Please read this reported case, referring to my

explanatory side notes

730 SUPREME COURT [(1991) 21

HICKLING V LANEYRIE A

Court of appeal: Kirby P, Clarke and Handley JJA

1, 19 March 1991
Liquor — Offences — Sale to persons under age — Defence — Reasonable
and honest belief — Whether excluded by statute — Liquor Act 1982,
s 114. B
Liquor — Offences — Evidence and onus of proof — Sale to persons under
age — Defence — Reasonable and honest belief — Whether available —
Absolute offence — No proof of mens rea required — Liquor Act 1982,
s 114.
The Liquor Act 1982, s 114, provides that it is a defence to a prosecution for
the sale or supply of liquor to a person under eighteen years of age if it is C
proved that “… there was produced to the defendant documentary evidence
…” that the person to whom the liquor was sold or supplied was above the
stipulated age.
Held: (1) In relation to a charge of selling liquor to a minor contrary to s 114
of the Liquor Act the provisions of s 114 exclude the operation of the common
law ground of exculpation based upon the reasonable and honest belief of the
accused as to age. (738B, 740C-F, 742B)
Proudman v Dayman (1941) 67 CLR 536 and Ovens v Laneyrie (1987) 11 D
NSWLR 207, distinguished.
(2) (By Clarke and Handley JJA) Subject to any relevant statutory defences
that may be available an offence against s 114 is absolute and the prosecution
need not establish mens rea. (742C)
Proudman v Dayman (1941) 67 CLR 536, distinguished.

Note:
E
A Digest — LIQUOR (2nd ed) [111], [144]

CASES CITED
The following cases are cited in the judgments:
Binskin v Watson (1990) 48 A Crim R 33.
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC
591.
Boulton, Re; Ex parte Beane (1987) 162 CLR 514. F
Bropho v Western Australia (1990) 171 CLR 1; 93 ALR 207.
Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629.
Education, Regional Director of, Metropolitan East, Department of Education NSW v
International Grammar School Sydney Ltd (1986) 7 NSWLR 302.
Gibbs v State of New South Wales (1990) 21 NSWLR 416.
He Kaw Teh v The Queen (1985) 157 CLR 523.
Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 G
CLR 88.
Mathieson v Burton (1971) 124 CLR 1.
Maxwell v Murphy (1957) 96 CLR 261.
O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356.
O'Sullivan v Farrer (1989) 168 CLR 210.
 NSWLR] HICKLING v LANEYRIE (Kirby P) 731

A Ovens v Laneyrie (1987) 11 NSWLR 207.

Proudman v Dayman (1941) 67 CLR 536.
R v Sault Ste Marie [1978] 2 SCR 1299.
Von Lieven v Stewart (1990) 21 NSWLR 52.
Wallworth v Balmer [1966] 1 WLR 16; [1965] 3 All ER 721.
Yuill v Corporate Affairs Commission of New South Wales (1990) 20 NSWLR 386.
The following additional cases were cited in argument and submissions:
B Balmain Association Inc v Planning Administrator for Leichhardt Municipal Council
(Court of Appeal, 19 February 1991, unreported).
Balog v Independent Commission Against Corruption (1989) 18 NSWLR 356.
Darwin Bakery Pty Ltd v Sully (1981) 51 FLR 90.
Ferrier v Wilson (1906) 4 CLR 785.
Potter v Minahan (1908) 7 CLR 277.
R v Wampfler (1987) 11 NSWLR 541.
Ward v The Queen (1989) 42 A Crim R 56.
C
APPEAL
This was an appeal from the decision of Allen J that the common law
defence of reasonable and honest belief is not available in a prosecution for
the sale or supply of liquor to a minor contrary to the Liquor Act 1982,
s 114(5).
D A Whealy, QC and I Lawry, for the appellant.
K Mason QC and J Andrews, for the respondent.
Cur adv vult
19 March 1991
KIRBY P. In this appeal, by leave, from Allen J the question is whether
E his Honour erred in holding that s 114(5) of the Liquor Act 1982 (the Act),
upon its proper construction, excludes a “defence” of reasonable and honest
belief: see Proudman v Dayman (1941) 67 CLR 536 at 540.

