Paul Michael Luff v Julian Christopher Oakley [1986] ACTSC 4 (19 February 1986)

SUPREME COURT OF THE ACT

PAUL MICHAEL LUFF v. JULIAN CHRISTOPHER OAKLEY
S.C. No. 224 of 1984
Liquor Ordinance 1975

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Liquor Ordinance 1975 - Holder of permit purportedly issued under s.61 - Offence against s.80 alleged - Permit issued by officer not duly authorised in that regard - Doctrine of "de facto officers" - Whether issue of permit validated by doctrine - Liquor sold to youth under 18 by volunteer recruited by holder - Whether holder liable for "criminal" act of volunteer as agent.

Sherras v. De Rutzen (1895) 1 AB 918.

Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536.

Bergin v. Stack [1953] HCA 53; (1953) 88 CLR 248.

The Queen v. Cawthorne (1977) 17 SASR 321.

He Kaw Teh v. R. [1985] HCA 43; (1985) 59 ALJR 620.

HEARING

CANBERRA
19:2:1986

ORDER

The appeal be allowed and the order nisi herein be made absolute.

The decision of the Court of Petty Sessions dismissing the information laid by the appellant against the respondent be set aside.

The order of the Court of Petty Sessions that the appellant pay the respondent's costs in the sum of $700.00 be quashed.

The matter be remitted to the Magistrates' Court with a direction that the offence charged in the said information has been found proved.

The matter thereafter be further dealt with according to law.

The appellant pay the respondent's costs of and incidental to the appeal.

DECISION

This is an appeal by way of order to review from a decision of the then Court of Petty Sessions dismissing an information laid by Paul Michael Luff (the appellant) against Julian Christopher Oakley (the respondent). The information alleged that on or about 26 February 1983 the respondent committed an offence against s.103 of the Liquor Ordinance 1975 (the Ordinance) in that he, being the holder of a permit to sell liquor, sold it to a person (the youth) under the age of 18 contrary to s.80(1) of the Ordinance. The information was good. Luff v. McHarg [1984] FCA 225; (1984) 3 FCR 305.

2. Section 80 of the Ordinance reads:-

"(1) The holder of a licence or a permit

shall not sell or supply liquor to a person
under the age of 18 years.

(2) It is a defence in proceedings for an
offence against sub-section (1) if the
defendant proves that the person to whom
liquor was sold or supplied, as the case may
be, was not less than 16 years of age and
that the defendant had reasonable grounds for
believing that the person was not less than
18 years of age.

(3) The holder of a licence or permit or an
employee of the holder of a licence or permit
may refuse to sell liquor to a person unless
that person satisfies the holder of the
licence or the employee, as the case may be,
of his age."

Sections 81-84 of the Ordinance read:-

"81. A person under the age of 18 years
shall not -

(a) purchase or consume liquor on licensed
premises; or

(b) purchase liquor from the holder of a
permit.

82. A person shall not send a person under
the age of 18 years to purchase or collect
liquor on or from premises to which a licence
or permit relates.

83. A person who has not attained the age of
18 years shall not enter a bar-room on
licensed premises except in the care of a
responsible adult.

84. A person who has not attained the age of
18 years shall not consume liquor in a public
place."

Section 4(3) of the Ordinance is in the following terms:-

"For the purposes of this Ordinance, a person
shall be deemed to sell liquor to another
person if he supplies liquor to that person
for, or in expectation of, any reward or
benefit to be paid or provided by that person
or any other person, whether or not any
person is under an obligation to pay or
provide a reward or benefit."

3. The evidence before the learned Magistrate established that on 26 February 1983 the respondent was the holder of a liquor permit granted under the Ordinance for a booth established at the National Exhibition Centre, Mitchell. He was at the time the Secretary of the A.N.U. Cricket Club. The Club had accepted an invitation from KEGS Discount Liquor Stores (Kegs) to sell beer from the booth. Kegs delivered the beer but did not invoice it to the Club. Club members sold the beer to members of the public and employees of Kegs calculated the amount of beer that had been sold and asked for and were paid out of the Club's receipts the amount that Kegs charged for the beer that had been disposed of. The Club kept the difference as profit. Kegs paid the fee for the permit.

