File No : FR 2609 of 2005, FR 2610 of 2005, FR 2612 of 2005

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

Selling alcohol to a drunken person on licensed premises - Definition of sale - Whether indirect sale sufficient - Whether s 165 creates vicarious and strict liability on a licensee - Whether s 165 is an offence creating provision - Latent duplicity - Election

Liquor Licensing Act 1988 s 3, s 5, s 100, s 115, s 165, s 170(a)

Belel Pty Ltd v Baxter [2001] WASCA 225

Douglas-Brown v Commissioner of Police (1995) 13 WAR 441

DPP v Merriman [1973] AC 584

Holden v Sainken, unreported; SCt of WA; Library No 970700; 12 December 1997

Jackson v Dyball (1993) 74 A Crim R 10

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467

Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220

O'Dea v Glendinning, unreported; SCt of WA; Library No 930599; 26 June 1992

R v Lawson [1952] 1 All ER 804

S v The Queen [1989] HCA 66; (1989) 168 CLR 266

Stanton v Abernathy (1990) 19 NSWLR 656

Tomlin v R (1954) 38 Cr App R 82

Walsh v Tattersall (1996) 188 CLR 77

1 JOHNSON J: The appellants appeal the decision of the Magistrate in the Magistrates Court of Western Australia at Fremantle on the 17 October 2005 convicting each of them of an offence contrary to s 115(2)(a) of the Liquor Licensing Act 1988 (WA) ("the Act").

2 The offences were alleged to have occurred at The Clink nightclub ("the premises"), which is licensed premises, between 2 October and 3 October 2004. It was not in dispute at trial that the appellant, Dorigo Pty Ltd ("Dorigo") was the licensee of the premises and that the appellant, Rudolpho Rossario Fazio, was the approved manager of the licensed premises. Neither was it in dispute that the appellant, Aaron John Hollands, was at all material times on duty as the bar manager of the premises and that the appellant, Tori-Anne Vallic, was at all material times an employee of the licensee working at the premises. For convenience, and without intending any disrespect, I will refer to those appellants who are natural persons by their surnames.

3 Vallic was convicted under s 115(2)(a) of the Act of selling alcohol to a drunken person while that person remained on licensed premises. Each of Dorigo, Fazio and Hollands was convicted under s 115(2)(a) of the Act of having permitted the sale by Vallic, which was in contravention of that section of the Act. A fine of $200 was imposed on Vallic and fines of $500 were imposed on each of Hollands, Fazio and Dorigo.

4 The appellants appeal against conviction on the following grounds:

1. The learned Magistrate erred in law in failing to find that the charge contained a 'latent duplicity' given the evidence adduced and the failure to elect which incident of 'sale' was relied on by the Prosecutor.

2. The learned Magistrate erred in law in relying on s 170 (a) of the Act to provide evidentiary support for a sale to a drunken person, when it was only available to support a sale per se.

3. The learned Magistrate erred in law and fact in determining that there was evidence capable of supporting a finding to the required standard that Hollands, Fazio & Dorigo Pty Ltd permitted the sale of liquor to a drunken person.

(a) taking into account the "general tenor" of the Act in construing s 165 of the Act.

(b) relying on s 165 of the Act when the provision was not identified in the charge and was in any event not relevant."

5 The charge against each of the appellants alleges a breach of s 115(2)(a) of the Act. However, in the case of Dorigo, Fazio and Hollands, the precise wording of the charge is that they "permitted" the sale of alcohol to a drunken person whereas, in the case of Vallic, the charge was simply that she sold alcohol to a drunken person.

6 Section 115(2)(a) provides that a person shall not, on licensed premises sell or supply liquor, or cause or permit liquor to be sold or supplied, to a drunken person. This offence creating provision provides a penalty, in the case of the licensee or manager of $5000, in the case of an employee or agent of $2000, and in any other case of $1000.

7 Under s 115(3) a person is said to be "drunken" for the purposes of the Act if the person's speech, balance, coordination, or behaviour is noticeably affected by liquor. This subsection simply identifies the types of behaviour which are indicative of drunkenness.

8 The meaning of the term "sell" is defined in s 3 of the Act, in relation to liquor, to include:

"(a) agree or attempt to sell;

(b) offer or expose for the purpose of selling;

(c) send, forward or deliver for sale or on sale;

(d) barter or exchange;

(e) dispose, by lot or chance or by auction;

(f) supply, or offer, agree or attempt to supply -

(i) in circumstances in which the supplier derives, or would be likely to derive, a direct or indirect pecuniary benefit; or

(ii) gratuitously, but with a view to gaining or maintaining custom or other commercial advantage;

or

(g) authorise, direct, cause or permit to be done any act referred to in this definition,

The balance of the definition is of no relevance to this appeal.

9 It can be seen that the definition of sale in s 3 includes in all circumstances the meanings set out in par (a), par (b), par (c), par (d), par (e), and par (g). However, it does not include the term supply other than in the two specific situations set out in par (f)(i) and par (f)(ii). Therefore, in most cases, the prosecution would be required to establish that payment was made for the alcohol or would be required to prove the purpose of the supply of the alcohol; for example, under par (c) that the supply was for on sale or under par (f) that the supply was with a view to obtaining a benefit or a commercial advantage.

10 The difficulties involved in establishing that a sale of alcohol has occurred in such circumstances are evident. This would be, at least in part, the reason s 170(a) of the Act provides that, in any proceedings for an offence against the Act, evidence of the delivery or supply of liquor is evidence of a sale of the liquor. This provision removes the need to establish that payment has occurred or to establish any of the other matters referred to in the definition of "sell" in s 3. Such a provision is common where it is the passing of the item to another person which is the real criminality rather than the fact that money is paid for the item: see for example the provisions of the Misuse of Drugs Act 1981 (WA).

11 It does not follow that only one or the other of the provisions can be called in aid. For example, the effect of s 170(a) would be that the exchange of money does not need to be established but the definition in s 3 would enable a person to be prosecuted for selling alcohol to an intoxicated person where they had not actually supplied the alcohol but had authorised or permitted a sale of alcohol by another person.

12 The Act not only regulates certain conduct by employees but sheets home responsibility for the act of employees to those who have responsibility for the business, or relevant part of the business, in which the unlawful conduct occurs. It is not difficult to identify the reason behind such an approach. The Act confers on certain persons and bodies corporate the benefit, including the financial benefit, of a liquor licence. That benefit carries with it responsibility to ensure that the business conducted under the liquor licence is conducted in accordance with the provisions of the Act. Compliance with the requirements of the Act cannot be avoided by employing staff to conduct the day to day activities of the business and denying personal responsibility for any particular act. The responsibility of licensees and managers extends to ensuring that staff are properly trained and also to appropriately supervising staff to ensure that no breach of the Act occurs. Even where those steps are taken, a licensee or manager cannot absolve himself from responsibility for the acts of his employees. The licence is his and the responsibility is his.

13 The observations I have made are consistent with the object of the Act as stated in s 5 of the Act. The primary objects of the Act are stated to be to regulate the sale, supply and consumption of liquor (s 5(1)(a)), and to minimize harm or ill-health caused to people, or any group of people, due to the use of liquor (s 5(1)(b)). In carrying out its functions under the Act, the licensing authority is required to have regard, inter alia, to the objects of regulating, and contributing to the proper development of the liquor, hospitality and related industries in the State and also to the object of providing adequate controls over, and over the persons directly or indirectly involved in, the sale, disposal and consumption of liquor: s 5(2). In this context, the purpose behind establishing vicarious liability for the actions of an employee is easily understood.

14 Section 165 of the Act is in the following terms:

"(1) Where, in contravention of this Act, an employee or agent of the licensee, or a person acting, or purporting to act, on behalf of the licensee, commits an offence for which the licensee would have been liable had it been committed by the licensee on the premises to which a licence or permit relates, the licensee shall be deemed also to have committed an offence and is liable to the same penalty as is prescribed for the principal offence.

(2) A licensee may be proceeded against and convicted under subsection (1) notwithstanding that the employee or agent has not been proceeded against or has not been convicted under this Act.

(3) It shall not be a defence to a charge of an offence against subsection (1) to show that the licensee did not know, or could not reasonably have been aware of or have prevented the offence committed by the employee or agent, or had taken reasonable steps to prevent the commission of that offence."

15 The term "licensee" is defined in s 3 to include a person who holds a licence or permit under the Act, a person who is authorised under s 86 or s 87 to carry on business under a licence or as if that person were a licensee, and may in accordance with s 101 include a reference to a person appointed or permitted to conduct, supervise or manage the business. It is the responsibility for the operation which lies at the heart of the criminal responsibility attributed to such persons. Section 86 applies to interim authorisations to carry on business and s 87 relates to protection orders. Neither section is of application in this matter. The consequence then is that, for present purposes the relevant definition of licensee includes:

(a) a person who holds a licence or permit under the Act; or

(b) in accordance with s 101, a person appointed or permitted to conduct, supervise or manage the business.

16 The relevant portion of s 101 of the Act is as follows:

(a) a requirement is made of a licensee; or

(b) an element of an offence is an act or omission on the part of a licensee,

a person appointed as manager, or permitted by the licensee to conduct, supervise or manage the business carried on under the licence on any premises is responsible as though that person were also a licensee of those premises and is liable accordingly, and that person may be charged with the offence.

(2) A person who is not a manager of licensed premises but is permitted by a licensee to conduct, supervise or manage the business carried on under the licence, shall, for the purposes of any prosecution for an offence under this Act arising out of the conduct of the business, be deemed to be, and is liable as though that person were, the manager of the premises concerned."

