Citation: Anthony John Sidgreaves v R; AJS Hotel Management Pty Ltd v R [2016] NSWDC 81
Court: District Court of New South Wales
Date: 11 May 2016
Judge: Judge AC Scotting
Background
The two appeals arose from the operation of a hotel in Lismore in 2012. The owners of the hotel had retaken possession of the premises in January 2012 after the sitting tenant failed to pay rent. Shortly after, the individual appellant attended the Liquor and Gaming Control Authority in Sydney and lodged a liquor licence transfer application seeking to have the hotel's licence transferred into his name. There is no evidence that the Authority approved this application, even on a provisional basis.
The corporate appellant held a Master Security Licence and engaged a security guard to perform crowd control at the hotel. That guard held a Queensland licence but his New South Wales licence had lapsed during the relevant period. He reapplied for a New South Wales licence in April 2012.
In August 2012, after the hotel closed to the public for the evening, the general manager and several associates proceeded to consume large quantities of alcohol on the premises in circumstances the court described as involving "shenanigans" constituting multiple breaches of licence conditions. Police were called following a noise complaint from a neighbour. Both appellants were convicted in the Local Court: the individual on a charge of licensee failing to comply with licence conditions under the Liquor Act 2007, and the company on a charge of employing an unlicensed security guard under the Security Industry Act 1997.
Legal Issues
- Whether the individual appellant was the holder of the hotel's liquor licence on 30 August 2012, given his transfer application had not been approved by the Authority
- Whether the company had an honest and reasonable mistake of fact defence available to it in relation to the strict liability offence of employing an unlicensed security guard
- The appropriate standard and methodology for the District Court conducting a conviction appeal by rehearing on the certified transcript
Decision
The Liquor Act conviction (individual appellant): The District Court allowed this appeal. The appellant's transfer application had been lodged under section 60 of the Liquor Act 2007, which requires approval by the Authority before any transfer takes effect. Because no evidence established that the Authority approved the application, the court found it could not be satisfied beyond reasonable doubt that the appellant held the licence on the relevant date.
The court found that section 61 of the Liquor Act, not section 60, was the operative provision in this situation. Section 61 applies where an owner retakes possession from a defaulting tenant and deems the owner to be the licensee for a defined transitional period. Because the appellant was neither the owner of the premises nor the business owner, he could not benefit from, or be burdened by, that deeming provision. The identity of the actual licensee as at 30 August 2012 could not be established on the evidence, and the prosecution therefore failed to prove an essential element of the offence.
The Security Industry Act conviction (corporate appellant): The court upheld this conviction. The offence under section 39(1) of the Security Industry Act 1997 was one of strict liability. The magistrate had rejected the company's honest and reasonable mistake of fact defence on the basis that the company's mistake related to a question of law (whether the guard was licensed) rather than a question of fact. The District Court agreed with that analysis. The court accepted that the border location of the hotel made Queensland-licensed guards commonly available, and that the mutual recognition regime was complicated at the time, but observed that the company's failure was ultimately administrative: it could have retained a copy of the guard's New South Wales licence and monitored its expiry date.
Orders Made
- Appeal against conviction on the Liquor Act offence is allowed.
- The conviction and the penalty imposed by the magistrate on 1 September 2015 are set aside.
(No separate order was recorded for the Security Industry Act appeal, which was dismissed.)
Key Takeaways
- Under section 60 of the Liquor Act 2007, a licence transfer application does not confer licensee status on the applicant unless and until the Authority approves it, even provisionally.
- Where an owner retakes possession of licensed premises from a defaulting tenant, section 61 of the Liquor Act 2007 operates to deem the owner the licensee for the transitional period, regardless of whether a third party has separately lodged a transfer application.
- A conviction for employing an unlicensed security guard under section 39(1) of the Security Industry Act 1997 is a strict liability offence; an honest and reasonable mistake of fact defence is unavailable where the mistake goes to whether the person was legally licensed (a question of law).
- The District Court, hearing a conviction appeal under section 18 of the Crimes (Appeal and Review) Act 2001, conducts a rehearing on the certified transcript and must give the judgment that ought to have been given at first instance, while recognising the magistrate's advantage in having seen and heard the witnesses.
- Practical administrative steps, such as retaining records of licences and monitoring expiry dates, were identified by the court as measures that could have prevented the company's contravention, even though no formal legal obligation to take those specific steps was stated.
Legislation and Cases Referenced
Legislation:
- Liquor Act 2007 (NSW), ss. 11(2), 17(2), 60, 61
- Security Industry Act 1997 (NSW), s. 39(1)
- Crimes (Appeal and Review) Act 2001 (NSW), ss. 18, 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), s. 10
Cases:
- Charara v R [2006] NSWCCA 244
- Gianoutsas v Glykis [2006] NSWCCA 137
- Fox v Percy (2003) 214 CLR 118