4. The learned Magistrate summarised the situation in a question addressed to the respondent:

"The beer was delivered, certain sales were
made, takings were made, the Kegs people came
to your office and they took out from the
takings what represented the payment for the
amount sold?"

5. To man the booth the respondent enlisted the aid of volunteers from among the members of the Club. One of these was Christopher Barnard.

6. At about 9.35 p.m. on 26 February 1983 Inspectors Tolley and Richardson saw a youth go to the bar erected in the booth in respect of which the permit had been issued and saw a can of beer being passed across to him. The youth was the one named in the information.

7. It was formally admitted on behalf of the respondent that the youth was born on 19 September 1965 and so was just under 17 1/2 years old on 26 February 1983. It was also admitted that he pointed out Christopher Barnard as the person who had provided him with a can labelled "Tooheys Country Special", containing beer, in return for a payment of $1, the price of the can. It was further admitted that at the time of the purchase the youth was not questioned as to his age by Mr Barnard and finally that the youth handed the beer he had purchased to Inspector Richardson.

8. The contents of the can were subsequently analysed and found to contain 4.5% volume in volume of ethyl alcohol.

9. The appellant had therefore established prima facie that the respondent was the holder of a permit in respect of a booth from which liquor had been sold to a person under the age of 18 years.

10. The respondent gave evidence that his role was to hold receipts overnight and to draw up a roster of volunteers of whom there were many beside Mr Barnard. Three to five volunteers would operate each shift of from three to four hours. One of them would generally be given the task of shift overseer. The respondent further deposed that neither he nor Mr Barnard was paid anything by the Club for his services. He said that he could not say that all the volunteers were told about the prohibition against selling liquor to persons below the age of 18 but he said it was made very clear when the names were being taken for the roster that that provision was to be observed. He said that he had on most occasions pointed out to the shift overseer signs which were conspicuously displayed warning against the sale of liquor to persons under the age of 18 years and indicating the penalties payable in respect of any offence that might be committed.

11. The respondent gave no authority to Mr Barnard or to anybody else to sell liquor to anybody below the age of 18 years. He initiated the general instruction that sales of liquor were not to be made to such persons. He did not see the sale of the can of beer by Mr Barnard to the youth.

12. No evidence to suggest the existence of the defence provided for by s.80(2) was led by or on behalf of the respondent.

13. It was clear from the evidence and the learned Magistrate was in no doubt that the respondent could only be found guilty of the offence charged if he were proved to be vicariously liable for the sale made by Mr Barnard to the youth. The learned Magistrate found that there was no employment relationship between Mr Barnard and the respondent. He went on to say:

". . . there is no agency or expressed or
implied agency relationship between the two.
There is no other head of vicarious
liability. . ."

He said further:

"(The respondent) was simply, on behalf of
the Club, organizing people, as Secretary, as
holder of the permit to staff a number of
volunteers. I am afraid in relation to the
matter I believe courts in this day and age,
and before they find vicarious liability in
this area, must examine the situation very
closely and looking at the situation in the
facts I have mentioned it seems to me that
(the respondent) is a nominal holder of a
permit. It is also clear to me that there is
no direct relationship of agency or
employment such as (is) a pre-requisite for
the operation of the rules in Cundy v. Le
Cocq ((1884) 13 QBD 207) and Commissioners
of Police v. Cartman ((1896) 1 QB 655)."

Having expressed himself as not satisfied that vicarious liability had been established, he distinguished as irrelevant what he described as "the liquor cases" (by which I understand him to have meant those authorities which in the past have characterised many offences against licensing laws as offences of strict liability).

14. The appellant was granted an order nisi to review the learned Magistrate's decision on the following grounds:-

1. That the learned Stipendiary Magistrate should not
have dismissed the Appellants information because
his finding that the Respondent was the holder of
a permit pursuant to section 61 of the Liquor
Ordinance 1975 and that he authorised Christopher
Barnard to sell liquor pursuant to that permit
established that he was liable for selling liquor
to the youth.

2. That the learned Stipendiary Magistrate fell into
error and mistake by taking into account that the
Respondent was conducting the permit on behalf of
the A.N.U. Cricket Club and that the people,
including the said Christopher Barnard, he had
authorised to act, pursuant to the permit, were
acting voluntarily on behalf of the Cricket Club
therefore holding that the Respondent was not
liable for the action of the people he had
authorised to sell liquor pursuant to his permit.

