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[2009] QCA 306
appellant. Leave to appeal was allowed; the appeal was allowed; the District Court order of 16 March 2009 was set aside; in its place, the appeals to the District Court were dismissed. The respondents were...
The permit required the adult entertainment area to be enclosed so people outside could not see in. The Court of Appeal decided that “prevent” meant stopping outside people from seeing inside, not merely making it harder for them to see. Because the Magistrate’s findings that people outside could see through the curtain and entrance arrangements were not displaced, the District Court should not have allowed the respondents’ appeals. The Court of Appeal restored the practical effect of the convictions by dismissing those appeals.
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2,117 words · generated 02/10/2026
Surfers Paradise Rock and Roll Café Pty Ltd held an adult entertainment permit for an approved area at the Crazy Horse Nightclub. Condition 114 of the permit stated: “The approved area must be fully enclosed in a way that prevents a person outside the area from seeing inside the area” ([6]). The company’s nominee was Mick Pickos. Section 226 of the Liquor Act 1992 (Qld) made it an offence to contravene a condition of a licence or permit ([10]).
1 cited instrument linked from this judgment.
The complaints concerned alleged breaches on 25 March and 13 May 2006. The prosecution witnesses were investigators who described seeing into the approved area from outside. Their evidence included seeing people, silhouettes and, according to some witnesses, naked women through the lace curtain. The view was clearer when the curtain was moved aside to allow people to enter or leave. On the earlier date, witnesses also described seeing into the area through a glass panel in an entrance door ([13]–[15], [36]–[44]).
The Magistrate accepted the investigators as truthful witnesses and found the respondents guilty. The Magistrate rejected the argument that “prevent” meant “hinder”, concluding that the condition required the area to be enclosed so as to prevent outside people from seeing inside ([15]–[16]).
The respondents appealed. The District Court judge respected the Magistrate’s factual findings, including that the curtain was not opaque and that a person could see through it. But the judge construed the condition as requiring that it be “very improbable” that a person outside could see in. Considering the degree of visibility and the layout of the entrance, the judge was not satisfied beyond reasonable doubt that the offences had been committed ([17]–[20]).
Gittos sought leave to appeal. The Court of Appeal granted leave, allowed the appeal, set aside the District Court order and ordered that the appeals to the District Court be dismissed. It also ordered the respondents to pay the appellant’s costs of those appeals and of the Court of Appeal proceedings ([47]–[49]).
Muir JA’s central task was to construe “prevents” in Condition 114, read alongside s 103H(a). That provision required the Chief Executive, before approving an area, to be satisfied that it would meet the stated enclosure requirement while adult entertainment was being provided there ([25]).
The Court rejected the idea that the condition was met whenever an enclosure merely hindered vision. Muir JA reasoned that hindrance means impeding or obstructing vision, and that this would not achieve what the provision required. A viewer might have a somewhat distorted or obstructed view yet still be able to recognise the nature of activities inside. The statute did not specify any degree of hindrance that would count as sufficient, which would also make the standard uncertain to apply and enforce ([28]). The better reading in this context was “stop from” or “keep from” ([29]).
That reading did not make the question purely abstract. Muir JA stated that whether the area was enclosed in the required way was a question of fact assessed against the physical conditions at the relevant time. Evidence from people who had looked in from outside was directly relevant. He recognised that there might be cases where seeing was not completely impossible but a person could nevertheless be regarded as prevented from seeing inside. He considered, however, that the facts of this case did not present a particular difficulty of that kind ([30]).
The District Court judge had accepted the Magistrate’s findings on visibility, including that the curtain was not opaque and that it was possible to see through it ([17], [33]). Muir JA considered that, given those findings and the evidence from several witnesses, the respondents had breached the condition as properly construed. The evidence described people and, in some accounts, naked performers being visible through the curtain. At other times, visibility improved when the curtain was moved for access or egress ([37]–[45]).
The Court also rejected the argument that the condition’s purpose was simply to ensure the premises remained in the configuration approved by the Chief Executive. The words focused on preventing outside visibility, not on the structure of the premises as approved. Muir JA considered that the respondents’ reading required words in the condition to be ignored or replaced. The statutory requirement also applied while adult entertainment was being provided, rather than being satisfied solely by the premises’ original or approved configuration ([31]–[32]).
Nor did the condition make an exception for visibility when the door or curtain was opened to let someone enter or leave. Muir JA noted that there was no qualification to that effect. The Court considered that an entrance could be arranged to prevent people outside from viewing the interior when access was allowed, for example through a free-standing screen ([46]).
