AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 10 May 2017

Mark Malcolm Mader v Regina

[2017] NSWDC 100

Public order & justice offences
CRIMINAL LAW CONVICTION APPEAL LIQUOR LICENSING COMPLIANCE WITH REGULATIONS ADVERTISEMENT APPEAL CONVICTION

Citation: Mark Malcolm Mader v Regina [2017] NSWDC 100
Court: District Court of New South Wales
Date: 10 May 2017
Judge: Judge AC Scotting

Background

The appellant was the licensee of a hotel on Oxford Street, Darlinghurst, located within the Sydney CBD Entertainment Precinct. That precinct is subject to additional licence conditions under the Liquor Amendment (Sydney CBD Entertainment Precinct Plan of Management) Regulation 2014, which prohibits licensees from promoting or causing to be promoted discounted drinks designed to be consumed rapidly, including "shots."

Between 15 and 20 November 2015, the hotel's Facebook page advertised a ladies' night event featuring a "$5 shot," being a mixture of vodka and schnapps ordinarily sold at the hotel for $9. Police saw the post and attended the hotel to investigate. The duty manager told police he was unaware of the promotion and showed that the shot remained priced at $9 in the point-of-sale system. The appellant later told police that the hotel's marketing and promotions manager, Ms Penny Clifford, was responsible for the Facebook page and had posted the promotion without his or the operations manager's authorisation.

The appellant was convicted by a Magistrate in the Local Court of failing to comply with a condition of his licence under section 11(2) of the Liquor Act 2007. He appealed to the District Court. Notably, police never spoke to or interviewed Ms Clifford before commencing proceedings.

  • Whether the Magistrate correctly interpreted clause 53ZC of the Liquor Regulation 2008, which prohibits a licensee from "promoting or publicising or causing to be promoted or publicised" discounted shots.
  • Whether the licensee could be held criminally liable for a promotion posted on the hotel's Facebook page by an employee who had not been authorised to make that promotion.
  • Whether section 149 of the Liquor Act 2007 (which imposes a form of vicarious liability on licensees) applied to clause 53ZC.
  • Whether section 91 of the Liquor Act 2007 (making licensees personally responsible for the management and conduct of the licensed business) altered that analysis.

Decision

Judge Scotting found that the Magistrate had erred by failing to properly interpret clause 53ZC before determining what was required to constitute a breach. The Magistrate had treated the licensee's responsibility for Ms Clifford's conduct as "obvious" and a matter of community expectation, without conducting any analysis of the relevant statutory language. That was an error requiring correction on appeal.

Applying settled principles of statutory construction, the District Court analysed the text of clause 53ZC closely. The word "cause," as used in the prohibition ("promote or publicise or cause to be promoted or publicised"), requires that the licensee have knowledge of the promotion and exert authority to bring it about. Simply being the licensee at the time an employee posts unauthorised content is insufficient to establish the offence.

The Court also rejected the prosecution's argument that section 149 of the Act imposed vicarious liability here, finding that provision does not apply to clause 53ZC because the prohibition does not involve the sale or supply of liquor on the licensed premises. Section 91, which makes a licensee personally responsible for the management of the licensed business, was read as recognising that some offences in the Act and regulations require a specific act or omission by the licensee, and clause 53ZC was found to be one such provision.

On established common law principles, a licensee is generally not liable for an illegal act of a servant or agent unless it is committed within the scope of the servant's instructions or authority. The prosecution led no evidence as to the scope of Ms Clifford's authority, and the evidence affirmatively showed she had acted outside it. The evidence was therefore incapable of supporting a finding of guilt beyond reasonable doubt, and the conviction was set aside.

Orders Made

  • The appeal against conviction was allowed.
  • The conviction and the penalty imposed by the Magistrate were set aside.

Key Takeaways

  • A conviction under clause 53ZC of the Liquor Regulation 2008 for promoting discounted "shots" requires proof that the licensee personally promoted or publicised the material, or caused it to be published, with the knowledge and exercise of authority that the word "cause" implies.
  • Liability for an unauthorised act of an employee does not automatically follow from the mere fact of holding a licence. Under established common law principles affirmed here, a licensee is not liable for a servant's illegal act unless it falls within the scope of the servant's instructions or authority.
  • Section 149 of the Liquor Act 2007, which imposes a form of vicarious liability, does not apply to regulatory prohibitions that do not involve the sale or supply of liquor on the premises.
  • The District Court confirmed that a failure by a trial court to interpret the relevant legislative provisions according to proper statutory construction principles before applying them constitutes an error warranting appellate intervention.
  • Prosecutorial decisions matter to the evidentiary sufficiency of a case: where police did not interview the employee responsible for the conduct, the prosecution was left without evidence on the critical question of that employee's actual authority.

Legislation and Cases Referenced

Legislation:
- Liquor Act 2007 (NSW), ss 3, 11(2), 91, 149
- Liquor Regulation 2008 (NSW), cll 53ZA, 53ZB, 53ZC
- Liquor Amendment (Sydney CBD Entertainment Precinct Plan of Management) Regulation 2014
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)

Cases:
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Dyason v Butterworth [2015] NSWCA 52
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
- Certain Lloyds Underwriters v Thelander (2012) 87 ALJR 131
- O'Sullivan v Truth and Sportsman Limited (1957) 96 CLR 220
- Smith v Day [2003] NSWCCA 159
- Newcastle City Council v GIO General Limited (1997) 191 CLR 85
- Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531
- Boyle v Smith [1906] 1 KB 432
- Commissioner of Police v Cartman [1896] 1 QB 655