Giddings v Director of Public Prosecutions

Supreme Court of NSW|2008-02-18|Before: James J

CITATION : Giddings v Director of Public Prosecutions [2008] NSWSC 169

CATCHWORDS : CRIMINAL LAW - assault - Crimes Act s 418(2) - Liquor Act s 103 - Inclosed Lands Protection Act - power of licensee to eject person

Anti-Discrimination Act 1977 Crimes (Appeal and Review) Act 2001 Crimes Act LEGISLATION CITED : Director of Public Prosecutions Act Inclosed Lands Protection Act Intoxicating Liquor (Licensing) Act 1872 (UK) Liquor Act Victorian Police Offences Act 1928

Darcey v Pre-term Foundation Clinic [1983] 2 NSWLR 497 Director of Public Prosecutions v Butterworth (unreported Supreme Court NSW 6 November 1996) CASES CITED : Harrison v Duke of Rutland (1893) 1 QB 142 Howell v Jackson (1834) 6 C & P 725; 172 E.R. 1435 Sealey v Tandy [1902] 1 KB 296 Webb v Epstein (1955) VLR 462

PARTIES : Peter Giddings v Director of Public Prosecutions

COUNSEL : A C Scotting (Plaintiff) N J Adams (Defendnat)

SOLICITORS : Yardy Legal Pty Ltd (Plainitff) Director of Public Prosecutions (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13663/07 PETER GIDDINGS v DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT 1 HIS HONOUR: This is an appeal by Peter Giddings against his conviction in the Local Court on a charge of assaulting a woman named Pam Ingram. An appeal against the sentence imposed by the Magistrate, which was a fine of $1000, was not pressed at the hearing before me. 2 The appeal was brought pursuant to s 52 of the Crimes (Appeal and Review) Act 2001, which provides that any person who has been convicted by a Local Court may appeal to the Supreme Court against the conviction but only on a ground that involves a question of law alone. Mr Giddings also sought to rely on s 53 of the Act, which provides that a person convicted by a Local Court may appeal to the Supreme Court against the conviction on a ground that involves a question of fact or a question of mixed law and fact but only by leave of the Supreme Court. 3 In the documents in this Court Mr Giddings is described, correctly, as "the plaintiff". He was, of course, the defendant in the Local Court. To avoid possible confusion, I will refer to him in this judgment simply as Mr Giddings. I will generally refer to Ms Ingram as "the complainant". 4 The prosecutor in the Local Court was a police officer. After Mr Giddings had been convicted and sentenced in the Local Court and had brought this appeal, the Director of Public Prosecutions took over the proceedings for the prosecution pursuant to s 9 of the Director of Public Prosecutions Act. The Director of Public Prosecutions filed a notice of contention pursuant to Pt 51B r 18 of the Supreme Court Rules, which continues to apply to appeals from the Local Court to the Supreme Court under Pt 5 of the Crimes (Appeal and Review) Act (including appeals under s 52 and s 53 of the Act). It will be necessary to give consideration to the notice of contention later in this judgment. 5 In the prosecution in the Local Court it was alleged that on the evening of 28 August 2006 Mr Giddings had assaulted the complainant in a hotel in Waterloo (or Redfern). Mr Giddings was the sole director and the sole shareholder of the company which owned the hotel. Mr Giddings's son Mr Jason Giddings was the licensee of the hotel and, along with Mr Giddings and the complainant, was present at the hotel on the evening of 28 August 2006. 6 At the hearing in the Local Court, which took place on 1 June 2007, evidence was given in the prosecution case by the complainant and by Mr Jason Giddings. Some statements by police officers who were not present at the time of the alleged assault were also admitted into evidence. Some closed circuit television footage taken inside the hotel on the evening of 28 August 2006 was also admitted. I was informed at the hearing of the appeal that it would not be possible for me to view this closed circuit television footage. Evidence was given in the defence case by Mr Giddings. 7 There were a number of conflicts between the evidence of the complainant on the one hand and the evidence of one or other or both of Mr Giddings and Mr Jason Giddings on the other hand. However, it was not in issue that the complainant was a female aged about 60, that the complainant had been asked to leave the hotel by at least Mr Giddings, that she had declined to leave the hotel, that Mr Giddings had thrown the complainant's jacket outside the hotel, that Mr Jason Giddings had later retrieved the complainant's jacket and that Mr Giddings had, at least once, thrown a quantity of water over the complainant, wetting her clothes. It was Mr Giddings' act of throwing water on the complainant which constituted the alleged assault. 8 After the hearing concluded on 1 June 2007, the Magistrate reserved his decision. On 21 June 2007 the Magistrate delivered a reserved judgment which was in the following terms:- "INTRODUCTION 1. Ms Ingram entered a licensed premise and sat down. She did not order any refreshments. When the licensee spoke to her she made comments that disturbed him. He asked her to leave. She did not leave the hotel. Mr Giddings, being the director of the company that owns the hotel, threw her jacket outside to induce to leave, but she did not do so. He then threw water over her clothing. Sometime later she left the hotel of her own volition. Mr Giddings has been charged with assault upon Ms Ingram. ISSUE 2. The issue is whether Mr Giddings assaulted Ms Ingram. Mr Giddings has raised the issue of self-defence. 