McMurdo P agreed with Muir JA’s reasons and orders, while adding a qualification about the word “prevent”. In his view, the condition was not absolute in the sense that it made the respondents liable for every possible ingenious contrivance by another person that defeated all reasonable efforts to comply. But, on the findings made in this case, there could have been no reasonable doubt that the respondents had failed to comply ([3]–[5]). Chesterman JA agreed with Muir JA’s reasons and orders ([49]).
Before the Court of Appeal’s decision, the Magistrate and District Court judge had adopted different approaches to the meaning of “prevent”. The Magistrate treated it as requiring visibility to be stopped. The District Court judge considered the word difficult to classify and adopted a less demanding standard, requiring that it be very improbable that a person outside could see inside ([16], [18]).
The Court of Appeal resolved that disagreement for the provision before it. It construed Condition 114 in the context of s 103H(a), holding that “prevent” meant “stop from” or “keep from”, rather than merely “hinder” ([25]–[29]). It also set out how the condition was to be applied: by assessing the physical conditions at the relevant time and considering evidence of what could be seen from outside ([30]).
The decision did not treat the requirement as an abstract demand for perfect impossibility in every conceivable circumstance. McMurdo P expressly cautioned against absolute liability for every ingenious attempt to defeat reasonable compliance efforts ([4]). That qualification sits alongside the Court’s conclusion that the visibility established on the facts of this case was enough to show a breach.
The judgment concerns the construction of a particular permit condition and its relationship to s 103H(a) of the Queensland Liquor Act as it stood at the time of the offences. It should not be read, on the material provided, as resolving how differently worded conditions or other statutory schemes would operate.
At [28], Muir JA explained why “hinder” was not enough: “To ‘hinder’ a person from seeing into an area is to impede or obstruct that person's vision within the area. That is not something to which s 103H or Condition 114 is directed.” In plain English, making it harder to see did not satisfy a condition whose focus was keeping people outside from seeing inside.
At [29], Muir JA stated the construction adopted: “stop from” or “keep from”. That is the key interpretive conclusion. It does not mean that every possible, fanciful way of defeating an enclosure necessarily establishes a breach; McMurdo P’s qualification at [4] addresses that limit.
At [30], Muir JA said the issue was “a question of fact to be determined by reference to the physical conditions existing at the relevant time.” In plain English, the answer depends on what the premises were actually like on the date alleged, not merely on the plan, the permit paperwork or a general description of the venue. What witnesses could see from outside was relevant evidence.
At [31], Muir JA rejected the claim that the condition merely required the premises to remain as approved. He said its focus was preventing someone outside from seeing inside. Put simply, an approved design was not a substitute for meeting the visibility requirement in practice.
At [46], Muir JA rejected an implied exception for open entrances. The condition did not qualify its requirement where doors or curtains were opened for access or departure. The practical question remained whether the arrangement prevented outside people from viewing the interior.
The judgment is most directly relevant where a Queensland adult entertainment permit contains the same or materially similar requirement that an approved area be enclosed so people outside cannot see inside. It is particularly pertinent where the dispute concerns whether a curtain, door, window, entrance lobby or other feature permits outside visibility.
The decision indicates that evidence should be connected to the physical setup on the relevant date. In this case, the evidence distinguished between visibility through a closed curtain, visibility through a glass panel, and a clearer view when the curtain was moved for entry or exit ([36]–[45]). The Court assessed those conditions in combination, rather than treating the mere presence of a curtain or door as conclusive.
It also addresses arguments that the visibility was only partial or that the premises were built in an approved configuration. The judgment makes clear that partial obstruction does not, by itself, answer whether people outside were prevented from seeing in. The precise question remains whether the evidence establishes the requirement was met under the circumstances ([28]–[32]).
The judgment does not establish that every instance of any visible outline necessarily constitutes a breach. It explains that the factual inquiry may be arguable where seeing is not completely impossible, and McMurdo P rejects an absolute-liability reading in every imaginable circumstance ([30], [4]). The conclusion here depended on the Magistrate’s findings and the evidence the Court of Appeal reviewed.
The supplied judgment contains no subsequent decisions and no account of how later courts treated Gittos. It therefore does not establish whether later courts followed, distinguished, limited or otherwise applied its reasoning.
