Local Court New South Wales Medium Neutral Citation: NSW Police v Di Francesco [2016] NSWLC 21 Hearing dates: 06 October 2016 Decision date: 07 November 2016 Jurisdiction: Criminal Before: Huntsman LCM Decision: Offence proved beyond reasonable doubt Catchwords: CRIMINAL PROCEEDINGS – Liquor Act prosecution – whether patron intoxicated - whether licensee permitted intoxication - whether patron noticeably affected - meaning of permit/permitted - statutory defence of taking all steps in guidelines Legislation Cited: Liquor Act 2007, ss 3, 5, 73 Cases Cited: 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 Category: Principal judgment Parties: NSW Police (prosecution) Brian Di Francesco (defendant) Representation: Counsel: Mr Chapman (for the defendant) Solicitors: Sgt Weston (police prosecutor) Mr Yardy (for the defendant) File Number(s): 2016/00050688 Judgment 1. Judgment was read onto the record on 7 November 2016 and on the same date I finalised a written judgment to be forwarded to the parties, as discussed with the parties on 7 November 2016. 2. The prosecution alleges that the licensee of the Gordon Hotel in Goulburn permitted intoxication on the premises, contravening s 73 of the Liquor Act 2007. A background issue was that the evening of the alleged offence, was after Ladies Race Day had been held at Goulburn Race Course (an annual event where it is stated alcohol is consumed by many in attendance at the races throughout the day). Issues 1. The issues in the case were whether a patron at the Gordon Hotel that evening, Mr Croker, was intoxicated as defined in the Act; and whether the licensee had permitted intoxication. The issues in the case including the meaning of "permit" (in the offence of the licensee being alleged to have permitted intoxication) and whether this required knowledge on the part of the licensee. The other issue was the operation of the statutory defence in s 73(4) of the Liquor Act 2007 (NSW) (the Act), as amended with effect from 1 March 2015. Before addressing the legal issues, a detailed summary of the evidence in the proceedings is required. The Evidence 1. The prosecution relied on evidence of police officers, including two officers who were conducting undercover operations at the hotel. A hotel patron said to have been intoxicated, Mr Croker, was a prosecution witness and CCTV footage from the hotel was also relied on. The defence presented evidence from the licensee, Mr Di Francesco. 2. Two police officers, on an undercover operation targeting liquor licensing compliance, attended the Gordon Hotel, Goulburn, on 7 November 2015. That day was also the Goulburn Ladies Race Day which is held from 10 am until 6 pm at the Goulburn racecourse. The Gordon Hotel is the closest licensed premises to the racecourse and on this day a number of people had attended the hotel after going to the races. The undercover police officers, who were dressed in social or in race day type clothing, Senior Sgt Thomas and Constable Avnell, entered the hotel at about 7:15 pm. 3. They seated themselves at a table nearby to a group of younger persons aged about 18 to 25 years. Two males of this group were seated with their backs to the police officers and were sitting on bar stalls. They were talking to friends who were facing the direction of the police officers. The males were drinking schooners of beer and a female friend was drinking Smirnoff vodka black from the bottle. The male, referred to by police in their statements as "intoxicated person 1" (this was James Croker) was said to be pushing against the table and leaning against the table that the police officers were seated at. Senior Sgt Thomas says the table in front of her nearly tipped over. She turned around to say "be careful," and Mr Croker greeted her. He was described as red in the face (apparently sunburnt) slightly squinty eyes, and looked tired. He had a schooner of beer in his hand and apologised. 4. Senior Sgt Thomas saw four hotel staff – a male, the licensee, Mr Di Francesco; a female serving and clearing glasses with dark shoulder length hair, a black polo shirt, black pants, aged about mid 40s (this was identified to be the manager, Ms Croker, no relation to James Croker); a younger male, tall with fair hair, white shirt and black pants serving behind the bar; and another younger female with purple dyed short ponytails. At about 7:20 pm Senior Sgt Thomas and Constable Avnell were seated between two tables of younger persons; the table behind them had approximately 6 younger males who were loud and laughing, and at one stage, singing songs. At one stage, one of the males was sculling a schooner of beer as he was being egged on by his friends. Senior Sgt Thomas says she saw the licensee come over to the table behind her and tell the males to "settle down". Around this time she saw Mr Croker who was to the other side of her, attempting to open the window. He was observed to be having difficulty following instructions from his friends on how to open, and trouble coordinating his hands to do this. He and his friends were laughing when he requested assistance from one of the staff members – a staff member walking past, the older female with dark hair wearing the black polo shirt, assisted in opening the window. His friends then complained about the cold breeze and he tried to shut it again nearly spilling his beer on the table in the process. CCTV footage played to the court clearly shows Mr Croker's actions with the window, he appears confused by the window and fumbles around at it. Senior Sgt Thomas says that at around 7:30 pm Mr Croker sculled the schooner of beer and as he did this, he spilt some onto his male friend seated next to him. He encouraged the female seated next to him to scull her drink, which she attempted but was unable to do. Senior Sgt Thomas says Mr Croker was heard speaking, his speech was slow and slurred. He continued to push against the table she was seated at. She and the other police officer engaged Mr Croker in a conversation and he told her that they had been drinking since 9 am at the races. 