Woolworths Limited v Paul Michael Luff [1988] ACTSC 5 (12 February 1988)

SUPREME COURT OF THE ACT

WOOLWORTHS LIMITED v. PAUL MICHAEL LUFF
S.C. No. 2077 of 1986
Courts - Liquor

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1), Kelly(2) and Gallop(3) JJ.

CATCHWORDS

Courts - jurisdiction of Supreme Court exercised by three judges - appeal from lower court - Australian Capital Territory Supreme Court Act 1933 s.8AB(3).

Liquor - sale of liquor by licensee to person under 18 years - licensee a corporation - statutory defence of reasonable grounds for believing purchaser to be not less than 18 years - nature of test to be applied - Liquor Ordinance 1975 ss.80, 103 and 104.

Sparre v. The King [1942] HCA 19; (1942) 66 CLR 149

Canberra Royals Rugby Football Club Incorporated v. Luff (1986) 68 ACTR 3

Tesco Supermarkets Ltd. v. Nattrass [1971] UKHL 1; (1972) AC 153 at p 169

Liquor Ordinance 1975

Australian Capital Territory Supreme Court Act 1933

Luff v. Oakley (1986) 65 ACTR 19

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

Liversidge v. Anderson [1941] UKHL 1; (1942) AC 206

Nakkuda Ali v. M.F. de S. Jayaratne (1951) AC 66 at pp 76-77

Attorney-General of St. Christopher, Nevis and Anguilla v. Reynolds (1980) AC 637 at p 657

Inland Revenue Commissioner v. Rossminster Ltd [1979] UKHL 5; (1980) AC 952

Khawaja v. Secretary of State for the Home Department [1982] UKHL 5; (1983) 1 All ER 765

Crimes Act 1900 (NSW)

Crimes (Girls' Protection) Act 1910

The Crimes (Amendment) Act 1924 (NSW)

R. v. Banks (1916) 2 KB 621

R. v. Harrison (1938) 26 CrAppR 166; (1938) 3 All ER 134

Sodeman v. The King [1936] HCA 72; (1936) 55 CLR 192 at p 233

R. v. Carr-briant (1943) 29 CrAppR 76 at p 87

Interpretation Ordinance 1967

Mousell Brothers Limited v. London & North-Western Railway Company (1917) 2 KB 836

The King v. Australasian Films Limited [1921] HCA 11; (1921) 29 CLR 195

He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523

Sherras v. De Rutzen (1895) 1 QB 918 at 921

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

HEARING

CANBERRA
12:2:1988

DECISION

I have read a draft of the reasons for judgment of Kelly J. in which his Honour sets out the background and circumstances of this reference. The question formulated for the determination of the Full Bench is as follows:

"Is the existence of reasonable grounds for a

belief that a person was not less than 18 years,
irrespective of any belief held by the servant or
agent of the appellant at the material time, a
sufficient basis to satisfy the requirements of
s.80(2) of the Ordinance?"

2. His Honour has advanced persuasive reasons, based on an analysis of the case law and most compellingly on Sparre v. The King [1942] HCA 19; (1942) 66 CLR 149, for answering the question in the negative. I agree that it is necessary that a licensee seeking to take advantage of the defence provided for in s.80(2) prove not only that there were reasonable grounds for believing that the person supplied was not less than 18 years of age but must prove also that the defendant, that is to say the licensee, entertained that belief. Put compendiously, the licensee must entertain that subjective belief on grounds which, when viewed objectively, are seen by the Court to be reasonable.

3. Because of the view I expressed previously in Canberra Royals Rugby Football Club Incorporated v. Luff (1986) 68 ACTR 3, it is necessary to add some further observations.

4. Where the charge is brought against a licensee which is a corporation, the difficulty arises as to what it is that constitutes the belief of the corporation. The belief of a corporation is a fictitious concept, but it must, for the purposes of a case such as this, be the subject of investigation and determination on the part of the Court. Clearly a corporation is able to sell or supply liquor only through the act of a natural person, usually an employee. Is the inquiry into the belief of the corporation to be confined to the belief of the employee carrying out the sale or supply, or does it extend to the belief of the corporation as a whole?

