Eastlake Football Club Incorporated v Paul Michael Luff Sca [1989] ACTSC 55 (16 November 1989)

SUPREME COURT OF THE ACT

EASTLAKE FOOTBALL CLUB INCORPORATED v. PAUL MICHAEL LUFF
S.C.A. Nos. 46-47 of 1988
Appeal

COURT

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

CATCHWORDS

Appeal - sale of liquor to person under age of 18 years - appeal against conviction and penalty - statutory defence of reasonable grounds for believing purchaser to be not less than 18 years - defence of honest and reasonable mistake - Liquor Act (ACT) 1975, s.80

Woolworths Ltd v. Luff (1987-1988) 77 ACTR 1

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

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

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

Luff v. Oakley (1986) 65 ACTR 19

HEARING

CANBERRA
16:11:1989

Counsel for the appellant: Mr. J. Purnell

Solicitors for the appellant: Garry Robb & Associates

Counsel for the respondent: Mr. J. Delaney

Solicitors for the respondent: Director of Public Prosecutions

ORDER

The appeals be dismissed with costs.

The fine of $100 on each charge be confirmed.

The appellant pay each fine within one month.

DECISION

These are two appeals heard together by consent against conviction and penalty in the Canberra Magistrates Court on 5 August 1988.

2. The appellant was convicted on informations laid 19 November 1987. The first charged that on 13 June 1987 at Canberra it being the holder of a licence under the Liquor Act (ACT) 1975 did sell liquor to a person under the age of 18 years, namely Luke Allan Newman, contrary to s.80(1) of the Act. The second charged that at the same time and place the appellant did sell liquor to another person under the age of 18 years, namely Stephen McLean.

3. The appellant was fined $100 on each charge.

4. Section 80 of the Act provides as follows:
"80(1)A person shall not sell or supply liquor to

a person under the age of 18 years on premises
where the sale of liquor is authorised or in a
public place.
(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.
(4) In this section, "liquor" means a beverage
that contains more than 0.5 per cent by volume of
ethyl alcohol."

5. The ultimate issues that fell for resolution were succinctly described by the learned Magistrate in his reasons for judgment:

"The defendant is charged with two counts of
selling liquor to a person under the age of 18
years. There is no doubt that on the evidence and
the day in question the defendant did just that,
that is to say, he sold liquor to two young lads
both under the age of 18 years. The only question
that remains is whether the defendant is entitled
to be acquitted by virtue of the defence in
section 80, subsection (2) of the Ordinance or,
indeed, by virtue of any other defence such as the
defence of reasonable mistake in Proudman v.
Dayman type defence."

6. The primary facts which the Magistrate found and was entitled to find may be shortly stated. On the night in question the appellant allowed its premises to be used for what was described as a "Yuppie Night Disco type operation" by students of Stirling College. Most people in attendance, or at least a substantial proportion of them, were under the age of 18 years. The disco was held in an auditorium which had an upstairs bar. Normally, those using the auditorium were confined to the bar facilities upstairs, and for that purpose the appellant was able to use the stairs for the control of persons using those facilities. On the night in question, however, because of renovations to the premises, it was not practicable to control the stairs in this way. Instead, the point of control was at the main door to the premises. Persons wishing to attend the disco were required to pay an entrance fee to one or other of the people stationed there for that purpose by the Stirling College. Those who had paid in this manner received some sort of a mark or a cross on the hand. Those of them who wished to purchase liquor were required to produce some form of identification (which, presumably, involved evidence of proof of age) to another person stationed at the entrance by the appellant. If the identification and proof of age were satisfactory, then the entrant received the imprint of a club rubber stamp also on the hand. The bar staff were instructed not to serve liquor to any customer who did not bear the club stamp on the hand. The circumstances in which the two young persons purchased liquor from the appellant were again succinctly described by the Magistrate in his reasons for judgment. After remarking that there were some four hundred to five hundred in attendance at the disco, which the Magistrate considered "too many students to control", he went on to say:

"Finally, the facts of each of the two cases show
neglect on the part of the defendant. Luke Newman
produced false evidence of his identity and
received a stamp imprint on his hand enabling him
to obtain liquor. The falsity of the identification
should have been apparent since young Luke
is a particularly young looking person, 16 at the
time, 17 when he gave evidence and looked no more
than 15 years at that time.
Stephen McLean escaped the network altogether,
gave no proof of identification, got no stamp,
hence no entitlement to liquor. Nevertheless, he
was served with liquor and was not asked to
produce identification, show his stamp, nor was he
asked his age. In neither case did the defendant
have any reasonable grounds at all for believing
that the person served with liquor was not less
than 18 years of age."

