//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1953] HCA 53
High Court of Australia
1953-07-01
Taylor JJ, Fullagar J, Webb J, Barry J
Original judgment source is linked above.
High Court of Australia Williams A.C.J. Webb, Fullagar, Kitto and Taylor JJ. Bergin v Stack [1953] HCA 53
I agree with the reasons prepared by Fullagar J. In my opinion the appeal should be dismissed.
I would refuse the respondent's application to have the special leave to appeal rescinded and would allow the appeal.
Even if the respondent did believe that the club was registered that was the limit of his belief. There was no ground for imputing to him two further beliefs, i.e. (1) that the conditions under which he served liquor to the police officers were such that if the club had a permit to trade after hours his action would have been innocent; and (2) that the club had such a permit. In the affidavit in support of the application for the order for review the magistrate is said to have stated in his reasons for dismissing the charge that the respondent had deposed that he did not know that the club had no "authority" to sell liquor. But according to the same affidavit the respondent did not use the word "authority", or the word "permit". No affidavit appears to have been filed by or for the respondent giving his version of the evidence. I take it then that the magistrate in using the word "authority" was not repeating what the respondent said, but was putting his construction on what the respondent said.
Barry J. appears to have been of the opinion, as I understand his Honour's reasons for judgment, that the respondent's honest and reasonable belief that the club was registered was enough to render s. 161 of the Licensing Act 1928 Vict. inapplicable. With respect I think that all three beliefs referred to above were required to be entertained by the respondent to entitle him to have the charge dismissed. For this purpose I assume that the defence of honest and reasonable belief is open even if mens rea is not required to be shown to establish an offence under s. 161. I do not think that mens rea need be shown. In my opinion it is too late in the day to regard illegal sales of intoxicating liquor as offences requiring mens rea to be shown, in the absence of some legislative indication to the contrary. Barry J. quotes authorities and views of writers to that effect. I will not repeat them or add to them.
A defendant's state of belief to be a good defence to the charge must be in his innocence, due to his misapprehension of the facts, but not due to any extent to his ignorance of the law. This statement does not call for amplification. If belief short of that were a defence astounding results could follow.
It was contended for the appellant that s. 161 has no application to unregistered clubs; but I see no reason to doubt the correctness of the contrary view taken in Cahill v. Menz [1] even where the liquor is sold on the club's premises. In that case it is, I think, for the prosecution to decide whether to proceed under s. 161 or under s. 265 (1). The choice might well depend on the quality of the unregistered club, on its bona fides: in the case of a drinking association of undesirables repeatedly infringing the Licensing Act s. 161 might be preferred.
Counsel for the respondent sought to have the special leave to appeal to this Court rescinded; but as I see it the error below was serious and in a matter of general importance, and this Court's intervention is warranted.
This is an appeal by special leave from a judgment of the Supreme Court of Victoria (Barry J.) discharging an order nisi to review an order of the Court of Petty Sessions at Melbourne. The respondent had been charged that on 7th March 1952 he "did sell liquor without a licence authorising such sale, contrary to s. 161 of the Licensing Act 1928 ". The charge was dismissed, and was held by Barry J. to have been rightly dismissed.
When the appeal was called on for hearing, counsel for the respondent defendant moved that special leave, which had been granted on an ex parte application, should be rescinded. The Court decided to hear argument on the merits before dealing with the motion. It is clear that Barry J. regarded the case as raising questions of difficulty - as indeed I think it does - and it is also clear, I think, that those questions are of considerable general importance. I can see no foundation for the motion, and it should not, in my opinion, be entertained.
The proceedings before the court of petty sessions may be summarised as follows. Two members of the police force were called for the prosecution. They said that at 6.40 p.m. Sergeant Henderson, Senior Constable McKenzie, First Constable Collins, and other police, went to certain premises at 53 Market Street, Melbourne. The premises appear to have been occupied by a body known as the Aircrew Club of Australia, Victorian Division. There was no evidence as to the nature or constitution of this body, but the case has been conducted throughout on the assumption that it is an ordinary unincorporated club. It is not registered under Pt. XII of the Licensing Act 1928. The constables walked into a room in which there were a number of men gathered in front of a bar. The defendant Stack was behind the bar, filling glasses with beer, for which he was paid by those who ordered it. Collins ordered three beers, which were supplied by the defendant, and for which 2s. 3d. was paid. The defendant was then told that the visitors were police, and certain questions were put to him. He said that he was a steward employed by the Aircrew Club of Australia, that he started work at 4 p.m., and "knocked off" at 10.45 p.m., his duties being to serve beer in the bar at ninepence a glass. Asked under whose instructions he acted, he said: "club rules". A search of the premises revealed a large quantity of beer, spirits and wine. In cross-examination Constable Collins said that there was a "Temprite" cooling system and refrigeration plant installed on the premises, which were used as club rooms by a club known as the Aircrew Club of Australia (Victorian Division), the members of which were present and former members of air crews. He agreed that the premises were well fitted up with tables and chairs, and that the bar was well set up, and he said that he was satisfied that the defendant was employed as a steward by the club.
At the close of the case for the prosecution counsel for the defendant submitted that there was no case to answer. The magistrate ruled against this submission, and the defendant was called as a witness. He said that he had been a barman employed at different hotels for twenty-five years. He agreed that the police evidence was true and correct. He said that he had been offered the position of barman at the club at a salary of £14 10s. 0d. per week, and took it because the hours of employment were convenient to him. He had not been informed that the club had no licence, and he thought it was licensed, as the premises were fitted with a "Temprite" cooling system and a refrigeration plant, and were well furnished with tables and chairs. In cross-examination he said that, after twenty-five years in the liquor trade he was well conversant with it, and that he did not inquire if the club was licensed, but took it for granted that it was. He said further that he did not know that trading hours for clubs were "universally restricted" to 6 p.m., that he believed that he was entitled to serve liquor throughout the hours of his employment, and that he always believed the club to be licensed.
