Tate v Aarjets Pty Ltd ATF The Jurgholme Trust & Anor [2010] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION: Tate v Aarjets Pty Ltd ATF The Jurgholme Trust & Anor [2010] QCA 243

PARTIES: GREGOR GORDON TATE (applicant) v AARJETS PTY LTD ATF THE JURGHOLME TRUST (first respondent) ROBERT JAMES VAUGHAN (second respondent)

FILE NO/S: CA No 311 of 2009 / DC No 100 of 2008

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 (Criminal)

ORIGINATING COURT: District Court at Ipswich

DELIVERED ON: 10 September 2010

DELIVERED AT: Brisbane

HEARING DATE: 20 May 2010

JUDGES: McMurdo P, Muir JA and Fraser JA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1.Application for leave to appeal granted, but only as to the construction of s 230 Liquor Act. / 2.Appeal dismissed.

CATCHWORDS: LIQUOR LAW – PENAL PROVISIONS – OFFENCES – SUPPLYING LIQUOR TO PERSONS UNDERAGE – first and second respondent lessee and nominee of licensed premises – applicant and other officers found four customers under 18 years of age on premises – customers were not asked for proof of age identification – employee bar manager had seen customers in bar previously and inferred they were over 18 years old – whether respondents have defence under s 230(2) Liquor Act that employee had reasonable belief customers were over 18 years old – whether judge erred in interpreting s 230(2) / LIQUOR LAW – PENAL PROVISIONS – EVIDENCE AND ONUS OF PROOF GENERALLY – RELEVANT PRINCIPLES – judge did not overtly refer to principles under s 223 District Court of Queensland Act 1967 (Qld) requiring own determinations and due deference to magistrate's view – whether judge erred in fact and law determining that on balance of probabilities respondent employee had honest and reasonable belief that customers were over 18 years of age – whether judge conducted a rehearing and evaluated the evidence before magistrate as required by s 223 / Acts Interpretation Act 1954 (Qld), s 14B / District Court of Queensland Act 1967 (Qld), s 118(3), s 223 / Justices Act 1886 (Qld), s 222 / Liquor Act 1992 (Qld), s 230 / Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 cited / RA Ringwood Pty Ltd v Lower [1968] SASR 454, cited / R v Carr-Briant [1943] KB 607, cited / Ross v The Queen (1979) 141 CLR 432; [1979] HCA 29, cited / Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175, applied / Sodeman v R [1936] 2 All ER 1138, cited / Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, cited

COUNSEL: J D Henry, with R W Frigo, for the applicant / No appearance for the respondents

SOLICITORS: Department of Employment, Economic Development and Innovation (Queensland) for the applicant / No appearance for the respondents

1. McMURDO P: The first respondent was the lessee and nominee of the Coronation Hotel, Ipswich. It has been in liquidation since 24 July 2009. Its liquidator, Mr John Park of Korda Mentha, has informed the Court that he does not intend to participate as first respondent in this application. He does not anticipate that there will be any funds for a distribution to any class of creditor in the liquidation.¹ The second respondent, Robert James Vaughan, was the first respondent's nominee as licensee of the hotel. The applicant, Gregor Gordon Tate, an officer of the liquor licensing division Queensland Treasury, was the complainant in charges brought against both respondents. The charges were brought under s 155(3A)(a); s 156(1)(b) and (d); and s 156(1)(c) and (d) Liquor Act 1992 (Qld) and concerned permitting minors to consume liquor on licensed premises (the Coronation Hotel) on 4 April 2008.

2. The magistrate upheld the respondents' submission at the close of the prosecution case that they had no case to answer and dismissed all charges against them. It does not seem that any costs order was made in favour of the respondents. The applicant appealed to the District Court under s 222 Justices Act 1886 (Qld).

