Wise v Schneider

Supreme Court of NSW|2015-05-26|Before: Beech-Jones J

Judgment

The plaintiff in these proceedings, Sarina Wise, is an inspector appointed under s 20 of the Gaming and Liquor Administration Act 2007. In July 2013 Inspector Wise caused to be issued two Court attendance notices charging the defendant, Christopher Schneider, with offences under s 9(1)(b) of the Liquor Act 2007. The offences were alleged to have been committed on the evening of 25 April 2013 and 26 April 2013 respectively. Mr Schneider was the manager of licensed premises at the Aquarius Backpackers Hostel in Byron Bay (the "Aquarius"),
On 7 October 2014 a Magistrate dismissed the charges. His Honour also ordered, pursuant to s 213 of the Criminal Procedure Act 1986, Inspector Wise to pay Mr Schneider's costs in the sum of $45,471.
Inspector Wise now appeals against the dismissal of the two charges and the costs order pursuant to s 56(1) of the Crimes (Appeal and Review) Act 2001 (the "Review Act"). That provision confers upon her a right of appeal against the dismissal and the costs order but "only on a ground that involves a question of law alone". Inspector Wise contends that his Honour's dismissal of the charges was erroneous in law because it was not explained by adequate reasons. At the hearing of these proceedings she sought and was granted an amendment to add a further ground, namely that his Honour's dismissal was affected by a breach of the rules of procedural fairness. Further, Inspector Wise contends that his Honour erred in law in making the costs order because it was said that his Honour construed s 213 and s 214 of the Criminal Procedure Act as requiring that costs be awarded on an indemnity basis.

The Liquor Act

Section 9 of the Liquor Act provides: "9 Sale or supply of liquor contrary to licence (1) A licensee or an employee or agent of a licensee must not sell or supply liquor, or cause or permit liquor to be sold or supplied: (a) in contravention of the conditions to which the licence is subject, or (b) otherwise than in accordance with the authority conferred on the licensee by or under this Act. (2) Without limiting subsection (1), a licensee must not: (a) keep licensed premises open for the sale or supply of liquor, or (b) sell or supply liquor, at a time when the licensee is not authorised under this Act to sell or supply liquor. (3) A licensee must not sell, or employ or permit another person to sell, liquor on premises other than premises on which the licensee is authorised by the licence or this Act to sell the liquor. Maximum penalty: 100 penalty units or imprisonment for 12 months, or both."
It was not alleged by the prosecution that Mr Schneider personally sold or supplied liquor to anyone. Instead it was alleged that the relevant liquor was sold or supplied by an employee of the licensee, being the entity that owned and operated the Aquarius. Nevertheless, s 91(2) of the Liquor Act attributes "responsibil[ity]" and "liabil[ity]" for an offence an element of which is an act or omission by a licensee to the manager in certain circumstances. The scope of s 91(2) is not in issue in this appeal as it was common ground in the Local Court that Mr Schneider bore criminal responsibility for any breach of s 9 by the licensee.
To establish an offence under s 9(1)(b) of the Liquor Act Inspector Wise had to disprove that liquor was sold or supplied in accordance with some authority conferred on the licensee under the Act. To that end Part 3 of the Liquor Act deals with liquor licences which confer such authority. The Aquarius had an "on-premises licence", provision for which is made in Div 4 of Part 3 of the Liquor Act.
Sub-section 22(1) precludes the grant of an on-premises licence in respect of any premises where the primary purpose of the business or activity carried out on the premises is the sale or supply of liquor. Sub-section 22(2) provides that any authorisation conferred by an on-premises licence does not apply if the primary purpose of the business or activity carried out on the licensed premises is the sale or supply of liquor.
Section 23 provides that an on-premises licence must specify the kind of business or activity carried out on the licensed premises or the kind of licensed premises to which the licence relates. The Aquarius' licence specified that the business type was "accommodation, restaurant".
Two particular forms of authority conferred on the licensee under the Liquor Act were potentially applicable in this case. The first was to be found in s 24(1) which provides: "An on-premises licence authorises the sale or supply of liquor only if the liquor is sold or supplied for consumption on the licensed premises with, or ancillary to, another product or service that is sold, supplied or provided to people on the licensed premises."
The other form of authority was to be found in s 25(8), which provides: "(8) Special provisions relating to licensed accommodation premises An on-premises licence that relates to accommodation premises also authorises the licensee to sell liquor by retail on the licensed premises: (a) for consumption on the licensed premises only - at any time on any day (including a restricted trading day) to a resident (or a guest of a resident while in the resident's company) or an employee of the licensee, and (b) to a resident at any time for consumption away from the licensed premises, but only if: (i) the sale is ancillary to the provision of a meal for consumption away from the licensed premises, and (ii) the volume of liquor supplied to any such resident on any one day does not exceed 2 litres."
The awarding of costs against Inspector Wise was governed by s 212 to s 214 of the Criminal Procedure Act 1986. Subsection 213(1) provides: "(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. ..."
Section 214 imposes limits on the Court's power to award professional costs under s 213(1) to an accused person against a prosecutor acting in "public capacity", which included Inspector Wise. The operation of those provisions was described in O'Brien v Hutchinson [2012] NSWSC 429. In view of the conclusion in relation to ground 2 of the appeal it is not necessary to describe that provision.