Within this judgment, the Court refers to earlier authorities concerning the meaning of “prevent”. McMurdo P notes that different conclusions had been reached in different legal contexts, citing Tennants (Lancashire) Ltd v C S Wilson & Co Ltd, Peter Dixon & Sons Ltd v Henderson Craig & Co Ltd, The Queen v Bell; Ex parte Lees, Devenish v Jewel Food Stores Pty Ltd and Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd ([3]). Muir JA also refers to Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd in the account of the respondents’ contextual-interpretation argument ([21]).
The Court’s own reasoning does not provide a detailed account of the facts or holdings of those authorities. It uses them to acknowledge that the meaning of “prevent” can vary with context, then construes this permit condition by reference to its language and statutory setting ([3], [25]–[30]). The judgment alone cannot support a claim about later precedential treatment.
The judgment recognises that cases may arise where it is possible, but difficult, to see from outside into a licensed area. Muir JA stated that such circumstances might raise an argument about whether a person was nevertheless prevented from seeing inside, but did not identify a precise threshold for that situation ([30]). The decision therefore gives a construction and factual method, but not a numerical or universally applicable measure of permissible visibility.
The judgment does not define how much detail a person must be able to discern before visibility counts as seeing “inside”. The witnesses gave differing accounts of what could be seen through the curtain, from silhouettes and outlines to clearer views of people and activities ([37]–[44]). The Court concluded that the evidence in this case was ample, but its reasons do not set out a general test for every degree of partial visibility ([45]).
McMurdo P’s qualification also leaves a boundary question: the condition is not absolute in the face of every ingenious contrivance, but the judgment does not specify what efforts would be reasonable in all possible circumstances ([4]). The decision’s application will therefore depend on the condition’s wording, the physical layout, the relevant date and the evidence about what could be seen.
Finally, the judgment addresses the Liquor Act provisions as they stood at the time of the alleged offences ([8] n 8). The supplied material does not establish whether those provisions or permit conditions have since changed, or how subsequent courts have interpreted them. This analysis is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Gittos v Surfers Paradise Rock & Roll Café P/L & Anor [2009] QCA 306
PARTIES: GRANT DARREN GITTOS (respondent/applicant/appellant) v SURFERS PARADISE ROCK AND ROLL CAFÉ PTY LTD ACN 050 412 612 (appellant/first respondent) MICK PIKOS (appellant /second respondent)
FILE NO/S: CA No 76 of 2009 / DC No 577 of 2007 / DC No 578 of 2007
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT: District Court at Southport
DELIVERED ON: 13 October 2009
DELIVERED AT: Brisbane
HEARING DATE: 25 September 2009
JUDGES: McMurdo P and Muir and Chesterman JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: Leave to appeal allowedAppeal allowedSet aside the order made in the District Court on 16 March 2009 and in lieu order that the appeal to that Court be dismissed****The respondents pay the appellant’s costs of the appeal to the District Court and of this appeal
CATCHWORDS: LIQUOR LAW – PENAL PROVISIONS – OFFENCES – OFFENCES RELATING TO REGULATION AND CONDUCT OF LICENSED PREMISES – where first respondent held an adult entertainment permit issued under Liquor Act 1992 (Qld) – where permit authorised the first respondent to provide "adult entertainment" within an approved area subject to various conditions – where Condition 114 provided the "approved area must be fully enclosed in a way that prevents a person outside the area from seeing inside the area" – where respondents charged with contravening Condition 114 – whether respondents failed to fully enclose the approved area in a way that "prevents" people outside from seeing inside / Liquor Act 1992 (Qld), s 103E, s 103G, s 103H, s 109, s 226 / Australian Builders' Labourers' Federated Union of Workers – (WA Branch) v J-Corp Pty Ltd (1993) 114 ALR 551, cited / Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32; [1991] HCA 7, cited / Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475, cited / Peter Dixon & Sons Ltd v Henderson Craig & Co Ltd [1919] 2 KB 778, cited / Tennants (Lancashire) Ltd v C S Wilson & Co Ltd [1917] AC 495, cited / The Queen v Bell; Ex parte Lees (1980) 146 CLR 141; [1980] HCA 26, cited
COUNSEL: J D Henry SC, with R W Frigo, for the applicant/appellant / M J Byrne QC for the respondents
SOLICITORS: Legal Services Unit, Department of Treasury for the applicant/appellant / Hopgood Ganim Lawyers for the respondents
McMURDO P: Subject to the following brief observations, I agree with Muir JA's reasons for granting the application for leave to appeal; allowing the appeal; setting aside the order made in the District Court; and, instead, ordering that the appeal to the District Court be dismissed.