In giving his decision the magistrate said: - "The defendant is charged with selling liquor without a licence, and the facts generally are not disputed. It has also been shown that the defendant did the acts complained of as a servant. He stated in evidence that he did not know that his employer, a club, had no authority to sell liquor. I can see no good reason for rejecting this evidence, and must act on it. Mr. Franich submitted that, if the defendant's evidence were accepted, the information should be dismissed, and he referred to the case of Abley v. Crosaro [1] . In my opinion, that submission is correct. The information will be dismissed".
Both in the Supreme Court and in this Court the respondent, who is, of course, entitled to support the dismissal of the charge on any ground available, submitted arguments which involve a consideration of the whole of the provisions of Pt. XII. of the Licensing Act and of the position of "clubs" generally under the Act. It was argued, inter alia, that s. 161 had no application whatever to the facts of the case. It will be convenient, however, to deal first with the ground on which the magistrate decided the case, and which rests entirely on the terms of s. 161, under which the charge was laid. It is desirable to set that section out in full. It provides: -
(1) Every person who (except as the agent or servant of a licensed person and then only in accordance with such person's licence) sells any liquor without a licence authorizing such sale - (a) shall be liable for a first offence to a penalty of not less than Twenty-five nor more than Fifty pounds or to imprisonment with or without hard labour for a term of not less than three nor more than six months; and (b) shall be liable for a second and any subsequent offence to imprisonment with or without hard labour for a term of not less than six nor more than twelve months; and (c) shall also in the case of a first as well as any subsequent offence forfeit all liquor in his possession with the vessels containing the same.
(2) Any person convicted as aforesaid shall remain in custody until either the fine is paid or the term of imprisonment awarded in default of payment of such fine has expired.
(3) In the case of a conviction for a second or a subsequent offence such person shall be liable to be declared by the Licensing Court to be a disqualified person for a period of eighteen months.
(4) Proof of consumption or intended consumption of liquor on any premises by any person other than the occupier of such premises shall as against such occupier be prima facie evidence in any proceedings under this section that such liquor was sold to the person consuming or being about to consume or carrying away the same.
The magistrate accepted the evidence of the defendant, but apparently regarded it (rightly, I think) as amounting to no more than that "he did not know that his employer had no authority to sell liquor". He then regarded the case as covered by the decision of Gavan Duffy J. in Abley v. Crosaro [1] . His brief statement of his reasons does not fully explain this view, but it is clear, I think, that it was correctly explained by counsel for the respondent. The foundation of it lies in the view that a servant or other person, who acts as agent for a principal in effectuating a sale by that principal to a third party, does not himself "sell" liquor within the meaning of s. 161. In such a case, it is said, the sale, and the only sale, is a sale by the master to the customer, because it is from the master to the customer that the property passes. It is conceded that, by virtue of s. 74 of the Justices Act 1928 Vict. the servant may be charged with, and convicted of, an offence against s. 161 as having "aided and abetted" in the commission of an offence by his master. But it is said that it is only on the footing that he is an aider and abettor that he can be so charged and convicted, and he cannot be so convicted unless it is shown that he had knowledge that an offence was being committed. The defendant in this case had no such knowledge. The argument so stated is said to be supported by Abley v. Crosaro [1] .
It is true that a person cannot be convicted as an aider and abettor unless he had knowledge that an offence was being committed. But it is not, in my opinion, correct to say that a servant who effects a sale as agent can only be convicted under s. 161 as an aider and abettor. He can, in my opinion, be charged and convicted as having himself actually sold liquor within the meaning of s. 161. The words of the section - "Every person who (except as the agent or servant of a licensed person ) sells any liquor without a licence authorising such sale" - seem to me to make it abundantly clear that an agent or servant, who sells liquor only as the agent or servant of another person, is one who himself "sells" liquor within the meaning of the section. And this was expressly so decided by Stawell C.J. in Ex parte Wylie; Ex parte Butler [2] , under a provision in the Licensing Act 1876 Vict., which was, so far as material, in terms identical with those of s. 161. Wylie was the holder of a grocer's licence, and Butler was in his employment. Butler, as Wylie's servant and on Wylie's behalf, effected a sale of liquor which was not authorized by Wylie's licence. Both were charged under the same section in respect of the same transaction, and both were convicted. It was held that the servant, Butler, had been rightly convicted, because he had "sold" liquor as a servant otherwise than in accordance with his master's licence. It was also held that the master, Wylie, was not guilty of an offence against the same section, but ought to have been charged under a section (corresponding to the present s. 177) which prohibited a licensed person from selling otherwise than in accordance with his licence. The decision with regard to the master (which appears to me to have no relevance to the present case) was approved by the Full Court in O'Connor v. Ridout [3] .