3. Counsel for Mr Giddings has submitted that Mr Giddings was permitted to use reasonable force to Ms Ingram, having asked her to leave the hotel. He relies on a case where the Court of Appeal held that in circumstances where a person trespassed on land so as to interfere with the owners enjoyment of his right of shooting grouse, and the trespasser refused to desist, it was not an assault to forcibly lay hold of the trespasser and hold him on the ground so as to prevent him from interfering with the owners right until the drive was over and he could no longer interfere, when there was no unnecessary degree of violence (Harrison v Duke of Rutland and others (1893) 1 QB 142). 4. Counsel for Mr Giddings submits that the throwing of water upon Ms Ingram was not an excessive use of force, being less forceful than laying hands upon Ms Ingram and forcibly removing her from the hotel. 5. Conduct is carried out in self-defence if a person believes the conduct is necessary to remove a person committing a criminal trespass and the conduct is a reasonable response in the circumstances the person perceives them (Crimes Act 1900 (NSW) s 418). Criminal Trespass 6. The Liquor Act provides for the turning out of certain categories of persons from a licensed premise (Liquor Act s 103). 7. Where a person has refused to leave the property of another the owner may forcibly remove the person (Harrison v Duke of Rutland and others). Subjective Test of Belief 8. Ms Ingram was asked to leave the hotel. She remained seated in the hotel. The accused says that it was closing time. He says that he did not call the police because of perceived delays in attendance. He says that he has a habit of using water as a less intrusive method of turning out persons than using force. I find that there is a reasonable possibility that the accused believed that his conduct was necessary in order to turn out Ms Ingram from the hotel. Test of Reasonable Response 9. The accused perceived the circumstances to be that Ms Ingram would not leave the hotel of her own volition. He threw about a litre of water over her person, causing her clothes to become wet. 10. I am satisfied beyond a reasonable doubt that what the accused did was not a reasonable response to the circumstances he perceived. The action of throwing water over Ms Ingram could not cause her to be turned out. She could only be turned out by the accused and his employees or the police using reasonable force. CONCLUSION 11. The court is satisfied beyond a reasonable doubt that Mr Giddings assaulted Ms Ingram." 9 The grounds of appeal stated in the amended summons which were pressed on the hearing of the appeal were:- 1. The magistrate erred in law by finding that the plaintiff's action of throwing water on the alleged victim could not cause her to be turned out of the licensed premises. 2. The magistrate erred by failing to take into account the relevant considerations of the alleged victim's gender, age and frailty in finding that the only acceptable response for the plaintiff, to the alleged victim's refusal to leave licensed premises, was to use direct physical contact with the alleged victim to forcibly remove her from the licensed premises. 10 Before dealing with these grounds of appeal, it is convenient to consider the notice of contention by the Director of Public Prosecutions and matters arising out of the notice of contention. The notice of contention read:- "That the defence of self-defence did not arise as a matter of law as there had been no "criminal trespass" within the meaning of s 418(2)(d) of the Crimes Act 1900". 11 In par 2 of his judgment the magistrate said that the issue in the case was whether Mr Giddings had assaulted the complainant and that Mr Giddings had raised self-defence. There was no issue before the magistrate that, subject to any defence which might be available to him, Mr Giddings had assaulted the complainant by throwing water over her. Although the magistrate referred in his judgment to the common law rights of an owner of property (pars 3 and 7 of the judgment) and to s 103 of the New South Wales Liquor Act (par 6 of the judgment), the magistrate clearly identified the issue he was determining as being whether the prosecution had negatived self-defence under s 418 of the Crimes Act. The only part of s 418(2) of the Crimes Act which could have been relevant was paragraph (d) by virtue of which:- "A person carries out conduct in self-defence if and only if the person believes the conduct is necessary… (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them". 12 The magistrate found that it was reasonably possible that Mr Giddings believed that his conduct was necessary to remove the complainant from the hotel (par 8 of the judgment) but that he was satisfied beyond reasonable doubt that the conduct was not a reasonable response in the circumstances as Mr Giddings perceived them (par 10 of the judgment). 13 It was submitted by counsel for the Director in support of the notice of contention that s 418(2)(d) of the Crimes Act can apply, only if there is a criminal trespass by the person who is the victim of the alleged offence and that in the present case there had not been any criminal trespass by the complainant. It was submitted that, assuming that the complainant had become a trespasser, trespassing per se is not an offence at common law; trespassing per se is not an offence under the Crimes Act (entering on the premises of another person is an element, but only one of the elements, of some of the offences in Pt 4 Div 1 sub-Div 4 of the Crimes Act); and there had been no contravention of the Inclosed Lands Protection Act. The only one of these submissions which was disputed by counsel for Mr Giddings was the last submission, that there had been no contravention of the Inclosed Lands Protection Act. 14 Section 4(1) of the Inclosed Lands Protection Act provides:- "4 Unlawful entry on inclosed lands

