Canberra Royals Rugby Football Club Inc v Paul Michael Luff [1986] ACTSC 87 (17 September 1986)

SUPREME COURT OF THE ACT

CANBERRA ROYALS RUGBY FOOTBALL CLUB INC. v. PAUL MICHAEL LUFF
S.C. No. 784 of 1986
Liquor

COURT

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

CATCHWORDS

Liquor - Liquor Ordinance 1975 - sale of liquor by licensee to person under 18 years - statutory defence of reasonable grounds for believing purchaser to be not less than 18 years - whether test subjective or objective - whether objective test satisfied.

Baker v. Thorpe (1985) 62 ACTR 1

Luff v. Oakley (unreported 19 February 1986)

Tesco Supermarkets Ltd. v. Nattrass [1971] UKHL 1; (1972) AC 153

Darwin Bakery Pty. Ltd. v. Sully (1981) 36 ALR 371

Australian Telecommunications Commission v. Krieg Enterprises Pty. Ltd. (1976) 14 SASR 303

HEARING

CANBERRA
17:9:1986

ORDER

The appeal be upheld.

The conviction and orders of the Magistrate be set aside.

DECISION

Shortly before midnight on Saturday, 2 August 1985, a female aged 17 years and 5 months purchased a glass of beer and a glass of rum over the bar at the Weston premises of the Canberra Royals Rugby Football Club Inc. The Club was the holder of a club licence issued under the Liquor Ordinance 1975 in respect of those premises. The Club was prosecuted for an offence under s. 80 of the ordinance and was subsequently convicted. It appeals against that conviction. The parties are agreed that the appeal should proceed on the evidence before the learned Magistrate. The appeal is in the nature of a re-hearing, but it is not a hearing de novo and the finding of the Magistrate in relation to the credibility of witnesses should be accepted by this Court unless there is some compelling reason to the contrary: Baker v. Thorpe (1985) 62 ACTR 1.

2. S. 80 of the Ordinance is in the following terms:

"80.(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."

3. In Luff v. Oakley (unreported 19 February 1986) Kelly J. held, for reasons with which I would respectfully agree, that an offence charged under s. 80 is an offence of strict liability and that the holder of a permit or licence may be criminally liable for the acts of a servant or agent in respect of activities carried out in apparent reliance upon the permit or licence. His Honour observed, again in my respectful view correctly, that s. 80 provides an example of a statute creating an offence and an express statutory defence in cases such as mistake and the like, and that the offence so created is one of strict liability subject only to that defence: Tesco Supermarkets Ltd. v. Nattrass [1971] UKHL 1; (1972) AC 153, Darwin Bakery Pty. Ltd. v. Sully (1981) 36 ALR 371.

4. A number of substantial points were argued on behalf of the appellant, but it is not, in my view, necessary for me to determine them all. The transcript of the proceedings in the Court below and the reasons for judgment given by the learned Magistrate indicate that the substantial issue there was whether the appellant had succeeded in establishing the defence provided for in s. 80(2). In his brief if somewhat colourfully expressed reasons, the learned Magistrate stated that the statutory defence had not been made out because the employee of the appellant who served the liquor did not address her mind to the age of the customer, and so it could not be said that at the time of the offence that the defendant entertained any belief at all on that subject.

5. It was common ground that once the prosecution had proved beyond reasonable doubt the essential elements of the offence as provided for in s. 80(1) then the onus lay on the defence to prove on the balance of probabilities the matters of exculpation provided for in s. 80(2). As to the questions of onus and standard of proof, I think that the parties are quite correct and nothing needs to be added by me.

6. It was submitted on behalf of the appellant that the test to be applied in deciding whether the defence provided for in s. 80(2) has been established is not a subjective test but an objective one, so that the actual belief of the appellant at the time of the sale of liquor (difficult as it always is to determine in the case of a corporation) was irrelevant. The respondent prosecutor, as I understand it, accepted the proprietory of this submission on behalf of the appellant as a matter of law, but argued that, applying the objective test, the appellant still had not made out its defence.