Sale of liquor to under-aged youth:

Sergeant Cecil Laneyrie is engaged in the enforcement of the Act. Arising
out of an event on 27 October 1989, he charged Mr David Hickling (the
appellant) with the sale of liquor to a youth aged sixteen years. The offence
F was alleged to have occurred at a Liquorland bottle shop. The licensee of the
shop was also charged. The charges came before Mr C Brah, Licensing
Magistrate. He found that Mr Hickling had honestly believed, when he made
the sale, that the youth was over the age of eighteen years. He also found
that, having regard to the youth's physical appearance and presentation, such
belief was reasonable. He thereupon dismissed the information.
In respect of the information concerning Mr Hickling, as a test case,
G Sergeant Laneyrie required the magistrate to state a case for the opinion of
the Supreme Court as to whether he had erred in law in holding that the
“common law defence of honest and reasonable mistake was available to the
defendant in respect of the prosecution of an offence pursuant to s 114(1) of
the Act”. Allen J concluded that the magistrate had erred. He ordered that
the proceedings be remitted to the magistrate to continue the hearing in
732 SUPREME COURT [(1991) 21

accordance with his opinion. It was from his Honour's order that A
Mr Hickling secured the leave of the Court to bring this appeal.
Legislative regulation of under-aged drinking:
The regulation of the sale of liquor to minors has long been a feature of
legislative control, both in this country and in England. It was regulated in
England, at the time of the settlement of the New South Wales colony by 24
George II, c 40 (The Tippling Act). After self-government, successive statutes
were enacted by the colonial legislature regulating the sale of liquor, B
including to young persons. Soon after the State of New South Wales was
established, the Liquor Act 1898 was amended by the Liquor (Amendment)
Act 1905. By s 8 that Act controlled the unlawful supply of liquor by
licensees. That section was in turn replaced by s 49 of the Liquor Act 1912
which provided, relevantly:
“49.(1) Any licensee who on his licensed premises gives, sells,
delivers, or supplies, or allows to be given, sold, delivered, or supplied, C
except in case of sickness or accident, any liquor to —
(a) any person under the age of eighteen years
…
shall be liable to a penalty not exceeding fifty pounds.
(2) Any person, other than the licensee, who on any licensed premises
supplies or delivers, except in case of sickness or accident, any liquor
to —
(a) any person under the age of eighteen years; D
…
shall be liable to a penalty not exceeding fifty pounds.
(3) In any prosecution for an offence under the two last preceding
subsections alleged to have been committed in relation to a person
under the age of eighteen years, it shall be a sufficient defence if the
accused proves that such person was apparently above such age.”
The 1912 Act was repealed by the Liquor (Repeals and Savings) Act 1982. E
That Act accompanied the bringing into force of the Liquor Act 1982. As
originally enacted, that statute provided in s 114 as follows:
“114.(1) A person shall not sell or supply liquor to a person under the
age of 18 years.
Penalty $1,000.
…
(3) It is a defence to a prosecution for an offence under F
subsection (1) … if it is proved that the person to whom the liquor was
sold or supplied was of or above the age of 14 years and was, on
reasonable grounds, believed by the defendant to be of or above the age
of 18 years.”
The section in those terms was considered by Campbell J in Ovens v
Laneyrie (1987) 11 NSWLR 207. That was also a case of an information by
Sergeant Laneyrie in respect of the sale of liquor from a Liquorland store to
G
a sixteen year old person. Applying Wallworth v Balmer [1966] 1 WLR 16;
[1965] 3 All ER 721, Campbell J held that the appearance of the young
person alone might afford the vendor reasonable grounds for believing that
the person to whom the liquor was sold or supplied was of, or above, the age
of eighteen years. Whether such appearance did afford such grounds
remained a question of fact in each case.
 NSWLR] HICKLING v LANEYRIE (Kirby P) 733