The Hearing The Openings

The hearing of the proceedings commenced on 18 July 2014. In his opening the solicitor for Inspector Wise outlined the prosecution case in the following terms: "… The evidence in this case will show that the two inspectors who attended the premises on 25 and 26 April 2013 did not obtain, receive any service or any product other than alcohol. That is sufficient for there to be an offence under the provisions."
Although the solicitor also referred to matters that he anticipated might be raised by the defence, it was clear from the outset that the prosecution's position was that its case was established by the fact that on each relevant occasion its inspectors purchased a drink from the Aquarius and did not consume food. The prosecution case was that that is sufficient to negate the operation of s 24(1).
The presiding magistrate enquired of counsel for Mr Schneider as to whether it was conceded that he was the approved manager. Counsel agreed that he was. Counsel then outlined Mr Schneider's position in relation to the first offence as follows: "What I would say in relation to the primary offence is that … the prosecution are required to prove beyond reasonable doubt that the customer [to whom liquor was sold or supplied] was not there to have a meal or as a guest of a resident … In relation to the first count the defence centres around the operation - there was a substantial operation as a restaurant at the time the inspectors came in. They bought a couple of beers and left shortly thereafter. His Honour: Without? [Counsel for Mr Schneider]: Without buying any food but the defence will argue that in that respect that there was no intention demonstrated by the prosecution case on behalf of the proprietor. … … The establishment has to be aware of the fact that the person who is served alcohol is not intending to have a meal; that's really the crux of it." (emphasis added)
In relation to the second count, Counsel for Ms Schneider stated: "On the second count, the factual issue, is that … the inspector … said we're here to meet friends and by operation of s 25 subs (8) of the Liquor Act that service to a guest of a resident is permissible under the licence conditions as being ancillary to the provision of accommodation."
Thus Counsel for Mr Schneider did not state that there was any issue as to whether Inspector Wise and her colleague were supplied with liquor and did not consume food at the Aquarius. To the contrary, at least in relation to the first offence, he conceded it. The Evidence
The solicitor for Inspector Wise called the other inspector who attended the Aquarius on 25 and 26 April 2013, Darren Duke, first. In his evidence in chief, Inspector Duke stated that he and Inspector Wise attended the Aquarius at around 6:45pm on 25 April 2013. They entered the licensed area of the premises. They walked to the bar and he purchased two schooners of beer. He stated that he did not observe any food being served to, or consumed by, other patrons, but did observe the majority of the patrons to be consuming liquor.
Inspector Duke said that he and Inspector Wise returned the following evening at around 9:30pm. He said that after Inspector Wise had a conversation with a security guard, they entered the licensed part of the premises and he observed Inspector Wise purchase beer and a glass of tequila. He again said that at this time he did not see any patrons consuming any food. Photographs of the drinks that were purchased were tendered.
In cross examination Inspector Duke's evidence that he did not see people consuming food on the evening of 25 April 2013 was strongly attacked. He conceded he may have missed the "operation of the bain-marie" at the Aquarius. However, it was never put to him that he did not attend the Aquarius on those two dates, that he did not purchase alcohol on 25 April 2013 or receive alcohol on 26 April 2013, or that he ordered or consumed food on either occasion.
Inspector Wise was called next. Her evidence in chief was consistent with that given by Inspector Duke. She said that on the evening of 26 April 2013 she purchased beer and tequila. She also recounted her discussion with the security guard upon entry. She claimed that the security guard asked whether she and Inspector Duke were staying at the Aquarius. She said she replied "no" and was allowed to enter. Inspector Wise was also cross examined about her observations of persons consuming food on the evening of 25 April 2013. She was challenged on the conversation she had with Mr Schneider after the event. Again, however, it was not suggested to her that she did not attend the Aquarius on either the evening of 25 April 2013 or 26 April 2013, that she did not receive or purchase the drinks as she stated, or that she consumed food.
At one point during the cross examination of Inspector Wise it was positively suggested to her that she purchased a drink on the evening of 26 April 2013: "Q You told Mr Schneider that the tequila drink served to you was mixed with a squirt of water and three cubes of ice. A. Yes, that's what I've written. Q. And that was in fact the truth, wasn't it? A. I believe so, from reading this." (emphasis added)
Some CCTV footage of the Aquarius taken on both evenings was tendered. The CCTV footage depicted an area just outside of the licensed part of the premises and showed both Inspector Duke and Inspector Wise entering the premises.
In his case, Mr Schneider called a chef who worked at the Aquarius on the evening of 25 April 2013. He explained the food that was prepared and supplied. Mr Schneider described the meals offered at the Aquarius on the evening of 25 April 2013, and the system in place for checking that persons purchasing drinks at the premises were either guests accommodated at the Aquarius or friends of such guests. At one point in his evidence Mr Schneider accepted that from looking at the CCTV footage there was "no dispute that in fact the two inspectors were present on 25 [April 2013]". Later in his evidence he agreed that he did not "dispute" that the inspectors went into the premises and purchased alcohol, that they did not eat, and that they were not guests of the Aquarius.
