DISTRICT COURT OF QUEENSLAND

[Pages:36]DISTRICT COURT OF QUEENSLAND

CITATION:

Powell v Clair & Anor [2006] QDC 140

PARTIES:

GREGORY ALLAN POWELL (Appellant)

V

JIMMY'S ON THE MALL PTY LTD (First Respondent)

AND

ANDREW RICHARD CLAIR (Second Respondent)

FILE NO/S:

BD2651/05

DIVISION:

Civil

PROCEEDING: Appeal

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON: 26 May 2006

DELIVERED AT: Brisbane

HEARING DATE: 22 May 2006

JUDGE:

Tutt DCJ

ORDER:

1. The appeal is dismissed.

2. The appellant pay the respondents' costs of and incidental to the appeal to be agreed or assessed on the standard basis in accordance with the District Court scale.

CATCHWORDS:

Appeal from the learned Magistrate's decision that the respondents had no case to answer ? whether the respondents "knowingly" permitted the offending act ? whether such knowledge in s 147(2)(b) of the Liquor Act 1992 requires evidence of "actual" or "constructive" knowledge of the offending act occurring.

Justices Act 1886 ss 222, 223 and 225.

Liquor Act 1992 ss 147 and 229.

Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482.

Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59.

R v Bilick (1984) 36 SASR 321.

R v Sanewski (1987) 1 Qd R 374.

R v Von Snarski [2001] QCA 071.

COUNSEL: SOLICITORS:

2

Walker v Durham & Anor [2003] QCA 531. Whisprun Pty Limited v Dixon [2003] HCA 48. Mr D Lang for the appellant. Mr P J Callaghan SC for the respondent. Crown Law for the appellant. Carew Lawyers for the respondent.

Introduction

[1] This is an appeal pursuant to s 222 of the Justices Act 1886 against the decision of the learned magistrate at Brisbane on 22 June 2005 whereby two complaints against the first and second respondents respectively for breaches of the Liquor Act 1992 ("the Act") were dismissed with costs on the basis that in each case the respective respondents had no case to answer.

[2] The appellant appeals the learned magistrate's decision on a number of grounds but primarily on the basis that the learned magistrate erred in his failure to consider the appropriate legal principles applicable to a "no case to answer" submission by finding that for the appellant to succeed in his prosecution for the respondents' alleged breaches of s 147(2)(b) of the Act, the appellant had to establish beyond a reasonable doubt the essential element of the offence namely that the respondents' "knowingly" permitted the action which constituted the breach, as distinct from the breach being capable of being established by the very fact that the particular act1 occurred without their doing anything to prevent that occurring and they should have reasonably anticipated that that act could occur.

1

i.e. the removal of liquor from the premises.

3

The Law

[3] This court's power in respect of an appeal under s 222 of the Justices Act 1886 is

that the appeal is by way of rehearing on the evidence given in the proceedings

before the Justices (see s 223 of the Act) and that the court has a wide discretion in

the order it makes (see s 225).

[4] The general principles upon which an appellate court must operate in respect of

findings of fact are well established:

"An appellate court will not readily overturn a trial judge's primary findings of fact where those findings are based on his or her assessment of the credibility of witnesses. As Kirby J said recently in Whisprun Pty Limited v Dixon [2003] HCA 48 ?

"67. However, normally, to secure reversal of a primary judge's credibility-based conclusions, it is necessary for the challenger to demonstrate that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony: showing that the primary judge's decision was erroneous, notwithstanding that it appears to be (or is stated to be) based on credibility findings. Such was the case in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (`SRA'). There a witness, disbelieved by the primary judge, was supported by contemporaneous documentary evidence and unchallenged testimony of other witnesses that had not been considered and that evidence combined to demonstrate the fragility of the judge's conclusion. Such was also the case in Fox v Percy where the decision of the primary judge, although based on a credibility assessment, could not be reconciled with other testimony that the primary judge accepted. In particular, it did not accord with a contemporary record that contradicted the judge's conclusion." In Warren v Coombes (1979) 142 CLR 531 at 551 the majority of the High Court said of an appellate court's role in drawing of inferences from proved or uncontested facts "`[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the

4

conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.'"2

[5] In respect of appeals from Justices the principle to be followed by an appellate tribunal would seem to be encapsulated in the statement by Andrews SPJ (as he then was) in Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59 at 67 where he said after a comprehensive review of a number of authorities3: "I am of the view that where findings are so expressed as to demonstrate mistake in the understanding of evidence or where findings as expressed have demonstrated a misunderstanding of the law applicable then this court may interfere with the decision."

[6] The facts in this matter are largely undisputed, so that ultimately the decision in this appeal is whether the learned Magistrate erred in applying proper legal principles in reaching his conclusion that the respondents had no case to answer in respect of the charges proffered against them.

The Evidence

[7] The original complaints against the respondents alleged a breach of s 147(2)(b) of the Act in that as licensees of premises "...namely Jimmy's on the Mall (they) did permit liquor namely beer to be removed from the licenced premises at a time other than a time when liquor may be removed by persons from the licenced premises under the Act."4

2

See paragraph [6] of Walker v Durham & Anor [2003] QCA 531.