5. Senior Sgt Thomas observed another young male standing at the bar; his eyes appeared glazed over and he was swaying slightly and then lent his back heavily against the bar. The main bar at this time was busy; further patrons arrived. The older female staff member was busy, moving throughout the hotel picking up classes and cleaning tables. At 7:37 pm the young males who had been asked to quieten down at the table behind the police officers left the hotel. Mr Croker was then seen to drink about half his schooner in a matter of approximately 10 minutes or less. Senior Sgt Thomas then went to the beer garden. As she walked back to the front of the hotel and was going down the hallway area she says she saw Mr Croker in the gaming area and he was swaying as he walked, he was unsteady on his feet and having difficulty walking straight down the hallway. Senior Sgt Thomas walked into the bistro area and to the bathroom area. She then returned to the table were Constable Avnell was. At this time she could see Mr Croker had another full schooner of beer. At 7:45 pm the licensee, Mr Di Francesco, was seen to go to the front and collect a number of empty glasses and cans from the front entrance doorway which had been left by patrons who went outside to smoke. At about 7:50 pm Mr Croker was seen by Senior Sgt Thomas to pick up and take a drink from his schooner glass, slightly spilling the schooner onto the table with a friend complaining he had spilt it on him. He had also spilt it on himself and down the front of his pants. At this time the female staff member with the dark hair walked up to the table, wiped up the spilt drink, and had full view of Mr Croker 6. At paragraph 32 of her statement, Senior Sgt Thomas states that just before 8 pm a very tall young male came in; he was introduced to her and constable Avnell; he was talking rapidly, had trouble coordinating his phone and spilt his Jack Daniels drink on to Senior Sgt Thomas, and did not notice that he did this. Mr Croker was talking loudly, slurring his words, hand actions uncoordinated and spilt beer on his friend's shoe. He finished another schooner quickly and then walked to the bar and ordered another two schooners of beer which were put in front of him. He was standing at the bar when uniformed police officers Sgt Schmidt and Detective Inspector Gillies entered through the door near the dance floor (at around 8pm). Mr Croker was taken outside by the uniformed police. During the time Senior Sgt Thomas observed Mr Croker, from 7.15 to 8pm, she says he had purchased 5 schooners of beer, consuming them at a quick rate before returning and purchasing another. She states that Mr Croker became significantly and noticeably affected in his motor skills, his coordination and physical movements with his hands, and general body movements; within the last half hour period of her observation and in her opinion was well affected. During the time she was observing Mr Croker she states he was in full view of bar staff and she saw him approach the bar several times himself. When she left the premises at about 8.10pm, it was still quite busy with about 50 patrons in the main bar area and the bistro area was also busy but there was no queue at the bar. 7. Sgt Thomas was cross-examined about how many beers she observed Mr Croker to consume. She agreed that when she arrived he had half a beer in his hand, which he completed and that he went to the bar 2 minutes after that for another. She also agreed that he completed that beer within 10 to 15 minutes. It was put that after his consuming his second beer he did not return to the bar for another beer for 13 minutes and she responded that 13 minutes was pretty quick. She agreed that he spilt the third beer and there was some left in the glass probably not a large amount. She also agreed that he wasn't provided with another beer until about 10 minutes after he spilt the third beer. She agrees she saw him consume a minimum of 3 to 4 beers in the time that she was there. She also indicated that the CCTV footage showed Mr Croker consume another 2 beers which she had not observed herself and she added that he was also drinking from another male's beers. It was put to her that there were 10 to 15 minutes between each beer and she said it would be closer to 10. She noted she didn't have him under observation for 100 percent of the time and she did not agree that it was an exaggeration to say that after finishing a beer he returned to the bar to obtain another. 8. Constable Avnell in her statement gave evidence consistent with the Senior Sgt Thomas on many points. A paragraph 16 of her statement she observes another male person wearing a grey T-shirt and jeans, who had glazed eyes and flushed face and his balance was noticeably unsteady. He lost balance as she watched him, falling back against bar, causing himself to lean against the bar to remain standing. 9. At paragraph 18 she details remaining seated at the table while Senior Sgt Thomas goes to the beer garden area. While she is sitting alone at the table she observes Mr Croker to approach the bar area, be unsteady on his feet, taking 2 or 3 steps to the side, nearly falling over. He then took a schooner of beer off the table and proceeded to spill the beer down the front of himself and onto the table. Beer was also spilt on his friends. A female bartender approached the table and wiped down the table where Mr Croker had spilt the beer. He then drank the remainder of his schooner quickly. At paragraph 21 she details another young man approaching their table at 8 pm. She observes the male to be unsteady on his feet, with flushed face, speaking in a loud slurred voice. He was struggling to utilise his mobile phone due to impaired motor skills while he was trying to show her a video. He then spilt his drink on Sgt Thomas, without noticing. At paragraph 22 she details Mr Croker again spilling a drink on his friend's legs and shoes and that the friend complained. He then finished the remainder of his schooner quickly before returning to the bar. He lent on the bar, ordered two more schooners of beer, which were placed on the bar in front of him. Under cross-examination Constable Avnell was questioned about the indicators of intoxication and confirmed her opinion that she considered him moderately intoxicated and noticeably intoxicated. It was put to her that she could not see who had spilled the beer on the table and she said from her position in the hotel she could see who spilt the beer and it was Mr Croker; she said also she heard his friends comment about him spilling the drink. She was cross-examined as to the number of beers she saw Mr Croker consume. She maintained it was five, even though it was put to her that it was four. 10. Detective Inspector Gillies in his statement describes arriving at the hotel at about 8 pm. The hotel was very busy and Inspector Gillies estimates approximately 70 - 100 people were present. Inspector Gillies refers to conversations with Mr Di Francesco on Thursday, 29 October 2015 where he says he had advised Mr Di Francesco that the Gordon Hotel, traditionally, is one of the licensed venues that attracts a large crowd, post-race meet, and that Mr Di Francesco indicated he would have security and additional staff on the night, to better manage the venue. Inspector Gillies saw James Croker standing at a side table with a schooner of beer. He spoke to Mr Croker and he advised police he had about 4 beers at the races, and he had just started his third schooner when they walked in. Sgt Schmidt is said to have told Mr Croker he could go back inside to tell his mates he had to leave, but could not have any more to drink and Inspector Gillies directed him that he had had enough to drink and it was time to go home. Inspector Gillies says Mr Croker continue to argue and it appeared to Inspector Gillies that he was not able to comprehend what police were explaining and further, he was becoming argumentative and intent on returning to the hotel, despite police directions to the contrary. Both Inspector Gillies and Sgt Schmidt considered Croker to be moderately intoxicated. Inspector Gillies was cross-examined about his opinion of Mr Croker's intoxication and he maintained he was moderately intoxicated and this was confirmed for him given his confusion in the conversation and his argumentative behaviour at that time. Inspector Gillies did not concede that Mr Croker was walking freely with them, although he did appear to accept that Mr Croker was not walking in a manner noticeably incapacitated by intoxication. 