The last witness called on behalf of Mr Schneider was a representative of the security firm that provided security services at the Aquarius. That representative was not working on the evening of 26 April 2013. However he stated that the usual practice of security guards working at the Aquarius was to ask persons entering after 8:00pm whether they were either guests at the hotel or whether they were seeing friends at the hotel and, if not, refuse them entry. Final Submissions
The solicitor appearing for Inspector Wise addressed the presiding magistrate first. At an early point during those submissions his Honour advised the solicitor that his preliminary view was that it would be "an aggravating factor if no meals were being served" at the Aquarius, but that he had formed the preliminary view that he could not be satisfied beyond reasonable doubt that there were no meals being served. His Honour continued: "But having said that it seems to me then that the issue becomes well, am I satisfied that two officers entered, am I satisfied they bought a drink, am I satisfied they were served and supplied that drink, am I satisfied they didn't have a meal, well the answer to all those questions is uncontrovertibly "yes" because [there] has never been put anything to the contrary. … Now on the 26th there is no doubt they were not staying there on any version of events, they weren't staying there, they didn't have a meal and they got drinks." (emphasis added)
Later, while the solicitor for Inspector Wise was addressing the evidence concerning the presence of food, the following exchange occurred: "His Honour: … it's common ground even allowing for time frame differences that they were there for an hour and that during that hour they ordered no meals. [Solicitor for Inspector Wise]: That's right. His Honour: And they had a drink. [Solicitor for Inspector Wise]: On the liability issue, I think there's no dispute in relation to that."
Consistent with what he had stated in his opening, counsel for Mr Schneider submitted that it was incumbent upon the prosecution to demonstrate that the particular employee who served the drinks to each of the two inspectors did not hold a reasonable belief "that these people were there to eat". He contended that at the time when the inspectors were served "there was nothing unreasonable about an assumption that they were there to eat". It is unclear whether Counsel submitted that this was a matter that only arose for the prosecution to disprove if there was evidence capable of giving rise to an honest and reasonable belief by the server of the alcohol that the person was there to eat (see Proudman v Dayman (1941) 67 CLR 536) or whether he was contending that it was a matter that the Crown had to disprove simpliciter.
Counsel for Mr Schneider also made reference to the unsatisfactory nature of the inspectors' evidence. He referred to the "risk of conflation in respect of her previous visits" to the Aquarius as well as other licensed premises she visited within three to four days of the period. Counsel also referred to the difficulty of getting any concession from Inspector Wise and contended that her reluctance to make concessions was "[improper] to the extent of being unbelievable". Later he submitted that Inspector Wise's "observations on the first night [were] just so bad, that they really ought not to be accepted in any event", and that her evidence had "lots of problems … not only relating to times, this conflation risk, the lack of notes, but it also had a fair degree of prejudice about it".
In his supplementary written submissions in this Court Counsel for Mr Schneider referred to these portions of the submissions to the presiding magistrate and noted they involved attacks upon the credibility of Inspectors Duke and Wise. However, no part of those submissions invited his Honour to reject so much of their evidence that was not disputed, that is, their evidence that they attended, purchased alcohol and did not consume food. To the contrary an acceptance of those matters was the premise of Counsel's submissions made on behalf of Mr Schneider to the presiding magistrate. Thus, for example, he stated: "It was in this particular case when the two beers were served, so two beers were served on the 25th. We've got no evidence to suggest that didn't occur because the bartenders not identified … But they need to prove that the licensee or the person serving this particular drinks on the 25th did not have the understanding that those people were going to stay for a meal."
By the conclusion of submissions before his Honour, the positions of the respective parties were as follows. The prosecution contended that it had proved its case by reason of the undisputed fact that on each of the evenings of 25 April 2013 and 26 April 2013 the inspectors had attended the Aquarius, purchased alcohol and not consumed food. It contended that it was irrelevant whether or not food was served to other patrons on the evening of 25 April 2013, as was whether or not Inspector Wise had indicated to the security guard that they were friends of a guest staying at the Aquarius on the evening of 26 April 2013.
On behalf of Mr Schneider it was submitted that meals were available and consumed by other patrons on the evening of 25 April 2013 and that on the evening of 26 April there was a system in place to ensure that persons who attended were either guests of the Aquarius or friends of guests. It was further submitted that it was incumbent upon the prosecution to prove that, in respect of the evening of 25 April 2013, the employee who served alcohol to the inspectors knew that they were not intending to drink the alcohol with a meal, and that, on the evening of 26 April 2013, the person serving alcohol knew that they were not guests of the hotel or friends of guests. In the alternative, it was submitted that the evidence was capable of establishing a basis for a defence of honest and reasonable fact as to those matters, and the prosecution had not disproved such a case. A further alternative submission was made in respect of the charge concerning the evening of 26 April 2013, namely that the supply of liquor was with or ancillary to a different product or service, namely karaoke.