3. That the learned Stipendiary Magistrate fell into
error and mistake by taking into account the fact
that, the Respondent had arranged with the
supplier of liquor to him to sell pursuant to the
permit, was to be paid for after the expiration of
the permit as by doing so he concluded that the
Respondent was not selling the liquor and
therefore was not responsible for the sale
pursuant to the permit to the youth.

Ground 3 was infelicitously expressed. It may be expressed more comprehensively but hardly more felicitously as follows:-

3. That the learned Stipendiary Magistrate fell into
error and mistake by taking into account the facts
that the Respondent had arranged with the supplier
of liquor to him to sell it pursuant to the permit
and that the liquor was to be paid for after the
expiration of the permit as by doing so he
concluded that the Respondent was not selling the
liquor and therefore was not responsible for the
sale to the youth pursuant to the permit.

15. When the appeal came on for hearing counsel for the respondent advised of an apparent irregularity in the issue of the permit in question, numbered 83/562 and signed by James Gregory Browne described on the permit as the Acting Registrar of Liquor Licences.

16. The agreed facts and applicable provisions of the Ordinance relating to the irregularity were these:-

1. The Ordinance provides by s.15 that the Minister
may appoint a duly qualified person to be
Registrar of Liquor Licences and may also appoint
a person similarly qualified to be the Deputy
Registrar who, when the Registrar is absent from
duty or from the Territory, may exercise the
powers and shall perform the duties of the
Registrar under the Ordinance.

2. At all relevant dates up to 22 February 1983 the
appellant, who was on leave from 14 February 1983
to 25 February 1983, was the Registrar of Liquor
Licences. On 22 February 1983 his appointment was
duly revoked and James Gregory Browne was
appointed Registrar.

3. When Mr Browne signed the permit on 17 February
1983 he described himself as Acting Registrar. He
was not at that date the Deputy Registrar and the
Ordinance makes no provision for the appointment
of an Acting Registrar.

4. The issue of a permit is not a mere mechanical
operation. The Registrar is required by s.63 of
the Ordinance to issue an applicant the permit
sought if application is made in accordance with
s.62 unless he is of the opinion that there are
facts and circumstances by reason of which the
Liquor Licensing Board of the Australian Capital
Territory (the Board) may be entitled to decline
or to direct the issue of the permit sought. If
he is of that opinion the Registrar is required to
take certain further action under s.64.

17. The permit was therefore issued by one who lacked the requisite authority to issue it. Counsel for the respondent submitted that his client could not have been the holder of a permit because rights and liabilities in respect of the alleged permit were to be ascertained upon the same footing as if it had not been issued. The doctrine applicable, counsel submitted in effect, was described by Sir Owen Dixon in an article "De Facto Officers" (1938) 1 Res Judicatae 285 in the following words:-

". . . when for want of, or excess of, legal
power or authority or for non-fulfilment of
the conditions required by law, any purported
act in the law is invalid, then rights and
liabilities are to be ascertained upon the
same footing as if the act had not been
attempted."

18. Counsel for the appellant contended, however, that the issue of the permit was valid despite Mr Browne's lack of authority on the basis of an exception to the doctrine which is described, again in the words of Sir Owen Dixon (ibid.) at p.286:-

". . . the acts of an officer de facto done in
the apparently regular execution of his
office have equal force and effect with those
of an officer de jure when they concern the
rights and duties of the subject."

19. In The Queen v. Cawthorne (1977) 17 SASR 321, Bray CJ, at p 332, said:-

". . . I think we should accept the statement of
the doctrine by the Supreme Court of
Connecticut in State v. Carroll ((1871) 9
Am. Rep. 409), speaking through Butler C.J.
at pp 427-428. This statement has been
approved by the Supreme Court of the United
States in (Norton v. Shelby County (1886) 118
US 425) (see at pp 445-446) (30 Law Ed 178
at p 187), where the judgment of Butler C.J.
was described as 'an elaborate and admirable
statement of the law, with a review of the
English and American cases'; by Richmond J.
in the Court of Appeal of New Zealand in (In
re Aldridge (1893) 15 NZLR 361) (see at
pp 376-377); and by Sir Jocelyn Simon P in
Adams v. Adams ((1971) P 188), at
pp 213-214.