The first respondent, Surfers Paradise Rock and Roll Café Pty Ltd, held a permit to provide "adult entertainment" in an "approved area"1 within premises known as the Crazy Horse Nightclub. Condition 114 of the permit provided:
"The approved area must be fully enclosed in a way that prevents a person outside the area from seeing inside the area."
The first respondent and its nominee, Mick Pickos, the second respondent, were summarily charged with breaching Condition 114. This appeal turns on the meaning of "prevent" in Condition 114 of the permit.
Unlike the magistrate who initially determined these complaints, I do not consider that Condition 114 is absolute in its terms so that, regardless of context, a failure to prevent a person outside the approved area from seeing inside the area will infringe the condition. The meaning of the word "prevent" depends on and will vary with the context in which it is used and the prevailing factual circumstances. This is clear from its primary dictionary definition: "1. to keep from occurring; hinder".2 This is also clear from the varying conclusions reached in case law as to the meaning of "prevent" in contexts different from the present: cf Tennants (Lancashire) Ltd v C S Wilson & Co Ltd;3 Peter Dixon & Sons Ltd v Henderson Craig & Co Ltd;4 R v Bell; Ex parte Lees;5 Devenish v Jewel Food Stores Pty Ltd;6Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd.7
In the present context, it is clear that the word "prevent" in Condition 114 means more than hinder. It will ordinarily require that the holder of the permit ensure the approved area is fully enclosed in a way that keeps someone outside the area from seeing inside it. But Condition 114 does not make the respondents absolutely liable for every possible ingenious contrivance of others to defeat all reasonable efforts of the respondents to comply with the condition. That said, on the facts found by the magistrate with which the District Court judge appeared to agree, there could have been no reasonable doubt that the respondents had breached Condition 114 of their permit in failing to keep someone outside the approved area from seeing inside it.
I agree with the orders proposed by Muir JA.
MUIR JA: Introduction
The first respondent, at material times, held an adult entertainment permit in respect of premises known as the Crazy Horse Nightclub in Surfers Paradise issued under Part 4, Division 13A of the Liquor Act 1992 (Qld) ("the Act").8 The permit authorised the first respondent to provide "adult entertainment" as defined in s 103E of the Act within an area of the first respondent's premises approved under the Act subject to conditions "prescribed under a regulation or imposed by the chief executive".9 Condition 114 of the permit provided:
"The approved area must be fully enclosed in a way that prevents a person outside the area from seeing inside the area."
The second respondent, at material times, was the nominee in respect of the permit under s 109 of the Act.
A complaint and summons dated 11 January 2007 issued under the Justices Act 1886 (Qld) charged the first respondent with contravening Condition 114 on 25 March 2006. The second respondent was charged with the same contravention under a similarly worded complaint and summons.
Particulars of each complaint alleged that:
"At the time of the Investigators (sic) inspection the approved area was not fully enclosed in a way that prevents a person outside the area from seeing inside the area."
Other complaints and summonses also dated 24 January 2007, issued against each of the respondents, alleged similar contraventions of Condition 114 of the permit on 13 May 2006. Section 226 of the Act makes it an offence to contravene a condition of a licence or permit issued under the Act.
The matters were heard in the Magistrates Court on 4 July 2007, 31 October 2007 and 1 November 2007. On the latter date, the learned Magistrate found the respondents guilty of the charges.
The respondents appealed against their convictions pursuant to s 222 of the Justices Act 1886 (Qld) and the learned District Court judge who heard the appeals allowed them and set aside the convictions. The appellant seeks leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld).
The Magistrate's reasons
The Magistrate referred to the evidence of five investigators called by the prosecution. They were the appellant, Mr Gittos, and investigating officers, Messrs Hayes, Matthews, Cipriano and Ms Jamison. Messrs Gittos, Hayes and Matthews gave evidence in respect of the March offence and Messrs Gittos, Cipriano and Ms Jamison gave evidence in respect of the May offence. No evidence was lead on behalf of the respondents.