His Honour's Judgment

In his judgment his Honour noted that there were a number of legal issues but observed that "in the final analysis" Counsel for Mr Schneider's submissions "on the factual matters were [cause] for thought and on reflection, ultimately determinative" such that the "legal issues need not be traversed". His Honour stated that he had considered the exhibits, the submissions and each of the witnesses, with particular emphasis on the submissions of counsel for Mr Schneider and the various aspects of the evidence of Inspectors Wise and Duke that were said to be unsatisfactory. His Honour stated that he accepted the evidence of the witnesses called on behalf of Mr Schneider, including the head chef. The critical part of his Honour's reasons is as follows: "The conclusion to be drawn from the above urged upon me by the prosecution is that one can discount the evidence relating to the food on the first night, the identification of the security guard on the second, and accept to the requisite degree that the other portions of the evidence of the inspectors ought to be relied on. However, in the criminal context, that would be dangerous. It [tortures] logic to suggest that they may have been mistaken about something so obvious as food and yet I can still be satisfied beyond a reasonable doubt as to the other elements of the first offence. For example, the time that they were attending to the drunk person [on 25 April 2013] versus the time that they were sitting down, having been served drinks. I cannot have confidence to the requisite degree as to the circumstances and timing of the drink purchase and consumption. Regarding the second offence, the evidence is so unreliable, I am unsure whether the incident described occurred on the 26th or 27th. As much as this Court would have delighted in exploring the complex legal issues raised by the prosecution and defence, it is, in the final analysis, unnecessary. The prosecution have not satisfied me beyond a reasonable doubt that the offences were committed as their witnesses are inherently unreliable and I cannot accept their evidence to the requisite degree. Both charges are dismissed." (emphasis added)
After his Honour dismissed the charges, counsel for Mr Schneider then made an application for costs, which his Honour granted. His Honour awarded the entire amount paid by or on behalf of Mr Schneider to his lawyers.
One matter that was common to the submissions of both parties in this Court was that the effect of his Honour's judgment was that his Honour was not even satisfied that on the evening of 25 April 2013 Inspector Wise and Inspector Duke purchased a drink from the Aquarius' licensed area and did not consume food, nor did he accept that in relation to 26 April 2013. I agree that this is the effect of his Honour's judgment. It represents the only arguably logical way in which his Honour's judgment can be analysed. If his Honour's judgment was only to be taken as a rejection of so much of the evidence of Inspector Wise and Inspector Duke that was in dispute, ie their denials that food was being consumed by other patrons on the evening of 25 April 2013 and they were only allowed entry on 26 April 2013 because Inspector Wise stated she was a guest, then his Honour would still have had to address the prosecution argument that it was sufficient to prove its case by merely proving on both evenings that the inspectors purchased alcohol but did not consume food. Any failure to do so would be a clear basis for intervention by this Court.

Ground 1: Inadequate reasons

The first ground of appeal is that the presiding magistrate "failed to give adequate reasons for his ruling that the guilt of the defendant had not been established".
On behalf of Inspector Wise it was submitted that there was such a failure by reason of his Honour's failure to make any findings as to whether the elements of each of the offences had been made out in circumstances where "there was incontrovertible evidence going to the central elements of the offence".
The written submissions in support of this ground contrasted the course of the hearing in which it was not disputed that the inspectors had attended on the two evenings in question, purchased drinks, but not consumed meals, with his Honour's ultimate findings. They also complained about various aspects of the reasoning that his Honour gave for rejecting the evidence of Inspectors Wise and Duke, and in particular his Honour's observation that each of them was not prepared to make concessions in giving evidence. By reference to parts of the transcript it was submitted that they had made appropriate concessions.
