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Local Court 18 April 2019

NSW Police v Mulley

[2019] NSWLC 5

Public order & justice offences
CRIME SUMMARY OFFENCES INCLOSED LANDS BANNING NOTICE TIME LIMITATIONS ON BANNING NOTICE MOVE ON DIRECTION

Citation: NSW Police v Mulley [2019] NSWLC 5
Court: Local Court of NSW
Date: 18 April 2019
Judge(s): Magistrate P Stewart

Background

Police charged a man (the defendant) with two counts of unlawful entry on inclosed lands and one count of failing to comply with a move-on direction. The incidents arose in the early hours of a Saturday morning at a small rural hotel in Eugowra, in the Central West of NSW.

The hotel licensee told attending officers that the defendant had been causing trouble earlier that night and had been banned from the hotel since July 2018. An incident register entry recorded the ban as being "till further notice." When the defendant was found sitting on the hotel veranda after 1am, police directed him to leave and, after he declined, arrested him.

The defendant, who represented himself at the defended hearing, maintained that the veranda was a public thoroughfare, that he had not caused trouble, and that he was not given any move-on direction by police. Several contested factual and legal questions arose from those circumstances.

Legal Issues

  • Whether the hotel veranda constituted inclosed lands under the Inclosed Lands Protection Act 1901
  • Whether any implied consent existed for members of the public to use the veranda, including as a thoroughfare
  • Whether a licensee may lawfully impose an indefinite or permanent ban on a person from licensed premises under the Liquor Act 2007 or at common law
  • Whether police issued a lawful move-on direction under Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
  • Whether the defendant's arrest was lawful

Decision

Issue 1: The veranda as inclosed lands and implied consent

The court was satisfied that the defendant did not enter the hotel building, but remained on the veranda throughout. The veranda, being part of the land occupied in connection with the hotel, constituted inclosed lands by definition (at [26]-[27]). However, the court found there was an implied consent for any person to pass through the veranda area, whether the hotel was open or closed, given the absence of any signs or barriers and the veranda's effective function as part of the public footpath (at [28]).

Issue 2: The validity of the indefinite ban

This was the central legal question. The court held that the Liquor Act 2007 does not permit an authorised person to impose a permanent or indefinite ban on a patron. Under section 77, exclusion is limited to 24 hours following removal, after which an authorised person may refuse re-entry on each occasion but cannot pre-emptively prohibit entry in perpetuity (at [38]). Formal banning orders under section 78, made by the Independent Liquor and Gaming Authority, must specify a period not exceeding six months, and no such order was in evidence here (at [39]).

The court also considered the common law position. Drawing on Thomlinson and Sealey v Tandy, the court accepted that a licensee may revoke a person's permission to remain on premises at any time and without cause. However, that right attaches to each occasion a person seeks or is found on the premises. It does not extend to an ongoing, indefinite or permanent banning notice (at [47]). Critically, there was no evidence that the licensee had asked the defendant to leave on the night in question, nor that he had asked police to assist in removing him (at [51]).

Issue 3: The move-on direction under LEPRA

The court found the purported direction was not a lawful move-on direction under section 198 of LEPRA. Section 198 requires a belief on reasonable grounds that the person's behaviour, as a result of intoxication, is likely to cause injury, damage to property or disorder. The court was not satisfied that either condition was met on the evidence, and the defendant's refusal to comply with an unlawful direction did not itself constitute disorderly behaviour (at [52]-[53]). The court further found that even if a direction had been properly characterised under section 198, the mandatory warning required by section 198(6) was not given (at [55]). There was equally no factual foundation for a direction under section 197 (at [59]).

Issue 4: Lawfulness of the arrest

The court found the arrest was unlawful regardless of whether the purported direction was given. If no direction was given, the arrest had no basis. If it was given, it was an unlawful direction that the defendant had no obligation to comply with (at [60]). The court acquitted the defendant on all three charges (at [61]).

Orders Made

  • Not guilty on all counts

Key Takeaways

  • Under the Liquor Act 2007, an authorised person at licensed premises cannot lawfully impose a permanent or indefinite ban on a patron. The exclusion power in section 77 operates on each occasion a person seeks or is found on the premises, and formal banning orders under section 78 must be time-limited to no more than six months (at [38]-[39]).

  • A licensee's common law right to revoke permission to enter or remain on licensed premises, confirmed in Thomlinson, is similarly occasion-specific. It does not support an ongoing or perpetual banning notice (at [47]).

  • For a move-on direction under section 198 of LEPRA to be lawful, police must have reasonable grounds to believe the person's behaviour, arising from intoxication, is likely to cause injury, property damage, or disorder. Prior conduct reported by a third party does not automatically satisfy that standard at the moment the direction is given (at [52]-[54]).

  • Non-compliance with the mandatory warning in section 198(6) of LEPRA independently undermines the lawfulness of a move-on direction, even where other preconditions might arguably have been satisfied (at [55]).

  • Where a licensee reports a historic banning notice to police but does not ask the person to leave on the night in question, police exercising powers to enforce that ban face significant difficulties establishing the legal and factual foundations for either an inclosed lands offence or a lawful move-on direction (at [51], [56]-[57]).

Legislation and Cases Referenced

Legislation
- Inclosed Lands Protection Act 1901 ss 3, 4
- Law Enforcement (Powers and Responsibilities) Act 2002 ss 197, 198, 199
- Liquor Act 2007 ss 17, 77, 78

Cases
- Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250
- Giddings v Director of Public Prosecutions [2008] NSWSC 169
- New South Wales v Thomlinson [2018] NSWCA 151
- Sealey v Tandy [1902] 1 KB 296