It was thus decided some seventy years ago in Victoria that a person who sells merely as the servant or agent of another "sells" liquor within the meaning of what is now s. 161 of the Licensing Act 1928. The decision has never been challenged, it was not challenged before us, and it appears to me to be plainly correct. Not the slightest doubt is cast upon Ex parte Wylie; Ex parte Butler [1] by the decision in Mooney v. Still [2] or the decision in Mooney v. McKeand [3] . In each of those cases a waitress in an unlicensed cafe had been asked by a customer to obtain for him a bottle of liquor to accompany a meal. She had obtained a bottle accordingly and received the price of it. It seems plain enough on the facts in each of these cases that the waitress was really acting as agent for the customer and obtaining the liquor for him at his request. It could not fairly have been held that she was "selling" liquor either on her own behalf or on behalf of anybody else. It is the slightly later case of Canty v. Ivers [4] , that may at first sight appear to give some colour to the respondent's argument in the present case. But it really gives no support to that argument. Here again the evidence for the prosecution established no more than that the defendant, who was a waiter in an unlicensed cafe, was procuring liquor for a customer at the customer's request: it did not establish that he sold liquor on his own behalf or on behalf of anybody else. It did, however, appear that there was some "mysterious arrangement", known to habitués of the cafe, under which orders given to a neighbouring hostelry during licensing hours were performed by delivery in the cafe after licensing hours. The legal effect of this "mysterious arrangement" might have been that there was an illegal sale effected between the customer and the proprietor of the neighbouring hostelry. It might also have been that the waiter, though not "selling" liquor even in the capacity of servant or agent, was aware of an attempt to evade the law and was therefore an aider and abettor in an illegal sale. The case was accordingly sent back to the magistrates in order that they might further consider this aspect of it. The case of Abley v. Crosaro [5] , was, in its essentials, exactly like the case of Canty v. Ivers [4] . Here again a waiter in a cafe was asked for, and procured, a bottle of liquor for a customer, and Gavan Duffy J. held that there was no sale by him. His Honour said: - "Primarily when a waiter does no more than convey a bottle of wine to a customer and take payment on behalf of his employer the sale is the employer's and not his" [6] . I doubt very much whether his Honour meant to convey that one who effects a sale as agent does not sell within the meaning of s. 161. If he did mean that, he was not following Ex parte Wylie: Ex parte Butler [1] , and I would think, with respect, that he was wrong. But I do not think his Honour's mind was really adverting to any such question. The position was, just as it was in Canty v. Ivers [1] that there might have been a sale by the employer to the customer, although in that sale the waiter did not act as agent of his employer and therefore did not "sell" within the meaning of s. 161. If that were the position, the waiter, if, but only if, he knew that an offence was being committed by supplying the wine in the way in which it was supplied, would be guilty of an offence under s. 161 not as an actual "seller" but as an aider and abettor. His Honour accordingly took the course which had been taken in Canty v. Ivers [1] and sent the case back to the court of petty sessions for consideration of the question whether the defendant should be held guilty as an aider and abettor, although he could not be held guilty of having himself, even as an agent, "sold" liquor in contravention of s. 161.
For the above reasons the decision of the magistrate cannot be supported on the ground on which he based it. It is an essential step in his reasoning that the defendant could only be convicted as an aider and abettor. That proposition is not correct, and is not, I think, really supported by Abley v. Crosaro [2] . The position then is that the prosecution established a sale of liquor by the defendant to Constable Collins. That sale was made by him as a servant or agent, but not as the servant or agent of a licensed person. Prima facie, therefore, the commission of an offence under s. 161 was proved. The defendant, however, puts forward two arguments as affording defences to the charge.
The first argument may be stated briefly, if somewhat loosely, by saying that there was an absence of mens rea on the part of the defendant. If by this is meant that it is necessary, on a charge under s. 161, for the prosecution to prove that a servant knew that his master had no licence - in other words that knowledge is an essential ingredient of the offence - I am of opinion that the argument fails. The nature of the subject-matter with which s. 161 deals, the fact that it is the keystone of the whole licensing system, and the actual language of the provision itself, strongly suggest that knowledge is not an essential ingredient of the offence and that a person who has sold liquor as a servant or agent is, at least prima facie, guilty unless in fact he sold as agent for a licensed person and within the authority of the licence. To these considerations may be added the fact that ss. 166, 170, 193 (1) and (2), 194 (a), 225 and 226, all of which occur in the same Part of the Act as s. 161, expressly make knowledge an ingredient of the offence.
These considerations however, do not dispose of the argument. For, although to-day, in the case of such statutory offences as that created by s. 161, any presumption that guilty knowledge is an element in the offence must be taken to be at best a very weak presumption, it seems generally to be held, in the absence of express provision or clear implication to the contrary, that an affirmative answer is made to a charge of such an offence if the defendant proves that he honestly and reasonably believed in the existence of facts which would make his act innocent. In Proudman v. Dayman [1] , Dixon J. observed that it is one thing to deny that a necessary ingredient of the offence is positive knowledge, and quite another thing to say that an honest belief founded on reasonable grounds cannot exculpate. A little later his Honour said: - "But, although it has been said that in construing a modern statute a presumption as to mens rea does not exist (per Kennedy L.J., Hobbs v. Winchester Corporation [2] ), it is probably still true that, unless from the words, context, subject matter, or general nature of the enactment some reason to the contrary appears, you are to treat honest and reasonable mistake as a ground of exculpation, even from a summary offence" [3] . Cf. what is said by O'Bryan J. in McCrae v. Downey [4] . The limits of the rule are well illustrated by Green v. Sergeant [5] , where Martin J., with reference to the particular facts of the case, said: - "His ignorance of the nature of the area in which he was engaged does not necessarily mean that he had an honest belief in a state of facts which, if they existed, would make his action innocent. There is no doubt he knew he was shooting duck at Werribee and he never bothered to enquire whether he was on prohibited land or not. He really had no belief on the subject" [6] .
There was, I think, great force in the Solicitor-General's argument that even honest and reasonable mistake should be held excluded by s. 161. But I do not find it necessary to determine this question, because I am clearly of opinion that there are two answers to the defendant's contention in the present case. In the first place, I do not think that his evidence really amounted to any more than that he did not know that he or his employer was breaking the law. The magistrate treated his evidence as amounting to no more than that, and it seems to me that he would not have been justified in treating it as amounting to more than that. The defendant knew that his employer was a club, and he said that he thought that the club was "licensed". A club cannot be licensed under the Act. There is no real evidence of any belief in any specific relevant fact, still less that the defendant had reasonable ground for a belief in any specific relevant fact. He had had twenty-five years' experience in the liquor trade, including ten weeks in a club, and he entered, without inquiry, on his duties in the Aircrew Club. It is possible that he did not know, or did not realise, that the law was being broken, and the magistrate's finding could not in any case be challenged, but no further relevant inference in favour of the defendant could reasonably be drawn.