3. The District Court judge upheld the appeal, finding that the magistrate had erred in finding there was no case to answer. The judge decided to determine the case on the evidence before her rather than remitting it to the Magistrates Court. The judge was satisfied on the balance of probabilities that the respondents' employee, who served the minors and allowed them to be in the hotel, had an honest and reasonable belief under s 230 Liquor Act that they had attained 18 years of age. The judge entered verdicts of not guilty on all charges. Somewhat surprisingly in light of the not guilty verdicts, the District Court judge ordered the respondents to pay "the appellants' costs of the appeal to be assessed unless otherwise agreed". The judge's use of the plural "appellants'" may be an indication that this costs order was mistakenly made, but there was no application to the judge to correct it and it is not the subject of any proposed ground of appeal or proposed notice of contention. The applicant informed this Court at the hearing that he has not sought and does not intend to enforce that costs order. Nevertheless, the costs order made by the judge has caused the respondents some hardship. The second respondent has informed the Court that, in the absence of a costs order below in their favour, the respondents have been unable to pay the costs of their lawyers and he has been unable to fund legal representation for this application. A lawyer, however, has prepared pro bono a helpful outline of argument on which the second respondent has relied.

4. It should first be noted that the first respondent's insolvency is no bar to this application. Section 471B 2001 (Cth) which prohibits certain proceedings in respect of companies in liquidation without leave of the court has no application to a criminal proceeding of this kind: see .

The relevant provisions of the Liquor Act

6. It is common ground that the relevant reprint of the Liquor Act for the purposes of this application is reprint 8D.

"Part 1****Preliminary

...

3 Objects of Act

The objects of this Act are—

(a) to facilitate and regulate the optimum development of the tourist, liquor and hospitality industries of the State having regard to the welfare, needs and interests of the community and the economic implications of change; and

…

(d) to regulate the liquor industry in a way compatible with—

(i) minimising harm arising from misuse of liquor; and

(ii) the aims of the National Health Policy on Alcohol; and

(e) to regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence; and

…

(g) to provide revenue for the State to enable the attainment of the objects of this Act and for other purposes of government.

3A Principle underlying this Act for facilitating and regulating the liquor industry

(1) The underlying principle of this Act in relation to the sale and supply of liquor is—

(a) a person may obtain a licence to sell or supply liquor as part of conducting a business on premises; and

(b)liquor may only be sold or supplied on the licensed premises as part of the person conducting a business, on the licensed premises, that is the primary purpose under the licence.

(2) This Act states the primary purpose of a business that may be conducted under each type of licence.

(3) This Act must be administered in accordance with the underlying principle of this Act.

(4) In interpreting this Act, a construction promoting the underlying principle is to be preferred to a construction that would not promote it.

…

Part 5****Grant, variation and transfer of licences and permits

Division 1****Applications

**109.**Nominees

(1) An applicant for a licence or permit must, in any of the following cases—

(a) if the applicant is a corporation;

…

… nominate an individual to be nominee in respect of the licence or permit sought by the applicant.

…

(3) If a licence or permit is granted on the application, an individual so nominated is taken to be, for the purposes of this Act, the nominee in respect of the licence or permit.

…

(6) In the conduct of business on premises to which a licence or permit relates a nominee in respect of the licence or permit that relates to the premises—

(a) is responsible for ensuring that—

(i) liquor is supplied or possessed on the premises only in accordance with the authority conferred by the licence or permit; and

…

(b) is subject to the obligations imposed by this Act on the licensee or permittee; and

(c) is liable as a licensee or permittee for an offence against this Act or for any failure to perform any of such obligations.

(7) A nominee’s liability to be punished for a contravention of this Act does not affect the liability of the licensee or permittee to be punished for the contravention.

…

Part 6 Obligatory provisions and offences

Division 1 P****rovisions binding licensees, permitees, nominees, employees and agents

…

155. Minors on premises

(1) This section applies to all minors³ other than an exempt minor.

(2) A licensee, permittee or person in control of the premises to which the licence or permit relates must ensure that a minor is not on the premises.