17 In the present case, there is no suggestion that the relevant offence is one where an element of an offence is an act or omission on the part of a licensee. Therefore, in order to attribute responsibility to a person other than the licensee, it would be necessary to establish that the matter fell within s 101(1)(a), that is, the situation is one where a requirement is made of a licensee.

18 The term "manager" is defined in s 3 to mean a person approved as a manager under s 35B and, unless the contrary intention appears, includes a person managing premises under s 100(3). For a person to be approved as a manager under s 35B that person must be the subject of an approval in writing from the Director of Liquor Licensing. In this case there was no evidence that any relevant person had such approval. Therefore, the only relevant meaning is of a person managing premises under s 100(3); that is, a person appointed by the licensee to manage the premises where the manager of the licensed premises approved under s 35B is absent from the premises or there is no such manager in respect of the premises. Section 100(5) provides that a person shall not supervise or manage the conduct of business at licensed premises other than in accordance with this section.

19 The question that arises in this case is whether s 165 is a deeming provision which allows a licensee to be charged with the commission of an offence under the Act, even where the licensee did not carry out the act, or whether it creates an offence under which a licensee in those circumstances must be charged.

20 As I have noted, there was no reference in the complaints against Dorigo, Fazio and Hollands of liability pursuant to s 101(1) or s 101(2) of the Act. Further, the complaints allege that they each "permitted" the sale of alcohol rather than "sold" it. To that extent at least it could be said that, based on the complaint alone, the appellants were not made aware of the basis of the case against them. At the outset of the hearing, in response to a question from the Magistrate about what was in issue, counsel for the appellants Dorigo, Fazio and Hollands brought to the Court's attention that there was an issue "whether there was in fact a permitting" by each of them. The response by the prosecutor to this and other issues raised on behalf of the appellants was curtailed by the Magistrate. No attempt was made to lead evidence from any witness about any act on the part of these three appellants which could be said to aid or permit the offence itself. However, it is apparent from the prosecution's closing address that the basis of the case against these appellants was their vicarious liability under s 165(1) of the Act. Specific reference was also made to s 165(3) which states that it is not a defence to show the licensee did not know or could not reasonably have been aware or have prevented the offence committed by the employee. It is therefore clear that the case against each of the appellants Dorigo, Fazio and Hollands was one of vicarious rather than personal liability. It is also clear from the prosecutor's closing submissions that the offence committed by the employee was that alleged to have been committed by Vallic.

21 The learned Magistrate delivered extempore reasons for convicting the appellants. He referred to the tenor of the act as placing a very severe onus on persons employed in establishments supplying alcohol and reflecting an appreciation by Parliament of the negative effect of alcohol. The Magistrate accepted that the prosecution police witnesses were truthful and accurate in their evidence and found the following facts to be proved:

22 Regan was heavily intoxicated which would have been obvious to the most casual observer and he therefore clearly came within the definition contained in s 115(3). In a transaction witnessed by Constable Hanson, Regan handed to Male No 3 a voucher received at the door of the premises and as a consequence, Vallic placed on the bar three alcoholic drinks, one of which was almost immediately handed to Regan for his consumption. Later, a second drink was provided to and consumed by Regan by way of a similar transaction, although the evidence is not clear as to whether money was tendered or whether another voucher was used. Police intervened shortly afterwards and Vallic was interviewed. The Magistrate found that Constable Hanson accurately recorded the answers Vallic, Fazio and Hollands gave to the questions asked of them.

23 The Magistrate rejected the submissions that there was no sale of alcohol and that there was no proof of actual or constructive knowledge on the part of Hollands or Fazio. He also rejected the proposition that the prosecution could not rely on s 165 of the Act. The Magistrate found that each of the charges had been proved beyond a reasonable doubt.

24 Before dealing with the specific grounds of appeal, it will assist to identify the evidence in support of the charge against Vallic. Prior to calling evidence, the prosecutor advised the Court that the drunken person referred to in each complaint was James Kenneth Regan, referred to as male No 1 and who at the relevant time, was one of a group of three males.

25 The evidence of Constable Hanson was that, during her plain clothes covert operation inside the premises, she observed Regan over a period of time and she believed him to be intoxicated during the entire period. As there is no appeal from the Magistrate's finding that he was a drunken person, I do not propose to refer to the evidence of his condition. Regan was described by the witness as a Caucasian male, approximately 19 years old, of medium build, approximately 165 cm tall with brown scruffy short hair and wearing a black collared shirt and dark pants. She observed him walk up to the main bar where he was in the company of three males and a female. He was carrying the remainder of a drink. One of the males and the female left shortly after.

26 A drawing made by the Constable and tendered into evidence shows the remaining three males, including Regan, actually at the bar. Male No 2 was described as a Caucasian male approximately 20 years old with blond hair and wearing a light-coloured shirt. Male No 3 appeared older than the other two. He was described as Caucasian, approximately 30 years old with brown balding hair and he was wearing a black suit. He was not as intoxicated as the other two males.

27 The Constable observed Regan finish the drink he was carrying when he walked up to the bar. Shortly after, she saw Regan hand a drink voucher to male No 2 who then leant over the bar and ordered three drinks. The three drinks were placed on the bar and each of the three men took a drink each and began to drink them. Regan was seen to scull his drink within approximately 10 seconds of taking it from the bar. By this time, the Constable had joined the three men at the bar and started a conversation with them. Male No 3 offered to buy Constable Hanson a drink but she declined. She then heard him order three bourbon and cokes. She saw a female bar attendant serve the drinks to the males. The female bar attendant placed three drinks in front of male No 3, who was standing directly beside males No 1 and No 2. Their shoulders were probably about 20 cm to 30 cm from each other and they were facing the bar. Each of the three males took a drink from the order. The Constable had observed the three males for over an hour and they had at all times been drinking together at the bar. During that time Constable Hanson observed Hollands to be walking the floor between the two bars and the dance floor as well. She could not recall seeing Fazio on the floor at all and saw him for the first time that night after she questioned Vallic. Constable Hanson said that the premises were not "too crowded".

28 Shortly after, on the arrival of two uniformed colleagues, Constable Hanson advised them of the situation before informing the three males that she was a police officer, producing her identification and speaking to them. The two uniformed officers then took name and address details from each of the three males. At this point, Constable Hanson went straight to the back of the bar and identified herself as a police officer to Vallic, who had served the drinks to the three males. Constable Hanson said to Vallic, "Did you serve these three males?" and pointed to the three males who were approximately one metre away and within reaching distance to the left of Constable Hanson. Vallic confirmed that she had served them. The short time frame between serving the three drinks to male No 3 and Vallic's admission strengthens its accuracy.

29 In cross-examination, the Constable was questioned about Vallic's acknowledgement that she had served the three males. Constable Hanson explained that the three males were within reaching distance directly beside her and there was no one else between them when she asked the questions. When Constable Hanson asked the question and pointed to the three males, Vallic looked at her and at them. There are two other factors which reinforce the conclusion that Vallic's admission related to the three males about whom Constable Hanson gave evidence. The first is Vallic's own description of them during her conversation with the Constable. The second factor came to light in re-examination when Constable Hanson said that the two police officers in uniform were standing next to the three males when Constable Hanson pointed them out to Vallic. In my view, in circumstances where Vallic was being questioned by a police officer about whether she had served three males and has her attention directed to three males with two police officers standing next to them, it is clearly the case that her affirmative response related to the three males that the police officer was questioning her about. She could not possibly have been acknowledging any other group of three males. It is, therefore, the case that Vallic admitted she had served all three, including Regan, the drunken person.

30 Vallic's description of the three males forms part of the interview between her and Constable Hanson. She was asked: "Do you remember serving the people I pointed out to you in the bar area?" she said, "Yes". She was asked how many times she served them that night. She said that she served the more drunk one twice, the one in the suit jacket three or four times. When asked to describe their general condition, Vallic said that the person in the suit seemed fine, the middle one was tipsy to drunk "and the other was stumbling around and was drunker".

31 It is of particular significance that, despite admitting she had served all three men, when asked how many times she had served them, Vallic referred only to serving males No 2 and No 3. In my view, it is implicit in this admission that, when serving one of the other males and supplying three drinks, she was aware that they were to be consumed by each of the three men. It is also the case that Vallic was able to differentiate between the three men, as her description of them illustrates. It is apparent, therefore, that she was acknowledging that when she served males No 2 and No 3 she was in fact supplying alcohol to all three. Her evidence also discounts the possibility that, when admitting she served all three men, she was referring to serving Regan directly, which would had to have been on an occasion other than when the three men were observed by Constable Hanson. Vallic's admission, therefore, is consistent with her knowing that when she supplied the three drinks ordered by males No 1 or No 2, one of those drinks was for Regan who she admitted "was stumbling around and was drunker".

32 The evidence of Senior Constable Steed confirmed most of Constable Hanson's observations. He first saw Regan returning to the bar from the toilets. He also confirmed that one of the other males purchased Regan's drinks for him. He supported Constable Hanson's evidence that Vallic admitted that she had served drinks to the three males. He said: "Ms Vallic said, 'Yes, they're the ones that I served. Yes. I've served those males' or words to that effect." He also confirmed the proximity of the three males to Vallic and the position of the others present at the time. Senior Constable Steed said in his evidence that he did not observe Hollands or Fazio at any stage until Constable Hanson was in the rear service area speaking to Vallic.

33 As indicated above, the appeal against Vallic's conviction is based on the following grounds:

"1. The learned Magistrate erred in law in failing to find that the charge contained a 'latent duplicity' given the evidence adduced and the failure to elect which incident of 'sale' was relied on by the Prosecutor.

2. The learned Magistrate erred in law in relying on s 170 (a) of the Act to provide evidentiary support for a sale to a drunken person, when it was only available to support a sale per se."