5. That these and similar questions, which arise where a corporation is alleged to have committed a statutory offence, are of "great difficulty" and the cases "most unsatisfactory" was recognized by Lord Reid in Tesco Supermarkets Ltd. v. Nattrass [1971] UKHL 1; (1972) AC 153 at p 169 and p 172. On p 169-170 Lord Reid said:

"If the offence is not held to be absolute the
requirement that the prosecutor must prove mens
rea makes it impossible to enforce the enactment
in very many cases. If the offence is held to be
absolute that leads to the conviction of persons
who are entirely blameless: an injustice which
brings the law into disrepute. So Parliament has
found it necessary to devise a method of avoiding
this difficulty. But instead of passing a
general enactment that it shall always be a
defence for the accused to prove that he was no
party to the offence and had done all he could to
prevent it, Parliament has chosen to deal with
the problem piecemeal, and has in an increasing
number of cases enacted in various forms with
regard to particular offences that it shall be a
defence to prove various exculpatory
circumstances.

In my judgment the main object of these
provisions must have been to distinguish between
those who are in some degree blameworthy and
those who are not, and to enable the latter to
escape from conviction if they can show that they
were in no way to blame. . . . . "

6. With this reminder I see nothing in s.80(2) which, as a matter of statutory interpretation, confines the defence to the state of mind of the particular employee who carries out the act of selling or supplying. The offence is defined by s.80(1). It may be committed only by the holder of a licence or permit; an employee of the holder is incapable of incurring criminal responsibility. The belief of the employee is not necessarily the belief of the employer defendant, although where the defendant is a corporation it may be difficult for the corporation to establish as a fact that its belief was other than the belief of the employee who effected the sale or supply. The belief of the corporation will, in my view, encompass the knowledge and means of knowledge available to the corporation in all the circumstances which bear on the precise question of whether the person supplied is not less than 18 years of age. The belief of the employee at the time of sale will be relevant but may not be decisive. That the means of knowledge or part of it may have been acquired at some point of time prior to the time of sale or supply does not seem to me to rob it of substance, so long as it is recognized that what is in question is the belief of the licensee at the time of sale or supply and not simply the belief of the particular employee.

7. Perhaps the point may be illustrated by getting away from the example of a corporation. If A, a natural person, employs B who sells liquor to C when A believes on reasonable grounds that C is above 18 years of age, A must, in my view, be able to rely on the defence provided by s.80(2). A may have an evidentiary difficulty in proving that at the time of sale he, A, held the requisite belief, but that is another matter. The difficulty may be the greater if A is a corporation, because the subjective belief of B, which is a real one, will be relevant in seeking to establish the belief of A, which is a fictitious one. Again, however, that does not affect the principle.

8. In the light of the above, I have modified the view expressed in the Canberra Royals' case. I think that a licensee will commit an offence under s.80(1) by selling to a person under age unless the licensee proves in accordance with s.80(2) on the balance of probabilities that the purchaser was not less than 16 years of age and that the licensee believed on reasonable grounds that the purchaser was not less than 18 years of age.

9. With those qualifications, I agree with Kelly J. that the question formulated for our decision should be answered in the negative. We should hear submissions as to the further hearing of the appeal which commenced before Gallop J.

On 29 April 1986 Paul Michael Luff, the Registrar of Liquor Licences for the Australian Capital Territory (the "respondent") laid an information against Woolworths Limited (the "appellant") charging that on or about 29 November 1985 at Canberra it contravened s.103 of the Liquor Ordinance 1975 (the "Ordinance") in that, being the holder of a licence to sell liquor, it sold liquor to a person under the age of 18 years in contravention of s.80(1) of the Ordinance. Section 80 provides:-

"(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."

2. The evidence before the learned Magistrate established that on 29 November 1985 an employee of the appellant sold a bottle of Summer Wine at Woden Shopping Square to a youth then aged 16 years and 11 months. The contents of the bottle were later analysed and found to contain 8.8% volume in volume of ethyl alcohol.