(1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding: (a) 10 penalty units in the case of prescribed premises, or (b) 5 penalty units in any other case." 15 In s 3 of the Act "Inclosed lands" are defined as:- " (a) prescribed premises, or (b) any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure." 16 In the present case the hotel clearly was not "prescribed premises" within par (a) of the definition (see the definition of "prescribed premises"). Paragraph (b) of the definition was considered by McInerney J in Director of Public Prosecutions v Butterworth (unreported Supreme Court NSW 6 November 1996). The issue in that case was whether a "fence, wall or other erection" had to be of an enduring nature or could be merely temporary, in order for land to be inclosed land. In the course of his judgment McInerney J referred with approval to part of the judgment of Smith J in Webb v Epstein (1955) VLR 462, Supreme Court of Victoria Full Court on a section of the Victorian Police Offences Act 1928. At p 468 Smith J said:- "…I think that the word 'enclosed', as used in s 72(13), requires that there must be a barrier of some kind along such of the boundaries of the space in question as are accessible to the public. It need not be a barrier of a kind difficult to surmount or to penetrate, but it must be something more than a mere marking out of the boundaries. Having regard to the nature of the statutory provision here in question it must, I think, be a barrier of such a nature as would, in all the circumstances, convey to a reasonable man that members of the public as such were intended to be excluded and the space reserved for the use of the occupier and persons authorised by him to enter or having some other special authority to do so…" 17 I was referred by counsel for Mr Giddings to Darcey v Pre-term Foundation Clinic [1983] 2 NSWLR 497 (Hunt J). In that case it was alleged that Mr Darcey had been found in the basement of the building of the Foundation, taking down the registration numbers of the cars of members of the Foundation's staff. The principal issue in the case was whether Mr Darcey had lawful excuse within s 4 of the Act for being on the premises, it not being disputed that the premises were "inclosed lands". I do not consider that the decision or Hunt J's judgment is of any assistance to me in the present case. 18 I have some hesitation in making a finding on an issue which was not raised before the magistrate. However, I have concluded, applying the definition of "inclosed lands" in s 4 and the discussion by Smith J in Webb v Esptein, that the part of the hotel premises in which the complainant was, where there were members of the public who were drinking, was incapable of being "inclosed lands" and that therefore there was no contravention of the Inclosed Lands Protection Act. Accordingly, I uphold the Director's notice of contention, to the extent of holding that there was no criminal trespass by the complainant and, consequently, no right of self-defence available to Mr Giddings under s 418 of the Crimes Act. 19 However, it does not necessarily follow from the conclusion I have just stated that no defence whatever could have been available to Mr Giddings. 20 As I have already noted, the magistrate referred in his judgment to s 103 of the Liquor Act. Section 103 is in the following terms:- "103 Exclusion of persons from licensed premises