A By the Liquor (Amendment) Act 1989, Parliament amended the 1982 Act
to make provisions in terms of the long title:
“… with respect to trading hours, neighbourhood disturbance and
offences relating to minors; to increase penalties; and for other
purposes.”
Pursuant to s 3 of that Act, Schedule 3 has effect. By cl 1 of that schedule,
s 114(5) of the Act was amended as follows:
B “Omit ‘was on reasonable grounds, believed by the defendant to be’,
insert instead ‘that, before the liquor was sold, supplied or obtained,
there was produced to the defendant documentary evidence that might
reasonably be accepted as applying to the person and as proving that the
person was’.”
As so amended, together with amendments related to penalties, s 114 now
reads (relevantly):
C “Sale or supply of liquor to a minor
114.(1) A person shall not sell or supply liquor to a person under the
age of 18 years.
Maximum penalty: 20 penalty units.
(2) If it is proved in proceedings for an offence under subsection (1)
that the sale or supply to which the offence relates took place on
licensed premises and that the defendant was not the licensee, the
maximum penalty for the offence is 10 penalty units.
D
(3) A licensee shall not, on the licensed premises, allow liquor to be
sold or supplied to a person under the age of 18 years.
Maximum penalty: 20 penalty units.
(4) A person shall not obtain liquor from licensed premises on behalf
of a person under the age of 18 years.
Maximum penalty: 20 penalty units.
(5) It is a defence to a prosecution for an offence under
E subsection (1) or subsection (4) if it is proved that the person to whom
the liquor was sold or supplied, or on whose behalf it was obtained, was
of or above the age of 14 years and that, before the liquor was sold,
supplied or obtained, there was produced to the defendant documentary
evidence that might reasonably be accepted as applying to the person
and as proving that the person was of or above the age of 18 years.
(6) It is a defence to a prosecution for an offence under
F subsection (1) (except in the case of sale or supply which took place on
licensed premises) if it is proved that the defendant was a parent or
guardian of the person to whom the liquor was sold or supplied or was
authorised to sell or supply liquor to the person by the parent or
guardian.
(7) It is a defence to a prosecution for an offence under
subsection (4) if it is proved that the defendant was a parent or
guardian or the person on whose behalf the liquor was obtained or was
G authorised to obtain liquor on behalf of the person by the parent or
guardian.”
Sergeant Laneyrie asserted that the particular provisions relating to age
and contained in the defence in s 114(5) excluded the common law principle
that a ground of exculpation from a criminal offence was a reasonable and
honest belief on the part of the accused, relevantly that the person to whom
734 SUPREME COURT [(1991) 21

liquor was sold or supplied was above the age of eighteen years. This A
argument succeeded before Allen J. Mr Hickling argued that the particular
provision relating to documentary evidence of age was but one defence
available to a prosecution under the section. The repeal of the statutory
provision concerning relief on reasonable grounds revived, so he argued, the
application of the common law rule to the section. It was not clearly
excluded by the language of s 114(5). In the facts found by the magistrate it
was therefore available to Mr Hickling to defeat the prosecution. That was
the argument which had succeeded before the magistrate. B

The judicial environment of presumption:

A not dissimilar question to that now before the Court arose for decision
in two recent cases: see Binskin v Watson (1990) 48 A Crim R 33 and Von
Lieven v Stewart (1990) 21 NSWLR 52. In Binskin (at 43) Priestley JA
pointed out that those who draft legislative provisions providing statutory
offences know that their work: “… will meet its interpretative destiny in a C
judicial environment of presumption.”
Drawing upon a decision of the Supreme Court of Canada in R v Sault Ste
Marie [1978] 2 SCR 1299, his Honour identified three classes of statutory
offences into which, at least, it was necessary to catalogue a provision under
consideration when a dispute of the present character arose:
1. Those imposing absolute liability, where the fact having been proved, no
defence will avail;
2. Those requiring proof of guilty knowledge or intention but where an D
accused will not be guilty if he acted under an honest and reasonable belief
as to the existence of facts which, if true, would have made his act innocent;
and
3. Those where proof of guilty knowledge or intention is required.
This classification was brought into Australian law by Gibbs CJ (with
whom Mason J agreed) in He Kaw Teh v The Queen (1985) 157 CLR 523
at 533. So deeply imbued is the common law with the notion that a person E
ought not to be penalised, stigmatised and punished for a criminal offence
without a guilty intention being a necessary ingredient of that offence, that
the presumption that Parliament so intended is readily imported without
clear words in the statute by judicial decision. In Proudman v Dayman
(at 540), Dixon J expressed the rule thus:
“… it is probably still true that, unless from the words, context, subject
matter, or general nature of the enactment some reason to the contrary F
appears, you are to treat honest and reasonable mistake as a ground of
exculpation, even from a summary offence.”
As to the way in which the exculpation could be established, his Honour
(at 541) said:
“The burden of establishing honest and reasonable mistake is in the
first place upon the defendant and he must make it appear that he had
reasonable grounds for believing in the existence of a state of facts,
which, if true, would take his act outside the operation of the enactment G
and that on those grounds he did so believe. The burden possibly may
not finally rest upon him of satisfying the tribunal in case of doubt.”
The application of this test and the approach to the plethora of statutory
offences which have been a feature of our law, particularly since Proudman
was decided in 1941, has led to a wilderness of instances of decisions placing
 NSWLR] HICKLING v LANEYRIE (Kirby P) 735