11. Mr Croker gave evidence. He is 20 years of age and he had been at the races with his mates throughout the day. He was drinking Carlton mid-strength cans at the races, he thinks he had about 6 throughout the day (he later stated 7 or 8). He had a cooked breakfast and at the races he had a lamb roll. It was pretty hot and sunny. He did not feel intoxicated from the 6 beers at the races and left there at about 5 pm or later; he can't really remember. He then went to the Gordon Hotel with some friends he arrived at the Gordon Hotel sometime around 5 pm. He was drinking schooners at the hotel but does not know if he was drinking full strength or mid-strength. He thinks he had a meal, of chicken schnitzel and chips, at the hotel, and spent a bit of time in the beer garden. He believes he would have been sitting on one beer in the garden. He then went to the front bar area and sat at the tables. He ordered more drinks once inside the bar area. That was around 6 pm. He did not think he was affected by alcohol when he entered the bar area at about 6 pm, as he would not have been affected by 7 drinks so far that day. When asked how many drinks he had in the front bar area, he said 2 or 3 in a short duration he thinks. He was asked whether it was possible he could have had more than 2 or 3 drinks and he said he did not think so, he was drinking fairly well paced out. He recalled speaking to the women at the table behind him. He recalled talking about being at the races earlier in the day. 12. He recalled trying to open a window and having difficulty and it was put to him that he was affected by alcohol and that could affect his opening of the window. He said it could have, but he did not think it did. He added that prior to the incident he had installed windows like that at work. He agreed he spilled a drink during the evening. He was asked whether he spilt part of other drinks and he was not sure. He was asked whether he was sculling beer and he said he would not say he was sculling but he might have had a large sip. When asked how he spilt the drink he said he knocked it off the table. He was questioned about whether that was because he was intoxicated and he said "no. I've done that before, as an accident, even on my first drink of an evening." At the races he thinks he was drinking mid-strength beer because that's what his friend drinks. He estimates he drank 8 to 10 beers at the races, but did not believe he was affected by the alcohol. He knew staff members at the Gordon hotel from going there regularly. It was put to him that the CCTV footage appeared to show him call out to a staff member and he agreed that he had met that staff member 5 or 6 times before the day in question. He was asked what he said to the staff member when he touched the staff member on the back and he said he probably said thank you. He agreed he was engaging in conversation with a staff member. He was shown CCTV footage which showed him appearing unsteady on his feet in front of the bar and he said "I think I was changing direction". He didn't recall if that was before or after he spilt the drink. It was put to him that he could have been stumbling and he disagreed. He was asked whether his memory of the evening, even though it had been over 12 months ago, could have been affected by the amount of alcohol he drank and he disagreed. Under cross-examination he indicated that he at times has a red face because he suffers from eczema. CCTV footage 1. CCTV footage was played to various witnesses and to the court. The camera appeared to be positioned looking down on the bar area from above and just behind the table at which the 2 undercover police officers were seated. Some observations of the footage are as follows. The undercover police officer who is wearing a pink fascinator can be seen. Mr Croker is seen to run his hand over the window in a confused manner trying to open it for a period of time. He appears confused by the window and unable to work out how it can be opened. (This contrasts with his evidence that he has installed these windows and know how they work.) A staff member, a woman in a black shirt, opens the window for him. He is seen to stand, appears confused looking at his wallet. He walks to the bar. You see him tip his head right back to drink his beer; it appears like he is sculling the drink. The staff member is seen to walk by, who had opened the window. Mr Croker gets up from the table, walks past bar at top of screen, later returns, and leans on table. Mr Di Francesco is seen next to Mr Croker at the bar, just prior to that he is seen wiping Mr Croker's groups' table while Mr Croker is at the bar. At 19.37 Mr Croker is seen with a beer, walking in front of the bar his legs step sideways crossing over each other; he appears to be swaying. A staff member is seen wiping the table of the group. There is a definite conversation between a staff member and Mr Croker of some several seconds. Mr Croker is seen to hug another friend and looks like he is swaying. While standing he tips his head back to drink and finishes the beer. He again approaches the bar where he stands and is fumbling with his wallet. He looks at his phone at the table. He walks to the bar, stands at the bar waiting, speaks to bar staff, leans on bar waiting, appears to be unsteady on his feet, while propping himself up on bar. Uniform police officers are seen at the top of the screen. He appears to spill the beer on the table. Whilst it is not clear on the CCTV footage, who spilt the beer, it does look like Mr Croker spilt the beer, and Constable Avnell says she directly observed him spill the beer. Evidence of licensee 1. In support of the defence case Mr Di Francesco, licensee, gave evidence in the proceedings. He has been the licensee of the Gordon Hotel for nearly 12 years. He held the responsible service of alcohol (RSA) certificate since prior to taking over the licence. The RSA was renewed 2 years ago and he did certain courses as part of renewing that certificate. The courses included information as to strategies/principles of serving alcohol, conduct of patrons and customers. He'd undertaken no further training in the last 2 years. He and his manager attend the local liquor Accord meetings chaired by the local government. His busy nights are Wednesday, Friday and Saturday, when there can be 60 or 70 patrons. On these nights he usually has 3 staff, being two junior staff and one senior bar person to run and operate the hotel. There is a senior staff member who will manage, or if he is there as licensee he may do the managing. The changeover of staff is usually at 5 pm and they will indicate at change over if there is a patron who has been there for a lengthy period who needs to be observed more closely. 