In the second place, even if it could be said that he entertained an honest and reasonable belief that the club was a registered club entitled under the Act to sell liquor to its members, it could not in this case, in my opinion, be an answer to the charge. At this point the fact that the sale took place at 6.40 p.m., i.e. outside lawful trading hours for a club (see ss. 266 (2) and 8 of the Licensing Act 1928), becomes for the first time relevant. (Since the defendant was not charged with selling outside trading hours, it is not, in my opinion, relevant in any other respect.) If his belief had been true, the only result would have been that he was guilty of an offence under s. 266 of the Act. The rule as to the effect of an honest and reasonable mistake of fact means, I think, that such a belief excuses if its truth would have meant that no offence was being committed, not if its truth would have meant that some other and different offence was being committed. In the great case of Reg. v. Prince [1] , Brett J. said that a mistake excused "whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe to be the facts, would, if true, make his acts no criminal offence at all " [2] . The judgment of Brett J. was the single dissenting judgment in a court of sixteen judges, but the whole point of the case is that the majority held that a mistake could not excuse unless the fact believed was such that, if it had been true, there would not merely have been no crime at all but no wrongful act at all. The statement of Brett J. is, therefore, to be regarded as stating a minimum requirement. Denman J. said: - "he cannot set up a legal defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing" [3] . The rule is generally stated in terms which mean that the existence of the fact mistakenly believed must be such as to render the act an innocent act; see, e.g. Bank of New South Wales v. Piper [4] . Kenny (Outlines of Criminal Law, 11th ed. (1922), p. 65), takes as an instance the case of a man who is charged with burglary, and proves that he honestly and on reasonable grounds believed that his breaking and entering occurred before 9 p.m. He would not be entitled to an acquittal on that ground, although, if his belief had been well founded, he would not have been guilty of burglary. In the present case the defendant said that he "did not know that trading hours for clubs were universally restricted to 6 p.m." But this, of course, is merely a statement that he did not know the law. If the facts established an offence against s. 161, the existence of a belief which, if well founded, would mean that his offence was not against s. 161 but against s. 266, affords him, in my opinion, no defence.
So far the arguments for the defendant really turn simply on the construction and effect of s. 161 of the Licensing Act 1928 and it has been necessary only incidentally to refer to any other provisions of the Act. It remains, however, to consider an argument for the defendant which raises a question of some difficulty, and which involves a close consideration of provisions other than those of s. 161 itself. It is said that s. 161 does not apply at all to sales on club premises, such sales being exclusively dealt with by ss. 265 and 266 of the Act. Section 265 occurs in Pt. XII. of the Act, which is headed "Clubs", and it is in the following terms: - "(1) If on the premises of an unregistered club any liquor is sold or supplied to any person whether a member of such club or not the person selling or supplying such liquor and every person authorizing such sale or supply shall be liable to a penalty of not more than Fifty pounds, and for a second or subsequent offence to a penalty of not more than One hundred pounds or to imprisonment with or without hard labour for a term of not more than two months or to both penalty and imprisonment. (2) If on such premises any liquor is kept for sale or supply on the premises every officer and member of committee of the club unless he proves to the satisfaction of the court that such liquor was so kept without his knowledge or against his orders shall be liable to a penalty of not more than Ten pounds".
It is convenient at this stage to set out also the provisions of s. 266, which is in the following terms: - "(1) No liquor shall be sold or disposed of in any club on Sunday or on Good Friday or on Anzac Day except to bonâ fide travellers or lodgers or to members of the said club being served with a meal between the hours of twelve and two in the afternoon or six and eight in the evening (2) No liquor shall be sold or disposed of in any club (except to bonâ fide travellers or lodgers) during prohibited hours that is to say during the hours when liquor may not be sold or disposed of to the public generally on licensed victuallers' premises which hours shall for the purposes of this Part be deemed to be the hours during which the sale or disposal of liquor to members generally is not authorized".
The argument necessitates an examination of the history of the legislation, a matter on which one has the assistance of the recent judgment of Sholl J. in Cahill v. Menz [1] . It may be noted here that the transaction in that case took place off the club premises, so that it would not be within the terms of s. 265. On the other hand, it is to be noted that the "sale" in Cahill v. Menz [2] , if it was a sale, was a sale by an agent of the club to a member, whereas in the present case the sale was a sale by an agent of the club to Constable Collins, who was not a member of the club. Section 265, as has been seen, applies equally to sales to members and sales to non-members.
Before looking at the Victorian legislation, it is necessary to observe that in England in 1882 it was held by a divisional court in Graff v. Evans [3] , that a transaction whereby a member of a club acquired liquor which was the property of the club was not a sale. The position is simply that "Part of the common property is appropriated to the separate use of the member and he makes a corresponding contribution from his separate property to the common fund" (per Dixon J. in Watson v. J. & A. G. Johnson Ltd. [4] ). (The position in Victoria is not affected by s. 72 (4) of the Property Law Act 1928 Vict..) Graff v. Evans [3] was followed in England by a number of cases, which are cited in Cahill v. Menz [2] , the position being held to be the same whether the property of the club is vested in trustees or not, and whether the club is incorporated or not, though the case of a "proprietary" club is held to be different from that of an ordinary "members'" club. The English decisions were accepted and applied by the Full Court of New South Wales in Ex parte Turnbull; Re Duffell [5] , although Davidson J. in Ex parte Turner; Re Hardy [6] , observes that the New South Wales legislation has contained references since 1898 to "sales" by clubs to members. The Graff v. Evans [3] line of cases has been criticised in South Australia and Western Australia, and is severely criticised in Cahill v. Menz [2] . The question must, of course, always be as to the meaning of the word "sale" or "sell" in the particular statute which comes under consideration. If no reason is seen for giving the word an extended meaning, one would think it perfectly correct to say that an ordinary unincorporated members' club does not sell, in the true sense, liquor which a member obtains from the common store on payment of money to the common fund. It may well be that the legal conception of a sale is, as Sholl J. says, not strictly inapplicable to the case where the legal ownership of the liquor is in trustees, or to the case where the club is incorporated. In these latter cases the English courts have apparently acted, not unnaturally, on what they regard as the substance of the transaction. On the other hand, there is no occasion for surprise at finding in any particular legislation the word "sale" or the word "sell" used as referring to a transaction between a club, incorporated or unincorporated, and a member. It is a natural enough use of either word, and, if clear indications are found that either word is intended in that sense or as including that sense, no hesitation need or should be felt in giving effect to that intention. And nothing that was said either in Watson v. J. & A. G. Johnson Ltd. [1] , or in the later case of Bennett v. Cooper [2] , can be regarded as compelling any particular construction of any particular word in any part of the Licensing Act 1928 Vict..
