Bergin v Stack

Bergin v Stack - [1953] HCA 53 - HCA 1953 case summary — Zoe

[22]

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.

[29]

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.

[35]

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..

[46]

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.

[47]

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.

[48]

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.

[55]

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] .

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Judgment (65 paragraphs)

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