The Magistrate summarised and quoted relevant evidence of each of the prosecution witnesses as follows:
"Mr Gittous10 and Mr Hayes gave evidence that they saw a naked woman from the arcade just outside the sliding door entrance to the Crazy Horse, it is the arcade there. Mr Matthews in cross-examination said that he did not see a naked woman when the curtain was closed. Mr Gittous was quite clear under cross-examination that he could see beyond the curtain into the lap dance room …
On the first occasion, that is in March, he could see through the glass panel of the chequered plate door which is shown in Exhibit 6, minus the posters on the glass. He said in cross-examination at page 48, 'The female that approached the curtain … - 'on the 13th of May was quite clearly unclothed prior to drawing back the curtain.' '
Later at line 28, 'I saw people in there and I formed the opinion that they were naked.' In re-examination, he said, 'I could both see into the approved area from the area both through the window of clear glass and also I could see into the approved area when the chequered plate doorway was open.'
He was asked, 'Could you see into that area when the lace curtain was closed?' 'Yes, I could.' 'What could you see?' 'I could see a number of people inside the lap dance room.' Mr Hayes at page 72, on a visit in March said, 'You could see naked females in the area and it was obvious that as patrons were going in there' – and then it goes on.
Mr Hayes at page 72, 'When the curtain was closed what could you see?' 'I could see the outline of females, naked females.' 'You could see through that curtain and see the females behind that curtain.' In respect of the May matter, Mr Cipriano said that he could see through the lace curtain and the ladies were naked…
He was standing on the footpath area in what I would describe as the arcade. Ms Jamison repeatedly said that she definitely saw a naked female behind the curtain in May after being pressed quite a bit during cross-examination..."
"… my overall impression of their evidence is that they were witnesses of truth, particularly in my [estimation?] of being able to observe naked women, whatever number that is, on the occasions in question."
The Judge's reasons on appeal from the Magistrate's decision
"The material facts are these: the approved area where the adult entertainment was taking place was enclosed by a curtain and a chequered plate door which had a window in it. This door was on a hinge such that it would open when required and then close automatically. The window had been covered over by 13 May 2006. The curtain was made of a lace type material which, as the Magistrate found, was not opaque.
Leading up to these enclosures there was a corridor. In order to see into the approved area one had to walk from the corridor past a sliding door which was open at all times. When one passed the sliding door one would walk a couple of paces up to the chequered plate door. From that point one was only a few paces away from the curtain.
As of 25 March 2006 one could see into the approved area if the chequered plate door was open. Also one could see through the window of the chequered plate door, although, as I have pointed out, that was not possible on 13 May 2006.
Now, I have said that one could see into the approved area. That was possible, of course, if the curtain was moved to one side. It was also possible, however, to see through the curtain itself. That is what the Magistrate found and that finding should not be disturbed, in my opinion, but it is at this stage of the case, in my view, where difficulty arises.
… it is difficult to determine on the evidence the degree to which one could see through the curtain. The witnesses, which is not unexpected, gave varying accounts. Ms Jameson (sic), for instance, seems to suggest that the curtain provided little or no obstruction to visibility, but, in my opinion, the case should not be approached on that basis." (emphasis added)
"The Magistrate was of the view that it meant totally stopping visibility. His Honour might well be right, but, with respect, I take a different view. … I think the word 'prevent' is difficult to classify.
…I think it must mean something less than that applied by the Magistrate. It is no easy task to state precisely what the word means, but I think it means that there is a requirement to fully enclose the approved area in such a way that makes it very improbable that a person outside can see inside the approved area."
"…I have to apply my understanding of what 'prevents' means. I then have to ask myself whether I am satisfied beyond reasonable doubt that the appellants, given the circumstances of the present case, failed to fully enclose the approved area in a way that prevented a person outside from seeing inside the area.
Now, it is the position, in my opinion, that the appellants may well have committed offences. That, of course, is not the test. Applying the above stated test to the circumstances of this case – and those circumstances were fully discussed in argument – I am not satisfied beyond reasonable doubt that the appellants on the relevant dates failed to fully enclose the approved area in a way that prevented persons outside the area from seeing inside the area."
"… that whilst one could see through the curtain, the view through the curtain was not as clear as it would have been without the curtain. However, determining what exactly could be seen is a matter of degree. This is where doubts in my mind have arisen as to whether offences were committed and, of course, it is not simply a matter of what the curtain obscured.
One has to have regard to all the evidence. That is, the evidence about the chequered plate door, the layout of the approach to the premises and the accounts of the witnesses as to the lack of clarity about objects behind the curtain and so on.
Because of these factors doubts, as I say, have arisen in my mind as to whether offences were committed. Thus, applying the relevant standard of proof, I am not satisfied offences were committed."