Now, it seems to me quite clear that, so far as Pt. XII. of the Act is concerned, references to selling and sale are intended to cover cases where liquor which is the property of a club becomes, on payment, the property of a member. The reasons given for this view by Sholl J. in Cahill v. Menz [3] appear to me to be conclusive. In particular, I would think it beyond argument that Graff v. Evans [4] could afford no answer to a prosecution for "selling" liquor to a member under either s. 265 or s. 266. I would also think it clear that a servant or agent who acted on behalf of the club in making over the liquor to the member must be held to "sell" the liquor within the meaning of either section. It is impracticable to prosecute a club. Where, of course, the sale is to a non-member - a case which is also covered by both sections - no question of the application of Graff v. Evans [4] can arise.
It is, however, plain that it is one thing to say that a servant of a club is, in the circumstances of the present case, a seller of liquor within the meaning of s. 265, and quite another thing to say that he is a seller of liquor within the meaning of s. 161. Indeed, while the argument for the defendant may not in terms concede that the present case falls within s. 265, the whole point of it is that ss. 265 and 266 provide exhaustive and exclusive sanctions in respect of transactions in liquor on club premises. No reason, by the way, has been suggested for prosecuting the defendant under s. 161 rather than under s. 265. The course may have been adopted because the penalties provided by the former section are much heavier than those provided by the latter. In Cahill v. Menz [1] , if it be correct to say that the "sale" took place off club premises (and I do not wish to cast any doubt on that view) there was, of course, a conclusive reason for laying the charge under s. 161, because s. 265 applies only to sales on club premises.
The critical point in the history of the relevant legislation appears to me to be the commencement of the Act of 1906, in which was first enacted what is now Pt. XII. of the Act of 1928. But it is desirable to begin a little further back. What is now s. 161 appeared (so far as material, in its present form) as s. 54 of the Licensing Act 1876. Section 4 of this Act provided that "Nothing in this Act shall apply to" a number of specified persons including "any person occupying any premises bonâ fide as a club". The wording of the exemption is a little curious, but the singular - "person" - should doubtless be taken to include the plural. There is no definition of the word "club". It seems essential to the exemption that a club should "occupy premises", but, subject to that, I would think it clear that the Act does not apply to clubs at all, and that in particular s. 54 does not apply to "sales" by or on behalf of a club, whether to a member or to a non-member, at least if the sale takes place on the club premises.
The consolidating Act of 1890, embodying amendments made in 1885 and 1888, contained three references to clubs. In the first place, s. 3 defined the word "club" as meaning "any club existing as a bonâ fide club on the fourteenth day of July One thousand eight hundred and eighty-five", and in the case of any club established after that date as including "any body association or company of not less than fifty persons united for the purpose of providing accommodation for and conferring privileges and advantages upon the members thereof. Provided that such accommodation shall be maintained from the joint funds of the club and that no person shall be entitled to derive any benefit profit or advantage from the club which may not be shared equally by every member thereof". Then s. 4 provided that "Nothing in this Act shall apply to" a number of specified classes of persons including "(8) any person occupying any premises bonâ fide as a club which the Licensing Court for the Licensing District has certified to be a club within the provisions of this Act which it is hereby authorized to do". The third provision was contained in s. 72, which provided: - "The Licensing Court of any Licensing District may at any time if it think fit direct that any certificate issued by such Court under this Act or any Act hereby repealed that the premises therein named are bonâ fide occupied as a club shall no longer be of any force or effect and the provisions of this Act shall thereupon apply to such premises".
What is now s. 161 appeared as s. 182 of the Act of 1890. The class of clubs which is exempted altogether from the operation of the Act is now restricted by the necessity of obtaining a certificate. On the other hand, I would think that the grant of a certificate was not a matter of discretion, except perhaps in a case in which a club did not fall within the terms of the "inclusive definition": if it proved that it came within those terms, it would, I should suppose, be entitled as of right to a certificate. At this stage, I would think that a certificated club was entirely outside the provisions of the Act, and that in particular s. 182 did not apply to any sale by or on behalf of such a club. To acts done by or on behalf of such clubs, at least on the club premises, the Act simply had nothing to say. With regard to uncertificated clubs, one would have thought that s. 182 could not apply to "sales" by them or on their behalf to members, because of the doctrine of Graff v. Evans [1] . No reason, however, is apparent for denying that the restriction of the exemption had the effect of making s. 182 applicable to sales made by a servant or agent on behalf of an uncertificated club to non-members.
It was in this state of affairs that the Licensing Act 1906 came into force on 22nd December 1906. It is not incorrect to say, as Sholl J. said in Cahill v. Menz [2] , that this Act substituted a system of registration for a system of certification, but that statement presents a very incomplete picture of what the Act did. For, in the first place, that change was itself by no means a minor change, and, in the second place, the Act did a very great deal more than that. It radically altered the whole position of clubs. In place of a very wide exemption of clubs from all the provisions of the licensing legislation, it introduced for the first time a system - possibly from a practical point of view in some respects defective, but on its face complete and self-contained - for the legislative regulation, in respect of liquor, of all clubs. And, although I am not prepared to say that Cahill v. Menz [2] was wrongly decided, an examination of its terms leads me to a general conclusion different from that to which it led the Full Court in that case.
The relevant Part of the Act is headed "Division I - Clubs". It begins by providing that every certificate of the Licensing Court "certifying any premises to be a club" shall have no force or effect after 31st March 1907. It then repeals that part of s. 4 of the Act of 1890 which exempted certificated clubs from the provisions of that Act. It also repeals s. 72 of the Act of 1890. It does not provide any definition of the word "club". It does not repeal the definition of that word in s. 3 of the Act of 1890, but that definition disappeared in the consolidation of 1915. The Act of 1906 next provides that certain provisions of the Licensing Acts shall apply to registered clubs. These provisions mostly relate to the conduct of the premises of licensed victuallers. They include several penal sections, but do not include s. 182 (now s. 161). They are made applicable subject to necessary substitutions, such as that of "club premises" for "licensed premises".