3. The information was dealt with in the Magistrates Court on 27 November 1986. The appellant raised a defence under s.80(2) of the Ordinance but the learned Magistrate rejected it, found the offence proved, convicted the appellant and imposed a fine of $250, allowing 28 days to pay. The maximum fine which may be imposed upon a corporation if found guilty of the offence is $1,000 (s.104).

4. On 16 December 1986 the appellant lodged a notice of appeal.

5. The appeal came on to be heard before Gallop J. on 6 July 1987. Three matters were raised on behalf of the appellant. These were:-

(a) that the Magistrate applied a subjective test when
applying the defence open pursuant to s.80(2) of
the Ordinance and that the standard should have
been an objective one;

(b) that the standard of proof applied by the
Magistrate as to whether reasonable grounds
existed was more rigorous than the legislation
demanded; and

(c) that the Magistrate erred when examining the
evidence in finding that reasonable grounds were
not, in fact, made out.

6. On 7 July 1987 Gallop J. ordered that the question relating to the nature of the defence raised by s.80(2) be referred to a bench of three Judges in accordance with s.8AB(3) of the Australian Capital Territory Supreme Court Act 1933.

7. The question posed for consideration when the matter came before us was as follows:-

"Is the existence of reasonable grounds for a
belief that a person was not less than 18
years, irrespective of any belief held by the
servant or agent of the appellant at the
material time, a sufficient basis to satisfy
the requirements of s.80(2) of the
Ordinance?"

8. Counsel for the appellant said that the corollary of that question was whether mens rea applied in respect of s.80(1). He referred to the fact that in Luff v. Oakley (1986) 65 ACTR 19 I had held that an offence against s.80(1) was one of strict liability, subject, of course, to any defence that might be raised under s.80(2). In Canberra Royals Rugby Football Club Incorporated v. Luff (1986) 68 ACTR 3, Miles C.J. agreed with the views I had thus expressed. No challenge to the correctness of those views was made.

9. The first question to be decided, as it seems to me, is what is meant by the expression "had reasonable grounds for believing".

10. In Australian Telecommunications Commission v. Krieg Enterprises Pty Ltd (1976) 14 SASR 303, Bray C.J., considering a section which included the words "in circumstances in which the person or a servant of the person has reasonable cause to believe that the doing of the work is likely to interfere with or damage property", said at pp 308-9:-

"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. Jayaratne (1951)
AC 66 at pp 76-77."

11. In Canberra Royals Rugby Football Club Incorporated v. Luff (supra) Miles C.J. quoted that passage, at p 6. He went on to say that, in his view, it was consistent with the proper view of s.80 of the Ordinance as a whole and of the policy which lies behind it that the proper test is an objective one.

12. Liversidge v. Anderson has been much criticised. It was distinguished in Nakkuda Ali v. Jayaratne (supra). It was described by Lord Reid in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40 at p 73 as "the very peculiar decision of this House". It was referred to unenthusiastically by the Privy Council in Attorney-General of St. Christopher, Nevis and Anguilla v. Reynolds (1980) AC 637 at p 657. In Inland Revenue Commissioners v. Rossminster Ltd [1979] UKHL 5; (1980) AC 952, Lord Diplock said, at p 1011:-

". . . I think the time has come to acknowledge
openly that the majority of this House in
Liversidge v. Anderson were expediently and,
at that time, perhaps, excusably, wrong and
the dissenting speech of Lord Atkin was
right."

while at p 1025, Lord Scarman said:-

"The ghost of Liversidge v. Anderson [1941] UKHL 1; (1942)
AC 206 therefore casts no shadow upon this
statute. And I would think it need no longer
haunt the law. It was laid to rest by Lord
Radcliffe in Nakkuda Ali v. Jayaratne
(supra), and no one in this case has sought
to revive it. It is now beyond recall."