2. He was shown documents displayed in his hotel, the liquor licensing Accord, the house policy and also approved signs issued under legislation. He indicated such signs are placed in the entrance in a hallway and there are other signs that relate to rules for under 18. In relation to the ladies race day scheduled for 7 November he had said to his staff that a bigger volume of trade was expected on the evening following the races, and that there may be intoxicated people present and they needed to be vigilant as to signs of intoxication and any underage minors and antisocial behaviour. 3. He was questioned about signs of intoxication and said those include – aggression, belligerence to staff, unsteadiness on feet, slurred speech, red eyes. He was asked about how many staff he had on the night and he said said he had four bar staff, including the manager and himself. He was asked why he had four staff when he usually had three and he said because of the greater volume of business expected. He also noted he had agreed with Inspector Gillies to obtain security that the night but he was unable to obtain security, so he put an extra staff member on. 4. There are a couple of water dispensers on the bar and soft drinks are stocked. The code of conduct is displayed on the wall in each of the bathrooms in the hotel. He was asked about the roles which he and Ms Croker, the manager, undertook. Specifically, he was asked whether they monitor the hotel. He said they check the perimeter, walk around the hotel, check the crowd, check patron's intoxication, monitor cleanliness and undertake general supervisor duties. Under cross-examination, Mr Di Francesco agreed it was ladies race day; he said in some years it is busy in others not, as sometimes the buses bypass his hotel. He agreed it was busy on this night. He agreed he had one extra bar staff above what was normal for the hotel on the busy nights. He agreed he expected a bigger volume of customers, and he did have a bigger volume of customers, he estimated up to 100 customers. He also agreed he was aware people are drinking throughout race day and that some of his patrons would have already drunk a fair amount. 5. When watching the CCTV footage it was put that he was seen walking through with plates, so busy with duties he couldn't watch the patrons, and he disagreed. It was indicated to him that when the beer was spilt at Mr Croker's table, it took some minutes to the manager to arrive in clean it up. It was put to him that the venue was understaffed on the night and unable to be vigilant and monitor the crowd and he denied that. It was put to him that in the CCTV footage Mr Croker is visibly intoxicated and he stated, "I deny that". When shown the footage and the contention is put to him that Mr Croker stumbles, Mr Di Francesco disagreed; and when shown the footage of Mr Croker looking at his wallet fumbling and looking unsteady, he said he could not see that clearly. He did agree that it much busier than the usual Friday, Saturday or Wednesday night. He was asked if he usually ejected patrons on those busy nights, being Friday, Wednesday or Saturday, and he said yes, maybe one per night. He was asked whether on this particular night he had needed to eject any patrons and he said he didn't ask anyone to leave. He did not have staff on doors to check the intoxication levels of patrons before they entered the premises. He denied the proposition, when it was put to him, that all he was observed to do was walk straight through, not look at any patrons, not engage with patrons, as he was too busy cleaning tables and other duties. He stated that he always observes, it is a force of habit. It was suggested he was not treating this day any differently to any other day and he wasn't vigilant, and he denied this was the case. In relation to Mr Croker, he stated "he was no different to anyone else that was intoxicated or to a level where I deemed it necessary to intervene. He appeared the same as the rest of the crowd." Discussion of law, evidence and findings 1. All police officers gave evidence as to their experience in assessment of intoxicated persons, and I accept they have some expertise in this regard. 2. The Liquor Act 2007 sets out the objects of the Act: 3 Objects of Act (1) The objects of this Act are as follows: (a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community, (b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality, (c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries. (2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following: (a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor, (c) the need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life. 1. The objects of the Act thereby include harm minimisation associated with misuse and abuse of alcohol, and the encouragement of responsible attitudes in the service and consumption of alcohol. Intoxication 5 Meaning of "intoxicated" (1) For the purposes of this Act, a person is intoxicated if: (a) the person's speech, balance, co-ordination or behaviour is noticeably affected, and (b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor. (2) Accordingly, a reference in this Act to intoxication in relation to licensed premises is a reference to the presence of intoxicated persons on the licensed premises. (3) The Secretary is to issue guidelines to assist in determining whether or not a person is intoxicated for the purposes of this Act. Such guidelines are to be made publicly available in such manner as the Secretary considers appropriate. (4) The guidelines issued by the Secretary may also indicate circumstances in which a person may be assumed not to be intoxicated for the purposes of this Act. Whether intoxicated 1. The police witnesses gave evidence of at least two other patrons who were intoxicated. However the focus of the case was on whether Mr Croker was intoxicated. 2. The prosecution must firstly prove such intoxication in establishing an offence under s 73. If the Prosecution does not establish intoxication, then there is no offence. 