The Act then proceeds to provide for the registration of clubs which possess certain qualifications. These qualifications are not dissimilar to those contained in the 1890 definition of the word "club". The rules of a club must, if it is to be eligible for registration, contain certain provisions of a specified character. Provisions are enacted, under numbered headings, for such matters as the grant and renewal of certificates of registration, the duration and renewal of registrations, objections to grant or renewal, removals to other premises, and the cancellation of registrations. Then come ss. 21 and 22, which are now respectively ss. 265 and 266. They stand under a separate heading - "(10) Sale of Liquor in Clubs". They have not been altered in any material respect. Section 22, unlike s. 21, does not contain its own provision for a penalty, and s. 102, which contains a general provision for penalties, is not applicable. The position, so far as I can ascertain, was not remedied until 1922, when what is now the second sub-section of s. 159 of the Act of 1928 was enacted. The maximum penalty is a fine of £10. One other provision of the Act of 1906 should be noted, and that is s. 23 (now s. 267). So far as it relates to unregistered clubs, this section provides that a magistrate, if satisfied that there is reasonable ground for supposing that any liquor is sold or supplied or kept for sale or supply on the club premises, may grant a search warrant to a member of the police force. The member of the force may then enter the club premises, by force if necessary, and seize any liquor so kept for sale or supply. The section also empowers a magistrate to grant a search warrant in the case of a registered club if he is satisfied that there is reasonable ground for supposing that it is so managed or carried on as to constitute a ground for the cancellation or suspension of its registration.
It may be conceded that there were imperfections and defects, and a degree of confusion, in Div. I of the Act of 1906, and that these (although some small points have been cleared up) persist in Pt. XII. of the Act of 1928. Great difficulty attends the application to registered clubs of some of the provisions expressly made applicable to them by s. 250. Perhaps the most notable anomaly is the overlapping of s. 266 and s. 178. But I find it impossible to read the Act of 1906, in the light of the pre-existing law, without feeling convinced that it was enacted to constitute what is sometimes loosely called a "code" in relation to clubs. That is to say, I feel satisfied (subject to one point, which I will mention later) that it was intended to express, and did express, the whole of the will of the legislature with regard to clubs. The whole framework and set-up most strongly suggest this view to my mind, and reference to prior legislation reinforces it. Clubs are made the subject of a separate and distinct Division or Part of the Act, and they are nowhere mentioned in the licensing legislation except in this particular Division or Part. The provisions of that Division or Part (if imperfect in conception) form a complete and coherent whole. There are elaborate provisions for the registration of clubs, but no right or privilege or immunity whatsoever is expressly conferred on a registered club. The only possible conclusion seems to be that a registered club is subject to the provisions of the Act made applicable to it by s. 6 (s. 250), and is subject to s. 22 (s. 266), and that otherwise the Act simply does not apply to it. And a corresponding position is created for unregistered clubs. They are subject to s. 21 (s. 265) and s. 23 (s. 267), and otherwise the Act simply does not apply to them. If the relevant Part of the Act of 1906 had been headed "Registered Clubs" and if it had been silent as to unregistered clubs, there would have been ground for saying the the general provisions of the Act applied, so far as they could be applied, in respect of unregistered, though not of registered, clubs. But that is not the position. Clubs are placed in a compartment of their own. It could hardly be suggested that an unregistered club was subject to s. 162 as well as to s. 267, any more than it could be suggested that a registered club was subject to both s. 267 and s. 162, the latter of which is not made applicable to it by s. 250. It seems to me equally difficult to say that an unregistered club is subject both to s. 265 and to s. 161.
It would, of course, be by no means without precedent if two provisions were found to exist under either of which a prosecution could be launched in respect of the same act. What is now s. 27 of the Acts Interpretation Act 1928 Vict. was designed to provide for one class of such case. But where in the one Act, or in two Acts dealing with the same subject matter, two provisions which overlap in terms are found, the one being general in terms and the other dealing with a special class of case, the general rule of interpretation is that the special provision, as to cases to which it applies, overrides the general provision. Parliament is taken prima facie to intend that the special provision is to cover the special case to the exclusion of the general provision. One would think that the presumption should be especially strong where, as here, the two provisions in question are penal and the general provision provides for much heavier penalties than the special provision. If it be asked why dealings with liquor in unregistered clubs should be less severely punished than other unauthorized dealings with liquor, several answers suggest themselves. One is that it is entirely a matter for Parliament, and that a more pertinent inquiry would be - why did Parliament enact s. 265 at all? Another is that Parliament may well have regarded, and almost certainly did regard, clubs as standing on a special footing of their own. They are societies, generally speaking, of a private and social nature, and, so far as the essential conception goes, their premises are more closely analogous to private homes than to public trading establishments. At one time such societies were permitted to stand altogether outside the licensing laws. Social conditions change. In 1906 it may very well have been thought, and probably was thought, that some clubs were transcending their functions as hitherto understood and required stricter control than in the past, but that clubs generally still had a special nature and social function of their own, and that less severe penalties for breaches of the special provisions enacted for them would be appropriate and adequate. If it ever became necessary, the very drastic steps authorized by s. 23 (s. 267) could be taken. Social conditions may have changed further since 1906, and it may be that Pt. XII. is inadequate to deal with the situation existing in 1953. If that is so, it is a matter for Parliament today, just as it was a matter for Parliament in 1876 and in 1906.
I have mentioned that what I have written is to be taken subject to one qualification. Part XII. of the Act seems to contemplate that any body which is a club will have "club premises", and s. 265, although it deals with the supply of liquor to non-members as well as to members, deals only with transactions on club premises. It is common knowledge that a number of bodies exist which are called "clubs" but which do not need or do not possess "club premises". On the other hand, in his judgment in Bennett v. Cooper [1] , Dixon J. refers to a "definition" in the Oxford Dictionary and to a passage in the judgment of Griffith C.J. in Bohemians Club v. Acting Federal Commissioner of Taxation [2] , both of which suggest that, for such purposes as those of the present case, the possession of "premises" or an "establishment" is essential to the conception of a club. At any rate, the qualification which I would make is that it may well be that Pt. XII. of the Licensing Act does not deal with clubs which possess no premises or with transactions which take place off the premises of a club which does possess premises. What the position of such clubs or such transactions is, and in particular whether they are affected by s. 161, are matters which need not now be determined. Nor need it now be determined whether the Full Court in Cahill v. Menz [3] correctly decided, in spite of the strong line of authority represented by Graff v. Evans [4] that s. 161 applied to the case before it - a case of a "sale" on behalf of a club to a member but off club premises. Any alarm which might be felt at the consequences of an opposite view might perhaps be mitigated by the reflection that the individual persons concerned could easily have acquired all the beer they wanted, for consumption at the place where they wanted it, without infringing the Act. The substance of the offence, if there was an offence, was that they used their organisation as a convenient means for obtaining it - a means which doubtless had the added advantage of a little profit for that organisation.