(3) Also, an employee or agent of the licensee or permittee must not allow a minor to enter the premises to which the licence or permit relates.

(3A) If a minor is on the premises, each of the following persons commits an offence—

(a) the licensee or permittee;

(b) if another person is in control of the premises—the other person;

(c) if an employee or agent of the licensee or permittee allowed the minor to enter the premises—the employee or agent.

Maximum penalty—100 penalty units.

…

Division 2 Provisions binding all persons

155A Prohibition on sale to a minor

A person must not sell liquor to a minor.

Maximum penalty—

(a) if the person is a licensee, permittee, nominee or manager of licensed premises—250 penalty units; or

(b) in any other case—40 penalty units.

156 Liquor prohibited to certain persons

(1) A person must not, on premises to which a licence or permit relates—

(a) supply liquor to; or

(b) permit or allow liquor to be supplied to; or

(c) allow liquor to be consumed by;

a person who—

(d) is a minor; …

(3) ...

Maximum penalty for subsections (1) to (3)—

(a) for an offence committed by the licensee, permittee, nominee or manager of the premises—

(i) if the person to whom the offence relates is a minor—250 penalty units; …

(b) for an offence committed other than by the licensee, permittee, nominee or manager of the premises—

(i) if the person to whom the offence relates is a minor—40 penalty units; …

…

Part 10 M****iscellaneous provisions

…

**230.**Defence to charge if age material

(1) If the age of a person is material to a charge of an offence against this Act, it is a defence to prove that, at the time of the offence, the defendant (if the defendant is the actual offender) or an agent or employee (if the defendant is charged merely because of being principal or employer of the actual offender)—

(a) honestly and reasonably believed that the person whose age is material to the offence had attained 18 years; or

(b) had sighted acceptable evidence of age of the person whose age is material to the offence that indicated the person had attained 18 years;

and the operation of section 24 of the Criminal Code is excluded.

(2) Evidence that the defendant (if the defendant is the actual offender) or an agent or employee (if the defendant is charged merely because of being principal or employer of the actual offender) did not request the person whose age is material to the offence to produce acceptable evidence of age is evidence that any belief that the person had attained 18 was not reasonable."

The relevant evidence in the Magistrates Court

7. On 4 April 2008, the Coronation Hotel, where the first respondent was the licensee and Mr Vaughan the nominee, operated under a general liquor licence pursuant to the Liquor Act. It follows that it was an offence for both respondents and their employees (s 155(3A)) to allow a minor to enter the hotel (s 155) and to permit or allow liquor to be supplied to or consumed by a minor (s 156). At 11.05 pm, the applicant and another officer from the liquor licensing division, in company with police officers, entered the hotel to conduct a compliance inspection. The applicant gave the following evidence. He saw a group of young men towards the left-hand side of the bar and immediately decided to check their ages. It may be inferred that the applicant thought they could be minors. His suspicions proved correct. All four were aged 17 years. Two were only days short of their 18th birthdays. There was a jug of rum and coke sitting on the bar in front of them. Two of the young men had been supplied with and had consumed the rum and coke.

8. Christopher John Vieretz's statement to police was tendered⁴ and he gave oral evidence which was to the following effect. On 4 April 2008, he was employed by the first respondent as bar manager. He had worked in that role since August 2007. He had no prior experience in the liquor industry. He was 32 years old. He was the only person running the bar that evening. He commenced work at 10 am and was due to finish at midnight. The licensing officers informed him that four young men present in the bar were minors. He remembered serving them with a jug of rum and cola. He told the licensing officers that he did not ask the young men for ID because he was busy that night. There had been 80 patrons earlier. There was too much to do. A large group of people left just before the licensing officers arrived. He inferred the four young men were all 18 years old because he had seen them at the hotel on numerous earlier occasions. He inferred from this that they were entitled to be at the hotel and that they were over 18.