7. The appellant relied on the defence provided for in sub-s. 80(2). That sub-section was considered by a bench of three Judges of this Court in Woolworths Ltd v. Luff (1987-1988) 77 ACTR 1 in order to answer the question formulated for its determination:

"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. All three members of the Court agreed that the particular question is to be answered in the negative. The answer of itself means that the belief held by the servant or agent of the licensee at the time and point of sale is something that has to be considered by a court before it may reach a conclusion that a licensee has proved that it had reasonable grounds for believing that the person to whom liquor was sold or supplied was not less than 18 years of age. As part of the reasoning which led to answering the question posed for determination in the negative, Kelly J. at p 9 held that if a licensee which is a corporation seeks to make out a defence under s.80(2) it must discharge the onus of establishing that, on the balance of probabilities, its servant or agent had reasonable grounds for believing that the person to whom the servant or agent sold or supplied liquor was of or above the age of 18 years and that the servant or agent did in fact believe that that person was of or above that age. Gallop J. at p 10 said 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."

9. Kelly J. advanced persuasive reasons why the decision of the High Court in Sparre v. The King [1942] HCA 19; (1942) 66 CLR 149 (although concerned with s.71 of the Crimes Act 1900 (N.S.W.) as it then was) was to be preferred to that of Bray C.J. in Australian Telecommunications Commission v. Krieg Enterprises Pty. Ltd. (1976) 14 SASR 303 (which was concerned with provisions of the Post and Telegraph Act 1901) on the question of whether the words "had reasonable grounds for believing" require proof of the holding of an actual belief at the relevant time. In Woolworths Ltd v. Luff I expressed the opinion that the relevant belief was that of the licensee which might or might not be the belief, if any, of the servant or agent. Kelly J. left that question open.

10. In both the present cases the appellant must, in my view, fail whether one applies the narrower test (the subjective belief of the servant or agent) or the wider one (the belief imputed to the licensee). That is to say, I am of the view that the facts as found by the Magistrate did not establish that the appellant's servant or agent, at the time of supplying liquor to either of the young men, believed on reasonable grounds that he was not less than 18 years of age. Alternatively, the facts did not establish that at that time the appellant itself believed on reasonable grounds that the person supplied was not less than 18 years of age.

11. In the charge involving the sale of liquor to Luke Newman, the evidence showed that he was served in the upstairs bar. There were three male persons serving behind the bar. None of them was called to give evidence. There is no reliable evidence of what the belief of any one of them was. In those circumstances, I fail to see how it can be said that the appellant discharged the onus of proving that at the time of sale the servant or agent believed that Luke Newman was not less than 18 years of age. I consider below the question of the belief of the licensee, as distinct from the belief of the servant or agent.

12. In the case involving Stephen John McLean, evidence was given by Diana Schumacher, who was one of the people serving at the downstairs bar where McLean made his purchase of liquor. Ms. Schumacher said that on the night in question she served only persons who showed a stamp on the back of the hand. She also said that she sold liquor to no one whom she thought was under the age of 18 years. However, she was unable to identify McLean as one of the persons whom she served. She agreed in cross-examination that she was so busy that she did not have time to look at faces. She was asked, "Would it be possible for one person to ask to be served and another to stick their hand in front of you, since you were not looking at faces?" and she answered, "I suppose so".

13. Stephen John McLean gave evidence that he arrived at the club in a group, was not asked to show any identification and entered the premises after receiving on admission what he called "a stamp, actually, on the wrist given by some of the students from that college". He also said in evidence that he made purchases from the downstairs bar on two occasions and on neither occasion was asked to show his hand to the person serving nor asked any questions about his identification. Although the Magistrate said in his reasons that McLean, having escaped the network altogether and having gained entry without proof of identification, "got no stamp", the Magistrate was clearly referring to the absence of the club stamp which was given to persons who showed satisfactory identification and proof of age. McLean's evidence relating to receiving a stamp on the wrist in return for an admission fee, was not, in my view, and clearly not in the view of the Magistrate, the club stamp, but the cross or mark or whatever it was that was given upon receipt of the admission fee.