13. In Khawaja v. Secretary of State for the Home Department [1982] UKHL 5; (1983) 1 All ER 765, Lord Scarman said, at p 781:-

"The classic dissent of Lord Atkin in
Liversidge v. Anderson [1941] UKHL 1; (1942) AC 206 is now
accepted as correct not only on the point of
construction of reg 18B of the Defence
(General) Regulations 1939 . . . but in its
declaration of English legal principle . . . "

while at p 790, Lord Bridge said:-

"No one needs to be reminded of the now
celebrated dissenting speech of Lord Atkin in
that case, or of his withering condemnation
of the process of writing into the statutory
language there under consideration the words
which were necessary to sustain the decision
of the majority. Lord Atkin's dissent now
has the approval of your Lordship's House in
IRC v. Rossminster Ltd (supra)."

14. In Liversidge v. Anderson Lord Atkin said, at pp 227-228:-

"It is surely incapable of dispute that the
words 'if A has X' constitute a condition the
essence of which is the existence of X and
the having of it by A. If it is a condition
to a right (including a power) granted to A,
whenever the right comes into dispute the
tribunal whatever it may be that is charged
with determining the dispute must ascertain
whether the condition is fulfilled. In some
cases the issue is one of fact, in others of
both fact and law, but in all cases the words
indicate an existing something the having of
which can be ascertained. And the words do
not mean and cannot mean 'if A thinks that he
has'. 'If A has a broken ankle' does not
mean and cannot mean 'If A thinks that he has
a broken ankle'. 'If A has a right of way'
does not mean and cannot mean 'if A thinks
that he has a right of way'. 'Reasonable
cause' for an action or a belief is just as
much a positive fact capable of determination
by a third party as is a broken ankle or a
legal right. If its meaning is the subject
of dispute as to legal rights, then
ordinarily the reasonableness of the cause,
and even the existence of any cause is in our
law to be determined by the judge and not by
the tribunal of fact if the functions
deciding law and fact are divided. Thus
having established, as I hope, that the plain
and natural meaning of the words 'has
reasonable cause' imports the existence of a
fact or state of facts and not the mere
belief by the person challenged that the fact
or state of facts existed, I proceed to show
that this meaning of the words has been
accepted in innumerable legal decisions for
many generations, that 'reasonable cause' for
a belief when the subject of legal dispute
has been always treated as an objective fact
to be proved by one or other party and to be
determined by the appropriate tribunal."

At p 231, he said:-

"By the Criminal Law Amendment Act, (1922),
s.2: 'Reasonable cause to believe that a girl
was of or above the age of sixteen years
shall not be a defence to a charge under ss.5
or 6 of the Criminal Law Amendment Act,
1885. Provided that in the case of a man of
twenty-three years of age or under the
presence of reasonable cause to believe that
the girl was over the age of sixteen years
shall be a valid defence on the first
occasion on which he is charged with an
offence under this section.' It is well
settled that the onus of proving reasonable
cause for belief is on the accused, and that
the section means that the accused had
reasonable cause to believe and did believe.
It is so much an 'objective' fact that in
this case reasonable belief is left to the
jury."

15. During the hearing before us reference was made to what used be ss. 71 and 77 of the Crimes Act 1900 (NSW). Section 71 used provide that it was an offence unlawfully and carnally to know a girl aged more than 10 and less than 16 years while s.77 used provide that in respect of a girl aged more than 14 and less than 16 years it was a defence to a charge under s.71 "that the person . . . charged had at the . . . time (of the alleged offence) reasonable cause to believe, and did in fact believe, that she was of or above the age of 16 years". The defence of reasonable cause to believe that the girl in question was of or above the age of 16 years was first introduced by the Crimes (Girls' Protection) Act 1910 but the defence was limited to the words "had reasonable cause to believe". The Crimes (Amendment) Act 1924 (NSW) inserted the words "and did in fact believe" into the defence.

16. Reference to cases reported in New South Wales between the years 1910 and 1924 inclusive shows none which could indicate the reason for the insertion. The amendment makes it appear that it was at least possible that the legislature considered that the earlier formula used did not require an actual belief by the person seeking to take advantage of the defence. In R. v. Banks (1916) 2 KB 621, however, the Court of Criminal Appeal considered a similar defence available in England where the words used were:-

"It shall be a sufficient defence to any
charge under sub-section one of this section
if it shall be made to appear to the Court or
jury before whom the charge shall be brought
that the person so charged had reasonable
cause to believe that the girl was of or
above the age of sixteen years."