(1) A licensee or his or her employee may refuse to admit to the licensed premises and may turn out, or cause to be turned out, of the licensed premises any person: (a) who is then intoxicated, violent, quarrelsome or disorderly, (b) who, for the purposes of prostitution, engages or uses any part of the licensed premises, (c) whose presence on the licensed premises renders the licensee liable to a penalty under this Act, or (d) who hawks, peddles or sells any goods on the premises, or (d1) who smokes, within the meaning of the Smoke-free Environment Act 2000 , while on any part of the licensed premises that is a smoke-free area within the meaning of that Act, or (e) who uses, or has in his or her possession, while on the premises any substance that the licensee or employee suspects of being a prohibited plant or a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 , or (f) whom the licensee, under the conditions of the licence or according to a term (of the kind referred to in section 104E (1)) of a local liquor accord, is authorised or required to refuse access to the licensed premises. (2) Where, pursuant to subsection (1), a person has been refused admission to, or has been turned out of, licensed premises, the licensee or his or her employee may, at any subsequent time or from time to time, refuse to admit that person into the licensed premises or may turn the person out, or cause the person to be turned out, of the licensed premises. (3) Where a person to whom a licensee is, under subsection (1) or (2), entitled to refuse admission to the licensed premises is on the premises the person shall, upon being required so to do by the licensee, his or her employee or a member of the police force, quit the premises. Maximum penalty: 50 penalty units. (3A) For the purposes of subsection (1) or (2), such reasonable degree of force as may be necessary may be used to turn a person out of licensed premises. (4) Where a member of the police force is requested by a licensee or an employee of the licensee to turn out, or to assist in turning out, of the licensed premises a person whom the licensee is entitled under subsection (1) or (2) to turn out of the premises, it is the duty of the member of the police force to comply with the request and he or she may, for that purpose, use such reasonable degree of force as may be necessary." 21 It was submitted by counsel for the Director that par 10 of the magistrate's judgment contained a finding by the magistrate that s 103 of the Liquor Act did not apply so as to provide Mr Giddings with any defence. It is unclear whether this is a correct interpretation of par 10 of the magistrate's judgment. However, I am satisfied that I should conclude, whether or not the magistrate stated such a conclusion in par 10 of his judgment, that the complainant could not be found to fall within any of the classes of persons in s 103(1) (and, in particular, that she did not fall within par (a) as being either intoxicated, violent, quarrelsome or disorderly) and, consequently, Mr Giddings had no right to "turn out" the complainant under s 103 of the Liquor Act. At the hearing counsel for Mr Giddings accepted that the complainant did not fall within any of the classes of persons in s 103(1) of the Liquor Act. 22 At the hearing I raised a question whether, independently of s 418 of the Crimes Act or s 103 of the Liquor Act, Mr Giddings might have had a common law power as the owner or occupier of the hotel premises or the agent of the owner or occupier of the hotel premises, of the kind referred to in Harrison v Duke of Rutland and in pars 3 and 7 of the magistrate's judgment, that is to revoke a licence the complainant had to be on the premises and, upon the complainant failing to leave the premises, using force to remove her from the premises, provided that no more force was used than was reasonably necessary. 23 Counsel for Mr Giddings submitted that I should find that Mr Giddings had such a power. Counsel for the Director of Public Prosecutions submitted that the powers conferred by s 103 of the Liquor Act to exclude persons from licensed premises "cover the field", that is exhaustively state the circumstances in which a person can be "turned out" of licensed premises. 