9. In cross-examination, he affirmed that he had seen these young men at the hotel before and in his mind they were 18 years old. He did not ask them for proof of their age for two reasons: as he had seen them there before, he inferred that they were 18, and it was busy that night in the bar. He was surprised he was charged under the Liquor Act. He agreed that he had no reason to ask the four young men for identification because he believed them to be 18 years old.

The decision in the Magistrates Court

10. The first respondent was charged with eight offences against s 155(3A)(a), s 156(1)(b) and (d) and s 156(1)(c) and (d) Liquor Act. The second respondent was charged with the same eight offences: the prosecution relied upon his liability as nominee under s 109(6). At the close of the prosecution case, the respondents contended that a case against them had not been established.

11. The magistrate accepted that the four young men were minors but noted that they were very close to 18 years, adding:

"I observed them here today, …

They look to me to be four robust young men and from my opinion, not of an appearance where I held an objective view that any of them were much younger looking than their age."

12. The magistrate accepted Mr Vieretz's evidence that he believed the four young men were 18 years of age. His Honour considered that Mr Vieretz's belief was both honest and reasonable. The magistrate then concluded that the respondents had raised the defence set out under s 230(1)(a) and the prosecution had not negatived that defence. It followed, the magistrate determined, that the respondents had no case to answer. His Honour dismissed all charges and discharged the respondents.

13. As I have noted, the applicant appealed to the District Court.

The District Court decision

14. After referring to the pertinent evidence before the magistrate and the relevant provisions of the Liquor Act, the District Court judge reached the following conclusions.⁵

15. The magistrate misconceived the test to be applied under Doney v The Queen⁶ in deciding the respondents' no case submission. The issue under s 230 Liquor Act was a matter of assessment for the magistrate but there was prima facie evidence supporting the prosecution case. The magistrate also misconceived the burden of proof under s 230 which expressly excludes the operation of s 24 Criminal Code. The onus of proof is therefore on the respondents, not on the prosecution.⁷ The standard of that proof is on the balance of probabilities: R v Carr-Briant;⁸ Sodeman v R.⁹

16. The prosecution contended that s 230(2) had the result that, unless Mr Vieretz made positive efforts to check the identification of the minors, then the defence under s 230(1) could not be established. The judge rejected that contention. Her Honour determined that s 230(1)(b) merely raises "an assumption" that the belief that the young men were 18 years old was unreasonable; that assumption could be dispelled by other evidence.¹⁰

17. The judge noted that the magistrate had the advantage of seeing the four young men give evidence seven months after the alleged offences. At the time of the offences, all four were over 17 years old and two were almost 18 years old. They had all been drinkers at the hotel previously. The experienced bar manager had inferred they were 18 years old. The magistrate stated that he did not think they looked young for their age. The judge determined, in the light of that evidence and the findings of the magistrate, that Mr Vieretz, had an honest and reasonable belief under s 230 that the minors were 18 years old at the time. The judge therefore entered verdicts of not guilty.¹¹

The construction of s 230 Liquor Act

18. The applicant first contends that s 230(2) has the effect that a defendant cannot claim to have a reasonable belief that a person was 18 years or older under s 230(1) unless the defendant has sighted acceptable evidence of the age of that person and has requested production of acceptable evidence of age. He contends that this construction is consistent with the purposive approach to construction required by s 14A Acts Interpretation Act; with s 3A Liquor Act; and with the explanatory notes to the Liquor Bill 1992.

19. The explanatory notes relevantly provided:

"Clause 229 provides for liability for offences under sections 155, 156 … in cases involving employees. An employer is liable for offences committed by employees unless it occurred without his/her knowledge or authority or due diligence had been exercised to avoid it.