20. Butler C.J. said:

'A definition sufficiently accurate and
comprehensive to cover the whole ground must,
I think, be substantially as follows: An
officer de facto is one whose acts, though
not those of a lawful officer, the law, upon
principles of policy and justice, will hold
valid so far as they involve the interests of
the public and third persons, where the
duties of the office were exercised:

First, without a known appointment or
election, but under such circumstances of
reputation or acquiescence as were calculated
to induce people, without inquiry, to submit
to or invoke his action, supposing him to be
the officer he assumed to be. (There may be
some conflict between this principle and the
rule* about a mere usurper referred to in
paragraph 3 above. A mere usurper would
probably never acquire such a reputation as
is referred to by Butler C.J. If he did, I
prefer the rule enunciated in the present
proposition.)

*(That "there is some suggestion in some of
the cases that the doctrine does not apply to
a mere usurper without colour of right" at
p.331.)

Second, under colour of a known and valid
appointment or election, but where the
officer had failed to conform to some
precedent requirement or condition, as to
take an oath, give a bond, or the like.

Third, under colour of a known election or
appointment, void, because the officer was
not eligible, or because there was a want of
power in the electing or appointing body, or
by reason of some defect or irregularity in
its exercise, such ineligibility, want of
power, or defect being unknown to the public.

Fourth, under colour of an election or
appointment by or pursuant to a public
unconstitutional law, before the same is
adjudged to be such.

Any thing less comprehensive and
discriminating will, I think, be imperfect
and deceptive as a definition.'"

21. The action taken by Mr Browne when he purported to issue the permit was, of course, done without a known appointment or election but it was done under such circumstances as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. It could hardly be said that he was a usurper in the sense intended by Bray CJ.

22. The position may be tested by asking whether a prosecution of the respondent in respect of a breach under s.77(1) of the Ordinance for selling liquor, the sale not being authorised by a permit, would have succeeded. Undoubtedly the respondent could have relied, successfully in my opinion, on the doctrine of de facto officers and submitted that he was entitled to invoke the action of Mr Browne as lawfully authorising him to sell liquor under a permit taken to be validly issued.

23. That the acts of a de facto officer purporting to act by colour of the office in question may impose liabilities as well as grant rights appears, I think, sufficiently from the authorities. See Penney v. Slade (1834) 5 Bing (NC) 319; 132 ER 1127; Waterloo Bridge Co. v. Cull (1858) 1 El. & El. 213; 120 ER 888; Lancaster and Carlisle Rly. Co. v. Heaton (1858) 8 El & Bl 952; 120 ER 354; R. v. The Inhabitants of St.Clements (1840) 12 Ad & E 177; 113 ER 778; Scadding v. Lorant (1851) 3 HLC 418; 10 ER 164; In re Aldridge (1893) 15 NZLR 361 and The Queen v. Cawthorne (supra). Cf. R. v. Mayor, Aldermen and Burgesses of the Borough of Cambridge (1840) 12 Ad & E 702; 113 ER 980.

24. I am of the opinion, therefore, that the issue of the permit was valid as the act of a de facto officer and that the respondent thereby acquired rights under it and became liable to the duties of a holder of such a permit.

"Save in cases of strict liability where a
criminal statute, exceptionally, makes the
doing of an act a crime irrespective of the
state of mind in which it is done, criminal
law regards a person as responsible for his
own crimes only. It does not recognise the
liability of a principal for the criminal
acts of his agent: because it does not
ascribe to him his agent's state of mind.
Qui peccat per alium peccat per se is not a
maxim of criminal law.

Tesco Supermarkets Ltd. v. Nattrass [1971] UKHL 1; (1972) AC 153 at p 199 per Lord Diplock.

25. In R. v. Stephens (1866) LR 1 QB 702, Blackburn J (as he then was) said, at p 710:

"I only wish to guard myself against it being
supposed that either at the trial or now, the
general rule that a principal is not
criminally answerable for the act of his
agent is infringed."

