Reasons for Decision Premises: Millner Road Foodtown Licensee: Tancor Nominees Pty Ltd Nominee: Carlos Manuel Demelo Pinheiro Licence Number: 80902951 Proceeding: Complaint pursuant to s48(2) of the Liquor Act Complainant: Snr Sgt Lance Godwin Heard Before: Mr Peter Allen (Chairman) Mr John Withnall Ms Jill Huck Date of Hearing: 5 November 2003, 16 December 2003 Date of Decision: 19 December 2003 Appearances: Mr Rob Burgoyne, for Complainant Mr Ted Sinoch, for Licensee by the The Commission’s role in complaints against licensees by police was considered Supreme Court of the Northern Territory in O'Neill Hotel Management Services P/L v NT in which Thomas J confirmed that Liquor Commission [1999] NTSC 124 The Commission does not make a finding of criminal guilt. However, the Commission can find a section of the Act has been breached in order to consider regulatory action under the Act or in relation to (a condition of the licence) The approach to complaints of breach of s.102 of the Liquor Act has been Commission’s documented in several of its earlier decisions in the following manner: Once there is a case to answer in relation to a breach of Section 102, which is to say, once a sale or supply is demonstrated, together (we would add) with any reasonable ground to suspect that the recipient may have been other than not intoxicated, an onus of proof shifts to the licensee, who must prove that the customer was not intoxicated, or alternatively must sufficiently undermine the evidence of the sale or supply having occurred. ...the Commission concedes, however, that as a matter of law the reverse onus is able to be discharged on the balance of probabilities. The charge which is colloquially described as be referred to “serving intox” could therefore more accurately as serving a person who was other than non-intoxicated. In the present case there is no issue as to the sale of liquor having been made to Mr Hook by an employee of the licensee, and the police evidence made out a strong case for the licensee to have to answer in terms of the The licensee has purchaser’s non-intoxication. responded by providing its relevant surveillance videos. Mr Burgoyne dwelled on the different approaches of various jurisdictions in trying to arrive at a satisfactory definition of intoxication. The three main alternative concepts of intoxication would seem to be, in simplified summary:
Reasons for Decision Premises: Millner Road Foodtown Licensee: Tancor Nominees Pty Ltd Nominee: Carlos Manuel Demelo Pinheiro Licence Number: 80902951 Proceeding: Complaint pursuant to s48(2) of the Liquor Act Complainant: Snr Sgt Lance Godwin Heard Before: Mr Peter Allen (Chairman) Mr John Withnall Ms Jill Huck Date of Hearing: 5 November 2003, 16 December 2003 Date of Decision: 19 December 2003 Appearances: Mr Rob Burgoyne, for Complainant Mr Ted Sinoch, for Licensee The Commission’s role in complaints against licensees by police was considered by the Supreme Court of the Northern Territory in O'Neill Hotel Management Services P/L v NT Liquor Commission [1999] NTSC 124 in which Thomas J confirmed that The Commission does not make a finding of criminal guilt. However, the Commission can find a section of the Act has been breached in order to consider regulatory action under the Act or in relation to (a condition of the licence) The Commission’s approach to complaints of breach of s.102 of the Liquor Act has been documented in several of its earlier decisions in the following manner: Once there is a case to answer in relation to a breach of Section 102, which is to say, once a sale or supply is demonstrated, together (we would add) with any reasonable ground to suspect that the recipient may have been other than not intoxicated, an onus of proof shifts to the licensee, who must prove that the customer was not intoxicated, or alternatively must sufficiently undermine the evidence of the sale or supply having occurred. ...the Commission concedes, however, that as a matter of law the reverse onus is able to be discharged on the balance of probabilities. The charge which is colloquially described as “serving intox” could therefore be referred to more accurately as serving a person who was other than non-intoxicated. In the present case there is no issue as to the sale of liquor having been made to Mr Hook by an employee of the licensee, and the police evidence made out a strong case for the licensee to have to answer in terms of the purchaser’s non-intoxication. The licensee has responded by providing its relevant surveillance videos. Mr Burgoyne dwelled on the different approaches of various jurisdictions in trying to arrive at a satisfactory definition of intoxication. The three main alternative concepts of intoxication would seem to be, in simplified summary:
031219_Millner_Road_Foodtown_102.docx