34 I believe any reading of these grounds would lead to the conclusion that the first ground relates to the fact that the evidence revealed two separate occasions on which drinks were ordered and Vallic served them. The import of the second ground is not immediately clear.

35 On appeal, counsel for Vallic submitted that there was no sale of alcohol to Regan. That issue would appear to relate to the second ground. One aspect of that submission was that there was uncertainty as to whether the Magistrate was satisfied that the drunken person to whom the alcohol was sold was indeed the person nominated by the prosecution; that is Regan, or male No 1. Support for that proposition is said to be found in the closing submissions of the prosecutor. Counsel for Vallic submitted that the prosecutor adopted a suggestion from the Magistrate that male No 3 was the drunken person for the purposes of the charges. The exchange is in the following terms:

"HIS HONOUR: Look, I have no doubt whatsoever that on the evidence there's sufficient to establish beyond reasonable doubt that that person that's been referred to as male number 3 comes within the definition in the Liquor Act.

PROSECUTOR: Thank you, Sir."

36 Even if it were the case that, at that point in the proceeding, the Magistrate considered that it was male No 3 who was the drunken person for the purposes of the charge, the fact remains that in his reasons for decision he clearly appreciates that Regan is the intoxicated person for the purposes of the charge and that he is male No 1. That conclusion is apparent from the following extract from the transcript of the Magistrate's reasons:

"In the early hours of the 3rd of October 2004 James Kenneth Regan was at the bar area of The Clink nightclub in the company of other male persons. At the relevant time there were three persons that have been referred to respectively as males 1, 2 and 3. For the sake of elaboration, Regan is the person who's alleged to be intoxicated. Number 2 is referred to as not quite so intoxicated and number 3 the person in the suit, the older person, was said to be not in such a bad state, if that's the way to describe it, and those are my words, not the witnesses."

37 Although the Magistrate does not explicitly identify Regan as male No 1, it is completely clear that such is the case, if only by a process of elimination. If number 2 is the person who is not so intoxicated and number three is the person in the suit, then Regan must be male No 1, the intoxicated person. It is also clear that the Magistrate has not confused male No 1 and male No 3, as he describes male No 3 as the older person in the suit.

38 In my view, the reference in the course of the prosecutor's closing submissions to male No 3 was no more than a slip of the tongue. Indeed, the same mistake was made by the Magistrate in the closing submissions of counsel for the defendant where he asks the following question: "Is that what you're saying, there was no sale to male number 3 - - sorry, male number 1?"

39 Further, when consideration is given to the whole of the evidence and the content of the Magistrate's reasons for decision, it is abundantly clear that the drunken person is the person who Constable Hanson first identifies in her evidence; the one who spilt his drink onto her feet as he stumbled past. That person was male No 1, Regan.

40 The nature of the other issue raised by Counsel for Vallic has proved difficult to identify. Counsel for the appellant submitted on appeal that, at trial, the prosecution was put on notice from the outset as to a point of duplicity and the absence of sufficiently clear particularisation. According to counsel, at no stage was the issue resolved so as to make clear which "male number" was the alleged "drunken person", nor which specific action on the part of Vallic was said to contravene s 115(2)(a) of the Act. I have already concluded that the first of these complaints is unfounded. As to the second aspect, counsel submitted that the Magistrate's reasons for decision do not remove the uncertainty as to which "transaction" was the source of the conviction against Vallic. However, the reference to "transaction" is ambiguous in circumstances where the evidence reveals two separate occasions on which drinks were ordered and supplied, and where the sale or supply alleged involves placing drinks on the bar one of which is then passed to Regan (as the Magistrate said) or was collected by him (as the evidence revealed).

41 At the commencement of the trial, counsel for the appellants requested the prosecution to identify which of the three males was the subject of the charge and was provided with that information. Counsel then mentioned that the prosecution had referred "on the one hand to a sale and on the other hand to a supply". At that point, the Magistrate noted that the prosecutor had identified the drunken person and described that issue as being "as plain as day". Counsel for the appellants then made the following statement:

"Can I raise a slightly different matter though, your Honour, if it's also said that there's some reliance on a distinct supply as opposed to that asserted sale, there's a potential duplicity problem. And could I just put my learned friend on notice that if there's that evidence of different transactions, he will need to elect, otherwise the duplicity problem may continue, if it please you, sir."

42 The Magistrate indicated that he did not see the problem and the prosecution submitted that the prosecution would rely on s 170 of the Act to the effect that evidence of supply of liquor is evidence of a sale of liquor. It would seem that both the Magistrate and the prosecutor understood counsel's statement concerning a duplicity problem to relate to the issue of whether, based on the definitions of the term "sell", there was on the evidence both a sale and a supply. In view of the way in which counsel expressed himself, that understanding was entirely reasonable. Indeed, that was the understanding of counsel for the respondent on this appeal as evidenced by the respondent's written submissions. Consequently, if indeed counsel was referring to the fact that the evidence to be adduced revealed two transactions involving the supply of alcohol, rather than one transaction as charged, that issue was simply not dealt with by the prosecution or the court. Further, neither the Magistrate nor the prosecutor seem to have understood that counsel was referring to the fact that the evidence of each occasion on which drinks were ordered revealed that Vallic placed them on the bar and then a drink was either handed to Regan or collected by him and hence there were two "parts" to the supply.

43 However, in his closing submissions, counsel for the appellants made the submission that "it hasn't been put with clarity precisely what transaction is being relied upon and by which statutory route it is said that there is a sale to male 1, which from the outset was the person against whom it is said that there was a sale". The ensuing submission related solely to whether there was evidence of a sale by Vallic to Regan where the evidence was of a sale to one of the others in the group which was then provided to Regan. On that basis, it would seem that the "duplicity" being referred to was the evidence of a sale to one of the other males and a supply by that male to Regan.

44 The following statement in the written submissions filed on appeal on behalf of the appellants would seem to support this interpretation:

"As to any alleged 'sale' and/or 'supply', his Honour made findings as to two distinct transactions which led to, in the first instance, an alcoholic drink being handed to Regan for his consumption and, in the second instance, a drink being consumed by Regan."

45 With respect to counsel, if this statement is intended to identify the issue of whether an indirect supply to a drunken person is a supply for the purposes of s 115(2), it is less than clearly expressed. In particular, the reference to "two distinct transactions" more readily describes the fact that the evidence reveals two occasions on which drinks were ordered and Vallic supplied them. Hence, the submission is more consistent with a complaint that the evidence reveals more than one occasion on which an offence of the type charged was committed. It also mis-states the findings of the Magistrate who, in fact, described his conclusions on the evidence in the following terms:

"In a transaction which was witnessed by Constable Hanson, Regan handed to male number 3 a voucher received at the door of the nightclub on admission and as a consequence, Tori Ann Vallic placed on the bar three alcoholic drinks, one of which was almost immediately handed to Regan for his consumption. Later a second drink was provided to and consumed by Regan by way of a similar transaction, although the evidence is not clear as to whether money was tendered or whether another voucher was used."

46 It can be seen that, in this extract from his reasons for decision, the Magistrate was identifying the two occasions in the evidence on which Vallic supplied drinks ordered by one of the group, and not to the fact that in relation to one occasion there was more than one act of selling or supplying because of the manner in which the drink came to be in Regan's possession.

47 In oral submissions on the appeal, counsel for Vallic submitted that the evidence revealed two distinct transactions and, because there was only one charge, the prosecution was required to elect which transaction it relied on to the support the charge. However, counsel conceded that, having heard the evidence in support of the prosecution case, he did not ask the prosecution to elect which transaction it relied upon. My attempt during the hearing of the appeal to paraphrase the submission in terms that the evidence led identified two instances of providing and consuming alcohol was met with agreement although, it too could be said to be ambiguous. Counsel for Vallic then observed that any resulting conviction would be bad for uncertainty because of the problem of not being able to raise a s 17 double jeopardy defence, a matter commonly referred to by appellate courts in relation to duplicity arguments where there is evidence of more than one example of the conduct described in the charge. I certainly understood this exchange to relate to the fact that the evidence identified two occasions on which drinks were ordered and provided by Vallic. Irrespective of the basis of the argument of duplicity, counsel for Vallic was unable to point to any active, operative prejudice in the way the defence was run and conceded that he did not put the prosecution to an election.

48 During the submissions on appeal, counsel for Vallic observed that the Magistrate had minimal appreciation of the point that was being put about particularity. In my view, any lack of appreciation resulted from the ambiguous way in which the point was made. If the duplicity on which the appellants rely is that the drinks were first placed on the bar, then, in my view, the authorities that have been referred to do not assist in the resolution of that issue in any event.

49 If placing three drinks on the bar in front of the person who ordered them and who is among a group of three is not a supply "to" the other persons in the group, then the charge has not been established. No issue of duplicity arises in the sense that term is used in the authorities. The only "act" of the accused on which a charge could possibly be based is placing the drinks on the bar in front of the person who ordered them. Whether or not that "act" is sufficient to satisfy the charge is another matter. However, there is no other "act" on the part of the accused which could create any ambiguity or duplicity such as to require an election or particulars. In that regard at least, I consider the submission to be misconceived and it is not surprising that the submission was also misunderstood.

50 In the circumstances, the only way to resolve the ambiguity in the nature of the ground of appeal is to address each of the issues in order to determine whether there exists any error which has resulted in a miscarriage of justice.

