Rolfe & Willis [1916] HCA 26; (1916) 21 CLR 152 (11 April 1916)

HIGH COURT OF AUSTRALIA

Rolfe Defendant, Appellant and Willis Complainant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

11 April 1916

Griffith C.J., Barton, Gavan Duffy and Rich JJ.

Blacket K.C. and Alec Thomson, for the appellant.

Lamb K.C. (with him Watt), for the respondent.

Blacket K.C., in reply.

The judgment of the Court was read by

April 11

Griffith C.J.

This is an appeal from a judgment of the Supreme Court of New South Wales, dismissing, by majority, an appeal from a summary conviction of the appellant, a licensed publican, for permitting drunkenness to take place on his licensed premises. The charge was preferred under sec. 46 of the Liquor Act No. 42 of 1912, which is as follows:—

If any licensee permits drunkenness or any indecent, violent quarrelsome, or riotous conduct to take place on his licensed premises, he shall be liable for the first offence to a penalty not exceeding five pounds and for the second or any subsequent offence to a penalty not exceeding twenty pounds.

Where any licensee is charged with permitting drunkenness on his licensed premises, and it is proved that any person was drunk on his premises, it shall lie on the licensee to prove that he and the persons employed by him took all reasonable steps to prevent drunkenness on the premises.

The case made against the appellant was that about 8 o'clock on Sunday evening, 20th September 1915, a married woman who lived in the neighbourhood of the appellant's licensed premises was found by the police in a state of helpless drunkenness in a stable, part of the premises. She was removed by them to a bedroom, with the consent of the appellant's daughter, and kept there until she had sufficiently recovered to be removed to her home. These facts were sufficient to bring the case within the second paragraph of sec. 46, and to cast upon the appellant the burden of showing that he and his employees had taken all "reasonable steps to prevent drunkenness on his licensed premises."

It was proved, and indeed not disputed, that neither the appellant nor any person employed by him had failed to take any reasonable step to prevent drunkenness from taking place on the premises, in whatever sense that phrase is used, unless failure to prevent the woman's original entry under the circumstances which we will state, or failure to have her forthwith removed, was in law a failure to take such steps.

If the matter were free from authority, we should have been disposed to think that the phrase "permitting drunkenness to take place" connoted that either the inception of, or some progress in, the drunken condition took place on the licensed premises. But this view is excluded by authority, by which, in view of the course of legislation, we are bound. (See Hope v. Warburton[1]; Worth v. Brown[2]).

In our opinion the phrase "reasonable steps to prevent drunkenness" means such steps as ought reasonably to be taken by way of precaution against the occurrence of drunkenness on the premises under any circumstances that may reasonably be anticipated, and to prevent its continuance when its existence is discovered.

It would seem to follow, as was indeed indicated in the case of Hope v. Warburton, that merely permitting a drunken person to remain upon the premises may be sufficient proof of permitting drunkenness to take place upon them. In such a case, therefore, failure to cause the ejection of the drunken person within a reasonable time would be a failure to take reasonable steps to prevent drunkenness, unless such failure to eject was under the circumstances justified by the obligations of humanity or some other obligation which the law could recognize. Similar considerations apply to the original admission of a drunken person.

The question of what is a reasonable time for ejecting must depend upon the circumstances.

This appears to have been the view taken by Williams J. in the case of McRobie v. Bowden[3] and by Cooper J. in Agnew v. Matthew[4].

The appellant called witnesses to show how the woman came to be in the stable. His groom deposed that she had twice opened a latched gate in the outer fence of the appellant's premises, separating them from a lane, and staggered into the yard, where he, after once turning her out, had on her second entry laid her on a heap of hay in the stable to rest until she could be removed. It appears on this statement that the groom, for whose actions the appellant is responsible, finding the woman in the yard, did not at once eject her, and in that sense failed to prevent her continued presence upon the licensed premises.

It is suggested that the Magistrate did not accept the story of the groom. He was, of course, at liberty to accept any part of it which he believed, and to reject any part which he did not believe.

The real question, therefore, for decision is whether the appellant succeeded in showing that the groom took all reasonable steps to prevent the woman's coming upon the premises in a state of drunkenness, or, if he did, whether he failed to take all reasonable steps to prevent her remaining there in that state. This is a question of fact, and not of law. It is not the practice of the Court to grant special leave to appeal where the decision of a Magistrate upon a question of fact is impeached by statutory prohibition.

The special leave will therefore be rescinded.

Special leave to appeal rescinded.

Solicitor for the appellant, F. F. Mitchell, Cooma, by P. B. Colquhoun & King.

Solicitor for the respondent, J. V. Tillett, Crown Solicitor for New South Wales.

[1] 61 L.J.M.C., 147; 56 J.P., 328.

[2] 40 Sol. J., 515; 63 J.P., 658.

[3] 24 N.Z.L.R., 10.

[4] 33 N.Z.L.R., 225.