Local Court New South Wales Medium Neutral Citation: NSW Police v Mulley [2019] NSWLC 5 Hearing dates: 21 February 2019 Date of orders: 18 April 2019 Decision date: 18 April 2019 Jurisdiction: Criminal Before: Magistrate P Stewart Decision: Not guilty on all counts Catchwords: CRIME- Summary offences - Inclosed lands – relevant area open to public as thoroughfare – banning notice – time limitations on banning notice – move on direction – powers of licensee to ban person Legislation Cited: 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 Cited: 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 Category: Principal judgment Parties: NSW Police (prosecution) Benjamin Mulley (defendant) Representation: Sergeant D Rayner, police prosecutor Benjamin Mulley, in person File Number(s): 2018/00261372 Publication restriction: Nil Judgment 1. Benjamin Mulley is charged with 2 counts of unlawful entry on inclosed lands contrary to section 4(1)(b) of the Inclosed Lands Protection Act 1901, and a further count of failing to comply with a move-on direction under Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). 2. The matter proceeded by way of defended hearing at Forbes Local Court on 21 February 2019. Mr Mulley represented himself. Some interesting questions of law arose, and the matter was adjourned to afford an opportunity to examine those issues. The Evidence Prosecution Case 1. Officers Troth and Copas attended the Central Hotel, Eugowra just after midnight on Saturday 25 August 2019. Eugowra is a small rural town located 39 kilometres east of Forbes (in the Central West of NSW). They spoke with John Batcheladore, the licensee, who told police that Mr Mulley and John Augustin had been at the hotel earlier causing trouble. He said that Mr Mulley was banned from the hotel and had been for some time. 2. He showed police an Incident Register entry dated 22 July 2018. The single page was tendered by consent as Exhibit 2. It indicates: "Ben Mulley – refused and banned till (sic) further notice for throwing full sevens glass at the Barman." 3. Police took statements from witnesses Brodie Adams and John Park and left the area. 4. They were flagged down by Mr Batcheladore after 1am. He told police that Mr Mulley and Mr Augustin had returned and were sitting on seats just outside the front door of the hotel. 5. Police then spoke with both men whom they say were heavily intoxicated and drinking from pre-mix alcohol cans. 6. As police approached, Mr Mulley said to police, "I'm banned from here." Officer Troth said, "Well if you're banned form here you need to leave." Mr Mulley did not leave, and the officer then said: "My name is Senior Constable Troth from Forbes Police. As you are banned from this hotel, I am giving you a direction to leave the immediate curtilage of the Central Hotel. Failure to comply with this direction may be committing an offence." 1. Police say Mr Mulley told them he would go when he was ready, and that "it is a public thoroughfare." The officer promptly told him: "It's the curtilage of the hotel and you are banned." He was given a further 'direction' similar to the first. When he failed to leave, the officer gave a third recitation of the purported direction, and upon Mr Mulley then laughing and remaining where he had been standing, he was told that he was under arrest for failing to comply with a police direction. 2. Interestingly, Mr Mulley apparently said: "You gonna arrest me for being in a public place." Later that morning, Mr Mulley refused to sign bail papers, and was bail refused. Although not relevant to the outcome of proceedings, I understand his reluctance to sign the bail papers was because they apparently contained an old mailing address which was not his residence, and he feared he might miss any mail from the court that was intended for him. 3. In any event, it is altogether unclear why Mr Mulley was subjected to bail in the first place and subsequently bail refused, for offences that carry 5 penalty units and 2 penalty units respectively, when the evidence reveals he has no criminal record and police knew where he lived. 4. Officer Copas gave evidence in similar but not identical terms to the evidence of Officer Troth. He added that there was further conversation where he said to Mr Mulley: "We've been told there was a bit of a fight earlier and that you smashed a window." Mr Mulley inquired which window that might be and asked for video footage. 5. A photograph of the front of the hotel including the front veranda area was tendered (Exhibit 4) by consent. It showed the position of the tables and chairs outside the hotel where Messrs Mulley and Augustin were seated on the second occasion. 6. Brodie Adams gave evidence. He first nominated Mr Mulley as having pushed another patron, but soon after said it was Mr Augustin. He was not certain that a window was broken. 7. The next witness, John Park referred to a scuffle between Mr Augustin and a patron named Brown. Mr Mulley was not part of that altercation. A window was broken, but the witness could not recall how that occurred. 