24 In McDonald's Licensing and Gaming Laws New South Wales the author comments on s 103 of the Liquor Act as follows:- "Removal from premises. At common law, a licensee had a power to request to leave, and if necessary to eject any person, whether disorderly or not, whom he or she was not bound as an innkeeper to receive: Howell v Jackson (1834) 6 C & P 725; see also Sealey v Tandy [1902] 1 KB 296. Licensed premises are in law a common inn with an obligation to receive and accommodate travellers. A breach of this obligation is actionable at law: Constantine v Imperial London Hotels [1944] 2 All ER 171; [1944] KB 693. It is doubtful whether a person, who comes upon the premises as a guest solely for the purpose of consuming liquor, can be asked to leave, at least while so engaged, unless he or she is guilty of the misbehaviour referred to in this section. If the right of the person upon the premises were contractual, he or she could be requested to leave: Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; [1937] ALR 273." 25 The case of Howell v Jackson (1834) 6 C & P 725; 172 E.R. 1435, which is cited by McDonald as authority for a licensee having such a common law power does not itself really support such a proposition. The report of the case in the English Reports is of a part of the summing up of Parke B to the jury in which Parke B instructed the jury that, in order for a defence by a landlord to a claim of assault to be made out, the jury would have to be satisfied that the plaintiff had committed a breach of the peace in the landlord's public house. However, I am satisfied that there was such a common law power. See Sealey v Tandy. 26 In Sealey v Tandy the appellant, who was the occupier and licensee of a licensed public house, ejected the respondent from the licensed premises. On a number of previous occasions the appellant had ejected the respondent from the premises for using offensive language and behaving in a disorderly manner. 27 On the occasion in question the appellant, when he was ejecting the respondent, was violently kicked by the respondent. The appellant brought a charge of assault against the respondent, which was dismissed by a magistrate, the magistrate holding that the appellant had no right to forcibly eject the respondent unless so authorised by s 18 of the Intoxicating Liquor (Licensing) Act 1872 (UK), that the respondent had not been drunken, violent, quarrelsome or disorderly within the terms of s 18, that the appellant had been kicked by the respondent while the respondent was resisting forcible expulsion and that the respondent had been entitled to resist the appellant when the latter was seeking to forcibly eject him. 28 Section 18 of the Intoxicating Liquor (Licensing) Act 1872 (UK) was in the following terms:- "Any licensed person may refuse to admit to and may turn out of the premises in respect of which his license is granted any person who is drunken, violent, quarrelsome, or disorderly, and any person whose presence on his premises would subject him to a penalty under this Act. Any such person who upon being requested in pursuance of this section by such licensed person, or his agent or servant, or any constable, to quit such premises, refuses or fails so to do, shall be liable to a penalty not exceeding five pounds, and all constables are required on the demand of such licensed person, agent, or servant, to expel or assist in expelling every such person from such premises, and may use such force as may be required for that purpose. The court committing any person to prison for non-payment of any penalty under this section may order him to be imprisoned with hard labour." 29 In Sealey v Tandy the question of law stated for the opinion of the Court of Appeal was:- "….whether the learned magistrate was right in so holding, or whether the appellant was entitled to require the respondent to leave the licensed premises and to eject the respondent after he had refused to leave the same, although the respondent was not at the time of such requirement either drunken, violent, quarrelsome, or disorderly."