17. The Court, Ridley, Avory and Atkin JJ., held, at p 622, that "the phrase 'had reasonable cause to believe' mean(t) 'had reasonable cause to believe, and did in fact believe', i.e. that the person charged believed on reasonable grounds that the girl was at least 16 years of age."

18. By 1938 the English section had been amended to the form quoted by Lord Atkin in Liversidge v. Anderson. In that year, in R. v. Harrison (1938) 26 CrAppR 166; (1938) 3 All ER 134, the Court of Criminal Appeal, Branson, Humphries and Du Parcq JJ., approved the decision in R. v. Banks (supra), holding that under the amended section it was still necessary that a person seeking to take advantage of the defence should not only have reasonable grounds to believe but should believe in fact that the girl in question was over 16 years of age.

19. In Sparre v. The King [1942] HCA 19; (1942) 66 CLR 149, the High Court considered the same s.71 of the Crimes Act 1900 (NSW) as that referred to above but in its application to the Australian Capital Territory. Section 2 of the Crimes (Girls' Protection) Act 1910 (NSW) as it applied in the Territory provided a defence to a charge under s.71 if it were made to appear to the Court or jury before whom the charge was brought that the person charged had reasonable cause to believe that the girl in question was of or above the age of 16 years. The additional words "and did in fact believe" inserted in 1924 in s.77 of the Crimes Act 1900 (NSW) by the Parliament of New South Wales did not appear in the legislation applicable to the Territory.

20. At p 153, Starke J. said:-

"The learned Judge then put the following
questions to the jury:- 1. Did the accused
carnally know (the) girl then above the age
of ten years, and under the age of sixteen
years, to wit of the age of fourteen years?
2. Did the accused, at the time of the
commission of the alleged offence, have
reasonable cause to believe that the said
(girl) was of or above the age of sixteen
years? 3. Did the accused, at the time of
the Commission of the alleged offence, in
fact believe that (the girl) was of, or above
the age of sixteen years? - See R. v. Banks
(1916) 2 KB 621; R. v. Harrison (1938) 26
CrAppR 166; (1938) 3 All ER 134."

21. His Honour made no comment as to the validity of the interpretation placed on the equivalent English section by R. v. Banks and R. v. Harrison but neither did he comment adversely upon that interpretation.

22. At p 155, McTiernan J. said:-

"The phrase 'had reasonable cause to believe'
means had reasonable cause to believe and did
believe (R. v. Banks (1916) 2 KB 621; R.
v. Harrison (1938) 3 All ER 134."

At p 159, Williams J. said:-

"'Reasonable cause to believe' includes
believing in fact that she was of or above
the age of sixteen years (R. v. Harrison
(1938) 3 All ER 134)."

23. All three justices dealt with the onus of proof. Starke J. said, at p 153:-

"There is no doubt that the burden is upon
the accused of proving that he had within the
meaning of the proviso already mentioned
reasonable cause to believe that the girl was
of or above the age of sixteen years."

At p 157, McTiernan J. said:-

"The burden of proving the statutory defence
under the proviso to sec. 2 of the Crimes
(Girls' Protection) Act 1910 rests upon the
person charged if he relies upon that
defence."

Williams J. said:-

"It was for the jury to say whether the
accused at the time had reasonable cause to
believe and did in fact believe that the girl
was of or above the age of sixteen years.
The onus lay on the appellant to establish
these facts, . . . " p 160.

24. Undoubtedly the appellant was required to prove those facts on the balance of probabilities only. See, for example, Sodeman v. The King [1936] HCA 72; (1936) 55 CLR 192 at p 233 and R. v. Carr-Briant (1943) 29 CrAppR 76 at p 87.