3. The definition in s 5 of the Act sets out that a person is "intoxicated" if: (a) the person's speech, balance, co-ordination or behaviour is noticeably affected, and (b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of liquor. In the present matter subsection (b) was not in issue - it was not contested that it would be reasonable in the circumstances (Mr Croker having been drinking in the licensed premises) to believe that any intoxication was the result of consumption of liquor. The issue was whether Mr Croker's speech, balance, co-ordination or behaviour was noticeably affected. 4. The Guidelines issued by the Secretary, pursuant to s 5 of the Act (refer s 5(3)) and publicised on the NSW Government Justice, Liquor and Gaming Website, entitled "Intoxicated persons", sets out the "noticeable signs of intoxication" and "How to determine if someone is intoxicated". Noticeable signs of intoxication set out in the Guidelines include, amongst other matters: slurring words, unsteady on feet, swaying, stumbling, bumping into or knocking over furniture or people, lack of coordination, spilling drinks, difficulty opening or closing doors, confused, overly friendly, drinking rapidly. 5. The Guidelines issued under s 5(3) "Intoxicated persons" includes, in relation to how to determine if someone is intoxicated – how much alcohol was observed to have been drunk, whether the person was intoxicated on arrival, and advises: Talk to the person and their friends to help determine whether the person is intoxicated or becoming intoxicated. 1. On the evidence in the case I find that Mr Croker's speech, balance and co-ordination was noticeably affected. The two police officers who were sitting close to him clearly observed the following – swaying on feet, stumbling, spilling of drinks, slurring of speech, glazed eyes. The CCTV footage clearly shows the spilling of the drink, confused fumbling with a wallet and a phone, confused and lack of coordination when trying to open a window, swaying and stumbling when walking back from the bar. I do not find reliable Mr Croker's self-assessment that he was not intoxicated – his recall as to the number of drinks he had consumed at the Gordon Hotel did not correlate with the number seen on the CCTV or described by police witnesses, and the drinking at the hotel was after he had consumed on his evidence some seven or eight drinks at the races. 2. I also note in relation to his confused and uncoordinated attempt to open the window, that his own evidence is that he has installed those windows in his work and is familiar with them. Further, bar staff had to assist him to open the window and his difficulties with co-ordination should have been apparent to staff. Permit 1. An issue raised on behalf of the defendant by his legal Counsel was whether the licensee and/or his staff were aware of Mr Croker's intoxication. 73 Prevention of excessive consumption of alcohol on licensed premises (1) A licensee must not permit: (a) intoxication, or (b) any indecent, violent or quarrelsome conduct, on the licensed premises. Maximum penalty: 100 penalty units. (2) A licensee or an employee or agent of a licensee must not, on the licensed premises, sell or supply liquor to an intoxicated person. Maximum penalty: 100 penalty units. (3) A person (other than a licensee or an employee or agent of a licensee) must not, on licensed premises, supply liquor to an intoxicated person. Maximum penalty: 10 penalty units. (4) If an intoxicated person is on licensed premises, the licensee is taken to have permitted intoxication on the licensed premises unless the licensee proves: (a) that the licensee, and the licensee's employees or agents, took the steps set out in subsection (5), or (a1) that the licensee, and the licensee's employees or agents, took the steps set out in the guidelines under subsection (5A) to prevent intoxication on the licensed premises, or (b) that the intoxicated person did not consume alcohol on the licensed premises. (5) For the purposes of subsection (4) (a), the following are the relevant steps: (a) asked the intoxicated person to leave the premises, (b) contacted, or attempted to contact, a police officer for assistance in removing the person from the premises, (c) refused to serve the person any alcohol after becoming aware that the person was intoxicated. (5A) The Secretary is to issue guidelines relating to the prevention of intoxication on licensed premises. Such guidelines are to be made publicly available in such manner as the Secretary considers appropriate. (6) In the application of this section to an on-premises licence that relates to a catering service, a reference to licensed premises does not include private domestic premises except for the purposes of subsection (2). 1. The submission raised by the defence, of the requirement of knowledge in what constitutes "permit", appears to conflict with the clear wording of the section in the deeming provisions in s 73(4). I have considered the authorities referred to by Defence Counsel and have also considered other authorities on the word "permit", including authorities considering the word "permit" in the context of other statutes, and cases referring to intoxication. A number of the cases referring to intoxication are decisions dealing with a civil claim/action in negligence, and the decisions focus on whether there is the duty of care owed, which is claimed in the case. The cases dealing with duty of care issues include: Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155; Nicoll v Dobeson; Nicoll v The Workers Compensation Nominal Insurer (No 3) [2014] NSWDC 109; C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47. The case C.A.L. No 14 was relied upon by Defence Counsel in the present case, in relation to the discussion of intoxication at [53] and [54]. That discussion was in the context of the court assessing the claimed duty of care. The court comments that expressions like intoxication and drunkenness are difficult both to define and apply. There is some discussion of the difficulty for an observer to assess whether a drinker has reached that point denoted by those expressions. The discussion is in the context of risk of injury from drinking, and is grounded in the court's discussion of whether there was a duty of care owed, in the context of the common law of negligence. In C.A.L. No 14 at [41] the court observed the regulatory requirement that applied in Tasmania for controlling excessive drinking in hotels and noted the argued duty of care did not, although not clashing with the legislative regime, sit well with it. The civil cases cited do not provide guidance on the specific legislative issues to be decided in the present case, which is a case involving prosecution under the New South Wales Liquor Act 2007. 