8. Although the licensee, John Batcheladore, was subpoenaed to give evidence, he did not attend. The prosecution closed their case. Defence Case 1. Mr Mulley gave evidence. He said that for the second incident, he was sitting at one of the outside tables of the hotel (an open veranda). Those tables are fixed to the floorboards. He said the hotel was closed and the lights were off. For the first incident, he said there was a 'kerfuffle' involving 'two other blokes'. He said John Batcheladore thought he had been involved in it, and it "wasn't the case at all." He had no knowledge of a broken window. 2. He said that when police turned up, they told him he'd broken a window. He denied that and asked to be shown the damage and CCTV footage. Officer Copas took him aside and they had a conversation. He denies being given a direction by the female officer, let alone it being repeated for a second and third time. He denied being drunk, but agreed that he had been drinking. There is no evidence he was disorderly. 3. It was put to Mr Mulley that John Batcheladore had told him to leave as he had been banned. Mr Mulley denied this. In the absence of evidence from Mr Batcheladore, and there being no such conversation recorded between police and Mr Batcheladore, there was no basis for that question to be asked. The conversation between police and Mr Batcheladore, as set out in the statement of Officer Troth did not assert that Mr Mulley had been told to leave by the licensee – a fact that is ultimately of some importance. 4. Mr Augustin gave evidence. He did not hear police give a direction to Mr Mulley to move on, but concedes that he could not hear what the male officer was saying to Mr Mulley when he was talking with Officer Troth. I note that there is no evidence that the male officer, (Copas), gave any move on direction. When Mr Mulley and Mr Augustin were separated, and therefore Mr Augustin might not have heard a move-on direction, he was left talking with Officer Troth, who is said to have given the direction three times to Mr Mulley. He was not aware of any window being broken. Legal Issues for Determination 1. Is the veranda of the Central Hotel 'inclosed lands'? 2. If so, does that area remain inclosed lands when the hotel is not open? 3. Was Mr Mulley lawfully banned from entering the Central Hotel? 4. Does a licensee have a right to exclude a person from the hotel beyond those set out in the Liquor Act 2007? 5. Did police comply with the law when purportedly giving Mr Mulley an intoxicated person move on direction? Relevant Legislation 1. Section 3 of the Inclosed Lands Protection Act provides: Inclosed lands means: (a) prescribed premises, or (b) any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure. 1. Section 4 then provides: 4 Unlawful entry on inclosed lands Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding: (a) 10 penalty units in the case of prescribed premises, or (b) 5 penalty units in any other case. 1. Sections 198 and 199 of LEPRA state: 198 Move on directions to intoxicated persons in public places (1) A police officer may give a direction to an intoxicated person who is in a public place to leave the place and not return for a specified period if the police officer believes on reasonable grounds that the person's behaviour in the place as a result of the intoxication (referred to in this Part as "relevant conduct"): (a) is likely to cause injury to any other person or persons, damage to property or otherwise give rise to a risk to public safety, or (b) is disorderly. (2) A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of: (a) preventing injury or damage or reducing or eliminating a risk to public safety, or (b) preventing the continuance of disorderly behaviour in a public place. (3) The period during which a person may be directed not to return to a public place is not to exceed 6 hours after the direction was given. (4) The other person or persons referred to in subsection (1) (a) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in. (5) For the purposes of this section, 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 alcohol or any drug. (6) A police officer must give to a person to whom the officer gives a direction under this section (being a direction on the grounds that the person is intoxicated and disorderly in a public place) a warning that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the direction is given. The warning is in addition to any other warning required under Part 15. 199 Failure to comply with direction A person must not, without reasonable excuse, refuse or fail to comply with a direction given in accordance with this Part. Maximum penalty: 2 penalty units. (2) A person is not guilty of an offence under this section unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct. 1. Section 17 of the Liquor Act provides: 17 Hotel licence--miscellaneous conditions (2) Hotels must be open to general public….. 