26. The general rule formulated by Lord Blackburn and more elaborately by Lord Diplock means, in my opinion, that the appellant can succeed only if it be established that the offence charged is one imposing strict liability on the respondent as the holder of the permit in question.

"There is a presumption that mens rea, an
evil intention, or a knowledge of the
wrongfulness of the act, is an essential
ingredient in every offence; but that
presumption is liable to be displaced either
by the words of the statute creating the
offence or by the subject-matter with which
it deals, and both must be considered:"

Sherras v. De Rutzen (1895) 1 QB 918 at p 921, per Wright J. His Lordship went on to give as one amongst a number of exceptions to the rule that class of acts which are not criminal in any real sense.

27. In Mousell Brothers, Limited v. London and North-Western Railway Company (1917) 2 KB 836, Viscount Reading CJ said at p 844:

". . . where the language of an Act is not so
plain as to leave no room for doubt, the
Court may bear in mind the avowed purpose of
the Act and consider whether a particular
construction will render the Act effective or
ineffective for that purpose.

Prima facie, then, a master is not to be made
criminally responsible for the acts of his
servant to which the master is not a party.
But it may be the intention of the
Legislature, in order to guard against the
happening of the forbidden thing, to impose a
liability upon a principal even though he
does not know of, and is not party to, the
forbidden act done by his servant. Many
statutes are passed with this object. Acts
done by the servant of the licensed holder of
licensed premises render the licensed holder
in some instances liable, even though the act
was done by his servant without the knowledge
of the master. Under the Food and Drugs Acts
there are again instances well known in these
Courts where the master is made responsible,
even though he knows nothing of the act done
by his servant, and he may be fined or
rendered amenable to the penalty enjoined by
the law. In those cases the Legislature
absolutely forbids the act and makes the
principal liable without a mens rea."

In the same case Atkin J said at p.845:

". . . the authorities . . . make it plain that
while prima facie a principal is not to be
made criminally responsible for the acts of
his servants, yet the Legislature may
prohibit an act or enforce a duty in such
words as to make the prohibition or the duty
absolute; in which case the principal is
liable if the act is in fact done by his
servants. To ascertain whether a particular
Act of Parliament has that effect or not
regard must be had to (1) the object of the
statute, (2) the words used, (3) the nature
of the duty laid down, (4) the person upon
whom it is imposed, (5) the person by whom it
would in ordinary circumstances be performed,
and (6) the person upon whom the penalty is
imposed."

28. In Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536, Dixon J (as he then was) said at p 540:

"As a general rule an honest and reasonable
belief in a state of facts which, if they
existed, would make the defendant's act
innocent affords an excuse for doing what
would otherwise be an offence.

The strength of the presumption that the rule
applies to a statutory offence newly created
varies with the nature of the offence and the
scope of the statute. If the purpose of the
statute is to add a new crime to the general
criminal law, it is natural to suppose that
it is to be read subject to the general
principles according to which that law is
administered. But other considerations arise
where in matters of police, of health, of
safety or the like the legislature adopts
penal measures in order to cast on the
individual the responsibility of so
conducting his affairs that the general
welfare will not be prejudiced. In such
cases there is less ground, either in reason
or in actual probability, for presuming an
intention that the general rule should apply
making honest and reasonable mistake a ground
of exoneration, and the presumption is but a
weak one.

Indeed, there has been a marked and growing
tendency to treat the prima facie rule as
excluded or rebutted in the case of summary
offences created by modern statutes,
particularly those dealing with social and
industrial regulation. But, although it has
been said that in construing a modern statute
a presumption as to mens rea does not exist
(per Kennedy LJ., Hobbs v. Winchester
Corporation (1910) 2 KB 471, at p 483), it
is probably still true that, unless from the
words, context, subject matter, or general
nature of the enactment some reason to the
contrary appears, you are to treat honest and
reasonable mistake as a ground of
exculpation, even from a summary offence."