2. Cases specifically dealing with prosecutions under Liquor legislation include Mitchell v Gascoigne (1906) 6 SR (NSW) 717; Starkie v Van Tobruk [2007] WASC 51; R v Kenny [2008] NSWDC 389; Somerset v Wade [1894] 1 QB 574; Rolfe v Willis [1916] 21 CLR 152, a decision of the High Court; and Bond v Reynolds [1960] VR 601. The authorities were considered to assist in understanding the meaning of the word "permitted" in the current Act, and in particular the cases of R v Kenny and Somerset v Wade will be discussed further in this decision. Those cases were relied upon by Defence Counsel in the current matter. 3. I have also considered authorities decisions dealing with the meaning of "permit" in other legislation. These cases include Chappell v A Ross and Sons Pty Ltd; McLennan v Hastings Transport Pty Ltd [1969] VR 376 and Lyver v State of Victoria [1983] 2 VR 475. The case of Lyver, a decision of the Supreme Court of Victoria, dealt with the issue of breach of a statutory duty and in particular the use of the word "permit" in the Lifts and Cranes Act 1967. Chief Justice Young, at page 478 of the judgment, reviews various authorities as to the meaning of "permit" and quotes from those authorities: "it is of the very essence of the offence of permitting someone to do something that there should be knowledge" and further "knowledge is really of two kinds, actual knowledge and knowledge which arises either from shutting one's eyes to the obvious, or, what is very much the same thing but put in another way, failing to do something or doing something not caring whether contravention takes place or not." Chief Justice Young observes, "but whilst failing to take reasonable steps to prevent a contravention may amount to "permitting" an employee to drive, for example, for excessive hours, there was no failure … in the present case, which could make him responsible for a constructive or imputed "permitting"." In the case of Chappell there was some discussion that the context, being the legislative context and the circumstances of the case, were relevant in assessing the word permit. These decisions as to the meaning of "permit" are consistent with the Liquor legislation authorities discussed below. 4. Reliance is placed by Defence Counsel on the decision of the District Court R v Kenny [2008] NSWDC 389. That decision, which dealt with a prosecution under similar provisions of the previous legislation, stated at [5]: The word "permit" used in s 125(1) giving the word its usual English meaning entails a person allowing some conduct. It involves a conscious rather than unconscious decision being made as to what has happened, is happening or perhaps even what might happen. … [It] requires some degree of conscious thought being applied to the question … 1. Reliance was placed on Somerset v Wade [1894] 1 QB 574 on the issue of knowledge (and this decision was cited with approval by Blackmore DCJ in R v Kenny). That case stated at 576-577 that: … where a defendant does not know if a person who was on his premises was in fact drunk, he cannot be said to permit drunkenness. 1. I note that the decision of Somerset v Wade is of some age, and does not appear to be in step with the current legislative approach to responsible consumption and service of alcohol as set out in the objects of the Liquor Act 2007 and the Secretary's Guidelines. It would be unlikely that a licensee could rely on lack of knowledge if such lack is due to failure to adhere to obligations in the Guidelines to ensure responsible service of alcohol and to not permit intoxication. Further, wilful blindness would not be a basis for lack of knowledge. 2. The decision of the Western Australian Supreme Court Starkie v Van Tobruk [2007] WASC 51 dealt with similarly worded provisions. The WA legislation under consideration in that case had a similar definition for drunkenness (or intoxication) and s 115 of the WA legislation referred to the offence being committed where the licensee permits drunkenness. The Court stated at [53]: It is not necessary that the licensee or the licensee's employee in fact observes that a person's speech, balance, co-ordination or behaviour is "noticeably affected by liquor". What is necessary is that any reasonable person in the position of the licensee or employee would so notice. The Court went on to observe the differing circumstances which might apply to whether the person being served could be observed, and found at [55]: … the test to be applied … is whether a hypothetical reasonable observer in the position of the licensee or employee would have observed that the speech, balance, co-ordination, or behaviour of the customer was "noticeably affected by liquor". 1. This statement of the test for similarly worded provisions in WA legislation appears to be one which is consistent with case law in NSW indicating that "permit" requires some kind of knowledge, and to also be consistent with the objects of the Act in promoting harm minimisation and the responsible consumption and service of alcohol. 2. In the present case Mr Croker was in the table area directly in front of the bar, from which drinks were purchased by him from bar staff. He was sitting at times at the table, at other times he was standing at the bar or in the bar area. He was spilling drinks, which on at least one occasion bar staff attended his table to clean. The evidence is that it was the manager who cleaned the spilt drink and who was in close proximity to Mr Croker at that time. When Mr Croker was unable to open the window due to confusion and lack of coordination, a staff member had to assist. After Mr Croker had been observed by the police officers who were sitting close to him, to be slurring his words, unsteady on his feet and spilling drinks, a hotel staff member had a relatively long conversation with Mr Croker at the table. Given the noticeable effects of intoxication observed by the police officers prior to this conversation, and given that Mr Croker continued to drink steadily and rapidly during the period of observation, then the prosecution have established that the hypothetical observer in the position of those hotel employees would have observed that the speech, balance, coordination and behaviour of Mr Croker was noticeably affected by liquor. This would be the case for the hypothetical observer in the position of the person behind the bar serving the drinks – Mr Croker was visible in the area in front of the bar and also when he ordered drinks and leant up against the bar; and also for a hypothetical person in the position of the bar staff who had the lengthy conversation with Mr Croker; and also the bar staff who cleaned the table and assisted to open the window. Further, the evidence is that a number of schooners of beer were consumed over a relatively short period of time, raising a concern that the staff member behind the bar was not monitoring the amount of alcohol being consumed by Mr Croker over a short period. 