Citation: NSW Police v Di Francesco [2016] NSWLC 21
Court: Local Court of New South Wales
Date: 7 November 2016
Judge(s): Huntsman LCM
Background
The prosecution alleged that the licensee of the Gordon Hotel in Goulburn contravened s 73 of the Liquor Act 2007 (NSW) by permitting intoxication on the licensed premises. The events occurred on 7 November 2015, the evening after Goulburn Ladies Race Day, when a number of patrons had been drinking since the morning and attended the hotel after the races concluded.
Two undercover police officers attended the hotel from approximately 7:15 pm and observed a patron, Mr Croker, over a period of roughly 45 minutes. They noted slurred speech, impaired coordination, spilling drinks, difficulty with basic tasks such as opening a window, and self-reported continuous drinking since 9 am. Mr Croker purchased multiple schooners of beer during that period and was ultimately removed from the premises by uniformed police who arrived at around 8 pm.
The licensee, Mr Di Francesco, defended the charge on the basis that he had not permitted intoxication and, alternatively, that the statutory defence under s 73(4) of the Act applied because he had taken all steps required by the applicable Guidelines.
Legal Issues
- Whether Mr Croker was "intoxicated" within the meaning of the Liquor Act 2007
- Whether the licensee "permitted" intoxication, and specifically whether the offence required knowledge or awareness on the part of the licensee
- What the word "permit" means in the context of a licensing offence
- Whether the licensee had established the statutory defence under s 73(4) of the Act by taking all steps set out in the Guidelines
Decision
Was the patron intoxicated?
The magistrate found that Mr Croker was intoxicated as defined in the Act. The evidence from the undercover officers, corroborated by CCTV footage, demonstrated that he was noticeably affected in his motor skills, coordination, physical movements, and speech. He had consumed at least five schooners of beer within the observation period and displayed a progressive deterioration in functioning.
Did the licensee "permit" intoxication?
The court analysed the meaning of "permit" carefully, drawing on authority establishing that permitting an act does not necessarily require actual knowledge of it. The magistrate found that the signs of Mr Croker's intoxication were observable and present for a sustained period, and that hotel staff (including the manager and the licensee himself) had been in the vicinity and had full view of him on several occasions. On the evidence, the court was satisfied that the licensee permitted the intoxication: the patron's condition was sufficiently obvious that those in charge had the opportunity to observe and act, and they did not do so.
Did the statutory defence apply?
The licensee relied on a "House Policy" document to establish compliance with the Guidelines under s 73(4). The court found the document inadequate. It did not detail measures to prevent intoxication or describe a method of complying with the steps set out in the Guidelines. Critically, there was no evidence that staff had been trained in any written document meeting the Guidelines' requirements. Because the licensee failed to establish on the balance of probabilities that all steps in the Guidelines had been taken, the statutory defence was not made out.
The court concluded that the prosecution had proved the offence beyond reasonable doubt.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Local Court confirmed that "permit" in the context of a licensing offence does not require proof that the licensee had actual subjective knowledge of the patron's intoxication. Observable signs over a sustained period, within the view of staff or the licensee, can be sufficient.
- A patron who displays progressively impaired coordination, slurred speech, spilled drinks, and difficulty with simple tasks over an extended period can satisfy the statutory definition of intoxication under the Liquor Act 2007.
- A "House Policy" document that states general intentions (such as "we will not serve any customer to intoxication") does not, without more, constitute a written plan that satisfies the requirements of the Guidelines under s 73(4). Specificity about preventive measures and evidence of staff training are both required.
- Under s 73(4), the burden of establishing the statutory defence rests on the licensee. Absence of evidence of staff training in a compliant written document proved fatal to the defence in this case.
- The decision illustrates that the proximity of a licensed venue to a major event where patrons may have been drinking for extended periods is a relevant factual backdrop, but does not alter the legal obligations imposed on the licensee.
Legislation and Cases Referenced
Legislation:
- Liquor Act 2007 (NSW), ss 3, 5, 73
Cases:
- Bond v Reynolds [1960] VR 601
- C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47
- Chappell v A Ross and Sons Pty Ltd; McLennan v Hastings Transport Pty Ltd [1969] VR 376
- Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155
- Lyver v State of Victoria [1983] 2 VR 475
- Mitchell v Gascoigne (1906) 6 SR (NSW) 717
- Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer (No 3) [2014] NSWDC 109
- R v Kenny [2008] NSWDC 389
- Rolfe v Willis (1916) 21 CLR 152
- Somerset v Wade [1894] 1 QB 574
- Starkie v Van Tobruk [2007] WASC 51