The respondents' principal arguments
Counsel for the respondents sought to support the judge's conclusions in two ways. It was submitted that in determining the meaning of "prevent" it was necessary to look at the context in which the word is used in the permit and find the "meaning(s) best suited to the statutory document as a whole".11 It was said that the configuration of venues such as those under consideration was relevant, and in particular, the necessity for them to "have points of entry and exit" through which persons would need to be able to see when entering and leaving. Counsel also referred to the plan of the subject premises and submitted that it was impossible or nearly so, to devise an entry for the premises which would be practicable and render completely impossible vision from outside the premises to inside the licensed area. The alleged difficulties centred around the need to be able to open doors to permit patrons and others to come and go.
In this regard it was said in the written submissions of counsel for the respondents that:
"Brief view into the area must be contemplated from outside the area at some point as it would be impossible to physically pass from outside to inside without first being able, albeit briefly, to see. Clearly patrons and staff must be able to access the area at some point."
Having regard to these considerations, it was submitted that the definitions in the Macquarie and Shorter Oxford English dictionaries which give "hinder" as a meaning of "prevent" should be applied, rather than "absolute prevention". A strict construction was to be favoured, as non-compliance gives rise to a criminal offence.
The other substantive argument advanced was that as the subject area was "configured as inspected and as approved" it was therefore "enclosed" in the "way" approved. The submission continued along these lines. The purpose of Condition 114 was to ensure that the premises were not altered from the approved configuration, at least in a way which allowed a person outside to see inside. The words "enclosed in a way" refer to the way the subject area was approved and constructed rather than to simply the question of vision into the area from outside.
Consideration of the meaning of "prevent"
"Approved area to conform with requirements
Before the chief executive approves an area as an approved area, the chief executive must be satisfied the area conforms, or will conform, with this Act and the following requirements while adult entertainment is being provided in the area –
(a)The area must be fully enclosed in a way that prevents a person outside the area from seeing inside the area;…"
I think it obvious that Condition 114 picks up the terminology of s 103H(a) and that a purpose of the requirement that a licensed area be fully enclosed as described is to keep from the view of persons outside the area approved for adult entertainment any acts or things within the licensed area. No doubt the Legislature considered it necessary to impose such a requirement in order to shield minors, and adults not voluntarily attending such premises, from exposure to conduct which many in the community regard as offensive, degrading and/or morally corrupting.
The Shorter Oxford English Dictionary gives as meanings of "prevent":
"3. To stop, keep, or hinder from doing something.
…
7. To use preventive measures."
To "hinder" a person from seeing into an area is to impede or obstruct that person's vision within the area. That is not something to which s 103H or Condition 114 is directed. It would not make much sense for s 103H or Condition 114 to merely hinder vision into licensed adult entertainment areas. As the degree of hindrance required is not specified, the requirement could be met, for example, by a glass door or wall which, when looked through, distorted human forms, but enabled the viewer to clearly appreciate the nature of the activities under observation. Also, a requirement that vision be hindered rather than stopped would be singularly lacking in certainty and thus difficult to apply and enforce.
Consequently, there is good reason to give "prevent" in s 103H and Condition 114 what I consider to be its more normal meaning in everyday speech of "stop from" or "keep from".
[30] Whether premises are fully enclosed in a way that prevents a person outside from seeing inside is a question of fact to be determined by reference to the physical conditions existing at the relevant time. Evidence by persons of what, if anything, could be seen by them when looking in from outside is of obvious relevance to the determination of the question. Where seeing from the outside to the inside of a licensed area is not completely impossible, it may be arguable in some circumstances that "a person outside" is nevertheless prevented "from seeing inside" for the purposes of the condition. I do not apprehend, however, that any particular difficulty in deciding such a question arises on the facts of this case. Nor do I accept the argument advanced by counsel for the respondents that the difficulties in stopping persons outside a permit area from seeing inside were so great and so manifest as to require the adoption of the respondents' construction. In my view there will normally be no great difficulty in configuring the entrance to premises so as to stop persons outside from being able to see inside a permit area. The fact that there may be difficulties in achieving compliance in individual cases is hardly a matter relevant to the construction of Condition 114 or s 103H.
Consideration of the respondents' contentions as to the purpose of Condition 114
[31] The argument that the purpose of Condition 114 is to ensure that the premises are not altered from the approved configuration and that it is sufficient that the licensed area is enclosed in the way approved by the Chief Executive, cannot be accepted. Condition 114 is directed to preventing a person outside the licensed area from seeing inside it. Its focus is not on the structure of the subject premises in the form approved or otherwise. The respondent's argument requires the plain meaning of many of the words of the condition to be ignored and for other words to be inserted in their place.
