Appeal allowed. Remitted to Court of Petty Sessions for re-trial

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Jackson v Dyball (1993) 74 A Crim R 10

Holden v Sainken, unreported; SCt of WA (Scott J); Library No 970700; 12 December 1997

1 HEENAN J: The respondent Mr Randall and his wife are directors of Alfon Pty Ltd, the other respondent. The company is the lessee and licensee of The Paddington Ale House at Mount Hawthorn and Mr Randall is the person approved as manager under s 35B of the Liquor Licensing Act 1988 (WA). On 31 December 1999 in the Court of Petty Sessions at Perth the learned Magistrate dismissed a complaint against each of the respondents. They had been charged under s 110(1) of the Act with contravening a condition of the licence in that they permitted a dancer to perform on the licensed premises dressed immodestly. The complainants now appeal against the dismissals.

2 In Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 at 444-446 Kennedy J examined the meaning of the words "suffer" and "permit" in a similar context. Having expressed the view (at 444) that there is little difference in meaning between those words, his Honour referred to the suggestion in a number of cases that "suffer" means something more passive than "permit". His Honour then said (at 446):

"In my opinion, in the context of the condition in question in this case, actual knowledge, or at least constructive knowledge, must be found to have been present on his part before the appellant could properly be said to 'suffer' something to be done. Constructive knowledge in this context means either shutting ones eyes to the obvious, or failing to do something or doing something, not caring whether a contravention takes place or not ..."

3 On the afternoon of Friday 11 December 1998 four female dancers from the Living Dolls Agency performed on the premises. The performance took place in a part of the public bar which was separated from the remainder by a partition. On the partition there was a sign stating that there was a "raunchy show" on and that it "may offend". At the time of the performance there were approximately 100 people in the public bar, 70 to 80 of whom were in the area which had been partitioned off. Two pool tables, two or three metres apart, were covered so as to form a platform which was used during the performance.

4 Mr Randall had spent most of the day assisting another staff member to look after 30 or 40 customers, who were having lunch in a "more upmarket" bar section, as well as attending to managerial duties in his office. Mr Mark Henderson, a barman, was on duty in the public bar. The two appellants, police officers in plain clothes, were in the audience. At one stage, while a dancer was performing naked on one of the pool tables, one of the officers saw Mr Randall pick up three glasses from the other pool table and put them on the bar counter. The officer saw Mr Randall "looking around" but did not see him staring at the dancer. At the end of the performance, after speaking to the dancers, the officer interviewed Mr Randall. He testified that in the course of the interview the following exchange took place:

"I said, 'What happens if your dancers - - if the dancers breach your entertainment conditions?' He said, 'As far as I'm concerned, they haven't.'

I said, 'What would you say if I told you that three of the dancers were naked, or three of the females were naked and the other one was topless?' He said, 'I wouldn't believe you.'

I said, 'Whose responsibility is it to monitor the show?' He said, 'Living Dolls.'

I said, 'I saw you pick up three glasses from the table, and about 3 metres away on the top of a covered pool table a female danced naked. Why didn't you stop her?' He said, 'I picked up three glasses. I didn't see her. The table was crowded. I only just left the office.'"

5 In evidence, Mr Randall said that he had engaged the agency to provide dancers after he had obtained approval from the local government authority to have "lingerie dancing" performed on the premises. Because he did not have "the full licence to go for the - - the full on strip shows", he had told representatives of the agency that "the girls weren't to take their gear off". He understood that the performance in question was to be "just a lingerie show without undressing". He told Mr Henderson that if he saw the girls "removing their tops" he was to "let the dressers know or let me know". Mr Randall testified also that until the police officer spoke to him he had received no report of any untoward behaviour that day. He agreed that he had picked up the three glasses from the covered pool table but confirmed that he had not seen any girl dancing on the pool tables naked or immodestly dressed. He testified that he was "absolutely stunned" to learn from the officer that "it was going on". He went on to say that he received an account for about $1,000 from the agency in respect of the performance but refused to pay it and "sacked them immediately" because he regarded the nature of the performance "as a breach of contract".