51 I propose to deal firstly with the issue which the prosecution and the Magistrate understood was being raised on behalf of Vallic: whether the evidence established that a sale took place. With respect to the first round of drinks about which Constable Hanson gives evidence, the evidence revealed that immediately before male number 2 ordered the three drinks, Regan handed male No 2 a voucher which was given to each patron on payment of the $10 entry fee. The voucher entitled the patron to one free drink. However, there was no evidence that the voucher was handed to Vallic or any evidence about payment for the drinks. The three drinks were placed on the bar by Vallic and each of the three men took a drink each. As to the second round of drinks, the evidence was that male No 3 ordered them but there was no evidence that they were paid for, either with cash or by using a voucher. Vallic placed three drinks in front of male No 3, who was standing directly beside males No 1 and No 2. Each of the three males took a drink from the order.

52 There being no evidence that an actual sale had taken place with respect to the second round of drinks, or if an issue arose with respect to the first round as to whether payment with a voucher would constitute a "sale", it was open to the prosecution to rely on the provisions of s 170(a) of the Act. Section 170(a) effectively removes the requirement to establishment that payment had actually been made for the drink. The mere supply would suffice. Section 170(a) is necessary for that purpose because, as I have noted, the definition of sale in s 3 qualifies the substitution of supply for sale and the circumstances of this case do not meet those qualifications. However, as the definition of the term "sale" in s 3 covers other circumstances, there can be no argument that one or the other section is without purpose. In my view, putting to one side any issue of duplicity, however derived, there was evidence of a sale to Regan because, relying on s 170(a) of the Act, evidence of a supply constitutes evidence of a sale. For convenience I will hereafter refer only to a supply of alcohol unless a distinction is being drawn between a sale and a supply.

53 I turn now to deal with the situation where the basis of the appeal against Vallic's conviction is that the evidence reveals an ambiguity in relation to which specific action on the part of Vallic is said to constitute the offence charged. It seems to me that, consistent with the written submissions of counsel, this interpretation of the ground of appeal also raises the issue of whether Regan, the intoxicated person identified by the prosecution for the purposes of the charge, was the person the Magistrate found as a fact to be the intoxicated person. I do not accept counsel's proposition that there is any absence of precision as to whom the supply the subject of the charge was made. For the reasons outlined above, the evidence on which the Magistrate relied revealed that Regan was intoxicated on both occasions on which he was seen by Constable Hanson to be served alcohol and there was no misunderstanding by the Magistrate as to which of the three male persons Regan was.

54 The next issue involves a consideration of the particular action on Vallic's part which is said to constitute the offence. I understand the submission to raise the issue of whether a supply of liquor to a drunken person is established in circumstances where the drinks are actually ordered by another and placed on the counter in front of that other person and from which the drunken person is either handed one of the drinks or takes one of them. It is submitted on behalf of Vallic that a provision such as s 170(a) is inapt to cure that deficiency and it would appear that it is this issue which is the basis of ground 2 of Vallic's appeal against conviction. I accept that s 170(a) does not assist in the resolution of this issue. However, I consider that, rather than manifesting error, the reference to s 170(a) by the Magistrate merely indicates that he was addressing what he thought to be the issue raised; that is, whether the evidence revealed a sale or merely a supply of alcohol.

55 With respect to the submission of counsel that the prosecution failed to remedy the duplicity by identifying which specific action on the part of Ms Vallic was said to contravene s 115(2)(a), the first observation which can be made is that there was only one action on the part of Vallic on either occasion on which the evidence revealed that drinks were ordered, and that was the action of placing the drinks on the bar. On that basis, the proposition that the evidence reveals some ambiguity or that the charge is duplicitous is without substance. It would appear, from the written submissions, that the basis of the allegation of duplicity is that, in relation to each occasion on which Vallic was seen to serve drinks to the group of three men, there were "two distinct transactions which led to, in the first instance, an alcoholic drink being handed to Regan for his consumption and, in the second instance, a drink being consumed by Regan". This interpretation of the evidence is based on the extract from the Magistrate's reasons for decision, outlined above, in which he concludes that in relation to the first occasion the drink "was almost immediately handed to Regan for his consumption" and on the later occasion that "a second drink was provided to and consumed by Regan". On that account, in addition to Vallic's act of placing the drinks on the bar, there was a further act on the part of one of the other men before Regan was supplied with one of the drinks on the bar. That action of one of the other men would seem to be one of the "two distinct transactions" which resulted in Regan being supplied with alcohol. However, as I have noted, that action is not an action of Vallic and hence there is no duplicity of actions on Vallic's part which are said to constitute the charge.

56 In any event, the findings of the Magistrate are inconsistent with the evidence. The evidence of Constable Hanson was that, on each occasion, Regan took his drink from the three which were placed on the bar by Vallic and there was no action of a third party involved in the supply of the drink.

57 It seems to me that the essence of the proposition on which counsel for Vallic relies is that a supply of alcohol for the purposes of s 115(2)(a) must be directly to the drunken person rather than indirectly; that is, indirectly in the sense that it is passed to the drunken person by another or where the drinks are supplied to another and then distributed to the drunken person. Submissions based on duplicity or ambiguity do not, in my view, assist in the resolution of this issue.

58 Section 115(2) relevantly provides that a person shall not, on licensed premises, supply liquor to a drunken person. The Act is silent on whether the supply must be directly to the drunken person, or may be indirectly to the drunken person by placing it somewhere for collection, or by handing it to another to be passed on to the drunken person, or by some other indirect means. The definition of "sell" in s 3 provides no assistance in resolving this question and nor does s 170(a) which simply substitutes the term "supply" for "sell". The appellant argues for a narrow construction of s 115(2)(a) of the Act. No authority for such a construction is identified and no contextual or other basis for such a construction is identified. It would appear that the basis of the submission that the supply must be direct is that it follows from the inclusion of the word "to" that a direct supply was intended. I do not accept that proposition. The inclusion of the word "to" is merely a means of identifying the person who is supplied with alcohol, not the means by which it is supplied. For example, the provision would serve the same purpose if it were worded in terms of supplying a drunken person with liquor rather than supplying liquor to a drunken person. It seems to me that the inclusion of the word "to" is simply a way of ensuring that a provision drafted in the latter way is clearly understandable. For these reasons I am not persuaded that the natural meaning of the words which create the offence require the supply to be direct to the drunken person, although it will necessarily be a matter of degree as to whether an indirect supply is a supply for the purposes of the provision.

59 There being no specific provision of the Act which indicated that the supply must be direct, it is useful to consider, as did the Magistrate, the tenor of the Act in order to determine whether it is consistent with a restrictive interpretation of a provision such as s 115(2)(a). In the preamble, the Act is described in the following terms:

"An Act to regulate the sale, supply and consumption of liquor, the use of premises on which liquor is sold, and the services and facilities provided in conjunction with or ancillary to the sale of liquor, to minimize harm or ill-health caused to people, or any group of people due to the use of liquor ... and for related matters."

In addition to regulating the supply and consumption of liquor, the objects of the Act, identified in s 5, some of which are outlined above, also include minimising harm or ill-health caused to people due to the use of liquor as well as providing adequate controls over the supply and consumption of liquor and the persons directly or indirectly involved in the supply of liquor.

60 The Magistrate's interpretation of the scope and purpose of the Liquor Licensing Act 1988 is as follows:

"And it's true to say that the prosecution are aided in many respects by the provisions of the Liquor Act which place a very severe onus on persons employed in establishments supplying alcohol. No doubt the provisions of the Act reflect an appreciation by Parliament of the negative effect of alcohol abuse and in framing this Act as it is, Parliament has clearly, in my view, expressed its will."

61 In my view, the Magistrate was correct in his view of the legislative intention behind the Act with its emphasis on strict regulation of the supply of liquor in licensed premises with a view to minimising the negative effect of alcohol use. I consider the tenor of the Act to be inconsistent with the restrictive interpretation of s 115(2)(a) posited by the appellants. In my view, a wider construction of the provision is consistent with the proper application of the Act in the context of the common practice of those who purchase alcohol in commercial premises. In our society the sale or supply of a myriad of items is commonly conducted through third parties. It would limit the effect of the relevant legislation and present insurmountable difficulties for regulatory agencies if regulation of supply only had effect where it was direct. In relation to the sale or supply of alcohol in licensed premises, it would be difficult to refute the proposition that, where a group of people are socialising, as a matter of convenience drinks for the group are commonly purchased by one person in the group. Indeed, the practice in Australia of "shouting", where each person in a group takes turns to purchase drinks for everyone in the group, is widely documented, although it has been the subject of often very public criticism. A restrictive interpretation of s 115(2)(a) would substantially hinder the achievement of the objects of the Act and the ability of those involved in the regulation of the industry to control excessive consumption of alcohol on licensed premises with a view to minimising the negative effect of alcohol use.

62 For these reasons, I can see no reasonable basis for the conclusion that, in order to establish a sale or supply of alcohol to a person, the supply must be directly to that person. Such a construction would allow the provisions of the Act to be avoided by the staff of licensed premises always ensuring that drinks which are to be consumed by a drunken person are provided to a more sober third party, even where it was well known that the drink was to be passed to the drunken person and consumed by him.

63 Therefore, in my view, an accused supplies alcohol to person A even where the drink is handed to person B, provided it is known to the accused that the drink is for person A and will be passed to, collected by, or otherwise come into the possession of person A. Where the supply is indirect, it is essential to establish that the person supplying the alcohol knew that it was for the specified person. The Act requires a person serving alcohol on licensed premises to make a determination of whether it is appropriate to supply alcohol to a particular person because of his state of intoxication. If the supplier of alcohol did not know who was to consume the alcohol, he or she would not be in a position to make such a judgment.

64 On the facts of this case, where a group of three males are standing closely together at the bar and one of them orders three drinks, it is reasonable to conclude that the drinks were for the three men. I have already referred in detail to the evidence of Vallic that she had served all three males, including Regan, despite her acknowledgment that the drinks had been ordered by the other two males. In my view, the evidence amply supports a conclusion that on the occasions when Vallic was observed to place the drinks on the bar, she knew that one of them was for Regan who she knew was drunk at the time. In those circumstances, I consider the evidence supported a finding to the requisite standard that Vallic supplied alcohol to Regan, a drunken person, in breach of s 115(2)(a) of the Act.