29. Subsequent decisions of the High Court seem to have strengthened rather than weakened the presumption. See Bergin v. Stack [1953] HCA 53; (1953) 88 CLR 248 and, particularly, He Kaw Teh v. R. [1985] HCA 43; (1985) 59 ALJR 620. In the case just referred to Brennan J said at p 638:

"It is now firmly established that mens rea
is an essential element in every statutory
offence unless, having regard to the language
of the statute and to its subject matter, it
is excluded expressly or by necessary
implication: Lim Chin Aik v. R. ((1963)
AC 160) at 173; Sweet v. Parsley ((1970)
AC 132) at 149, 152, 156; Cameron v. Holt
[1980] HCA 5; (1980) 142 CLR 342 at 346, 348. Earlier
doubts as to the existence of the presumption
or as to its strength (see, for example,
Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536 at
540) have now been removed."

In the same case Gibbs C.J., with whom Mason J concurred, said, at p.624:

"In R. v. Sault Ste. Marie (1978) 2 SCR.
1299 it was held that where an offence is
truly criminal the prosecution must establish
a mental element, and negligence is not
enough for that purpose. However, it was
held, there is a middle position between
cases where full mens rea is required and
cases of absolute liability, namely, cases in
which it is a defence for the defendant to
prove, on the balance of probabilities, that
he was not negligent. Prima facie, 'public
welfare offences', or 'regulatory offences',
are in this last-mentioned class. Dickson J,
who delivered the judgment of the Court,
accordingly held at 1325-1326, that offences
could be classified into three categories, as
follows:

'1. Offences in which mens rea, consisting of
some positive state of mind such as intent,
knowledge, or recklessness, must be proved by
the prosecution either as an inference from
the nature of the act committed, or by
additional evidence.

2. Offences in which there is no necessity
for the prosecution to prove the existence of
mens rea; the doing of the prohibited act
prima facie imports the offence, leaving it
open to the accused to avoid liability by
proving that he took all reasonable care.
This involves consideration of what a
reasonable man would have done in the
circumstances. The defence will be available
if the accused reasonably believed in a
mistaken set of facts which, if true, would
render the act or omission innocent, or if he
took all reasonable steps to avoid the
particular event. These offences may
properly be called offences of strict
liability.

3. Offences of absolute liability where it is
not open to the accused to exculpate himself
by showing that he was free of fault.'"

30. The question is therefore one of construction. In construing the relevant provision it is now necessary to assume that the presumption that mens rea is intended is a good deal stronger than was earlier thought and not to be displaced except by necessary implication if its exclusion is not expressed.

31. In construing s.80(1), it is appropriate to bear in mind the six points enumerated by Atkin J in Mousell Brothers, Limited v. London and North-Western Railway Company (supra) and set out above.

32. Sections 80-84 of the Ordinance make it plain, in my opinion, that the object of the Ordinance so far as it concerns those under 18 years of age is to ensure as far as any Ordinance can that liquor may not be sold by the holder of a licence or permit to and may not be bought and consumed on licensed premises by those under the age of 18 years. In addition the Ordinance seeks to ensure what may be loosely described as the distancing from licensed premises or premises from which liquor may be sold of those under the age of 18 years unless in the care of a responsible adult.

33. The whole purpose of the sections seems to be to ensure that the purchase and consumption of liquor by those under 18 years cannot be done under the aegis of the Ordinance. The social utility of the provisions seems therefore to be clear.

34. While s.80(1) is directed towards the holder of a licence or permit, in the ordinary course one would not expect that that holder would necessarily be the person by whom the duty imposed is to be performed.

35. In construing the provision, I take into account the statement by Webb J in Bergin v. Stack (supra) at p 254 that:-

". . . it is too late in the day to regard
illegal sales of intoxicating liquor as
offences requiring mens rea to be shown, in
the absence of some legislative indication to
the contrary."

36. In that case the court was considering s.161 of the Licensing Act 1928 (Victoria) which provided that "every person who (except as the agent or servant of a licensed person and then only in accordance with such person's licence) sells any liquor without a licence authorizing such sale" shall be liable to certain penalties. At p.260, Fullagar J, with whom Williams ACJ and Taylor J concurred, said:

"The first argument may be stated briefly, if
somewhat loosely, by saying that there was an
absence of mens rea on the part of the
defendant. If by this is meant that it is
necessary, on a charge under s.161, for the
prosecution to prove that a servant knew that
his master had no licence - in other words
that knowledge is an essential ingredient of
the offence - I am of opinion that the
argument fails. The nature of the
subject-matter with which s.161 deals, the
fact that it is the keystone of the whole
licensing system, and the actual language of
the provision itself, strongly suggest that
knowledge is not an essential ingredient of
the offence and that a person who has sold
liquor as a servant or agent is, at least
prima facie, guilty unless in fact he sold as
agent for a licensed person and within the
authority of the licence. To these
considerations may be added the fact that
ss. 166, 170, 193 (1) and (2), 194 (a), 225
and 226, all of which occur in the same Part
of the Act as s.161, expressly make knowledge
an ingredient of the offence."