[32] The argument is not supported by s 103H, which requires the Chief Executive, before approving "an area as an approved area" to be satisfied that the area to be approved will conform, inter alia, with requirement (a) "while adult entertainment is being provided in the area." In other words, requirement (a) may be satisfied by the subject area being "fully enclosed" as described only when adult entertainment is being provided in it.
Consideration of the Judge's reasons
[33] The learned judge did not disturb the Magistrate's findings as to what could be seen inside the licensed area from outside. His express findings in that regard are emphasised in paragraph [17] above. On these findings, the respondents' breached Condition 114, properly construed, and the respondents' appeals, should have been dismissed.
[34] What the judge understood "prevent" to mean is far from clear. At one point he defined it in terms of making it "very improbable that a person outside can see inside the approved area". In later discussion he implicitly regarded as relevant the extent or degree of visibility from outside. In that regard he probably had in mind the evidence of what could be seen through the curtain. If that was the case, his Honour seemingly ignored his conclusion, in effect, that the Magistrate's findings of fact, which included a finding that it was possible to see through the curtain, should not be disturbed. Having embarked on a consideration of the extent to which it was possible to see through the curtain, he made no findings in that regard.
[35] The licensed area was in the same premises as the Crazy Horse Nightclub. The nightclub area and the licensed area shared a common entry off a public walkway. A patron wishing to enter the licensed area proceeded off the walkway through a sliding glass door into an entry lobby, through a hinged door into another small area on the other side of which was the entry into the licensed area. At relevant times that entry was screened by a curtain. Entry into the nightclub was via stairs at the left of the small area.
[36] The evidence of Messrs Hayes and Matthews was that at the time of their visit to the premises on 25 March 2006 persons outside the premises could see into the licensed area from outside through "the glass panel of the chequered plate door". That was a reference to what I have described as the hinged door. Their evidence was to the effect that they could see through the glass panel and the curtain at the entrance to the licensed area into that area and that their view into the licensed area from outside was enhanced when the curtain was moved to enable entry or egress. The evidence was that the glass panel in the door was covered after 25 March 2006 and before 13 May 2006. Accordingly, whether there was a breach of Condition 114 on the later date depends on what could be seen through or around the curtain when the hinged door was open. The evidence concerning the curtain's transparency and what could be seen when it was drawn aside to permit access or egress may be summarised as follows.
[37] Mr Gittos said in evidence-in-chief that looking through the curtain he "could see two or three females inside." In cross-examination, in response to it being put to him that it was impossible to see "beyond that white curtain anyone other than someone wearing a white garment … and then all that's visible is the white garment?" he said, "No. That's not correct. I was able to see beyond that curtain in its drawn condition and when it was drawn back, I was certainly able to have an unobstructed view into the room." He said that on 25 March 2006 he saw the curtain being drawn back and could "quite clearly see into the lap dancing room," where he saw three naked women.
[38] Later in his cross-examination, in relation to what he was able to make out through the curtain, he said, "I could make out objects of people inside that room … I couldn't accurately see whether they were clothed..." The cross-examiner returned to the same point later and elicited the concession that it was difficult "to make out any detailed nakedness if … the curtain is closed." It was put to him that, "you cannot see a naked person behind that lace curtain whether the lights are on or off" and he responded, "Well, I would disagree with that. I saw people in there and I formed the opinion that they were naked." He elaborated that he formed the opinion that a woman approaching him on the other side of the curtain was naked before his opinion was verified when the curtain was drawn back.12
[39] Mr Hayes said that on his visit to the premises on 25 March 2006, when he had looked from outside the foyer of the premises, naked females could be seen in the licensed area when the curtain was opened to enable access to patrons. He said also that he could "see the outline of … naked females … through that curtain …"
[40] In cross-examination, he verified that when the curtains were pulled back, "You [could] certainly see the benches where the patrons [were] seated" and that females could also be seen. It was put to him that unless a person was wearing white they could not be seen on the other side of the curtain by a person standing in the foyer area. He responded, "… I disagree with that because certainly on the night in question I could see through that very thin white curtaining." In response to the proposition, "Well, you say you saw naked women much more clearly when that curtain was pulled aside?" he said, "Yeah, absolutely".