3

Including Smith v Smith, ex parte Smith [1950] Qd R 113 at 120; R v Robertson (1980) 2 A Crim R

369; and R v Free [1983] 2 Qd R 183. See also the comments by Thomas J at page 81 of the

judgment.

4

Grounds of appeal contained in the Notice of Appeal.

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[8] In particular, the offences related to an event which occurred on Friday 8 October 2004 in the Queen Street Mall, Brisbane when a Brisbane City Council senior customs services officer "...noticed a gentleman drinking...beer from a glass on a council seat directly next to Jimmy's on the Mall restaurant in the Queen Street Mall...[and]...the gentleman got up with an empty glass, walked back into Jimmy's on the Mall to the bar. He was poured another glass of what I believe to be beer and then walked out of the restaurant and sat back down at public seating."5

[9] The "council seat" was identified as being "...only about four or five metres from the boundary of Jimmy's on the Mall"6 which appears to represent a "walkway" for pedestrians using the mall in that vicinity. Further, it appears that there is no physical barrier denoting the boundary of the "licenced premises" from the pedestrian walkway between the "licenced premises" and the "council seat".

[10] The individual, who it is alleged consumed the liquor, gave evidence that he remembered that he "...was drinking on a park bench outside of Jimmy's" that afternoon7 and that he usually entered and exited the premises through the pedestrian "clearway" but he could not recall who served him at the premises that afternoon. He further stated that insofar as he was concerned no "staff member" [of Jimmy's on the Mall] saw him "...sitting on the bench drinking beer...during the afternoon..."8.

5

Transcript of evidence p 9 lines 10-23.

6

Transcript of evidence p 16 lines 18-20.

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[11] In summary, the undisputed evidence in this matter is that at all material times: (a) the respondents were the licensees of the premises Jimmy's on the Mall; (b) served liquor to an individual9; (c) the individual consumed the liquor on the Brisbane City Council seat or bench in the mall located on the other side of a "clearway" from the licenced premises; and (d) the liquor was therefore "removed" from the licenced premises in that it was taken beyond the physically undefined boundary of the "licenced premises"10.

Parties' Submissions

[12] The appellant submits that the learned magistrate erred in his findings that the respondents "required actual knowledge" of the individual's actions before the offences could be sustained and that he failed to accept that the evidence adduced could establish the inference that the respondents had "constructive knowledge" of the individual's actions.

[13] The respondents' submissions were that the learned magistrate's decision was the only decision to be made as there was "...no evidence as to the corporate state of mind nor as to Mr Clair's state of mind" which is essential before the alleged offences can be established beyond a reasonable doubt.

7

Transcript of evidence p 21 line 40.

8

Transcript of evidence p 22 line 48.

9

Although the respondents submitted that the prosecution "never proved that the liquor involved was

beer" there would seem to be ample evidence from the individual's evidence that he was served beer

at the licenced premises. 10 Plans of the "licensed premises" were tendered but show no physical barriers delineating the

boundary of the premises.

7 [14] It was further submitted on behalf of the respondents that an alleged breach of s 147

of the Act does not fall within the "deeming" provisions of the liability of a principal or employer under s 229 of the Act insofar as such entities may be "...presumed to have participated in the offence...".

[15] It was further submitted that the concept of "constructive knowledge" is not applicable as there is an "...absence of any history of activity or warnings..." relevant to the subject matter of the alleged offences.

[16] Counsel's submissions referred to a number of authorities to which I should have regard in considering this matter, some of which refer to the obligations of licensees with the responsibility of the management and control of licensed premises and the higher responsibility that entails for the safeguard of the public at large in the sale and consumption of intoxicating liquor. It seems to me however that where the Act imposes specific obligations on licensees to control "persons" and their behaviour vis a vis licensed premises with various sanctions for breaching such obligations it is incumbent that any alleged breach of such obligations be proved strictly by the prosecuting authority in accordance with the applicable standard of proof for such breach.11

[17] Like the learned magistrate, I am doubtful that s 147(2)(b) of the Act is the appropriate section to prosecute the respondents for conduct of the type referred to in the evidence before the learned Magistrate but in any event I find that to sustain a charge for breach of that section the prosecution must establish beyond reasonable doubt that either a defendant actually knew of the offending conduct; permitted it to

11 See Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 and R v Bilick (1984) 36 SASR 321 referred to therein at pages 490 ? 491.

8 occur and did nothing to prevent it continuing; or by "indifference condonation or inactivity" in the manner described in R v Sanewski (1987) 1 Qd R 374 and R v Von Snarski [2001] QCA 071, failed to act in respect of the offending conduct and therefore has "constructive" knowledge thereof but did nothing to prevent its continuance. I equate constructive knowledge in this context as "vicarious" knowledge when the "actual" knowledge may have been acquired by an employee or agent of a corporate licensee.

[18] If s 147 of the Act is applicable to prosecution of the type under review more detailed evidence would need to be adduced of the knowledge either actual or vicarious of a defendant to sustain a breach of the Act.

[19] For these reasons therefore I am of the opinion that the learned Magistrate was entitled to come to the conclusion he did and with which I agree.

[20] It therefore follows that the appeal should be dismissed.

Orders

[21] My orders are therefore as follows: (a) the appeal be dismissed; (b) the appellant pay the respondents' costs of and incidental to the appeal to be agreed or assessed on the standard basis in accordance with the District Court scale.

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