37. Having regard to the last sentence quoted, it is significant to note that by s.85 of the Ordinance it is provided that a person who, being the holder of a licence or permit or an employee of such a person, wilfully (emphasis added) obstructs or delays the entry of an inspector to the premises to which the licence or permit relates or any person who wilfully hinders an inspector in the discharge of his duty upon such premises is guilty of an offence. It seems clear, therefore, that it was the intention of the Ordinance that if mens rea was to be an element of an offence the Ordinance made specific provision in respect of the necessary state of mind.

38. That an offence may be one of strict liability notwithstanding that there is at least some defence available in respect of it appears from R. v. Stepehsn (supra), R. v. Almon (1770) 5 Burr 2686; 98 ER 411 and R. v. Gutch and Others (1829) M. & M. 432; 173 ER 1214.

39. Where a statute creates an offence and an express statutory defence in cases such as mistake, reliance on information supplied or the taking of reasonable precautions and exercise of due diligence it may be taken that the offence created is one of strict liability subject only to that defence. Tesco Supermarkets Limited v. Nattrass (supra), at pp 169-70, 183, 189, 194, 195 and 203; Given v. C.V. Holland (Holdings) Pty. Ltd. (1977) 15 ALR 439; Universal Telecasters (Qld) Ltd. v. Guthrie [1978] FCA 8; (1978) 18 ALR 531; Darwin Bakery Pty. Ltd. v. Sully (1981) 36 ALR 371.

40. In my opinion, therefore, the offence charged is, in the relevant sense, one of strict liability and the holder of a permit may be criminally liable for the acts of his servant or agent in respect of activities carried out in apparent reliance on the permit.

41. Close consideration of his reasons for judgment discloses that the learned Magistrate did not make a specific finding that the respondent authorised Christopher Barnard to sell liquor pursuant to the permit as the evidence filed in support of the application for the order nisi and ground 1 of the grounds of appeal indicate. However, the respondent's evidence was that he got some volunteers including Mr Barnard "from the club membership to help man the booth". It may therefore be taken to be beyond doubt that the respondent authorised Mr Barnard to sell liquor pursuant to the permit which he held.

42. I deal first with the question raised in the second ground of appeal which, as it seems to me, stems from the learned Magistrate's finding that the respondent was simply organising volunteers to staff the booth on behalf of the Club and as its secretary and holder of the permit. According to this view the respondent was but the nominal holder of a permit with no direct relationship as principal with the volunteers manning the booth as his agents.

43. Section 61(1) of the Ordinance provides that a permit under the Ordinance authorises the holder of the permit, during the period or periods, and at the place or premises, specified in the permit, to sell liquor, being liquor in respect of which the amount paid or payable by the holder of the permit does not exceed the amount specified in the permit. Section 65 indicates that permits may be issued for the sale of liquor in conjunction with an entertainment or entertainments specified in the application for the permit. Part VI of the Ordinance, dealing with permits, allows the issue of a permit to any applicant, scil., obviously, of the age of 18 or more. Section 65 sets out the very limited circumstances in which the Board, not the Registrar, may refuse an application while s.66 sets out other very limited circumstances in which the Board may cancel a permit once issued.