30 The leading judgment in the Court of Appeal was given by Lord Alverstone CJ, with whom the other members of the Court (Darling J and Channell J) agreed. The judgment of the Lord Chief Justice was fairly brief and I will quote it in full, omitting citations of cases referred to. "This was a case stated by a metropolitan police magistrate who had dismissed a summons for assault, because he considered that the proceedings out of which the assault arose were occasioned by the appellant (who is the occupier and licensee of a public-house), requesting the respondent to leave the house, and on his refusal attempting to forcibly eject him, and that therefore whatever followed he could not entertain the proceedings for assault. The learned magistrate seems to have thought that the rights of a publican to request a person to leave his premises depended solely on s.18 of the Licensing Act, 1872, and that, unless the person was drunk, violent, quarrelsome, or disorderly at the time, he had no right to make such a request. We think that he has overlooked two important elements of the case to which our attention was called during the argument: in the first place, that this house was not an inn, but only a public-house - a fully licensed house; and, secondly, that the person who was turned out, or attempted to be turned out, was not a traveller. These distinctions have been recognised in many cases, not only in Reg. v. Armagh Justices but also in Reg.v. Rymer and in other cases cited to us. In our opinion the distinctions are well founded, and we think that the occupier of a public-house has a right to request a person to leave, if he does not wish him to remain upon his premises. We also think it right to say, and it is quite clear that the magistrate was of the same opinion, that there was nothing unjustifiable in any sense in the conduct of the appellant, because the man who was requested to leave was one of a gang of men who had been disorderly and had given trouble. But we do not base our judgment on that ground. We think that the appellant was right in his contention that, except in the case of a traveller at an inn, the licensee or occupier of licensed premises has a right to request a person to leave. This case must, therefore, go back to the magistrate in order, if necessary, that the question of assault may be tried. The objection which he took was not well founded, and the appeal must be allowed. " 31 Sealey v Tandy, accordingly, supports the proposition that, except where licensed premises are an inn and a person is a traveller, a licensee or occupier of licensed premises has, independently of any statutory power, a power to require a person to leave the licensed premises and, if the person refuses to leave, to forcibly eject the person. 32 In the present case it would seem that the hotel was an "inn" (Liquor Act s 100) but the complainant was clearly not a traveller, so that the exception to the general principle stated in Sealey v Tandy would not apply. 33 The researches of counsel and myself have not uncovered any case English or Australian in which Sealey v Tandy has been relevantly referred to. 34 Counsel for the Director of Public Prosecutions made a number of submissions about Sealey v Tandy, to which I will reply seriatim.