The difficulty with these submissions is that they confuse a contention that inadequate reasons were provided with a complaint about the merits of that reasoning. A ground of complaint about the adequacy of the reasons is not a basis for obtaining a merits review in respect of an appeal on a question of law. In this case, the basis upon which his Honour dismissed the charge is, on a close analysis, reasonably clear. His Honour did not accept the evidence of the two inspectors even to the extent that they attended on the evening in question and purchased alcohol but did not consume food. While those findings were remarkable given the course of the hearing that is irrelevant to this ground of appeal. It suffices to state at this point that his Honour did set out reasons for those findings and the various complaints made on behalf of Inspector Wise concerning the adequacy of those reasons do not raise any question of law.
Two further matters should be noted.
First, Counsel for Inspector Wise placed particular reliance upon the following observations of Fullerton J in Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 at [51]: "[51] In criminal proceedings dealt with summarily a magistrate's failure to identify the elements of an offence; to deal with the issues in dispute and to articulate the legal principles by which disputes about the evidence have been considered and resolved, would ordinarily constitute an error of law undermining the integrity of an order either dismissing the charge or finding it proved. The magistrate's failure in this case to structure the reasons for decision by reference to the elements of the offence and/or the evidence relied upon in proof of them might not, of itself, have rendered the reasons inadequate if the basis upon which he dismissed the information was otherwise adequately revealed by his reasons for decision and if the specific findings critical to that decision were pellucid (see Stoker)." (emphasis added)
While his Honour did not structure his reasons by reference to the elements of the offence, consistent with this passage, those reasons do reveal "the basis upon which [his Honour] dismissed the information", namely a lack of satisfaction as to the basal facts upon which the prosecution's case depended. Where a criminal charge depends upon some critical fact, it may be sufficient if the presiding magistrate simply expresses a lack of satisfaction that such a fact has been proved beyond reasonable doubt. However if, on a true analysis, proof of the prosecution's case did not depend upon the fact, then review on a question of law alone on some other basis may occur. Thus, on any view of the elements of an offence under s 9 of the Liquor Act, if the prosecution cannot prove a sale or supply of liquor then its case must fail. According to his Honour that is what Inspector Wise failed to do.
Second, in this case the basis for the dismissal of the charge concerned a lack of satisfaction by the presiding magistrate on a matter of fact. Where the subject matter of the appeal is restricted to a question of law alone, the power of the appellate court to intervene to set aside the decision of the lower court based on a finding of fact for which supposedly inadequate reasons have been provided is governed by the principles enunciated by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281-282 (see Valuer-General v Perilya Broken Hill Ltd [2013] NSWCA 265 at [92]). In particular, in Soulemezis at 281 McHugh JA stated: "In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turns simply on the plaintiff's credibility. But if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough." (emphasis added)
Thus in Soulemezis in rejecting a challenge to a finding of fact that was said to be perverse, McHugh JA stated at p 282: "It is not to the point that his Honour's finding was erroneous or as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law." (emphasis added)
In this case, his Honour's lack of satisfaction as to the basal facts relied upon by the prosecution was perverse. However that conclusion does not raise any question of law. As his Honour's judgment reveals "the ground for" those findings of fact, that is sufficient.
I reject ground 1 of the appeal.

