Bear v Lynch [1909] HCA 31

Bear v Lynch [1909] HCA 31 - HCA 1909 case summary — Zoe

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Blacket, (Curlewis with him), for the appellant. The purpose for which Melrose was on the licensed premises, that is, playing cards for money with a lodger, was not a lawful purpose within the meaning of sec. 19, sub-sec. 4, of the Liquor (Amendment) Act 1905. The scheme of the Act is to prevent the sale of liquor after 11 o'clock, first, by directly prohibiting its sale, and secondly, by making the licensee responsible for the presence on the premises after that hour of any person who is not shown to be there for a lawful purpose. It may be conceded that "lawful purpose" means a purpose not unlawful under the provisions of the Liquor Acts of 1898 and 1905. But it is not restricted to purposes expressly made unlawful by those Acts. It covers purposes which, though not positively forbidden, tend to facilitate breaches of the Act. It is only by strict provisions of the kind that the mischief sought to be remedied by the legislature can be reached. The Principal Act, No. 18 of 1898, having been found insufficient to cope with the evil, more rigid and drastic provisions have been added by the Amending Act. Under the Principal Act the licensee was not liable except for things of which he had, or ought to have had, knowledge. Under the Amending Act a new duty is imposed upon him to see that persons do not use his premises during prohibited hours unless they come within the exceptions specified in the Act, and in prosecutions in respect of the presence of strangers on his premises the onus is cast on him of establishing the lawful purpose. The prosecution need only prove that a stranger was on the premises after 11 o'clock at night. It is then for the defendant to prove that the purpose of the stranger was the performance of some duty or business, or the discharging of some obligation making it necessary to be on the premises. The mere presence of a stranger on the licensed premises during prohibited hours unexcused is an offence in the licensee. [He referred to Liquor Act, No. 18 of 1898, sec. 63, sub- sees. (1), (2), (4) and (5); Liquor (Amendment) Act, No. 40 of

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quashed the conviction, Cohen J. dissenting. The question to be determined by us depends upon the construction of sec. 19 of the Liquor Amendment Act 1905. That section is one of a group of four, secs. 16, 17, 18, 19, headed "Times of selling," which deal with the prevention of the sale of liquor in licensed houses at certain prescribed times. Sec. 16 provides that no licensee shall keep his licensed premises open for the sale of liquor or sell any liquor or permit it to be consumed on his premises on certain days and at certain times mentioned, subject to a penalty ; one of the times at which the sale is forbidden being at any time except between the hours of six in the morning and eleven at night. See. 17 provides that every person, not being a bond fide lodger, traveller, &., found drinking on licensed premises at any time when the premises should not be open for the sale of liquor shall be liable to a penalty not exceeding £2. The second para- graph provides that every person found on any such premises at any time when such premises should not be open for the sale of liquor shall, unless he satisfies the Court that he was at the time when he was so found a bond fide lodger, traveller &e., or that his presence on such premises was not in contravention of the provisions of this Act, be liable to a penalty &. Sec. 19 provides that certain police officers may demand of any person found on licensed premises at any time when the pre- mises should not be open for the sale of liquor his name and address, and require evidence of the correctness of the name and address given, and if such person refuses or neglects to give his name and address or fails to produce the required evidence, he may be arrested without warrant and brought before justices, and if he refuses or neglects to give his name and address, or fails to give the required evidence, or gives a false name or address, or produces false evidence, he is liable to a penalty. Then comes the fourth paragraph, which provides that " every licensee upon whose licensed premises any person is so found, shall, unless he proves to the satisfaction of the Court or justices that such person was on such premises for a lawful purpose, be liable to a penalty not exceeding £5." I think that the words "for a law- ful purpose" must mean for some purpose which is not unlawful, and, as the onus of proving that a person was on the premises for

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a lawful purpose is cast upon the licensee, it follows that the onus is cast on him of proving what the purpose was, in order that it may be ascertained whether it was a lawful purpose within the meaning of sec. 19. The last enactment in sec. 19 is founded obviously upon the principle that under the liquor laws a licensee enjoys certain quasi privileges - from one point of view they are privileges - and has certain correlative duties imposed upon him, and upon another doctrine recognized in connection with licensees, that they are held liable to the penal provisions of the law for the acts of persons who are under their control. It has been urged that it is very hard 'that a man should be liable for things done absolutely without his knowledge. So it is, but in the case of licensees of licensed premises strict duties are in many instances imposed upon them so as to render them liable for things done on the premises without their actual knowledge, if they are done under such circumstances that proper supervision would have prevented them. It was admitted by learned counsel for the appellant that the words " lawful purpose" must have some limitation. For instance, it was not suggested that a licensee would be liable under this section if a burglar were found on his premises, though the burglar would certainly not be on the premises for a "lawful purpose." And the limitation to the extent of which he was willing to go was that the purpose shown must be a purpose not unlawful under the provisions of the Licensing Acts, that is, not forbidden by the Acts. Mr, Stephen for the respondent contended for a further limitation. He argued that secs. 19 and 17 were complementary, that it would be a strange thing that a person found upon licensed premises, who proved that he was not there in contravention of the provisions of the Act,should go free, while, with respect to the same person, the licensee might be found guilty upon the ground that he had not shown that that person was there for a lawful purpose. There is, I think, a great deal in that argument. But in the view I take of this case it is not necessary to decide that point, and I express no opinion upon it. I prefer to keep my mind open upon the subject until the point actually arises in a case before us.

