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District Court 18 July 2008

R v Kenny

[2008] NSWDC 389

Public order & justice offences
CONVICTION APPEAL S 125 LIQUOR ACT 1982 (REPEALED)

Citation: R v Kenny [2008] NSWDC 389
Court: District Court of New South Wales
Date: 18 July 2008
Judge(s): Blackmore SC DCJ

Background

The appellant was the licensee of Rosehill Racecourse, a large licensed venue capable of hosting more than 30,000 patrons at a single race meeting, with numerous bars operating across the premises. Police charged him with seven offences under s 125 of the (then repealed) Liquor Act 1982, each arising from the detection of intoxicated persons on the premises on specific dates.

Both parties accepted that the licensee had no direct personal knowledge of the intoxicated patrons in question and could not reasonably have been expected to have such knowledge. The licensee accepted, however, that liability could be established vicariously through the conduct of employees and agents authorised to carry out his duties under the Act.

The licensee was convicted in the Local Court. He appealed to the District Court, arguing among other things that a comprehensive plan was in place to prevent and address intoxication, and that this satisfied the statutory defence.

  • Whether the word "permit" in s 125(1)(b) of the Liquor Act 1982 required the licensee to have some degree of knowledge or awareness of the intoxication before an offence could be established.
  • Whether the deeming provision in s 125(4) altered the operation of s 125(1)(b) when intoxicated persons were detected on licensed premises.
  • Whether the licensee had discharged the onus of proving that all reasonable steps to prevent intoxication were taken, so as to make out the available statutory defence.

Decision

The District Court held that the word "permit" in s 125(1)(b) carries its ordinary English meaning, which requires some degree of conscious awareness. A licensee, whether personally or vicariously, cannot be said to have permitted intoxication without some knowledge that an intoxicated person was, had been, or might be on the premises. The court drew support from the long-standing English authority Somerset v Wade [1894] 1 QB 574, finding that subsequent legislative changes had not displaced that principle.

The court found, however, that s 125(4) operates as a deeming provision: once police establish that an intoxicated person was present on the premises, the licensee is deemed to have permitted that intoxication. That deemed knowledge has independent operation and does not require actual awareness by the licensee or employees at the time. The onus then shifts to the licensee to prove, on the balance of probabilities, either that the specific steps in s 125(4A) were taken or that all other reasonable steps to prevent intoxication were taken.

The licensee called evidence from a witness who outlined in considerable detail the precautions and systems in place at the venue to detect and address intoxication. The court accepted this evidence as establishing a comprehensive plan. Applying the test from Rolf v Willis (1916) 21 CLR 152, which defines "reasonable steps" as those that ought reasonably be taken to guard against intoxication arising and to prevent its continuance when discovered, the court was satisfied the licensee had met that standard.

The court found that the number of intoxicated persons detected was relatively small given the scale of the venue, and that this was insufficient to displace the evidence of the comprehensive plan. The Magistrate himself had acknowledged that the licensee plainly did not ignore how the licence was being exercised. The court emphasised, though, that its decision was not an endorsement of the specific plan, and that evidence of widespread intoxication could, in principle, support an inference that any plan in place was simply not working.

Orders Made

  • Appeal upheld
  • Convictions quashed
  • Orders of the Magistrate revoked

Key Takeaways

  • Under s 125(1)(b) of the Liquor Act 1982, the word "permit" requires some degree of conscious knowledge or awareness of intoxication, whether held personally by the licensee or attributed vicariously through employees or agents.
  • Where police detect intoxicated persons on licensed premises, the deeming provision in s 125(4) triggers automatically, placing the onus on the licensee to prove on the balance of probabilities that all reasonable steps to prevent intoxication were taken.
  • The "reasonable steps" test, drawn from Rolf v Willis, covers both precautions taken in anticipation of intoxication and responses taken once intoxication is discovered.
  • A small number of intoxicated patrons detected at a very large venue will not necessarily displace evidence of a comprehensive prevention plan; however, widespread intoxication could, in principle, support an inference that even a detailed plan was insufficient.
  • The District Court noted that findings of this kind are not endorsements of any particular licensee's systems, and that the duty to prevent intoxication remains firmly with the licensee.

Legislation and Cases Referenced

Legislation
- Liquor Act 1982 (NSW) (repealed), s 125(1)(b), s 125(4), s 125(4A)

Cases
- Somerset v Wade [1894] 1 QB 574
- Rolf v Willis (1916) 21 CLR 152