3. Given that, as detailed, I am satisfied that the hypothetical reasonable observer in the position of the staff and licensee would have would have observed that the speech, balance, co-ordination or behaviour of the customer (Mr Croker) was "noticeably affected by liquor", then I am satisfied that the licensee permitted intoxication. As detailed, I am satisfied that the prosecution have established that Mr Croker was intoxicated and that the licensee permitted intoxication - subject to a consideration of the defence raised. In terms of the previous statutory defence, in R v Kenny it was observed by Blackmore DCJ at [8]: But knowledge of the intoxication is not the only issue. At this point unless the steps set out in s 125(4A) are actually taken, then the offence in s 125(1)(b) is made out subject only to the defendant proving that he has taken all other reasonable steps to prevent intoxication. 1. The District Court in R v Kenny also cited the High Court decision of Rolfe v Willis as to all reasonable steps to prevent drunkenness. The High Court was dealing with an offence under the Liquor Act 1912 (NSW) and the legislation also provided for a licensee to prove that he or she had taken all reasonable steps to prevent drunkenness. 2. Section 73 makes clear that a licensee must not permit intoxication. Subsection (4) provides that if an intoxicated person is on licensed premises the licensee is taken to have permitted the intoxication unless the licensee proves the matters set out in subsections (a), (a1) or (b). In the current matter only subsection (a1) is relevant – the licensee needs to prove that the licensee, and the licensee's employees or agents, took the steps set out in the guidelines under subsection (5A) to prevent intoxication on the licensed premises. In the current matter the defence under s 73(4)(a) was not raised. Section 73(5) sets out the steps a licensee should take after detecting intoxication on the premises for the purpose of subsection (4)(a). 3. Prior to the amendment of the Liquor Act 2007 (with effect from March 2015) the statutory defence in relation to offences of permitting intoxication was the taking of "all other reasonable steps to prevent intoxication". This defence applied to the deeming provisions in s 73(4) (where the prosecution proves an intoxicated person in licensed premises then the licensee is deemed to have permitted intoxication) – the deeming provision was subject to the licensee proving he/she had taken the steps in s 73(4A) or all other reasonable steps - as set out in the former s 73(4) and its predecessor s 125(4). The "all other reasonable steps" defence was removed from the Act, with effect from 1 March 2015, by the Liquor Legislation Amendment (Statutory Review) Act 2014. The statutory defence in place of "reasonable steps" is set out in the amended s 73(4)(a1) - that the licensee "took all the steps as set out in the guidelines under subs 5A to prevent intoxication on licensed premises". Accordingly, since March 2015 the reasonable steps defence, and cases which have set out the requirements of that defence (such as R v Kenny) are no longer applicable to the statutory defence (in s 73(4)). 4. In determining the current matter I must consider whether the licensee took all the steps as set out in the Guidelines under subsection 5A. 5. Relevantly, the amendment to s 73(4) was made in response to a report to Parliament on the Review of the Liquor Act 2007 (the Foggo Review). What is now required, once intoxication is established, is that the licensee take all of the steps in the Secretary's Guidelines – those guidelines are the Guidelines issued by the Secretary, "Prevention of intoxication on licensed premises – Guidelines March 2015" [the Guidelines]. These Guidelines are published and are also available on the NSW Government Justice, Liquor and Gaming Website. The Guidelines state: Steps to prevent intoxication on licensed premises 1. Selling, supplying and promoting liquor responsibly The steps are: a. the requirement to not sell or supply liquor to an intoxicated person (under section 73(2) of the Liquor Act 2007) is complied with, b. obligations relating to responsible service of alcohol training and the availability of free water (under clauses 40, 42, 42A, 42B and 51 of the Liquor Regulation 2008) are complied with, c. any conditions imposed on the liquor licence or any requirements under the Liquor Act 2007 which restricts the times, type or quantity of alcohol sold or supplied on the licensed premises are complied with, and d. liquor is not sold, supplied or promoted in a manner that is inconsistent with the Liquor Promotion Guidelines issued by the Secretary, of the Department of Justice, under section 102(4) of the Liquor Act 2007. 2. Monitoring liquor consumption and patron behaviour The steps are: a. the licensed premises is operating under the direct supervision of the licensee or appropriately experienced supervisory staff whenever liquor is being sold and supplied, b. liquor consumption by all patrons is actively monitored by the licensee or staff, c. intervention occurs when the licensee or a staff member becomes aware that a patron is consuming liquor irresponsibly and in a manner likely to result in intoxication, d. intervention occurs when the licensee or a staff member becomes aware that a patron is intoxicated to prevent the person from consuming liquor and to request that person to leave the premises, e. patrons entering the licensed premises between midnight and 5am are actively monitored and assessed for intoxication at the time of entry, and 3. Promotion of harm minimisation measures a. the availability of free drinking water is actively promoted to patrons throughout the licensed premises, b. action is taken to make patrons aware of the availability of non-alcoholic and low strength alcoholic beverages in the licensed premises, c. any requirements under the Liquor Act 2007 relating to the provision of food on the licensed premises are complied with in a manner consistent with the reasonable requirements, expectations and demands of the patrons of the premises, and d. the following drinks are not sold or supplied between midnight and 5am: … (not relevant in present case as venue closed at 12pm) 4. Planning to prevent intoxication on the licensed premises The steps are: a. a written document (such as a plan or house policy) is prepared which: i. details the measures in place to prevent intoxication on the licensed premises (including the method of complying with the steps set out in these guidelines), ii. describes how staff are instructed and trained to prevent intoxication on the licensed premises, and iii. is provided to police and inspectors upon request. b. all staff receive instructions and training on the contents of the document referred to in step 4(a) above before they commence working on the licensed premises. 