It was submitted that in Sealey v Tandy the respondent had in fact behaved in a disorderly and offensive manner.

I note, however, that Lord Alverstone expressly said that the Court of Appeal would not base its judgment on that ground.

It was submitted that in his judgment Lord Alverstone had merely said that a licensee or occupier of licensed premises had a right to request a person to leave and not that he also had a right, if the request was refused, to forcibly eject the person from the premises.

However, having regard to the facts of the case, the nature of the proceedings, the question of law stated for the opinion of the Court of Appeal, which included whether the appellant had the right to eject the respondent after he had refused to leave, and Lord Alverstone's judgment taken in its entirety, I consider that the Court of Appeal held, not merely that a licensee or occupier of licensed premises had a right to request a person to leave but also that he had a right to forcibly eject the person if the person refused to comply with the request.

Counsel for the Director of Public Prosecutions traced the legislative history of what is now s 103 of the Liquor Act through s 91 of the Liquor Act 1898 (which was in very similar terms to s 18 of the Intoxicating Liquor (Licensing) Act 1872 (UK)), s 156 of the Liquor Act 1912 and s 103 of the Liquor Act 1982 as amended from time to time.

Although there have from time to time been changes in the legislation, it seems to me that s 103 of the Liquor Act 1982 is a provision of the same general kind as s 18 of the Intoxicating Liquor ( Licensing) Act 1872 (UK).

It was submitted by counsel for the Director of Public Prosecutions that until sub-s (3A) was inserted in s 103 in 1996, a licensee could not use force to exclude a person from licensed premises.

It is unclear why sub-s (3A) was inserted in s 103 in 1996. There is no specific reference to s 103 in the second reading speech on the amending bill which inserted sub-s (3A). However, it seems to me that, even before the insertion of sub-s (3A), it was implicit in the grant of a power to "turn out " a person that force could be used to eject the person.

Counsel for the Director of Public Prosecutions referred to the Anti-Discrimination Act 1977 which prohibits a hotelier from refusing entry or service to a person because of their sex, pregnancy, race, marital status, age (apart from underage drinking), disability, homosexuality or transgender status or that of their relatives or associates.

I accept that, if there is a common law power of the kind suggested, it would be limited by the Anti-Discrimination Act .

Counsel for the Director of Public Prosecutions referred to guidelines for hoteliers prepared by the Anti-Discrimination Board, which would appear to have been based on the assumption that a licensee has no power to exclude anyone from a hotel, except as provided for in s 103 of the Liquor Act .

It was accepted by counsel for the Director of Public Prosecutions that the guidelines have no legislative effect. 35 In my opinion, circumstances can be envisaged in which it would be reasonable for a licensee to be able to request a person to leave licensed premises even though the person does not fall within any of the classes in s 103(1) of the Liquor Act. For example, if the complainant in the present case had in fact behaved as Mr Jason Giddings in his evidence alleged that she had behaved, that is had remained on the premises for an extended period of time without buying a drink and had asserted that murderers liked to come to the hotel after committing their murders, it would surely be reasonable for a licensee to be able to request her to leave, and if she did not leave, to use force to eject her, even though she did not fall within any of the classes of persons in s 103 of the Liquor Act. 36 If there is such an independent power to eject persons from licensed premises, s 103 of the Liquor Act would still have some utility. Section 103 authorises a licensee to turn out any person who falls within its terms, including, for example, travellers against whom the common law power would not be available. Section 103(3) creates a criminal offence. Section 103(4) imposes an obligation on a member of the police force to comply with a request by a licensee to turn out or assist in turning out a person who falls within s 103(1). 37 Ultimately, because of the views I have formed on the grounds of appeal relied on by Mr Giddings, it is unnecessary for me to reach a decision on whether an occupier or licensee of licensed premises has a power independent of s 103 of the Liquor Act, even if limited by the Anti-Discrimination Act, to request a person to leave licensed premises and, if the person refuses to leave, to use no more force than is reasonably necessary to remove the person from the premises. 38 I will now turn to the grounds of appeal which were argued by counsel for Mr Giddings. In dealing with these grounds I will assume, in Mr Giddings' favour, that he did have a power to use force, but no more force than was reasonably necessary, to remove the complainant from the hotel premises. 39 The first ground of appeal was:-