Ground 2: Denial of Procedural Fairness

At the hearing of these proceedings Inspector Wise sought and was granted leave to raise an additional ground namely that the presiding magistrate denied her procedural fairness because, having made the statements noted in [29], his Honour nevertheless rejected every relevant aspect of her evidence and that of Inspector Duke without notice to the parties.
I have described the course of the proceedings above. At no stage of the proceedings was there any challenge to that part of the evidence of Inspectors Wise and Duke in which they stated that they attended the licensed premises at the Aquarius on the dates they stated, purchased alcohol and did not consume food. To the contrary the cross examination and submissions of Counsel for Mr Schneider was premised on those aspects of their evidence being accepted. Most importantly not only did the presiding magistrate not make any comment during the hearing that suggested those aspects of their evidence were in doubt, his Honour stated that those matters were "uncontrovertibl[e]" (see [29]).
While at all times Inspector Wise bore the burden of proof, the hearing of a criminal charge still involves the deployment of the "adversary system". In such a system "the judge's role in that system is to hold the balance between the contending parties" (Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 at p 682 per Dawson J) even if the judge is the trier of fact and the law. If a judge determining a criminal charge departs from deciding the issues of fact debated by the parties and decides the matter on some other factual basis, then, as with a civil case, they must alert the parties to at least the possibility that they will take that course and give them the opportunity to respond (Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [4] per Giles JA). This is all the more so when the judge makes an unequivocal statement that indicates that he or she accepts the factual basis upon which one or both parties have conducted their case (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141) ("Stead"). The relevant opportunity would ordinarily entail the affected party making further submissions and possibly adducing further evidence in an effort to demonstrate that the proposed new basis for determining the matter is without foundation. The lost opportunity to address in respect of a matter of fact is ordinarily sufficient to result in an order for a new trial even though an appeal by way of rehearing is available (Stead at 145). The position is that much stronger where the appeal is by way of, or in the nature of, judicial review including on a question of law alone, as in such a case the appellant court cannot revisit the facts.
It follows that, where the presiding judge positively indicates to the affected party that the relevant facts are "uncontrovertible", a breach of procedural fairness will be occasioned by a rejection of those facts without notice to the parties. While no doubt it was unintended, the affected party, Inspector Wise, was positively misled by the presiding magistrate's statements. If the presiding magistrate had indicated that he was considering taking the course he did then a number of courses would have been open to Inspector Wise, including reminding the Court of the effect of the video evidence showing their attendance. What possible reason would two Inspectors have for attending the Aquarius if it was not to gather evidence of a possible contravention of the Liquor Act?
In his supplementary written submissions Counsel for Mr Schneider referred to the statements of the presiding magistrate noted in [29], including the reference to the evidence being uncontrovertible, as "preliminary view[s]" although it was accepted that they were expressed "firmly". It is true that his Honour's views were "preliminary" in the sense of being uttered prior to the delivery of final judgment but they were so firmly expressed that any departure from their premise, namely an acceptance of the uncontested aspects of Inspector Wise and Duke's evidence, had to be foreshadowed.
I uphold ground 2.