1. The licensee Mr Di Francesco gave evidence to the court. His evidence was that he knew there were likely to be patrons at his hotel that night who would have already have been drinking at the races. He also stated that in conversations with police prior to race day he had agreed that he would provide security on the night, and additional staff. It was not contended by the prosecution that provision of security or door staff was a condition of his license, and in this context it is noted that the venue did not sell liquor after 12 midnight and that was the closing time of the venue. 2. Mr Di Francesco stated that there is staff change over discussions at 5pm. He provided evidence of the House Policy and other signage at the hotel as required under the Liquor Act. He did not give any evidence about training of staff in terms of the Guidelines. In particular his evidence as to staffing on the night, and the larger volume of patrons expected, is relevant – he normally has three staff including himself or the manager on a busy night of some 60 to 70 patrons. On this night there were at least 100 patrons and one extra staff member only, yet on Mr Di Francesco's own evidence he knew beforehand that some of the patrons would already have been drinking alcohol at the races during the day, before they attended the hotel. There was a clear likelihood of intoxicated persons on his premises, yet no evidence was provided that this was planned for, apart from the licensee giving a general direction to staff, and the one extra staff member on duty. Mr Di Francesco says he told staff to watch for the possibility of intoxicated persons, but the evidence of staffing numbers indicates there was insufficient provision made for staffing levels that would enable the ability to undertake the careful monitoring involved. Indeed Mr Di Francesco, when he is seen on the CCTV, does not appear to monitor the patrons at all, he does not engage with the customers, talk to them or look at them. He is busy cleaning but does not show any indications of monitoring. I accept monitoring and observation would be a part of a general awareness he would possess in performing his role as licensee, and indeed the evidence is he did tell one table to quieten down at one point, but in the period of the CCTV footage he appears too busy to undertake any monitoring, and as detailed, no signs of monitoring are observed. 3. There is no evidence in the proceedings from staff as to the directions or training given to them to prevent intoxication on the premises. Nor did Mr Di Francesco give any evidence of training given to staff to implement the Guidelines. He did say he gave a general direction at the start of the shift to watch out for intoxicated persons, but no detail as to specific instructions to staff to implement the steps as set out in the Guidelines was presented in the evidence. As detailed above, a number of staff interacted with the intoxicated person, Mr Croker, but no action was taken. There is no evidence that liquor consumption was monitored by staff in accordance with the Guidelines, nor was evidence given to the court on this issue by bar staff, hotel staff or management, and the only evidence was that the licensee gave the general direction referred to above. 4. The licensee relies on documents – the signage required under the legislation (signs relating to under age persons) and signage detailing the Gordon Hotel Patron Code of Conduct, the Goulburn Liquor Licensing Accord, the Snack Menu and the Bistro Menu and the House Policy. Evidence was given of the provision of water dispensers throughout the bar area. 5. Evidence as to provision of drinking water and availability of non-alcoholic beverages is evidence of implementation of some of the steps in the Guidelines. However there is no evidence of implementation of other steps including "4. Planning to prevent intoxication on the licensed premises". As set out in the Guidelines implementation of these steps includes: The steps are: a. a written document (such as a plan or house policy) is prepared which: i. details the measures in place to prevent intoxication on the licensed premises (including the method of complying with the steps set out in these guidelines), ii. describes how staff are instructed and trained to prevent intoxication on the licensed premises, and iii. is provided to police and inspectors upon request. b. all staff receive instructions and training on the contents of the document referred to in step 4(a) above before they commence working on the licensed premises. 1. The document "House Policy" is relied upon. The House Policy states "we will not serve any customer to intoxication"; it refers to it being against the law to serve minors; it states that violent, disruptive or intoxicated behaviour will not be allowed on the premises and "Therefore we will not allow intoxicated persons to enter or remain on these premises"; it refers to designated driver program, assistance with alternative transport, and that staff are expected to discourage patrons from driving over the blood alcohol limit. The House Policy also states that the establishment maintains an incident log to record under age patrons detected and incidents of anti- social behaviour. 2. This House Policy document does not detail the measures in place to prevent intoxication on the licensed premises and the method of complying with the steps set out in the Guidelines. Further there is no evidence of training of staff in respect of the steps in the Guidelines, or of any staff training in relation to a written document which meets the requirements set out above. As such there is no evidence before the court that staff were given training in the written document / house plan as set out in part 4 of the Guidelines. 3. Given the lack of evidence to establish that there was a written plan in conformity with the steps in the Guidelines, and no evidence of training of staff in accordance with such document and/or steps in the Guidelines, then the licensee has not established on the evidence that he took the steps set out in the Guidelines. 4. The licensee has failed to establish on the evidence, in respect of the offence before the court, that he had taken all the steps in the Guidelines, and therefore he has failed to make out the defence under s 73(4)(1a) of the Act. Given the findings made above that the licensee permitted intoxication, and given that the licensee has not established that he met the statutory defence, then it follows that the prosecution have proved the offence beyond reasonable doubt. Magistrate C Huntsman Goulburn Local Court 7 November 2016 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2016