65 The other possible interpretation of the allegation that the charge suffers from a latent duplicity is that the evidence reveals two distinct transactions or occasions involving the supply of alcohol. The basis of this allegation was misunderstood by counsel for the respondent and hence I have not had the benefit of any submissions from the respondent. It is the case that the evidence reveals two occasions on which one of the three males ordered drinks for himself and his two companions, one of which was Regan, and that the appellant Vallic then supplied them. The existence of alternative or multiple allegations of breaches of s 115, without particularisation or election as to which allegation the appellant was being called on to defend, is said by the appellant to have deprived her of a fair trial. In support of that proposition reliance is placed on the following three decisions of the High Court: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 486 - 489 per Dixon J; S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 269 per Brennan J, 274 per Dawson J, 285 per Gaudron and McHugh JJ and Walsh v Tattersall (1996) 188 CLR 77 at 104 - 112 per Kirby J. Reference was also made to the decision of Gleeson CJ, now the Chief Justice of the High Court, in Stanton v Abernathy (1990) 19 NSWLR 656 at 671.

66 In Johnson v Miller a complaint was laid against the appellant under the Licensing Act 1932 (SA) alleging that the appellant was the licensee of specified premises out of which certain persons were seen coming during prohibited hours. The section under which the appellant was charged provided that a licensee is guilty of an offence if, within the prohibited hours, any person is found on his licensed premises or is seen coming out of them, unless the licensee proves to the satisfaction of the court hearing the case that at least one of three conditions was fulfilled. The prosecution's response to a request for particulars was that it proposed to prove that about thirty men were seen coming in or out of the premises, at times which could be established, between the times stated, but the prosecution could prove the identity of only four of the men. Those particulars were later withdrawn and a statement that an unknown person was seen coming out of the premises during the specified hours was substituted. The prosecution did not identify which one of the thirty men was the subject of the charge. At trial, the complaint was amended to refer to "a certain person". When the prosecution refused a request for further particulars, the charge was dismissed on the ground that it was defective in substance and the appellant was prejudiced by the defect.

67 The High Court held that the complaint was rightly dismissed. Dixon J stated (at 489 - 90):

"Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge ... the proper course is to put the complainant to his election. In such a case, to wait to the end of his evidence before doing so may be convenient and may cause no injustice. But it is the converse of the present case, where the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is describe in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document, the matter or transaction appearing in evidence."

68 One reason identified by Dixon J for requiring the instance, or person the subject of the charge, to be unmistakably identified was the need to determine the admissibility of the similar fact evidence which created the need to particularise: at 490. Another reason given was that the nature of the three conditions or defences was such that, in order to avail himself of one or more of them, the appellant would need to know who the person was. This was because the defences depended upon identifying the purpose of the individual concerned or the manner and circumstances of his obtaining entrance to the premises.

69 Dixon J observed (at 49) that there are more than one means by which the occurrence or transaction the subject of the charge may be identified and distinguished from other occurrences or transactions alleged to have occurred and which are equally capable of supporting the complaint. His Honour identified the following three means (at 490):

"A direction may be given that particulars should be furnished : the complainant may be required to elect among the instances or transactions he proposes to prove and to state definitely to the court which of them is to be treated as the subject of the complaint : or the complaint may be amended so as to indicate one to the exclusion of the others."

70 Dixon J observed (at 490) that each of these three methods of dealing with the difficulty have one feature in common; they place upon the complainant the burden of indicating to or before the court which set of facts or transaction is the subject of the charge. McTiernan J succinctly identified the rationale behind placing such a requirement on the prosecution (at 502):

"The ambiguity of the complaint was a defect of substance which clearly prejudiced the appellant at the very threshold of the hearing."

71 It is the case that a failure to comply with one or more of the methods identified by Dixon J of dealing with the ambiguous complaint had the potential to create unfairness to the accused and therefore an injustice. That is because, in the absence of amendment, appropriate particularisation or election, the accused may be prejudiced by not being able to avail himself of one of the three defences open to him. It is the existence of such prejudice or unfairness, or the potential for it to arise, which is the essence of the requirement to rectify any ambiguity in the complaint or charge.

72 The decision in Johnson v Miller was referred to and followed by the High Court in the remaining two High Court cases mentioned above. In S v The Queen, each count of the indictment charged one act of carnal knowledge on a date unknown within a specified period of 12 months. The complainant gave evidence of two specific acts of intercourse, but there was no evidence to link either with any one of the specified periods. She also gave evidence of numerous further acts over a period of two years. She could not remember details or frequency other than that it occurred "every couple of months for a year". The High Court held that, in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the Crown cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence:

"Had the evidence revealed only one offence in each of the years in question, there could have been no complaint about the form of the indictment. But the evidence disclosed a number of offences during each of those years, any one of which fell within the description of the relevant count. Because of this there was what has been called a 'latent ambiguity' in each of the counts: see Johnson v Miller [(1937) [1937] HCA 77; 59 CLR 467 at 486] per Dixon J. That ambiguity required correction if the applicant was to have a fair trial."

74 His Honour identified three means of correcting the latent ambiguity: (1) providing particulars; (2) requiring the prosecution to elect which offence revealed by the evidence was the offence charged, or (3) amending the indictment: at 274. Dawson J noted that the basis of the power to order any one of these remedies was the obligation to ensure a fair trial and to protect the court's process from abuse: at 274. His Honour also identified (at 275 - 276) a number of ways in which an accused might be prejudiced by the failure to identify the specific conduct constituting the offence. One prejudice to an accused was that he or she would be reduced to a general denial in pleading a defence and would be precluded from raising more specific defences such as the defence of alibi. Another prejudice was that if the prosecution was not put to its election the trial would proceed in a manner which made it impossible to deal with questions of admissibility. Dawson J also noted that the lack of certainty as to the particular offence of which an accused is charged affected an accused person's right to plead autrefois convict or acquit.

75 Dawson J noted (at 277) that there have been cases, which he cited, in which it has been held that latent ambiguity or even duplicity in an indictment does not necessarily lead to a substantial miscarriage of justice and added that, in those cases either no embarrassment or prejudice was alleged or no point was taken at trial. However, his Honour observed that the earlier cases must be read subject to the decision of the High Court in Johnson v Miller. Dawson J concluded (at 277):

"... where there is real ambiguity and the point is taken, as it was in this case, failure to correct the ambiguity means that the accused has not had a proper trial and there is, for that reason, a substantial miscarriage of justice which precludes the application of the proviso contained in s 689 of the Code."

76 I do not understand Dawson J's statements on this issue to mean that in every case where there is an ambiguity, irrespective of whether the point is taken or the prosecution is asked to remedy it, and irrespective of whether the accused is in fact prejudiced by that ambiguity, the accused has not had a proper trial and a miscarriage of justice has occurred. There is, in my view, nothing in the decision in Johnson v Miller, which was said to qualify earlier decisions to that effect, that would lead to such a conclusion in the circumstances to which I have referred. Toohey J (at 283) merely considered that it was inappropriate to apply the proviso in the circumstances of the case. Gaudron and McHugh JJ, the remaining judges forming the majority, identified (at 286) further ways in which an accused might be prejudiced by a latent ambiguity in the conduct the subject of the charge but addressed the consequence of such a finding in the following way (at 286 - 287):

"Prejudice is the focus of consideration when the question is whether some order should be made as to the conduct of the trial to avoid difficulties which may be occasioned by reason of uncertainty as to what precisely is charged. Ordinarily, those difficulties will be averted by ordering particulars, by amending the indictment, or by putting the prosecution to its election and appropriately confining the evidence to the offences charged. See Johnson v Miller.... However, when a trial proceeds without an order averting those difficulties, the question is whether there has been a blemish on the trial amounting to a substantial miscarriage of justice."

77 Gaudron and McHugh JJ concluded that the trial of the accused in that case was fundamentally flawed: at 287. However, it is apparent from the reasons given for that conclusion that it was based on the particular circumstances of that case. In my view, no support can be found in the judgment of Gaudron and McHugh JJ for the proposition that a trial of a charge containing an un-remedied ambiguity inevitably results in a miscarriage of justice.

78 In Walsh v Tattersall, an employee was charged under a provision of the Workers Rehabilitation and Compensation Act 1986 (SA), which created an offence where a person obtains by dishonest means any payment or other benefit under the Act. The relevant count related to payments made to the employee over a period of a year. The charge having been dismissed for other reasons, the employer argued on appeal for the first time that the count was bad for duplicity because a number of offences were contained within the overall charge. The majority of the High Court held that the employee was not charged with any offence created by the relevant section of the Act because the section displayed an intention to create a discrete offence upon the receipt of any one payment or benefit. However, Kirby J upheld the ground of appeal on the basis that the count was bad for duplicity. Having considered the principle and the authorities identifying and applying the principle, his Honour found himself unable to agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal cases.

79 Kirby J's analysis of the principles governing duplicity in criminal cases identified the historical justification of the principle and the later movement away from the extremely technical approach of early times where the slightest defect could result in the indictment being declared a nullity: at 104 - 105. Kirby J also referred to the various statements of authority supporting the continuation of a rule of precision and specificity in the statement of the charge, and in which various courts identified the fundamental rights which may be affected by loosening or removing that requirement: at 106 - 107. Kirby J referred (at 106) to one such fundamental right by reference to the following statement of Evatt J in Johnson v Miller (at 497 - 498):

"It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged."

80 Kirby J also referred to the observation of Gaudron and McHugh JJ in S v The Queen at 284 that "the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict".