6 In the course of his reasons, which he delivered orally at the end of the trial, the learned Magistrate observed that some consideration or action is required when something is "permitted". His Worship added:

"It is not simply a case that establishes absolute liability in the use of that term. There has to be some conscious effort in terms of knowingly allowing or acquiescing or, at its strongest, turning a blind eye to something that the defendant must well have been aware was occurring."

Thus his Worship appreciated, as Kennedy J had observed in Douglas-Brown v Commissioner of Police (supra), that the knowledge required to "permit" something can be constructive, that it does not have to be actual knowledge. Having found that prior to the performance in question Mr Randall had directed the agency that there was to be no full stripping and that there was nothing which should have placed him on notice that his direction might not be complied with, his Worship went on to say:

"Therefore, it seems to me that there is insufficient evidence for the prosecution to satisfy beyond a reasonable doubt that any of the immodest dressing that was not directly in the defendant Randall's presence could have been permitted by him. The mere fact that there was noise and shouting occurring - - there is no suggestion that he must have been able to hear exactly the words that were being spoken by the compere when he was in other parts of the hotel and it would seem to me that there is nothing to suggest that the noise of the patrons would not be adduced whether or not the performance complied with the entertainment requirement.

Therefore, as I've said, the issue that needs to be considered on the facts before me is whether and what responsibility fell to the defendant when Mr Randall, by his own admission, entered into the area and collected three glasses from the top of a pool table and took it to the corner of bar."

After referring to the evidence of the police officer as to what was happening when Mr Randall took the glasses off the pool table his Worship said:

"The essential thing is whether or not he saw the dancer and his evidence in that regard is simply that he did not see it and his evidence today seems to me consistent with that which is recorded by the constables in their interview, that he had no knowledge of it and was in the interview simply unbelieving that such matters had occurred and expressed at that point his disgust with the performers' management in allowing such action to occur if it had.

The evidence of the constables was quite clear as to where Mr Randall travelled. In their view, it was -- it would have been clearly visible to him that this dancer ...[was] on top of the pool table and naked, and to their credit, I think they didn't elaborate their evidence to suggest that Mr Randall was seen to observe or make clear observations, simply that he looked around and continued on without staring at a particular dancer.

Mr Randall's evidence, as I have indicated, on oath today is that he simply did not observe. ...

... the onus is of course on the prosecution to satisfy me beyond reasonable doubt and in the circumstances of this matter, it seems to me that I would have to be satisfied that the defendant, Randall, observed the dancer on the pool table, and I'm left with a degree of doubt. It's only a small doubt. It seems to me perhaps unlikely that he would not have observed what was occurring, but again, I must accept in weighing the matter that it is possible that in concentrating on his other aspects of his business in collecting the glasses and taking them to the bar, that he didn't take a full observation of what was occurring and of course, he must have the benefit of that doubt, however small it might be.

Accordingly, the prosecution haven't satisfied me and these charges are not proven."

7 The above passages show that, in dealing with the evidence as to the state of Mr Randall's knowledge at the relevant time, the learned Magistrate directed his consideration to the question as to whether or not the prosecution had proved that Mr Randall "observed the dancer on the pool table". In answering that question his Worship decided the issue of actual knowledge in favour of the respondents. Then, by way of a possible explanation for Mr Randall's failure to observe the dancer, his Worship referred to his "concentrating ... in collecting the glasses and taking them to the bar". However, it seems that his Worship did not ask himself the question: how was it that Mr Randall's attention came to be so concentrated on the task of removing the glasses that he did not notice a naked dancer when she was only 3 or 4 metres away from him in an elevated position? After all, he was a director of the licensee and manager of premises on which there was under way a performance with an audience of 70 to 80 persons and he went very close to the activity upon which their attention was focused. Bearing in mind that someone in his position normally is expected to observe what is happening on premises under his charge, one is almost driven to the conclusion that, in not noticing the dancer, Mr Randall must have shut his eyes to the obvious.

8 His reasons do not show that the learned Magistrate gave adequate consideration to the issue of constructive knowledge. It is a matter of such significance in this case that until it has been so considered a decision cannot properly be made as to whether or not the charges have been proven.

9 I would allow the appeal and direct that the matter be remitted to the Court of Petty Sessions for retrial.