7. The question of whether the test imposed by s. 80(2) is an objective or subjective one is, however, not entirely free from difficulty and, despite the attitude of the respondent prosecutor, I feel that I should say something about it. It is to be observed that the defence provided for is up to a point similar to the defence that used to be available upon a charge of carnal knowledge with a girl under the age of 16 years, but it is different in one important respect. The statutory defence to a charge of carnal knowledge involved not only proof of reasonable grounds for the defendant to believe that the victim was consenting and was of a certain age, it involved further proof of an actual belief on his part in that supposed state of affairs. On the other hand s. 80(2) of the Liquor Ordinance 1975 enables a defendant to escape liability for selling or supplying liquor to a person under the age of 18 years if the defendant proves two facts. The first fact is that the person to whom the liquor was sold or supplied was not less than 16 years of age. The second fact is that the defendant had reasonable grounds for believing the person was not less than 18 years of age. The question arises as to whether proof of the second fact involves proof of an actual belief as well as reasonable grounds for holding that belief. It has to be considered whether it makes sense to speak of a person having reasonable grounds for believing in a certain state of affairs whilst at the same time excluding from consideration whether or not that person in fact entertained the belief for which those reasonable grounds provide a foundation.

8. Support for the submission that s. 80(2) does not require proof of an actual subjective belief on the part of the defendant is to be found in the decision of Bray C.J. in Australian Telecommunications Commission v. Krieg Enterprises Pty. Ltd. (1976) 14 SASR 303. That case involved an action for damages based in part upon the provisions of s. 139B of the Post & Telegraph Act 1901. That section provided that a person is liable in certain circumstances to pay compensation to the Commonwealth for interference or damage to property under the control of the Postmaster-General in certain circumstances. Amongst those circumstances were circumstances in which the person "has reasonable cause to believe that the doing of the work is likely to interfere with or damage property under the control of the Postmaster-General".

9. At pages 308-309 Bray C.J. said as follows:

"A question discussed before the learned Special
Magistrate and before me was whether the
expression "has reasonable cause to believe" in
sub-s.(1)(a) should be construed subjectively or
objectively, i.e. whether there is no liability if
the person in question honestly thought that he
had reasonable cause to believe that the work was
not likely to cause interference or damage. My
view on this is the same as that of the learned
Special Magistrate. Clearly the words are
objective and the actual state of mind of the
person in question is immaterial. The question is
whether there was in fact reasonable cause to
believe, i.e. whether a reasonable man in the
circumstances and with the knowledge and means of
knowledge of Field would have believed that the
doing of the work in question was likely to
interfere with or damage property under the
control of the Postmaster-General. The special
and extraordinary construction given to the words
"reasonable cause to believe" in Liversidge v.
Anderson [1941] UKHL 1; (1942) AC 206 is certainly not to be
taken as affording any guide to the ordinary
meaning of such words in ordinary mundane
legislation on such a humble subject as damage to
postal installations; see Nakkuda Ali v. M.F. de
S. Jayaretne (1951) AC 66 at pp 76-77."

10. In my view it is consistent with a proper construction of s.80 as a whole, and with the policy which lies behind it, that the proper test is an objective one. As Kelly J. observed in Luff v. Oakley, at page 16 of his unreported judgment, s.80 and the sections which immediately follow it make it plain 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. Nevertheless it is consistent with the overall object that the requirements of the law stop short of rendering it necessary for a licensee to make an actual informed decision as to the age of the purchaser on the occasion of every sale of liquor. It is consistent with the policy of the legislation that the licensee is required to do no more than prove that he has acted reasonably; that is to say, the licensee will incur criminal liability under s.80 by selling to a person under the statutory age unless he can prove, in the words of Bray C.J., that a reasonable person in the circumstances and with the knowledge and means of knowledge available to him might have believed that the purchaser was under age.