The magistrate erred in law by finding that the plaintiff's action of throwing water on the alleged victim could not cause her to be turned out of the licensed premises 40 This ground of appeal was based on what the magistrate said in the second sentence of par 10 of his judgment that "the action of throwing water over Ms Ingram could not cause her to be turned out". 41 The statement in the amended summons of the grounds upon which it was contended that there was an error of law included the following:- "(c) The plaintiff sought to use less force in his efforts to remove the alleged victim than was involved in laying his hands upon her and forcibly removing her from the hotel, by firstly threatening to throw water over her if she did not leave the hotel in the hope that she would leave the hotel to avoid being wet, and secondly by throwing water on her in the hope that the discomfort caused to her would result in her leaving the hotel. (d) The plaintiff gave evidence that was not challenged, to the effect that he did not want to lay his hands on the alleged victim and forcibly remove her because he believed that his action may cause harm to the alleged victim having regard to her gender, age and frail appearance. The magistrate made no finding on this evidence. (e) The effect of the magistrate's decision is to find the physical and forcible removal of the victim was the only avenue to the plaintiff in the circumstances of the alleged victim's continuing refusal to leave the premises." 42 Accordingly, it was submitted by counsel for Mr Giddings that the magistrate had made an error of law by directing himself that Mr Giddings' action of throwing water over the complainant was incapable of amounting to a reasonable response or the use of reasonable force and that the only action on Mr Giddings' part which would have been capable of amounting to a reasonable response or the use of reasonable force would have been the direct application of force to the complainant's body. 43 I do not consider that the magistrate did make such an error of law. 44 Paragraph 10 of the magistrate's judgment is, undoubtedly, highly condensed and its expression could have been improved. However, when the paragraph is read as a whole and particularly the first and third sentences, I consider that the magistrate directed himself that Mr Giddings could use no more than reasonable force to remove the complainant from the premises (see particularly the third sentence of par 10) and that the magistrate was satisfied beyond reasonable doubt that what Mr Giddings did was not a reasonable response to the circumstances as he perceived them and could not be justified as being an application of no more than reasonable force. I do not consider that the magistrate directed himself that action of the kind engaged in by Mr Giddings was incapable of amounting to a reasonable response or the use of reasonable force. 45 If Mr Giddings did have a common law power to forcibly remove the complainant as being a trespasser who had refused to leave the premises, he was entitled to use no more than reasonable force and, although the magistrate was purporting to apply s 418(2) of the Crimes Act, I am satisfied that the magistrate found as a fact to the criminal standard of proof that Mr Giddings had used more than reasonable force. On the hearing of the appeal it was not suggested by counsel for Mr Giddings that such a finding of fact could be successfully challenged. 46 I would reject the first ground of appeal. 47 The second ground of appeal was:-

The magistrate erred by failing to take into account the relevant considerations of the alleged victim's gender, age and frailty in finding that the only acceptable response for the plaintiff, to the alleged victim's refusal to leave the licensed premises, was to use direct physical contact with the alleged victim to forcibly remove her from the licensed premises. 48 I have already held in dealing with the first ground of appeal that the magistrate did not direct himself that the only acceptable response was to use direct physical contact with the complainant to forcibly remove her from the premises. 49 I am not satisfied that the magistrate failed to take into account the considerations of the complainant's gender, age and physical frailty. It is true that the magistrate did not expressly refer to these matters in his judgment. However, in par 4 of the judgment the magistrate noted the submission made on behalf of Mr Giddings that the throwing of the water was not an excessive use of force, being less forceful than laying hands on the complainant and forcibly removing her from the hotel. 50 I would infer that in considering the submission which the magistrate noted in par 4 of his judgment the magistrate took into account the reasons which counsel for Mr Giddings had advanced in support of the submission that the throwing of the water involved less force than the laying of hands on the complainant. 51 In par 8 of his judgment the magistrate found, in favour of Mr Giddings, that there was a reasonable possibility that Mr Giddings believed that his conduct was necessary in order to turn the complainant out of the hotel. I would infer that in making this finding the magistrate took into account the reasons which Mr Giddings had given in his evidence for believing that it was necessary to act as he did, including his perception of the complainant's gender, age and physical appearance. 52 I would reject the second ground of appeal. 53 Having rejected both of the grounds of appeal which were relied on at the hearing of the appeal, I dismiss the summons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(Crimes Act 1900(NSW)s 418).

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