Ground 3

In light of the conclusion in relation to ground 2, it follows that the orders dismissing the charges against Mr Schneider will be set aside. The consequence of that is that the basis upon which the costs order is made under s 213(1) of the Criminal Procedure Act 1986 no longer subsists and the costs order will need to be set aside as well. This renders it unnecessary to separately consider Inspector Wise's third ground of appeal which concerned the costs order.

Relief

It follows that I will make orders setting aside the orders dismissing the charges against Mr Schneider and the costs order in his favour, and remitting the proceedings to the Local Court to be determined according to law.
One part of the relief sought by Inspector Wise was an order that the proceedings be remitted to be heard by a different magistrate. Subsection 59(2)(a) of the Review Act enables the Court, in setting aside a challenged order, to "make such order as it thinks just". There is no reason to doubt that this includes an order remitting the proceedings to the Local Court for redetermination according to law. Section 55, which concerns appeals to this Court from persons convicted or sentenced in the Local Court, confers on the Court an express power to remit a matter to the Local Court "sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions". This power appears to contemplate remittal to the particular magistrate who heard a matter subject to their becoming unavailable in accordance with s 66 of the Review Act. Its statutory predecessor operated in that manner (Downes v DPP [2000] NSWSC 1054, at [26] and [33] to [34] per Studdert J; Lee v DPP & Anor [2004] NSWCA 172). However there is no reason to construe s 59(2) as being so confined.
In my view a determination of whether or not to make an order directing the matter be heard by a different magistrate is governed by the question of law that has been identified and resolved (see, for example, Director of Public Prosecutions v Lopez-Aguilar [2013] NSWSC 1019 at [27] per Harrison J). For example, if the relevant question of law identified some particular matter which rendered the magistrate unsuitable to hear the case, such as an allegation of actual or apprehended bias, then such an order may be appropriate. In this case, I am not convinced that the error identified necessarily requires that the matter be remitted to another magistrate, however that observation does not preclude Inspector Wise from making an application in the Local Court if that is considered appropriate.
In relation to the costs of the proceedings in this Court, in Bimson, Roads & Maritime Services v Damorange Pty Ltd (No 2) [2014] NSWSC 827 I followed the decisions of Button J in Cunningham v Cunningham (No 2) [2012] NSWSC 954 and ACP v Munro [2012] NSWSC 1510, and Fullerton J in Coffen v Goodhart [2013] NSWSC 1018, and held that the Court has the power to award costs in proceedings under Part 5 of the Review Act. Accordingly, I will make orders for brief written submissions by the parties on the question of costs.
Accordingly, the Court orders that: 1. The orders made by the Local Court on 7 October 2014 dismissing ACN 2013/246740-002 and 2013/246740-001 be set aside; 2. The order for costs made in favour of the defendant against the plaintiff on 7 October 2014 be set aside; 3. The proceedings be remitted to the Local Court to be dealt with according to law; 4. On or before 18 June 2015 the parties exchange and file written submissions in respect of the costs of the proceeding such submissions not to exceed three pages.

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. Decision last updated: 15 June 2015

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