermore, as I have previously indicated, on the night in question patrons were not able to purchase imported beers, top shelf spirits or other expensive beverages at the lower prices. This makes it extremely difficult for the authorities to establish any link between drinks sold as part of the promotion and the intoxicated condition of patrons.
Of course, it is not strictly necessary for the prosecution to point to the presence of excessively intoxicated patrons during the promotion in order to establish a charge of the type preferred in this matter. It may be possible for the prosecution to point to what it claims are inadequate steps taken by the licensee to ensure that the promotion may not encourage rapid or excessive consumption of alcohol. In this case the evidence was such as to satisfy the Magistrate that appropriate and sufficient steps had been taken in terms of staff numbers and the prescription of the duties by the licensee, and the availability of non-alcoholic and low alcohol drinks, to prevent rapid and excessive consumption of alcohol by patrons.
In this regard counsel for the respondents points to the following matters in respect of which the evidence suggests that appropriate steps were taken:
§ Large numbers of both bar staff and security staff were present throughout the promotion;
§ Liquor was provided in standardised quantities and containers;
§ Spirits were served in measured nips;
§ The number of drinks able to be purchased by any one patron at the one time was limited to two;
§ The two-drink per person limit was advertised and enforced;
§ The time of the promotion was limited to four hours from 8pm to midnight;
§ Drink stacking or stockpiling was prevented;
§ Non-alcoholic and low alcohol beverages were readily available;
§ Security staff had been trained with respect to the responsible service of alcohol;
§ The house policy in relation to the serving of alcohol and management of patrons was actively implemented and enforced;
§ A cover charge was required to be paid by patrons wishing to enter the premises;
§ A minimum price of $2 per drink was maintained – there being evidence of $1 per drink promotions at other premises in the same area;
§ Consumption of liquor by patrons was monitored;
§ Security staff patrolled the premises; and
§ Any patron exhibiting signs of intoxication was removed and offered complimentary water.
On the evidence before him the Magistrate was entitled, in my view, to reach the conclusions he did with respect to whether adequate steps had been taken by the respondents to ensure that the promotion may not encourage excessive or rapid consumption of alcohol.
For these reasons the appeals must be dismissed.
The appellant complains about the costs orders made by the Magistrate and says that they are, in the circumstances, excessive. The appellant contends that the liability of the second respondent turns on the deeming provisions in the Act which effectively visit the sins of the licensee on the nominee. However, neither Meshlawn Pty Ltd, through any responsible officer of that company, or Mr Hunjadi were given the opportunity of explaining their respective positions during an interview with the authorities. Counsel for the appellant has very properly conceded that they should have and could have been given such opportunity. As counsel for the respondents points out in his written submissions, it was necessary to prepare a defence on behalf of the licensee and the nominee, notwithstanding the deeming provisions in the Act. Each respondent was entitled to be represented at the hearing before the Magistrate and preparations on behalf of both respondents including conferences, proofs of evidence, background checks and antecedents were required to be undertaken. No basis has been demonstrated for interfering with the orders made by the Magistrate as to costs.
I order that both appeals be dismissed. I further order that the appellant is to pay the costs of the first and second respondents of and incidental to each appeal. Such costs are to be paid to the Registrar of the District Court at Southport to be paid over to the first and second respondents. The costs are to be paid within three months of the date of this judgment.
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