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the profoundest respect to the learned persons by whom that doctrine has been discussed, I cannot help saying that I think that, now at least, it has become a misleading expression. Ordinarily, no doubt, a man is not responsible for things about which he knows nothing, or for the existence of a state of facts which he has good reason for believing not to be the facts. It is sufficient, with regard to that doctrine, to say that licensees, in view of special privileges conferred upon them, are made responsible in a special degree for what is done on their premises. In some cases mere ignorance is not a defence. I express no opinion on that point or on another that may arise some day, which I regard as one of considerable difficulty, that is, whether, if it were found as a fact that a licensee had taken all reasonable care to prevent any person coming on his premises for a purpose which is not lawful, or had taken all reasonable cave to ascertain that the purpose for which a person had come on his premises was lawful, that would be a good defence to a charge under this section. The only question that it is absolutely necessary for us to decide in the present case is whether the purpose for which Melrose was on the respondent's premises was a purpose not unlawful within the meaning of sec. 19. Whether that section is limited to cases of contravention of the provisions of the Act of 1905, or extends to contravention of the Principal Act as well, it was proved, I think, that Melrose was there for a purpose that was not unlawful. I think that the words "this Act" in see. 17 sub-sec. (2) refer to this Act of 1905 only, and not to the Principal Act as well. That view is strongly supported by the fact that sec. 26 contains the expression "any offence against the Principal Act or this Act," distinguishing between the two. For the purposes of the decision in this case it is not material whether sec. 19 goes further than sec. 17 or not, for there is no provision in either Act which makes the mere act of gaming for money on licensed premises without the permission of the licensee unlawful on the part of the player. It was not suggested that Melrose was on the premises for the purpose of playing with the permission of the licensee, and there is nothing to make him punishable for being there and playing without

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shall first address myself, because, if it is determined in the re- spondent's favour, the conviction cannot stand. It is clearly the intention of the section to impose on the licensee the responsi- bility of preventing persons being on his premises for a purpose not lawful under the Act during the time when liquor may not be legally sold. The extent of that responsibility depends upon the meaning to be given to the expression "lawful purpose." Speak- ing generally, every purpose is lawful which is not prohibited by some positive law. If, therefore, the licensee can show that the purpose for which the stranger was on the premises was the doing of something not prohibited by law he cannot be convicted. At this point arises the ambiguity in the use of the word "lawful." Is the licensee bound to prove that the purpose was one which no law in force in the State makes unlawful? Or will it be enough for him to satify the magistrate that the purpose was one which no provision of the liquor licensing laws makes unlawful? To adopt the wider application of the word would be to impose on the licensee the responsibility of preventing the entry upon the premises of a stranger for any purpose made unlawful by any law out of the whole body of State laws. It would, as has been pointed out, make him liable for the presence of a thief whose purpose was to rob the premises. Mr. Blacket, for the prosecu- tion, properly admitted that such an interpretation, leading as it would to the imposition on the licensee of a burden so unjust and altogether unreasonable, would not be adopted unless the words used by the legislature were so express and definite as to leave no other construction open. He conceded that the words of the section did not drive the Court to that interpretation, and that the limitation of meaning which would best carry out the inten- tion of the legislature was to be found by a consideration of the purpose of the section in relation to the whole body of laws dealing with liquor licences. Read in that light the expression "lawful purpose" must be taken to mean some purpose not made unlawful by the Liquor Licensing Acts. That, I think, is a sound basis on which to limit the generality of the expression "lawful." Mr. Stephen asked the Court to narrow the operation of the section still further by holding "lawful purpose " to include any purpose

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player. That section makes it an offence in the landlord to suffer gaming to be carried on in his licensed premises. But there is no portion of the Acts which makes gaming on licensed premises an offence in the players. The principle of Charles v. Grierson (1) was relied on in support of the contention. In that case, which was decided ona section of the Victorian Licensing Acts identical in language with see. 17 of the New South Wales Act, a stranger was on the premises during prohibited hours with the purpose of contravening the law, if he could, by buying liquor. He did not effect his purpose because the licensee would not sell. Never- theless the Court held that, though the defendant had not sue- ceeded in his object, as he was on the premises in prosecution of a purpose inconsistent with the observance of the provisions of the Act, he was guilty of a contravention within the meaning of the section. But under the circumstances of this case, even if the licensee was aware of and permitted the gaming complained of, and thus committed an offence, the Act has not made that gaming unlawful on the part of the player. Charles v. Grierson (1) therefore has no application. 'That being so, the purpose of the stranger's presence on the premises was lawful within the mean- ing of the sub-section, and the licensee was entitled to be acquitted. On this ground the order of the Supreme Court granting the prohibition must be upheld. In that view of the case it becomes unnecessary to decide the question raised by the first objection, namely, whether the existence of a mens rea in the licensee must be established by the prosecution. But as the point was fully argued I shall express the opinion I have formed. In Sherras v. De Rutzen (2), Mr. Justice Wright in the course of his judgment says : - " There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the Statute creating the offence or by the subject matter with which it deals, and both must be considered." The state of a man's mind can be material only in reference to what he himself has done or has left undone. It is difficult therefore to see how the doctrine of mens rea can be

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Judgment (68 paragraphs)

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