81 Having identified the justification for the rule, Kirby J also addressed the circumstances in which it is appropriate to charge a person with one offence where a series of criminal acts have occurred. His Honour referred to the decisions in DPP v Merriman [1973] AC 584 at 607 and Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220 before stating (at 107):

"If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible. Many of the apparently conflicting judicial opinions, so criticised by the commentators, represent nothing more than attempts by judges to characterise multiple acts upon which the prosecution relied and to decide whether or not they could be fairly viewed as the one transaction or criminal enterprise so as to escape an attack on the ground of alleged duplicity. The usual explanation given for adopting this approach is that, only by doing so, would the judges be able to avoid reducing the law to technical absurdity."

82 The exceptions to the general rule were identified by Kirby J (at 109) as arising where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity: where the offence is one that can be classified as continuing in nature, and in other anomalous cases. One such "anomalous" case referred to by Kirby J was R v Lawson [1952] 1 All ER 804 where various acts of fraudulent conversion of trust fund moneys was charged in a single count alleging a general deficiency and the court upheld the charge because it was not possible to trace and prove the conversion of individual amounts. However, later authorities have rejected, as a basis for relaxing the rule, the prosecution's inability to otherwise prove the charge: see S v The Queen per Dawson J at 275. The other case, Tomlin v R (1954) 38 Cr App R 82, also involved a charge of fraudulent conversion alleging a general deficiency. The Court held that, where the individual items or transactions could not be traced, if the evidence for the prosecution makes it clear that there has been a fraudulent conversion of either the whole or part of a general balance at one time, it is proper to charge the embezzlement or fraudulent conversion of a general balance on a day between specified dates: at 89. However, the Court emphasised that in the ordinary case, where it is possible to trace the individual items and to prove a conversion of individual property or money, it is undesirable to include them all in a count alleging a general deficiency: at 89 - 90. The Court added (at 90):

"What we are not willing to do is to elevate a rule of practice, applicable to circumstances where it may be required to avoid injustice, into a rule of law applicable to circumstances where it will defeat justice."

83 Yet again, it is the aspect of the potential to cause an injustice which is the underlying theme of the principle that a charge must reflect one offence only.

84 The approach to be taken where a duplicitous charge is laid against a person was described by Kirby J as follows (at 110):

"A finding that the rule against duplicitous charges has been breached does not oblige the court, coming to that conclusion, to dismiss the charge. Where the defect is one of patent duplicity, the proper course is to put the complainant to an election to remove the embarrassment. Where the defect is latent and the particulars do not remove it, the court may direct further particulars; require the complainant to elect and to identify the alleged offences; and/or exercise the power to permit an amendment. If the latent defect, once exposed, suggests a risk that the accused might not have a fair trial on the charges as pleaded, the court should require correction."

85 It is apparent from this statement that the basis of the requirement for correction is unfairness which is consistent with other decisions, averting as they do to the existence of embarrassment or prejudice to the accused.

86 In Stanton v Abernathy, the appellant was charged with knowingly giving false evidence before a Crime Commission. In response to a request for particulars the subject matter was identified but there was no specification of the particular evidence which was alleged to be knowingly false. The NSW Court of Appeal held that each false statement involved a separate crime and the information was duplicitous as the prosecution conducted its case on the basis that a number of pieces of false evidence was given, on separate, although related, subjects and yet the information charged a single offence. Nowhere did the prosecution particularise the evidence alleged to be false or the material respects in which it was false: at 665. Gleeson CJ, with whom Priestley and Meagher JJA agreed, referred to the competing lines of authority on whether a Magistrate may dismiss an information simply on the ground of an un-remedied duplicity (at 667 - 668) before addressing and following the decision of the High Court in Johnson v Miller. His Honour noted (at 669) that the ambiguity might have been removed by making an amendment or by giving particulars but the particulars provided were so inadequate as to compound the ambiguity and demonstrate that the charge did indeed allege a number of false statements in a single charge.

87 In dealing with the related issue of whether a Magistrate on a committal hearing has the power to remedy the laying of a duplicitous charge, Gleeson CJ held (at 671) that the Magistrate has a duty to act fairly and the various procedures identified in Johnson v Miller (amendment, particularisation, election and dismissal of the complaint) constitute means by which that duty can be fulfilled. Again, it is clear that it is the unfairness which arises from a duplicitous charge which necessitates taking the remedial action identified in the authorities.

88 Gleeson CJ concluded (at 671) that the authorities do not justify a conclusion that the charge was incurably defective and, therefore, the ambiguity could be remedied by the provision of particulars and by the prosecution electing to charge the appellant with making one false statement to the exclusion or others, or alternatively to frame and propound additional charges, laying one charge in respect of each alleged false statement. Gleeson CJ considered that, if the prosecution declined to adopt either of those courses, then the information should be dismissed.

89 The foregoing analysis of the relevant authorities leads me to the conclusion that the consequence of an un-remedied duplicity is not necessarily a dismissal of the charge. It is only where the failure to remedy the ambiguity causes prejudice to the accused or would result in an unfair trial that the power to dismiss the charge should be exercised.

90 The evidence at trial revealed two separate occasions on which alcohol was ordered by one of the other males for all three in the group, including Regan, and was provided by Vallic. There is, therefore, evidence of two occasions on which alcohol was supplied by Vallic. Whilst I believe the evidence of one supply would be admissible on a trial of the other, in my view, a series of acts of supplying alcohol to a drunken person are repetitions, not continuations, of the state of facts which underlie the charge: see Johnson v Miller per Dixon J at 483. It is clear on the authorities that the appropriate course would have been for the prosecution to provide particulars or to elect which of the two occasions of supply was being relied upon to establish the charge. The election could have taken place at the conclusion of the prosecution case. However, on the close of the prosecution's case, counsel for the appellants did not seek to have the prosecutor elect one of the two occasions of supply as establishing the charge.

91 In some cases a failure to identify which of the two occasions was being relied upon could cause substantial prejudice to an accused. For example, the time lapse between the two occasions may be such that the person nominated as the drunken person was not drunk on the earlier occasion, or at least it could not be established that the person was drunk, but was drunk by the time the next occasion occurred. However, in this case, the evidence of Constable Hanson of the time lapse between the two occasions and as to the condition of Regan during the entire period of her observation is such as to preclude a different conclusion as to the sobriety of Regan with respect to each occasion of supply. Further, the circumstances do not allow of a conclusion that an accused would be prejudiced in his or her defence by not knowing which of the two occasions was the subject of the charge. The two occasions are so close in time that the information relevant to one would clearly be relevant to the other and it is difficult to conceive of a situation where an accused person would be in a position to defend a charge relating to one occasion but not a charge relating to the other. Indeed, counsel for the appellants conceded in argument on the appeal that no prejudice resulted to the appellant from the failure to elect or particularise.

92 Further, it is apparent from the closing submissions of counsel for the appellants that he was not troubled by any ambiguity as to the basis of the charge. He said:

"And the evidence is quite clear that the transaction that seems to be relied upon, subject to the sale supply thing, which I want to come to separately, the transaction relied upon concerned male 3, that is the older gentleman in the suit paying his money, obtaining some drinks which were provided by Ms Vallic."

93 In my view, no prejudice or unfairness arose from the failure to identify which of the two occasions on which Vallic supplied alcohol was the subject of the charge and hence there was no basis upon which to discharge the complaint.

94 If I am wrong in that conclusion then I consider that the absence of any prejudice or unfairness is a sufficient basis to conclude that no substantial miscarriage of justice has occurred: see s 14(2) of the Criminal Appeals Act 2004 (WA).

95 I am not persuaded of any error which would justify overturning Vallic's conviction and I would dismiss her appeal.

96 It is convenient to deal with the appeal against the convictions of Hollands, Fazio and Dorrigo together because the issue relied on is the same with respect to each, although the outcome may differ.

97 The evidence with respect to Hollands comes from Constable Hanson's account of her interview with him and her evidence of her observation of Hollands on the night. Vallic refers in her interview to Hollands' role and activities but that evidence is not admissible against Hollands.

98 Constable Hanson said in her evidence that, following the interview with Vallic, she informed the bar manager and the approved manager of the incident and advised them that she would return at a later date to speak with them. The decision not to speak to them on that night was taken as a result of being informed by Hollands that the nightclub was still operating and required their attention. Fazio was described by Constable Hanson as the approved manager and Hollands as the bar manager although Constable Hanson did not know their names until after she had interviewed Vallic. She obtained their personal details on that night at the conclusion of the interview.

99 Constable Hanson was asked whether she saw any of the managers around the bar area whilst she observed the intoxicated person for an hour and 10 minutes. She agreed that she had and said that Hollands was "walking the floor between the two bars and across the night, the dance floor as well". She clarified her response by stating that during the night Hollands was walking around through the dance floor and the bars. Constable Hanson did not remember seeing Fazio on the floor. She said that both Hollands and Fazio came over to her when she was speaking to Vallic by which time Regan and the two other males had been removed from the premises by police. She said that she had not seen Fazio at all prior to then.

100 Senior Constable Steed said in his evidence that, even though he was standing in the bar area for an hour and a half, he did not recall Hollands or Fazio being there until the consultation in the service area with Vallic.

101 When Constable Hanson returned on 15 October 2004 she interviewed both Hollands and Fazio. She spoke to Hollands first who acknowledged that he held the position of bar manager and had done so for seven months. He confirmed that he had been on duty at the relevant time. His described his duties as follows: "Start and finish staff, walking the floor, check intoxicated people, looking for smokers, people playing up". Later in the interview he confirmed that it was part of his duties to check the licensed premises for drunken patrons. He said it was also part of the duties of the security staff, Fazio and other staff, including the bar staff. He stated that he took his instructions from Fazio and that Fazio was the licensee and approved manager for the premises. According to Hollands, the last time any person spoke to him about those obligations and responsibilities was Fazio on that night. He said he had attended a Liquor Licensing Responsible Service of Alcohol Course when he commenced employment. He said that he was questioned on his knowledge of the Act when he was employed.