14. In the light of that evidence, I am of the view that the appellant did not discharge the onus of showing that at the time of sale to McLean the servant or agent who made the sale (whether it was Ms. Schumacher or somebody else) held a belief that McLean was not less than 18 years old.

15. Since the Magistrate accepted, as he was entitled to accept, the evidence of McLean that he produced no identification or proof of age at the entrance to the club, the conclusion is clearly open that the appellant did not hold a corporate belief that, at the time of the sale, McLean was of the requisite age.

16. In the case of Luke Newman, the Magistrate proceeded, as he was entitled to proceed, on the basis that Newman looked no more than 15 years old at the relevant time. Counsel for the appellant, however, stressed the fact that Newman produced on admission to the premises a photostat copy of a Certificate of Extract of Entry in the Register of Births in the name of a person called Gavin Shane Baker. That document showed that the person named was born on 15 June 1968 at Canberra. I am prepared to assume that the production of that document induced a belief in the corporate mind of the appellant at the time of the entry to the premises that Newman was of the requisite age and that the belief continued until the time of sale. However, the document is a photocopy and not an original and I agree with the observation of the Magistrate that when the appearance of Newman was that of a 15 year old, the production of a photocopy extract from the Register of Births was not sufficient to found a reasonable belief that Newman was not less than 18 years of age.

17. It remains to consider the so-called Proudman v. Dayman defence. Such a defence arises in the circumstances referred to by the High Court in Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536 where 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."

18. Later at p 541 his Honour said:

"The burden of establishing honest and reasonable
mistake is in the first place upon the defendant
and he must make it appear that he had reasonable
grounds for believing in the existence of a state of
facts, which, if true, would take his act outside
the operation of the enactment and that on
those grounds he did so believe."

19. Again I will assume for the purpose of the argument that the Proudman v. Dayman type of defence in an honest and reasonable mistake in a state of facts which if they existed make the appellant's act innocent is available to a charge under s.80 of the Act. This is not free from doubt see Luff v. Oakley (1986) 65 ACTR 19 in which Kelly J. at p 29 observed 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 to that defence and that defence only. However, the very factual material on which the appellant relies for the Proudman v. Dayman defence, is identical with that relied upon for the defence under s.80(2). Accordingly the appellant has not proved that its servant or agent believed that the person supplied with liquor was not less than 18 years of age, it has not proved that the appellant itself held any such corporate belief, and even if it had, it has not proved that it had reasonable grounds for such belief. The Magistrate was correct in rejecting this alternative defence.

20. On the question of penalty, it is submitted on behalf of the appellant that the fine of $100 in each case was excessive, and that the Magistrate erred in not extending to the appellant the benefits of s.556A of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory. It was submitted that the appellant has never been convicted previously of any offence and that it took all reasonable steps on the night in question to try to prevent the commission of offences such as those which have been proved. The Magistrate took the view that the system of checking the ages of young persons entering the premises on the night in question was inadequate and I am afraid that I can only agree. Naturally, one feels some sympathy for those charged with the management of the club on the night in question, bearing in mind that it was to some extent performing a community service in allowing its premises to be used for the college disco. On the other hand, as soon as the Liquor Authority Inspector spoke to the bar manager about the club's failure to control the supply of liquor to young persons on that night, her reply was to the effect that there had been a change in the management of the club and that in addition the club was short of staff. Furthermore, the renovations which the appellant had caused to be commenced undoubtedly made control on the night in question difficult.

21. I do not think that this was a very serious breach of the Act, but it was not so trivial to require that the Magistrate deal with penalty without proceeding to a conviction nor do the antecedents of the appellant require such a course. The fine of $100 in each case is quite lenient.

22. Lastly, it was submitted on behalf of the appellant that if it were convicted of both offences, there would have to be an application by the Registrar to the Liquor Authority to cancel the appellant's licence. Without wishing in any way to fetter the discretion, if any, of either the Registrar or the Liquor Authority, I would express the view that the offences under consideration do not appear to be of sufficient gravity to warrant the cancellation of the appellant's licence.

23. The appeals are dismissed with costs. The fine of $100 on each charge is confirmed and the appellant has one month in which to pay each fine.