25. It seems that R. v. Banks, R. v. Harrison and Sparre v. The King were not cited to Bray C.J. when he made the comment in Australian Telecommunications Commission v. Krieg Enterprises Pty Ltd quoted above and, of course, the dissenting judgment of Lord Atkin in Liversidge v. Anderson had not then been approved in terms by the House of Lords. Nevertheless, what he said is not, in my opinion, to be taken as having meant that the agent of the respondent in that case had no honest belief in the existence of the facts which made up the reasonable cause in question. In my opinion the headnote to the case is misleading in this respect.

26. The use of the word "had" in s.80(2) makes it clear, I think, that the "reasonable grounds" in question must be those actually entertained by some person, for the word connotes the existence in the mind of a person of knowledge of the grounds. Had the legislature intended that the actual state of mind of the person concerned need not be taken into account and that it would be enough for the establishment of the defence that reasonable grounds should exist in fact, one would have expected that words such as "there were" would have been used instead of the words "the defendant had".

27. Having regard to the authorities referred to above and to what I believe to be the true meaning of the word "had" as used in s.80(2) of the Ordinance, the expression "had reasonable grounds for believing that the person was not less than 18 years of age" must, in my opinion, be taken to mean "had reasonable grounds to believe and did in fact believe that the person was not less than 18 years of age".

28. In R. v. Logan (1962) QWN 3, the Queensland Court of Criminal Appeal, Mack, Wanstall and Stable JJ., held, when considering a section which provided a defence to an accused in respect of a charge of unlawful carnal knowledge of a girl under the age of 17 years that he believed on reasonable grounds that she was of or above that age, that a belief on reasonable grounds was an opinion which was held by the prisoner without knowing all the facts. The Court continued:-

"If it were necessary to know all the facts
the section would be reduced to an
absurdity."

I respectfully agree.

29. It follows, in my opinion, that the reasonable grounds for believing referred to in s.80(2) are the grounds of which the person seeking to take advantage of the defence has knowledge or means of knowledge at the relevant time, not then knowing all the facts.

30. Section 32(1) of the Interpretation Ordinance 1967 provides that a provision of an Ordinance relating to offences punishable on indictment or summary conviction shall, unless the contrary intention appears, be deemed to refer to bodies corporate as well as to individual persons.

31. Section 104 of the Ordinance to which I have referred above makes it plain, I think, that a body corporate may be guilty of any offence under the Ordinance for it says:-

"A person who is guilty of an offence under
this Ordinance for which a penalty is not
provided by a provision of this Ordinance
other than this section is punishable upon
conviction -

(a) in the case of a body corporate - by a
fine of $1,000; and

(b) in any other case - by a fine of $400."

32. There can be no doubt that the holder of a licence referred to in s.80 of the Ordinance may be a body corporate. The contrary was not suggested.

33. In Luff v. Oakley (1986) 65 ACTR 19, I referred at p 26 to Mousell Brothers, Limited v. London & North-Western Railway Company (1917) 2 KB 836, quoting passages from the judgments therein. That case was referred to with approval by the High Court in The King v. Australasian Films Limited [1921] HCA 11; (1921) 29 CLR 195. At p 217 the Court said:-

"Adopting the language of Atkin J. quoted
above, we think that the principal is liable
in any case in which his servant or agent in
the course of his employment 'commits the
default provided for in the statute in the
state of mind provided for by the statute.
Once it is decided that this is one of those
cases where a principal may be held liable
criminally for the act of his servant, there
is no difficulty in holding that a
corporation may be the principal. No mens
rea being necessary to make the principal
liable, a corporation is in exactly the same
position as a principal who is not a
corporation.'"

34. Nothing in He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523 leads to the conclusion that an offence committed against s.80 of the Ordinance requires mens rea. Again I refer to what I said in Luff v. Oakley (supra) but there is to be taken into account, in addition, the modest penalty which is imposed in respect of a breach of the section, namely, a maximum fine of $1,000.

35. Consideration of s.80 in the light of the authorities referred to above leads me to conclude:-

(a) An offence against s.80 of the Ordinance is one of
strict liability.

(b) It can be committed by a corporation.

(c) If it is committed by a corporation it will of
necessity be committed through a servant or agent
of the corporation.