1. Sections 77 and 78 of that same Act then provide for non-voluntary exclusion and banning orders as follows: 77 Non-voluntary exclusion of persons from licensed premises (1) In this section: "authorised person" means a licensee, an employee or agent of a licensee or a police officer. "employee" includes, in the case of a registered club, a person engaged under a contract for services. "vicinity" of licensed premises means any place less than 50 metres from any point on the boundary of the premises. (2) An authorised person may refuse to admit to, or may turn out of, licensed premises any person: (a) who is at the time intoxicated, violent, quarrelsome or disorderly, or (b) whose presence on the licensed premises renders the licensee liable to a penalty under this Act, or (c) who smokes, within the meaning of the Smoke-free Environment Act 2000 , while on any part of the licensed premises that is a smoke-free area within the meaning of that Act, or (d) who uses, or has in his or her possession, while on the premises any substance that the authorised person suspects of being a prohibited plant or a prohibited drug, or (e) whom the authorised person, under the conditions of the licence or according to a term (of the kind referred to in section 134 or 136D) of a liquor accord, is authorised or required to refuse access to the licensed premises. (3) If, under subsection (2), a person has been refused admission to, or has been turned out of, licensed premises, an authorised person may, at any time, refuse to admit that person to the licensed premises or may turn the person out of the licensed premises. (4) If a person in respect of whom an authorised person is, under subsection (2) or (3), entitled to refuse admission to the licensed premises is on the premises, the person must, on being required so to do by an authorised person, leave the premises. Maximum penalty: 50 penalty units. (5) For the purposes of this section, such reasonable degree of force as may be necessary may be used to turn a person out of licensed premises. (6) A person who has been refused admission to, or turned out of, licensed premises in accordance with this section must not re-enter or attempt to re-enter the premises within 24 hours of being refused admission or being turned out. Maximum penalty: 50 penalty units. (7) After the 24-hour period ends in relation to any such person, an authorised person is not prevented from exercising the powers under subsection (3) in relation to the person. (8) A person who has been refused admission to, or turned out of, licensed premises in accordance with this section must not, without reasonable excuse: (a) remain in the vicinity of the premises, or (b) re-enter the vicinity of the premises within 6 hours of being refused admission or being turned out. Maximum penalty: 50 penalty units. (9) Without limiting subsection (8), a person has a reasonable excuse for remaining in, or re-entering, the vicinity of the licensed premises if: (a) the person reasonably fears for his or her safety if he or she does not remain in, or re-enter, the vicinity of the premises, or (b) the person needs to remain in, or re-enter, the vicinity of the premises in order to obtain transport, or (c) the person resides in the vicinity of the premises. (10) In the prosecution for an offence under subsection (8), the burden of proving that a person had a reasonable excuse for remaining in, or re-entering, the vicinity of the licensed premises concerned is on the person charged. (11) The functions that may be exercised under this section by an authorised person who is a licensee or employee or agent of a licensee may only be exercised in relation to the licensed premises to which the licensee's licence relates. (12) A reference in this section to turning a person out of licensed premises includes a reference to causing the person to be turned out. (13) Nothing in this or any other section of this Act operates to limit any other right a person has to refuse to admit a person to, or to turn a person out of, licensed premises. 78 Banning orders (1) The Authority may, by order in writing given to a person, prohibit the person from entering or remaining on the licensed premises specified in the order. (2) An application for an order under this section may be made by: (a) the Secretary, or (b) the Commissioner of Police, or (c) a licensee who is a party to a local liquor accord, or (d) any other person (or class of persons) prescribed by the regulations. (3) The application must be in the form approved by the Authority. (4) The Authority may make such an order under this section only if the Authority is satisfied that the person the subject of the proposed order has repeatedly been intoxicated, violent, quarrelsome or disorderly on or in the immediate vicinity of licensed premises. (5) The regulations may prescribe other circumstances in which the Authority is authorised to make an order under this section. (6) An order under this section must specify a period (not exceeding 6 months) during which the order is in force. (7) In deciding whether to make an order under this section, the Authority is not to take into consideration the person's race or ethnic or national origins. (8) A person who is the subject of an order under this section must not enter or attempt to enter, or remain on, the licensed premises to which the order relates. Maximum penalty: 50 penalty units. Consideration 1. I am satisfied that Mr Mulley did not enter the hotel building at any time, but remained on the veranda. The veranda has fixed tables and chairs which remain in place even when the hotel is closed. The veranda area is effectively the footpath or pavement of that street. A person walking along the footpath or pavement from one end of the street to the other would walk upon the veranda. 