102 Asked when he last advised staff members of their obligations under the Act with respect to serving drunken patrons, Hollands said that they had a meeting a few days before the incident and that the only staff he spoke to about it on that night were trainees. He said that there was a "noticeboard for staff as a reminder". Presumably his meaning was that some notice relevant to the issue was affixed to the staff noticeboard. Hollands said the instructions he gave the staff were to get him or security and to offer the customer water until they were able to deal with it. He said that he gave these instructions every week. According to Hollands, Fazio was the person in charge of the licensed premises that night although, again, that statement is not evidence against Fazio.

103 In his interview with Constable Hanson, Fazio described himself as the part-owner, licensee, approved manager and the person in charge of the premises on the night. He acknowledged it was part of his duties to check the premises for drunken persons. At times he would speak to staff about their obligations under the Act but his practice was to have the bar manager do it whilst he sat in on the meeting. He maintained that he spoke to staff about the issue on the night. He said he was always advising the staff about the obligations under the Act by memo or at meetings. He also stated that when he employed staff he questioned them on their knowledge of the Act.

104 It can be seen that the evidence against Hollands, with respect to the offence under s 115(2)(a) of the Act, was the he was the bar manager, he was on duty that evening and it was part of his duties to check the licensed premises for drunken patrons. Hollands was seen by Constable Hanson walking the floor between and through the two bars and the dance floor. However, Senior Constable Steed could not recall seeing Hollands during the one and a half hour period he was standing in the bar area.

105 The evidence against Fazio with respect to the offence under s 115(2)(a) was that he was the licensee, approved manager and the person in charge of the premises on the night. In those capacities it was part of his duties to check the premises for drunken persons. However, neither Constable Hanson nor Senior Constable Steed saw Fazio during the period they were observing Regan and the two other males. The first occasion on which either officer was aware that Fazio was at the premises was when he approached them following the interview with Vallic in

106 The Magistrate expressed his findings on the charges against Hollands & Fazio in the following way:

"So I return then to what I view as the only live question, this assertion that there's no actual or constructive knowledge on the part of Holland or Fazio. The evidence clearly supports a finding which I now make, that Holland was observed patrolling - and that's my word - the bar and dance floor area of the nightclub. He was clearly in the premises, out and about the premises, at the time the observations were made by both Hanson and the other officer concerned.

On the basis of my finding of facts that's already been made, Regan was there for all to see. Only the most cursory glance would have established that to serve him further alcohol would result in a breach of s 115. Hollands' failure to observe and react is a clear breach of his obligations under the Act.

The evidence also permits a finding, in view of Fazio's appearance shortly after the interview with Valic commenced and the contents of the later interview which has been recorded, that Fazio was at the premises. And again, in my view, his failure to observe and respond to the presence of Regan is again a clear breach of the provisions of the Act on both his part and that of the company.

And I make that finding on the basis of the application of the law as I understand it to be in the Liquor Licensing Act 1988 to the facts as I have found them to be. Each of these charges is proven beyond a reasonable doubt."

107 Immediately prior to making these findings the Magistrate addressed the defence submission that there was no proof of actual or constructive knowledge on the part of Hollands or Fazio and that the prosecution was not entitled to rely on section 165 to sheet home to Fazio and Dorigo responsibility for the act of Vallic. With respect to the prosecution's reliance on s 165 on the charges against Fazio and Dorigo, the Magistrate said that he did not accept that submission before concluding that he considered s 165 to be a clear and unequivocal expression of the will of Parliament. He then proceeded to make the findings set out above with respect to Hollands and Fazio.

108 In my view, the only reasonable interpretation of the statement that s 165 was a clear and unequivocal expression of the will of Parliament, was that the liability of a licensee under the Act was intended by Parliament to be a strict liability. Yet the Magistrate proceeded to address what he described as "the only live question", the assertion that there was no actual or constructive knowledge on the part of Hollands and Fazio. It would also seem that the Magistrate based the liability of Dorigo on Fazio's "failure to observe and respond to the presence of Regan" rather than on a statutory liability under s 165 as licensee.

109 The allegation of error in relation to the convictions of Hollands, Fazio and Dorrigo is that the Magistrate erred in determining that there was evidence capable of supporting a finding that Hollands, Fazio and Dorigo breached s 115(2)(a) by permitting the sale of alcohol to Regan, and also by relying on s 165 of the Act when the provision was not identified in the charge and was in any event not relevant.

110 Counsel for these three defendants submitted that the term "permit" requires a finding of either actual knowledge or constructive knowledge of the particular act the subject of the charge. Counsel further submitted, relying on the decision of this Court in Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 at 446 per Kennedy J, that constructive knowledge in the context of charges under the Act means either shutting one's eyes to the obvious, or failing to do something, or doing something not caring whether a contravention takes place or not. Consequently, it is said, the Magistrate was required to turn his mind to the state of knowledge of the defendant but in fact went no further than making an assessment of the evidence concerning the presence of Hollands and Fazio on the premises at the time in the context of his finding that Regan "was there for all to see". In short, the submission appears to be that the Magistrate based his finding on the appellants' failure to take action, without establishing whether there was knowledge of the situation which required action. If that was indeed the approach taken by the Magistrate then it would seem that he relied on negligence as the basis of the finding that Hollands and Fazio permitted the sale of alcohol to Regan, notwithstanding that the Court in Douglas-Brown v Commissioner of Police rejected that approach: see Rowland J at 450.

111 In relation to the finding against Hollands it is apparent that the Magistrate has based his conclusion that Hollands had constructive knowledge of the breach of s 115(2)(a) on the fact that, as Hollands was patrolling the area at the time, one of the purposes of which was to identify intoxicated patrons, and as Regan was obviously drunk as the evidence of Constable Hanson revealed, Hollands could not have been unaware of the facts necessary to establish the offence: that Regan was drunk and Vallic was serving him alcohol.

112 In my view, unless it can be established that Hollands should or must have seen Regan when he was exhibiting signs of drunkenness, or was otherwise aware of his presence and condition, it cannot be said that he knew he was drunk, even if it is only constructive knowledge which is required to establish that factor. Therefore, the validity of the Magistrate's conclusion depends on whether Regan's condition was sufficiently noticeable at a time when Hollands could have observed him. Constable Hanson described in some detail her observation of Regan when he was returning from the toilet area to the bar. She saw him stagger and stumble into some other patrons, recover his stance and then bump into another patron before continuing on. When Regan walked past her he spilt his drink on her feet and was observed to be extremely unsteady on his feet, was slurring loudly and swaying back and forth before walking to the bar area where he remained for the period he was being observed by police. There was no estimation given by the witness of the time it took Regan to move from where she first saw him to the bar but in the circumstances it could not have been more than a matter of minutes. The only other evidence of Regan's condition was that he attempted to speak to Constable Dawson at one point but she could not understand what he was saying because he was slurring his words.

113 If the evidence were that Regan was exhibiting obvious signs of his drunkenness during much of the period that he was observed, then I would have no difficulty with the Magistrate's finding. However, where the area being "patrolled" by Hollands consisted of two bars and a dance floor, and the only conduct, on the evidence, which would have alerted him to the fact that Regan was drunk lasted for a few minutes, the possibility that Hollands was engaged elsewhere at the time cannot be discounted. That is particularly so when it is clear that watching out for intoxicated patrons was not his only responsibility at the time. That being the case, it cannot fairly be said that only the most cursory glance would have established to Hollands that to serve Regan further alcohol would result in a breach of s 115. I have therefore reached the conclusion that the Magistrate erred in concluding that Hollands had constructive knowledge of Regan's drunkenness and that he was being served alcohol.

114 Of course, the evidence against Fazio was even weaker. Neither of the police officers saw Fazio during the period Regan was being observed. There was, therefore, no evidence from which an inference could be drawn that he had actual or constructive knowledge that Regan was drunk and was being served alcohol. Fazio's appearance at the conclusion of the interview with Vallic is evidence that he was on the premises at that time, but mere presence somewhere on the premises without more cannot, in my view, satisfy a requirement of constructive knowledge of the relevant event.

115 It does not automatically follow from these conclusions that there was no basis upon which to convict Hollands and Fazio of the offences for which they were charged. The second aspect of the appeal against the conviction of Hollands, Fazio and Dorigo is, in essence, that the Magistrate was not entitled to rely on s 165 as the basis of liability under s 115(2)(a) as the charge was actually permitting the offence rather than being vicariously liable for the offence which was committed by Vallic. That construction is said to arise from the express wording of the charge and the failure to state in the complaint that both s 165 and s 115(2)(a) was the basis of the defendant's liability. It is also alleged that the Magistrate erred in taking into account the "general tenor" of the Act in construing s 165.

116 In dealing with the submissions of counsel for the appellants on the proper construction of s 165 of the Act and on the nature of the charges against Hollands, Fazio and Dorigo, the Magistrate rejected the proposition that s 165 exhibits any substantial level of ambiguity or lack of clarity. He considered that s 165 reflected the general tenor of the Act which he described in the following terms:

"... it's true to say that the prosecution are aided in many respects by the provisions of the Liquor Act which place a very severe onus on persons employed in establishments supplying alcohol. No doubt the provisions of the Act reflect an appreciation by Parliament of the negative effect of alcohol abuse and in framing this Act, as it is, Parliament has clearly, in my view, expressed its will."