For the above reasons I am of opinion that the facts proved before the magistrate in this case disclosed an offence against s. 265, but did not disclose an offence against s. 161, under which the charge was laid. If Barry J. had taken this view, it is possible that he might have given leave to amend the information, made the order nisi to review absolute, discharged the order of the court of petty sessions, and remitted the case to that court for re-hearing. It is no doubt open to this Court to make an order to that effect, though it could only be on stringent terms as to costs. No application, however, was made at any stage to amend the information. The whole burden of the Crown's argument throughout has been that s. 161 did apply to the case, and it was on the basis of that argument that special leave to appeal to this Court was granted. In the absence of an amendment of the information the order nisi to review was rightly discharged. In all the circumstances, I consider that the only proper order for this Court to make is that the appeal be dismissed with costs.
The respondent was charged upon an information which alleged that on 7th March 1952 at Melbourne he did sell liquor without a licence authorizing such sale, contrary to s. 161 of the Licensing Act 1928 Vict.. The section provides that every person who (except as the agent or servant of a licensed person and then only in accordance with such person's licence) sells any liquor without a licence authorizing such sale shall be liable to certain penalties.
On the facts proved and admitted it is clear that the respondent on the date and at the place charged made a sale of certain liquor, that he did not have any licence authorizing the sale, and that he did not make the sale as the agent or servant of any licensed person. He made the sale in his capacity of a steward employed by a club, and on the club premises, at or about the hour of 6.40 in the evening. The club was not registered under the Licensing Act, and no authority under that Act to sell liquor existed in relation to the club or its premises. The respondent, however, deposed that he had not been informed that the club had no licence, and that he thought it was licensed as the premises were fitted up with a cooling system and a refrigeration plant and were well furnished with tables and chairs. He had not inquired whether the club was licensed, but he had taken it for granted and believed that it was. He said he did not know that trading hours for clubs were universally restricted to 6 p.m., and he believed that he was entitled to serve liquor throughout his hours of employment, which were from 4 p.m. to 10.45 p.m. on six days a week. The magistrate found that the respondent did not know that the club had no authority to sell liquor, and because he did so he dismissed the information. Upon an order to review, Barry J. in the Supreme Court of Victoria upheld the magistrate's decision, and from his Honour's order this appeal is brought by special leave.
It is a possible but I should think an unlikely interpretation of the magistrate's decision, that he acted on the view that upon the true construction of s. 161 a person who sells liquor without a licence authorizing the sale may always exculpate himself, not only (as the section provides) by proving that he made the sale as the agent or servant of a licensed person and in accordance with that person's licence, but also by proving that he made the sale as the agent or servant of a person whom he honestly and reasonably but mistakenly believed to have a licence authorizing the sale. If this is what the magistrate meant, his view is manifestly erroneous. The language of the section and its subject-matter combine to exclude quite decisively any implication that a prima facie case of an offence against the section may be answered by proof of an honest and reasonable mistake as to the possession of a sufficient licence by a person as whose agent or servant the defendant effected the sale charged.
What the magistrate said in announcing his decision was that a submission was correct which had been made to him by counsel for the defendant and for which the case of Abley v. Crosaro [1] had been cited. Gavan Duffy J. had said in that case that a waiter in a restaurant, who had conveyed wine to a customer and taken payment on behalf of his employer, could not be made responsible on a charge under s. 161 as an aider and abettor unless he knew that an offence was being committed by supplying the wine in the way in which it was supplied. His Honour added that the waiter must at any rate have known (inter alia) that his employer had no licence. These observations were made in relation to a case in which the sale was the employer's sale and not the waiter's, the waiter having done only the mechanical acts of carrying the wine to the customer and taking payment for it. It may be accepted that in such a case without proof of more the waiter cannot be convicted under s. 161, and that it is only, as the learned judge said, if he takes part in the offence, if he aids and abets it, that he has committed an offence and may be charged with the selling itself. The magistrate's decision in the present case must mean, it seems to me, that the respondent was in a position indistinguishable in any relevant respect from that of the waiter in Abley v. Crosaro [1] ; that therefore the sale with which he was charged was not his sale but was the sale of his employers; that therefore he could not be convicted except as having aided and abetted his employers' offence; that he could not be convicted as an aider and abettor unless he knew at the time of the sale that his employers had no licence authorizing the sale, and that he did not in fact know that that was so.
I see no reason to disagree with the observations of Gavan Duffy J. in Abley v. Crosaro [1] , as applied to the type of case with which he was dealing, but the position of the respondent in this case and that which the waiter appears to have occupied in Abley v. Crosaro [1] were fundamentally different. In considering a case under s. 161 where a sale of liquor has been made by the hand of a servant, it is essential to recognise at the threshold that the section shows by its very terms that the word "sells" is used as including some sales at least which are made by a servant acting as such. In relation to the corresponding section of the Liquor Act 1912 N.S.W. (s. 43), Jordan C.J. said in Links v. McCloskey [2] : "When a sale of liquor has in fact taken place and questions arise, for the purposes of such a section as s. 43, as to who has sold it, and whether the seller held a licence which authorised the sale, or was the agent or servant of the holder of such a licence, it follows from the decisions in Mellor v. Lydiate [3] ; Peckover v. Defries [4] ; and Dunning v. Owen [5] that the question, who is the seller, is to be determined by ascertaining not, who as the result of the transaction incurred contractual liability and acquired contractual rights as vendor, but who performed the act of selling. It is the person who performs the act of selling who needs a licence, unless in selling he is acting as a mere ministerial employee of some other person who controls him in performing the service of selling, in which case it is the person who controls these acts of selling that needs the licence" [6] . (See also Hotchin v. Hindmarsh [7] .) Reading "needs a licence" as meaning, needs the authority of a licence granted either to himself or to his principal or master, I take this to be the law under s. 161 of the Victorian Act. I understand the remarks of Gavan Duffy J. in Abley v. Crosaro [1] to be directed only to the case, such as must often occur where a waiter serves customers in a restaurant, in which the acts of a servant in relation to a sale are done under such a kind and degree of control that he cannot properly be described as himself effecting the sale. In relation to that type of case the law has long been established in Victoria as his Honour stated it: Mooney v. Still [8] ; Mooney v. McKeand [9] .