2. The veranda is part of land occupied or used in connection with the whole part of the hotel building. As such, it is by definition inclosed lands. It remains of that description when the hotel is closed. 3. I find that there is an implied consent for any person, including a minor, to pass through the veranda area whether the hotel is open or shut. There was no evidence given of any signs or barriers restricting access to the veranda for the purpose of passing through. A person attending the hotel would be entitled to use the outside tables. Since there is no evidence of the veranda being blocked off when the hotel is shut, the implied consent remains for persons to use the veranda as a thoroughfare. 4. Whether or not a person can use the tables and chairs at times when the hotel is closed is less clear. One could argue that since the tables and chairs are effectively part of the hotel's business, they should not be used by other persons outside of hotel hours. However, as they are fixed items, and not movable items placed back in the hotel at closing time; and in the absence of signs or barriers restricting use; and the area where they are located is accessible to any member of the public at any time as part of the pavement; it seems that there is arguably implied consent to use them. I do not need to determine this issue. 5. There is no doubt that the hotel was open when Mr Mulley first attended the hotel veranda. Given that Mr Batcheladore was still present when Mr Mulley returned, I find that the hotel was still open. Support for this finding is contained within the purported direction from Senior Constable Troth, where she said, "I'm arresting you for failing to comply with a police request and attending a hotel you've previously been banned from." 6. For Mr Mulley to be guilty of the allegations of enter inclosed lands, he would have to still be legally banned from being at the hotel including the veranda area. 7. There is evidence that Mr Mulley was banned from the hotel from 22 July 2018, purportedly on an indefinite basis. Mr Mulley acknowledged that he was banned. Neither of those facts however, is determinative of the legal position. 8. Whether or not Mr Mulley was still banned is perhaps the most important issue to be determined. 9. A person banned pursuant to section 77 of the Liquor Act must not re-enter the premises or attempt to do so within 24 hours of being refused admission or being turned out. The penalty for doing so is a maximum fine of 50 penalty units ($5,500) (s 77(6) Liquor Act). 10. The legislation specifically imposes a period of 24 hours for restricting admission to the person turned out – not an indefinite ban. 11. The legislation sets out that after the 24 hour period ends, an authorised person may exercise powers to refuse that person entry (s 77(7)) and gives general powers to an authorised person to refuse to admit the person earlier refused admission, at any time (s 77(3)). 12. In other words, a person removed from or refused admission to licensed premises may still seek admission to those premises after 24 hours, though the authorised person may refuse admission, or if already within the premises, ask them to leave. 13. It is abundantly clear from the legislation that the Liquor Act does not permit an authorised person to permanently ban a person from admission to the premises, but may exercise rights to refuse admission and require that person to leave the premises each time they seek admission or are found upon the premises. 14. Section 78 of the Liquor Act provides for banning orders by the Authority upon application by certain persons, including a licensee who is party to a local liquor accord (s 4 definitions). The 'Authority' means the Independent Liquor and Gaming Authority constituted under the Gaming and Liquor Administration Act 2007. Per section 78(6) of the Liquor Act, the period of the banning order must be specified and not exceed 6 months. There is no evidence of such a banning notice being in force. 15. Section 17(2) of the Act provides that a hotel is to be open to the general public. 16. The prosecutor suggested that any business owner has got the right to refuse entry to certain patrons on an ongoing basis. Certainly, there is no such right conferred by legislation. 17. I have considered possible common law rights of a licensee to turn out a person with or without reason. In Giddings v Director of Public Prosecutions [2008] NSWSC 169 at [31], James J cites Sealey v Tandy [1902] 1 KB 296, where it was held that Sealey "…supports the proposition that, except where licensed premises are an inn and a person is a traveller, a licensee or occupier of licensed premises has, independently of any statutory power, a power to require a person to leave the licensed premises and, if the person refuses to leave, to forcibly eject the person." 1. Applying the general principle from Sealey to the present case, there is no evidence that the Licensee requested Mr Mulley to leave the licensed premises on 25 August 2018. There is no suggestion of a common law right of a licensee to indefinitely ban a person from attending a hotel. 