44. It may be taken that permits are available for issue in respect of varying periods and may be issued to any person including persons acting on behalf of charitable organisations. The issue of a permit to an officer of a club who thereupon seeks volunteers from amongst club members to enable him to sell the liquor authorised by the permit can hardly be an unusual event and certainly not one not within the contemplation of the framers of the Ordinance. In Commissioners of Police v. Cartman (1896) 1 QB 655, Lord Russell CJ dealt with the question in relation to paid employees. At p 657-8 he said:-

"The learned magistrate believed that the
respondent bona fide gave instructions to his
barman that no drunken persons should be
served, and that he intended those
instructions to be acted upon; but the
question is whether that fact affords any
answer to the charge. In considering this
question, we must see what is the object of
the Act, and how far that object would be
effected or defeated if the construction
contended for by the respondent were given to
this section. There can be no question as to
the object of this section: it was intended
in the interest of public order to prevent
the sale of intoxicating liquors to drunken
persons. It must be remembered that the
persons from whom alone intoxicating liquors
can be obtained are licensed persons: how do
they carry on their business? From the
nature of the case it must be largely carried
on by others on their behalf; it is true that
sometimes the licensee keeps in his own hands
the direct control over his own business, but
in the great majority of cases it is not so,
the actual direct control being deputed to
other persons: are the licensees in these
latter cases to be liable under this section
for the acts of others? In my opinion they
are, subject to this qualification, that the
acts of the servant must be within the scope
of his employment. . . . It makes no difference
for the purposes of this section that the
licensee has given private orders to his
manager not to sell to drunken persons; were
it otherwise, the object of the section would
be entirely defeated."

45. The case was referred to, apparently with approval, by Isaacs J in Ferrier v. Wilson [1906] HCA 77; (1906) 4 CLR 785 at p 801 when he said:

"The necessary protection of public interests
brings this case within the scope of such
cases as Commissioners of Police v. Cartman."

46. In Cundy v. Le Cocq (1884) 13 QBD 207, referred to by the learned Magistrate, a publican sold intoxicating liquor to a drunken person who had given no indication of intoxication and without being aware that the person so served was drunk. He was found guilty of an offence under a section of the Licensing Act which made it an offence for any licensed person to sell any intoxicating liquor to any drunken person, the prohibition being held absolute and that knowledge of the condition of the person served with liquor was not necessary to constitute the offence.

47. Having regard to the manifest purpose of ss. 80-84 of the Ordinance, the nature of the functions in respect of which permits under the Ordinance may be granted and the possibility, if not probability, that in many cases the holder of a permit will sell liquor with the assistance of volunteers, I am unable to see that, as a matter of construction, given that the offence is one of strict liability, a holder of a permit is to be excused because his agent was a volunteer and not a paid employee. I take this view, notwithstanding the provisions of s. 80(3). That sub-section does not seem to me to indicate that the holder of a permit is seen by the Ordinance as one who can act only by himself or by his paid employees. It is a provision which in the normal course facilitates the performance of their duties under s. 80(1) by the holder of a licence or permit or the employees of such a holder but it is not, in my view, to be taken as indicating exclusively the agents for whom the holder of a licence or permit is responsible.

48. It follows, in my opinion, that the learned Magistrate was wrong in describing the respondent as merely the nominal holder of the permit. His function as holder of the permit was very real. On behalf of his Club he accepted its benefits and the responsibilities it imposed. He was liable as holder of the permit for the acts of his agents of whom I am satisfied Mr Barnard was one.

49. As to the third ground, counsel for the respondent submitted that the true situation concerning agency was that the volunteers including Mr Barnard were agents of Kegs who had supplied the beer or, on another view, agents of the Club. He pointed out the circumstances in which the beer came to be sold by members of the Club acting as volunteers, circumstances to which I have earlier adverted, and submitted that it necessarily followed that the volunteers, including Mr Barnard, were agents of Kegs or, possibly, of the Club. He contended that they could not be agents of the respondent who, to the extent that he sold any liquor personally, would only have been an agent of Kegs.

50. The short answer to the submission lies in the fact that only the holder of a permit is authorised to sell liquor and the respondent was the only holder of the requisite permit. By s. 4(3) of the Ordinance and against the background of all the authorities he is deemed to have sold liquor to another person in the events that happened.

51. For the reasons given above, I think that all grounds of appeal have succeeded and that therefore the learned Magistrate erred in dismissing the information against the respondent. I think the proper course is to remit the matter with directions that a finding that the offence charged in the information has been proved be made and to set aside the order for costs made against the appellant and that the matter be thereafter dealt with according to law.

52. The appellant must pay the respondent's costs of and incidental to the appeal.