The case we have now to consider was not of that kind. The respondent was a steward whom the police found behind the bar dispensing liquor and taking money for it, with no one, so far as appears, exercising any control over him. His duties, as he told the police officers, consisted of serving beer in the bar, at ninepence a glass, pursuant to club rules. It is difficult to imagine a clearer case of a servant employed to sell and selling his master's liquor. The prosecution had not to make a case of aiding and abetting. The sale charged was made by the respondent himself. The question whether he believed his employers to have a licence was therefore irrelevant to the charge under s. 161.
Barry J. took a different view of the matter. His Honour's reasoning commenced with the proposition, for which he cited Ex parte Wylie [1] and O'Connor v. Ridout [2] , that s. 161 applies to cases where a person sells liquor without having any licence at all, but not to cases where a person sells liquor otherwise than in accordance with a licence which he possesses. It follows, he thought, that since a registered club has a "licence" within the definition of that word in s. 3 of the Act, a servant of the club cannot be convicted under s. 161 if he sells liquor in his employment outside the hours authorized by the Act. His Honour's next step was that the magistrate must be taken to have found that the respondent honestly and reasonably believed that the club by which he was employed was registered; that is that he honestly and reasonably believed in a state of facts which, if true, would (on his Honour's view) have made his conduct innocent so far as s. 161 was concerned. These considerations led his Honour to hold that the information was rightly dismissed.
I do not understand the magistrate to have made the finding which his Honour attributes to him; but, even if he did, it would be a valid answer to his Honour's reasoning, in my opinion, that there is nothing in the Act or in the authorities cited which justifies the view that a servant of a licensed person, if he sells liquor outside the permitted hours, is not guilty of an offence under s. 161. The cases referred to turn upon an inference which has been held to arise from the provisions now found in s. 177. That section provides its own penalty for a licensed person by whom or on whose behalf, or on or from whose licensed premises, any liquor is sold or disposed of to, or on or from whose licensed premises any liquor is permitted or suffered to be drunk by, any person (with certain exceptions) otherwise than during the hours, or otherwise than at the place and in the quantity and manner, authorized by such licensed person's licence. But it is one thing to say that the case of a licensed person which falls within s. 177 should be considered as excluded by implication from s. 161, and quite another thing to say that the case of an agent or servant selling outside the authority conferred by the licensed person's licence, is also outside s. 161 although no special penalty for such a case is provided by s. 177 or any other provision of the Act. Statements in the cases that s. 161 is aimed at sly grog selling express in condensed form the implication that has been considered to arise from s. 177, but they should not be given such a general application as to exclude from s. 161 cases of persons other than licensed persons: cf. Ex parte Norris [1] .
One question remains. The acts proved against the respondent undoubtedly constituted an offence under s. 265 (1) of the Licensing Act, which provides that if on the premises of any unregistered club, any liquor is sold or supplied to any person whether a member of the club or not the person selling or supplying such liquor and every person authorizing such sale or supply shall be liable to certain penalties. For some reason the respondent was not charged under this provision of the Act, perhaps because the penalties provided are less severe than these which may be imposed under s. 161. The argument based upon the presence of s. 265 (1) in the Act was that that sub-section should be construed as intended to provide exhaustively for the cases which fall within its terms, and that accordingly s. 161 has no application in those cases.
My brother Fullagar, by his examination of the history of legislation in Victoria concerning the position of clubs in relation to the liquor law, has shown how the legislature treated clubs as presenting special problems and requiring special treatment. It was suggested by the Solicitor General that the enactment of the predecessor of s. 265 (1) could be sufficiently accounted for by assuming a desire to overcome the difficulty revealed in Graff v. Evans [2] . No doubt the decision in that case explains the inclusion of supplying, in addition to selling, as a prohibited act. But it does not explain why the section was made to apply to selling liquor to non-members of a club when the predecessor of s. 161 was already in force, or why a provision making supply as well as sale an offence was limited to acts occurring on club premises, or why a person authorizing the sale or supply was dealt with in the same subsection. It seems to me that when one starts with the title of Pt. XII. which is simply "Clubs" without qualification, and works through the sections of which the Part consists, it is impossible to escape a strong impression that Pt. XII. is intended to comprehend the whole of the provisions of the Act relating to the premises of clubs, registered and unregistered. This impression is fortified when one finds that, as my brother Fullagar's historical survey makes clear, Pt. XII. or rather the corresponding Division of the 1906 Act, represented a new method of dealing with the problem of club premises generally, after trial had been made, first (in the 1876 Act) of excepting all clubs occupying premises from the application of the licensing Acts and later (in the 1890 Act) of excepting only certificated clubs occupying premises, conduct occurring on the premises of uncertificated clubs being left to the application of the general provisions of the Act.
I agree with my brother Fullagar in his reasons for concluding that s. 161 is inapplicable to a sale of liquor on the premises of an unregistered club, and that accordingly the information against the respondent under that section was rightly dismissed.
In my opinion the appeal should be dismissed with costs.
I have had the opportunity of considering the reasons prepared by Fullagar J. in this matter and I am satisfied that, for the reasons given by him, the appeal should be dismissed.
Bergin
Stack