2. In Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 at [10], Leeming J referred to section 17(2) of the Liquor Act confirming that "a business carried out under a hotel licence must be open to the public; it is not possible to restrict patrons to invitees or a particular class of persons." 3. Reference was then made to the former section 100 of the Liquor Act which related to a 'common inn'; and the decision of Sealey and others; concluding that "it is sufficient to note that the English rules governing common inns, which were transplanted to New South Wales, a remnant of which may be seen in s.17(2), provide a partial explanation for the positive grant of authority in s.77" – ie. non-voluntary exclusion of persons from licensed premises. I note that former section 100 of the Liquor Act was repealed on 1 July 2008, some 3 months after the judgment in Giddings on 6 March 2008. 4. In New South Wales v Thomlinson [2018] NSWCA 151, Meagher JA with Leeming and Payne JJA agreeing, dealt with the issue of a licensee's right to revoke permission for a person to remain on premises at [39] to [48]. It was held at [48] consistent with Sealey, that a licensee had the right to revoke a person's licence to enter the premises at any time, and without cause. 5. However, that common law right does not extend to an ongoing, indefinite or permanent banning notice. Like the aforementioned provisions of the Liquor Act, the exercise of the power is attached to each time a person seeks admission or is found upon the licensed premises. 6. Accordingly, I reject the prosecutor's submission to the extent that it was suggested the licensee had a right to ban any person from entering premises on a perpetual basis. A regular business/shop owner might have such rights, but I do not need to determine that issue. 7. The prosecutor submitted that the move-on direction was pursuant to section 198 of LEPRA. 8. However, the words used by Senior Constable Troth clearly indicate a misunderstanding of, and misapplication of, the powers available to her at that time. The direction given was given as follows: "As you are banned from this hotel, I am giving you a direction to leave the immediate curtilage of the Central Hotel. Failure to comply with this direction may be committing an offence." 1. As indicated previously, there was no evidence that Mr Batcheladore asked Mr Mulley to leave. There was no evidence that Mr Batcheladore asked police to assist in removing Mr Mulley. 2. The power to give a lawful direction under section 198 of the Act must be based upon a belief on reasonable grounds that the person's behaviour in the place as a result of the intoxication (a) is likely to cause injury to any other person or persons, damage to property or otherwise give rise to a risk to public safety, or (b) is disorderly. 3. I am not satisfied on the evidence that either type of relevant conduct was apparent. The defendant's alleged non-compliance with the unlawful direction did not make his behaviour disorderly. 4. Even if the initial hearsay conversation between Mr Batcheladore and police was accepted, to the extent that it suggested Messrs Mulley and Augustin were at the hotel earlier causing trouble, it does not mean that Mr Mulley was acting in a disorderly manner when the police officer purportedly gave the direction. In any event, the evidence suggests Mr Batcheladore blamed Mr Mulley for something he clearly did not do – ie. fighting and breaking a window. 5. Even if the officer was purporting to give a move-on direction under section 198, there was non-compliance with section 198(6) in that the mandatory warning was not given. 6. I am not satisfied that the defendant Benjamin Mulley entered inclosed lands without the consent of a relevant person, ie. the owner, occupier or person apparently in charge of those lands. Nor is there evidence that Mr Mulley was requested to leave by a relevant person and refused to do so. 7. I am not satisfied that police gave a lawful direction in accordance with Part 14 of LEPRA. There was no obligation upon Mr Mulley to comply with an unlawful direction. 8. Police accepted in good faith the assertion by the licensee that Mr Mulley was banned. A document was produced lending support to the assertion. Mr Mulley also told police he was banned. 9. However, police were not exercising powers under the Liquor Act to remove a person purportedly banned from licensed premises who was refusing to leave. They did not assert that they were arresting Mr Mulley for an imminent breach of the peace. Police were mistaken in the direction given under section 198 given to enforce a banning order. There was no factual background to substantiate the use of such direction in any event. Even if the prosecutor was incorrect to suggest it was a direction per section 198 of LEPRA, there was no factual foundation giving rise to a direction under section 197 of that Act either. 10. Whether or not the direction was given is contentious. If it was not given, the arrest was unlawful. Accepting for the purpose of determining this matter that the purported direction was given, the subsequent arrest, even in good faith, was unlawful. 11. Accordingly, I find Mr Mulley not guilty of all of the charges and each count is marked "not guilty after hearing." Magistrate P Stewart Forbes Local Court 18 April 2019 ********** 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: 06 November 2019