[41] Mr Matthews said that on 25 March 2006, looking from a public alleyway outside the premises, he saw through the glass window in the entrance door from the front foyer of the premises a woman wearing only a pair of stilleto heeled shoes "walking from one side of the room to the other". At the time, there was a "light type material curtain that was pulled back."
[42] Asked if he had seen a naked woman inside the licensed area when he was standing outside and the curtain was drawn, he responded, "No, I'd have to say I didn't." He later volunteered, "You can see silhouettes through that curtain" and that, "for all intensive (sic) purposes you couldn't make out who was who."
[43] Ms Jamison, in evidence-in-chief, swore that on her visit to the Crazy Horse on the evening of 13 May 2006 she was able to see from a tiled area at the front door of the premises, a naked female giving a lap dance in the lap dancing room. She said that the lace curtain at the door of the room "was closed but it was transparent … you could see through it". In cross-examination, she described in considerable detail what she had seen. It also emerged that in an earlier statement she had said that she could see directly into the lap dancing room from the "footpath/walkway outside the front entrance to the premises when the front door was opened." Cross-examined at great length about what she had seen and was able to see behind the curtain, she reaffirmed on a number of occasions that she did see, clearly, a naked female through the curtain which she described as "very transparent". In relation to Ms Jamison's evidence of what could be seen through the closed curtain, the Magistrate said, "My general impression of her as a witness was that she was a witness of truth on that essential issue."
[44] Mr Cipriano said that on his visit in the evening of 13 May 2006, when standing on the pedestrian pathway at the front of the premises, he could see, through the lace curtain, naked women performing lap dances in the licensed area. He confirmed that when the lace curtain was drawn back to enable patrons to enter the licensed area, what was occurring within "was even more clear". His evidence was unshaken during a relatively brief cross-examination.
[45] There was thus ample evidence to justify the Magistrate's implicit conclusion that the licensed area, at relevant times, was not "fully enclosed in a way that prevents a person outside the area from seeing inside the area." Sight from outside to inside was possible through the curtain. Such sight, restricted only by the breadth of the gap between the curtain and the wall, was also possible when the curtain was moved to one side to permit access or egress.
[46] The condition does not contain any relaxation or qualification justifying the proposition advanced by counsel for the respondents that it could not be construed to apply to what could be seen when a door or curtain was opened to enable entry or departure from a licensed area. As the Magistrate pointed out, there is no particular difficulty in arranging an entry to premises in such a way as to prevent a person outside the premises from viewing the interior when an entry door or curtain is opened. In many situations a simple free-standing screen will serve that purpose.
Conclusion
[47] Other matters were argued on behalf of the appellant in support of the appeal. In view of the foregoing, however, it is unnecessary to address them. Leave to appeal is appropriate as the principal question to be decided concerns the construction of a condition likely to be found in all adult entertainment permits. Also, the construction of the condition is relevant to the construction of s 103H of the Act. As the above discussion shows, the appellant has established an error in the determination of the District Court judge.
[48] I would give leave to appeal, allow the appeal, set aside the order made by the District Court on 16 March 2009, and in lieu order that the appeal to that Court be dismissed. The respondents should pay the appellant's costs of the appeal to the District Court and of this appeal.
[49] CHESTERMAN JA: I agree with the orders proposed by Muir JA and with the reasons given by his Honour for those orders.
Liquor Act 1992 (Qld), s 103E. ↩
Macquarie Dictionary. ↩
[1917] AC 495 at 513-514, Lord Dunedin. ↩
[1919] 2 KB 778 at 786. ↩
(1980) 146 CLR 141 at 147-148, Gibbs J (as he then was). ↩
(1991) 172 CLR 32 at 45-46, Mason CJ. ↩
(1993) 114 ALR 551 at 557-559, Lockhart and Gummow JJ. ↩
This and other references to provisions of the Act are to the Act as it was at the time of the subject offences. ↩
Liquor Act 1992 (Qld), s 103G. ↩
The applicant's name was misspelt in the transcript of proceeding at first instance. ↩
Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475 at 484. ↩
Record 62. ↩
Gittos
Surfers Paradise Rock & Roll Caf� P/L & Anor [2009] QCA 306
(1993) 114 ALR 551
(1991) 172 CLR 32
(1985) 3 NSWLR 475
(1980) 146 CLR 141
Leave to appeal was allowed; the appeal was allowed; the District Court order of 16 March 2009 was set aside; in its place, the appeals to the District Court were dismissed. The respondents were ordered to pay the appellant’s costs of the District Court appeal and the Court of Appeal proceedings.