11. The provisions of s.80(3) are not to be ignored. That sub-section provides that a licensee may (my emphasis) refuse to sell liquor to a person unless that person satisfies the licensee of his age. It does not provide that the licensee shall refuse to sell liquor unless satisfied as to the age of the purchaser. It does, however, leave the licensee exposed to the risk of criminal liability if the licensee sells liquor in circumstances where, if viewed objectively, there was not reasonable cause to believe that the purchaser was of the statutory age.

12. In the light of the above I am of the opinion that in order to determine whether a defendant has established a defence under s.80(2), it is necessary for the Court to consider first the evidence of the knowledge and the means of knowledge of the defendant as to the age of the purchaser and then to decide whether a reasonable person with that knowledge and means of knowledge and in the whole of the circumstances might have believed that the purchaser was not less than 18 years of age.

13. The learned Magistrate did not apply the correct test and in any event this is a re-hearing. Evidence was called on behalf of the appellant from a Ms. Riddock, who sold the liquor to the young purchaser on the night in question. The Magistrate said that he did not believe the evidence of Ms. Riddock. The Magistrate's finding on the credibility of Ms. Riddock was attacked by counsel for the appellant as lacking a rational basis. However I do not think that the Magistrate meant that he disbelieved every word the witness said. He certainly indicated that he did not accept the evidence she gave of an alleged conversation between herself and the purchaser subsequent to the purchase and when Ms. Riddock stated that she realised that she had seen the purchaser on a previous occasion in the company of a mutual friend. For the purpose of this appeal I propose to leave the evidence of that conversation out of consideration. There was other unchallenged evidence from Ms. Riddock which I accept which leads to the conclusion that of all the female persons she had served that night none of them had given her cause to believe that she was under the age of 18 years. Ms. Riddock had seen the purchaser on previous occasions on other licensed premises in the company of persons who appeared to be about the same age as she, including a particular young woman who was a friend of Ms. Riddock. When asked whether she was aware that the mutual friend and the others in the group were 18 years or older (which question was not objected to), Ms. Riddock replied that she was so aware. Ms. Riddock herself was at the time aged 22 years with some bar experience and she had a sister two years younger than herself. She was in a position to give informed evidence as to the apparent age of persons of about 18 years.

14. However, a consideration of whether there were reasonable grounds for the defendant believing that the purchaser was not less than 18 years of age is not to be confined to the knowledge and means of knowledge of Ms. Riddock. The young purchaser, who herself gave evidence, had been to the club on previous occasions and on the night in question had entered the club with a young man older than herself. Most importantly, she had previously obtained from the club an associate membership card by fraudulently representing by means of a birth certificate belonging to somebody else that she had attained the age of 18 years. It may be a nice question of epistemology whether a person can have "knowledge" of a matter which is believed to be true but which turns out to be untrue, and in this sense it could hardly be said that the defendant had "knowledge" that the purchaser had attained the age of 18 years, but it was a fact, and a fact of which the defendant had knowledge, that the purchaser had previously by means of a birth certificate represented that she was 18 years of age and had accordingly obtained an associate member's card. The defendant had no knowledge and no means of knowledge that the date of birth in the certificate was not that of the purchaser. The purchaser admitted in her evidence that if she had been challenged as to her age when entering the club she would have produced that card as evidence of her age. It is true that when questioned later in the night on behalf of the prosecutor the purchaser soon desisted from relying upon the associate member's card as proof of her age, but she conceded that that was because the interrogator was "a good questioner", adding somewhat ambiguously that she herself was "a terrible liar". In all the circumstances and having regard to the knowledge of the defendant and the means of the knowledge of the defendant of matters pertaining to the age of the purchaser, I am satisfied on the probabilities that the defendant had reasonable grounds for believing that the person was not less than 18 years of age.

15. I should add that the learned Magistrate, in his reasons for judgment, estimated the apparent age of the purchaser, whom he had observed in the witness box, at 17 years. That finding, however, does not mean that it was not reasonable for a person in the position of the defendant on the night in question to believe that the purchaser was not less than 18 years.

16. The appeal will be upheld, the conviction and orders of the Magistrate set aside, and I will hear the parties on costs.