Where the age of a person is relevant to the offence, it is a defence for the defendants to show that they honestly and reasonably believed the person was over 18 years or that they had sighted acceptable evidence of the age of that person. Such a belief is not reasonable if the defendant did not request production of acceptable evidence of age."¹²

20. The relevant passage of the Bill's second reading in parliament was as follows:

"The Liquor Act was amended last year shortly before "schoolies week" to address the problem of under-age drinking. This Bill continues to address this government's fight against the problems associated with the consumption of liquor by under-age people. The increased penalties for supplying minors with liquor are retained, together with the Card 18 Plus scheme. A minor must not be on licensed premises except in certain limited circumstances, and in no circumstances may a minor consume or be in possession of liquor."¹³

21. One object of the Liquor Act is clearly to regulate the liquor industry and to minimise harm caused by alcohol abuse, including by ensuring that those under 18 do not drink alcohol in licensed premises: see s 3, s 3A. It is consistent with the underlying principle in s 3A that licensees may only sell liquor in terms of the licences which, under the Liquor Act, prohibit serving liquor to minors or allowing minors on licensed premises (s 155, s 155(3A) and s 156). A construction of the Liquor Act promoting that underlying principle is to be preferred: s 3A(4). But these matters neither support nor undermine the construction of s 230 urged on this Court by the applicant.

22. The explanatory notes,¹⁴ although not especially clearly expressed, may provide some support for the applicant's preferred construction of s 230. The second reading speech¹⁵ provides no assistance in resolving either parties' competing arguments as to the construction of s 230.

23. But in any case, it only becomes necessary to refer to this extrinsic material under s 14B Acts Interpretation Act if s 230 is ambiguous or obscure or its ordinary meaning is manifestly absurd or unreasonable. The ordinary words of s 230 are in my view clear and do not lead to a manifestly absurd or unreasonable result. It follows that it is unnecessary to consider the explanatory notes.

24. Before turning to the terms of s 230, I note that the legislature must have intended both s 230(1) and s 230(2) to operate harmoniously and consistently: Ross v The Queen.¹⁶ To give s 230(2) the construction favoured by the applicant would make s 230(1) meaningless. Clearly, s 230(2) is intended to complement s 230(1).

25. In my opinion, s 230(1) should be construed, according to its ordinary meaning, as follows. It provides a defence to a defendant (charged with Liquor Act offences concerning a minor) who can prove that the defendant (or where appropriate an agent or employee¹⁷) honestly and reasonably believed that the minor had attained 18 years.¹⁸ It also provides a defence where the defendant had sighted acceptable evidence of the minor's age which indicated that the minor had attained 18 years.¹⁹ The use of "or" in between s 230(1)(a) and (b) contemplates alternative defences, the first of which does not require sighting evidence of age. As s 230(1) in terms excludes the operation of s 24 the onus is on the defendant to prove the defences under s 230(1) on the balance of probabilities. Under s 230(2), evidence that the defendant (or where appropriate the defendant's agent or employee) did not request the minor to produce acceptable evidence of age is evidence that the defendant's belief that the minor had attained 18 was not reasonable. Such evidence, in the absence of any other evidence, will likely be conclusive evidence that the defendant's belief that the minor had attained 18 years of age was not reasonable. But this evidence as to the reasonableness of the defendant's belief can be rebutted by other evidence.

Did the judge err in applying s 230 Liquor Act**?**

29. The applicant's next contention is as follows. It should have leave to appeal as the District Court judge erred in applying s 230 to the evidence. The judge did not conduct the appeal under s 222 Justices Act by way of rehearing and make her own determination of the issues on the evidence before the magistrate, giving due deference and attaching a good deal of weight to the magistrate's view. As Mr Vieretz had not requested or sighted proof of age, there was insufficient evidence before the magistrate to allow the judge to conclude that Mr Vieretz held an honest and reasonable belief that the four young men had attained the age of 18 years.