I consider that statement to be consistent with both the objects of the Act and the regulatory regime provided for in the Act, and that it accurately describes the context in which s 165 is to be construed.

117 The construction of s 165 which is pressed on behalf of the appellants is that it is an offence creating provision. That construction is contrary to authority of this Court, which I am asked not to follow without being provided with any clear articulation of why I should adopt a view contrary to the view of at least three judges of this Court. In Jackson v Dyball (1993) 74 A Crim R 10, Owen J held (at 18 - 19) that, in any case where an employee commits an offence under the Act on the licensed premises, the effect of s 165 is to deem the licensee to have also committed the offence: see also Holden v Sainken, unreported; SCt of WA; Library No 970700; 12 December 1997 per Scott J; Belel Pty Ltd v Baxter [2001] WASCA 225 at [8] - [17] per Templeman J; O'Dea v Glendinning, unreported; SCt of WA; Library No 930599; 26 June 1992 at 17 per Commissioner Ng. Therefore, once it is established beyond a reasonable doubt that an offence has been committed, irrespective of whether a person has actually been convicted of that offence (s 165(2)), the licensee is liable for the same offence without the need for additional proof. Owen J specifically rejected the proposition that s 165 ought to be construed as creating a substantive offence in its own right.

118 Section 165 is analogous to the provisions of the criminal law with respect to parties to an offence. The primary difference is that under s 7 of the Criminal Code it is necessary to establish by evidence admissible against the accused that the accused aided the offence and did so intending to aid the offence. Nevertheless, the effect of s 7 is that the party to the offence is fixed with a liability which is co-extensive with that of the principal offender and in relation to which the penalty is that to which the principal offender is exposed. Significantly for the purposes of this appeal, the party to the offence does not commit an offence against s 7 of the Code. The party is properly charged with the substantive offence. The party is not charged with aiding the offence although there is a practice, at least in this state, of identifying in an indictment s 7 as well as the offence creating provision.

119 There are some differences between s 7 of the Code and s 165 of the Act. In addition to attributing a strict liability to licensees for the acts of employees in contravention of the Act, s 165 specifies matters which shall "not be a defence". In that way it does differ from s 7.

120 Some support for the appellants' construction of s 165 can be found in s 165(3) which refers to "a charge of an offence against subsection (1)". Yet the terms of s 165(1) are not those of an offence creating provision and are more akin to the standard wording of provisions which create a liability for aiding, abetting or assisting in the commission of offences. In my view, the reference in s 165(3) to "an offence against subsection (1)" is more likely to be the product of poor drafting and was not intended to refer to the legal effect of s 165(1).

121 Having considered the authorities, the scope of the Act and the terms of the provision itself, I am not persuaded that s 165 is an offence creating provision as alleged. However, that is not an end to the matter.

122 Section 165 imposes a strict and vicarious liability on the licensee. That term is defined to include:

"1. the licence or permit holder;

2. a person who is authorised under s 86 or 87; and

3. a person appointed or permitted to conduct supervise or manage the business under s 101."

123 As I have indicated above, neither s 86 or s 87 have any application in the circumstances of this case. Section 101 creates responsibility as for a licensee in a person appointed as manager, or permitted by the licensee to conduct, supervise or manage the business carried on under the licence, where under the Act a requirement is made of the licensee. The term "manager" is defined under s 3 to include an approved manager under s 35B, that is, the subject of an approval in writing of the Director of Liquor Licensing, or a person managing premises under s 100(3). A manager under s 100(3) is a person appointed by the licensee to manage the premises where the manager of the licensed premises approved under s 35B is absent from the premises or there is no such manager in respect of the premises.

124 In this case there is no direct evidence to suggest that Hollands was authorized under s 86 or s 87 or appointed or permitted to manage the business under s 101 and no evidence from which such an inference could be drawn. I have already decided that the evidence against Hollands could not sustain a finding that he permitted a drunken person on licensed premises to be served with alcohol. As the provision deeming liability in licencees does not extend to a person in Hollands' position, his conviction cannot stand.

125 As to Dorigo and Fazio, in his record of interview Fazio described himself as the part-owner, licensee, approved manager and the person in charge of the premises on the night. In his interview, Hollands responded to the question "Who employs you, the name of the company, premises or licensee?" by stating "Dorigo Pty Ltd". There was no other reference to Dorigo although the complaint against Dorigo contained an averment that it was the licensee whilst the complaint against Fazio contained an averment that he was the approved manager. It was not disputed that Dorigo was indeed the corporate licensee.

126 On that basis, both Dorigo and Fazio would be strictly liable for the offence committed by Vallic. I note in passing that, on appeal, it was suggested that the conviction of Dorigo and Fazio could be justified on the basis of the offence committed by Hollands. As I have indicated, the evidence does not support Hollands' conviction. However, even if the charge against Hollands had been upheld, the fact remains that the prosecution case was clearly put on the basis of the conviction of Vallic. In my view, it would not be appropriate to allow the respondent at this point to change the fundamental basis of the charges against Dorigo and Fazio: that is the primary offence which attracts vicarious and strict liability.

127 With respect to the liability of Dorigo and Fazio, their counsel submits that the cases against them did not proceed on the basis that they were deemed to have committed the same offence as Vallic by virtue of s 165 of the Act. It is said that they were charged with an offence of a different nature, namely permitting the sale by Vallic said to contravene s 115(2)(a). It is the case that a charge against Dorigo and Fazio which relies on the deeming effect of s 165(1) and results from the actions of Vallic in contravention of s 115 should properly be worded in terms of the substantive offence; that is, that they sold alcohol to a drunken person while that person remained on licensed premises contrary to s 115(2)(a). Ideally there should also be a reference to s 165 but, in my opinion, the validity of the charge is unaffected by a failure to mention that section: see Jackson v Dyball per Owen J at 19. The purpose of its inclusion is only to alert the accused to the basis of the charge and that can be achieved in other ways.

128 The liability of the licensee arises from the responsibilities imposed under the licence which include the obligation to train and warn staff of their obligations under the Act and to supervise their activities to ensure compliance. In the circumstances it is not difficult to see why it may be thought by the officer bringing the charge that it should be worded to describe the conduct of the licensee as "permitting". The important factor, in my view, is the basis on which the prosecution case was presented. As I have indicated, at the commencement of the trial counsel for the appellants raised the issue of "whether there was in fact a permitting" by each of them. The response by the prosecutor to this and other issues raised on behalf of the appellants was curtailed by the Magistrate. Therefore, the prosecutor was not given the opportunity to indicate that the basis of the case against Dorigo and Fazio was their liability under s 165. That this was the prosecution's position is evident from the fact that no attempt was made to lead evidence from any witness about any act on the part of Fazio which could be said to aid or permit the offence itself and from the prosecution's closing address where it was clearly stated that the basis of the case against Dorigo and Fazio was liability under s 165(1) of the Act. Specific reference was also made to s 165(3) which states that it is not a defence to show the licensee did not know or could not reasonably have been aware or have prevented the offence committed by the employee. In my view, it is clear that the case against the appellants Dorigo and Fazio was one of vicarious rather than personal liability. It is also clear from the prosecutor's closing submissions that the offence committed by the employee was that alleged to have been committed by Vallic.

129 However, it does not appear that the Magistrate approached his decision with respect to Fazio in accordance with the way in which the case was presented, although it is not entirely clear whether or not he did rely on s 165 in relation to any of the appellants. The Magistrate found that Fazio was at the premises and breached the provisions of the Act both on his part and on the part of the company by failing to observe and respond to the presence of Regan. Curiously, in dealing with the submission that the prosecution may not rely on s 165 to sheet responsibility home to Fazio and the company for the act of Vallic, the Magistrate placed considerable emphasis on s 165 concluding that it "is a clear and unequivocal expression of the will of Parliament". If the Magistrate was treating the charges against Fazio and the company as charges involving personal liability, s 165 would have no relevance and could not be relied on to attribute responsibility to Fazio or the company.

130 The fact remains that Fazio and the company were the licensee of the licensed premises at which it was established an employee contravened s 115(2)(a) of the Act. Section 165 of the Act deemed the licensee to be liable for that offence and s 165(3) removed any possibility of raising as a defence that the licensee did not know, or could not reasonably have been aware of or have prevented the offence committed by the employee as a result of his absence from the premises or for any other reason. That being the case, neither Fazio nor the company had a defence to the charges against them. That the position with respect to a licensee is one of strict liability was emphasised by Owen J in Jackson v Dyball where he stated (at 20):

"In my view the scheme of the Act, and in particular s 165(3), excludes the operation of ss23 and 24 of the Criminal Code which might otherwise have had an exculpatory effect so far as concerns a licensee who was not present at the time when an offence was committed by an employee and had no knowledge of the commission of the offence. The legislature has, in effect, introduced a regime of strict liability in these situations, although that regime only operates after there has been an adverse finding in a situation where the customary defences are available."

131 If the Magistrate had allowed the parties to raise and respond to the issue, any perceived problem with the charge could have been dealt with by way of amendment either to the text or by including reference to s 165. As there was no defence to the charge, no prejudice could flow to the appellants Fazio and Dorigo other than the costs of preparing for a defence which was not open. In those circumstances, notwithstanding the poorly drafted complaint and the failure of the Magistrate to allow the issue raised by the appellants to be dealt with at the outset of the hearing, in my view there has been no substantial miscarriage of justice in relation to the convictions of Fazio and Dorigo.

132 The appeal against the conviction of Vallic is dismissed.

133 The appeal against the conviction of Hollands is allowed and the conviction quashed.

134 The appeal against the convictions of Dorigo and Fazio is dismissed.

135 I will hear the parties on the issue of costs with respect to the conviction of Dorigo, Fazio and Hollands.