(d) If the corporation seeks to make out a defence
under s.80(2) it must establish, and the onus is
on it, that, on the balance of probabilities, its
servant or agent had reasonable grounds for
believing that the person to whom he or she sold
or supplied liquor was of or above the age of 18
years and that he or she did in fact believe that
that person was of or over that age.

(e) The reasonable grounds for the belief are to be
treated as objective facts to be proved by the
corporation and to be determined by the
Magistrates Court at first instance.

(f) The facts founding the alleged reasonable grounds
are to be determined by reference to the knowledge
and means of knowledge of the servant or agent in
question.

36. The question referred to us must therefore be answered in the negative.

37. In coming to the conclusion that belief is necessary I have taken into account the views expressed by Miles C.J. in Canberra Royals Rugby Football Club Incorporated v. Luff (supra).

38. I acknowledge, with respect, the persuasive force of his Honour's view that earlier existing reasonable grounds for the requisite belief by the holder of a licence may support a defence in respect of a later sale or supply when the agent making the sale or supply had no such reasonable grounds or belief. Indeed, that view would give to the defence under s.80(2) no unnecessarily narrow compass, leaving the question of its availability to be dealt with on each occasion when it is raised. But I think it unnecessary to attempt to make any definitive statement on the point in this case. It may be dealt with when it falls squarely for decision.

I have had the benefit of reading the respective draft judgments of the Chief Justice and Kelly J. in this matter.

2. What caused me to order that the jurisdiction of the court in this matter be exercised by not less than three judges pursuant to s.8AB(3) of the Australian Capital Territory Supreme Court Act 1933, was my reservation about adopting the views of the Chief Justice expressed in Canberra Royals Rugby Club Incorporated v. Luff (1986) 68 ACTR 3 to the effect that the test of reasonableness under s.80(2) of the Liquor Ordinance 1975 is an objective one. As the Chief Justice has now modified his view, and as I agree with the opinion of Kelly J. as expressed in his draft judgment in this matter, the appeal from the Magistrates Court may now proceed in the light of that mutual opinion.

3. I only wish to add that I am indebted to Kelly J. for his well-reasoned conclusion that the test of the defence under s.80(2) is a subjective one in the sense that if a corporation seeks to make out the defence it must establish that its servant or agent had reasonable grounds for believing that the person to whom the liquor was sold or supplied was of or above the age of 18 years and that the servant or agent did in fact believe that the person was of or above that age. I shall add a few remarks about where the onus lies to establish the defence prescribed by s.80(2).

4. The elements of the offence against s.80(1) of the Liquor Ordinance 1975 are:

(1) the holder of a licence or permit
(2) sale or supply of liquor
(3) to a person under the age of 18 years.

The statutory defence provided by s.80(2) is directed only to element (3). In my opinion, as a matter of construction of s.80(1), the overt act necessary to commit the offence is sale or supply. In order to establish a prima facie case of an offence against s.80(1) the prosecution would be obliged to prove only the three elements of the offence set out above. It is in that sense that an offence against s.80(1) may be described as one of strict liability. So understood, I agree with what Kelly J. has said. If there has been a sale or supply in fact, it would not be necessary for the prosecution to prove some evil intention or knowledge of the wrongfulness of the sale or supply. That is to be inferred from the fact of sale or supply, as the case may be, itself.

5. The relevant principle taken from Sherras v. De Rutzen (1895) 1 QB 918 at 921 was repeated by each member of the High Court in He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523:

"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."

6. In construing s.80(1) there must still be room for the operation of an honest and reasonable mistake in relation to the other elements of the offence. For example, one can imagine factual situations turning upon a licence holder's state of mind about whether the product sold was "liquor", which by definition means "a beverage that contains more than 1.15 per cent per volume of ethyl alcohol".

7. In adopting Kelly J.'s reasoning and conclusions, I do not wish to be taken as agreeing that an offence against s.80(1) is one of strict liability except in relation to the overt act of sale or supply. Otherwise, in my opinion the ordinary requirement of mens rea has not been displaced (see generally Darwin Bakery Pty Ltd v. Sully (1981) 36 ALR 371).