30. It is true that the District Court judge did not advert in terms to s 223 District Court of Queensland Act which states that s 222 appeals are by way of rehearing on the evidence before the magistrate. And nor did the judge advert in terms to the well established principles set out in cases such as Stevenson v Yasso²¹ that oblige District Court judges hearing appeals under s 222 to make their own determinations of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate's view. But it is unlikely that this experienced judge was unaware of the requirements of s 223 or the relevant approach required in determining an appeal under s 222. And nor is there any indication in the judge's reasons that she did not adopt the correct approach.

31. The judge considered that it was in the interests of justice for her to determine the case instead of sending it back to the Magistrates Court for another hearing before a different magistrate. The respondents apparently acquiesced in this course. It was appropriate for the judge to adopt this approach in the circumstances here.

32. In determining the issues, the judge noted that the magistrate observed the four young men giving evidence. They were all close to 18 years of age. The magistrate considered that they did not look young for their age. The judge referred to the evidence of Mr Vieretz who was an experienced bar manager and who inferred that all four had attained the age of 18 years because he had seen them drinking at the hotel previously. Earlier in her reasons, the judge referred to Mr Vieretz's further explanation for not asking for identification from the four young men that evening: he was too busy and was the only person working in the bar that night.

33. The judge ultimately concluded that, despite Mr Vieretz's failure to request identification, she was satisfied under s 230, on the balance of probabilities, that Mr Vieretz had an honest and reasonable belief that the four young men had attained 18 years of age. In reaching that conclusion, the judge found that the evidence by way of s 230(2) (that Mr Vieretz's failure to request evidence of age from the four young men was evidence that his belief that they were over 18 was not reasonable) was displaced by contrary evidence. That contrary evidence was that Mr Vieretz was too busy during the evening to ask the young men for identification; that they looked over 18; and that he inferred they were over 18 as they had frequented the bar on numerous previous occasions. In reaching that ultimate conclusion, the judge conducted a rehearing and evaluated the evidence before the magistrate, as required under s 223 and in accordance with well established principles. Her Honour's ultimate conclusion was certainly very generous to the respondents and Mr Vieretz. It may not be the conclusion I would have reached. But it was reasonably open on the evidence. It follows that, even if leave to appeal were given on these issues, the appeal would not succeed. This is because an appeal to this Court by way of leave under s 118(3) is an appeal in the strict sense and not by way of rehearing: .

Conclusion

35. As the applicant contends, this case does raise an important issue concerning the construction of s 230 Liquor Act. For that reason, leave to appeal should be granted, but only on that issue. The appeal must be dismissed as the primary judge did not err in constructing s 230.

ORDERS:

1.Application for leave to appeal granted, but only as to the construction of s 230 Liquor Act.

2.Appeal dismissed.

36. MUIR JA: I agree with the orders proposed by McMurdo P and with her reasons for them.

37. FRASER JA: I agree with the reasons for judgment of the President and the orders proposed by her Honour.

Footnotes

1. Ex 1 in this application. ↩

2. [1968] SASR 454. ↩

3. Acts Interpretation Act 1954 (Qld), s 36, defines "minor" as meaning "an individual who is under 18". ↩

4. Ex 6 in the Magistrates Court proceedings. ↩

5. Tate v Aarjets Pty Ltd ATF the Jurgholme Trust & Anor, unreported, Richards DCJ, DC No 100 of 2008, 30 November 2009. ↩

6. (1990) 171 CLR 207. ↩

7. Tate v Aarjets Pty Ltd ATF the Jurgholme Trust & Anor, unreported, Richards DCJ, DC No 100 of 2008, 30 November 2009, [11], [12]. ↩

8. [1943] KB 607. ↩

9. [1936] 2 All ER 1138. ↩

10. Tate v Aarjets Pty Ltd ATF the Jurgholme Trust & Anor, unreported, Richards DCJ, DC No 100 of 2008, 30 November 2009, [13]. ↩

11. Above, [15]-[16]. ↩

12. Liquor Bill 1992, Explanatory Notes, p 31. ↩

13. Hansard 4662, 29 April 1992.