A particular statutory provisions on one side of the line or another. Those

decisions are inconsistent. In some cases they are irreconcilable with each
other: see Professor B H Fisse, “The Mental Element of Statutory Offences:
The Practical Significance of He Kaw Teh”, as cited by me in Binskin (at 39).
Priestley JA in that case pointed out that the operation of the presumption
in particular cases had been: “… discussed over and over again, and at
excruciating length, for upwards of a hundred years.”
I will resist the temptation to add to the discussion. It is enough to salute
B
the presumption and to recall to mind, as the High Court stressed in He Kaw
Teh that it is a strong presumption. Brennan J (at 567) put it thus:
“… It requires clear language before it can be said that a statute
provides for a person to do or to abstain from doing something at his
peril and to make him criminally liable if his conduct turns out to be
prohibited because of circumstances that that person did not know.”
The strength of the presumption was recognised and respected by the
C Court both by Binskin and in Von Lieven: see Von Lieven (at 61-66) per
Handley JA. There is now no statutory defence to a prosecution under
s 114(1) of sale to a minor that the vendor believed, on reasonable grounds,
that the purchaser was over the age of eighteen years. To fill this gap,
Mr Hickling asserted that the justice of the common law was based upon the
strong presumption expressed in Proudman and explained that He Kaw Teh
would avail him to defeat the prosecution and uphold the decision of the
D magistrate.
Aids to the construction of the statute:
A number of points may be made concerning the question raised by this
appeal:
1. Presumptions are an aid to the judicial function of determining the
purpose of Parliament as expressed in the language used. Ultimately, the
task of construction is to give meaning to those words. Once that meaning is
E ascertained, the will of Parliament as defined must be obeyed. Even a strong
presumption, expressed repeatedly in judicial decisions, must bend to the will
of Parliament if that will is clear enough. The utility of the presumption is as
it helps to achieve the purpose of Parliament, there being attributed to
Parliament in this as in other cases, an intention to respect basic features of
our legal system unless the contrary is clearly made evident. It is important
to re-state the primacy of the obligation of the court to give effect to the
F Parliamentary purpose as stated in the statute. It is too easy to mistake that
purpose as to give effect to the repeated judicial preference for preserving a
mental element in criminal offences, or at least providing a ground for
exculpation where the accused can prove reasonable and honest belief of
facts which, if true, would have been a complete answer to the charge.
Sometimes, for the achievement of policy considered by Parliament to be
sufficient, legislation will be enacted which imposes strict liability or removes
the ground of exculpation. If Parliament makes its purpose plain, it is the
G duty of courts to be obedient to that purpose and to give effect to it: see
Bropho v Western Australia (1990) 171 CLR 1 at 22; 93 ALR 207 at 217-218.
2. The expression of a defence to a criminal charge in the statute will not
necessarily exclude the operation of the common law presumption stated in
Proudman. It has been said many times that the canon of construction known
as expressio unius is a “valuable servant but a dangerous master”: see
736 SUPREME COURT [(1991) 21

Houssein v Under Secretary of Industrial Relations and Technology (NSW) A

(1982) 148 CLR 88 at 94; O'Sullivan v Farrer (1989) 168 CLR 210 at 215;
Von Lieven (at 646). Similarly, the provision of defences for some classes of
offence but not for others, will pose the possibility that the common law
presumption operates differentially and not uniformly in respect of those
addressed by the statutory provisions: see Binskin (at 38). Yet if Parliament
has expressly addressed its attention to the subject to which the belief of the
accused, on reasonable grounds, would be relevant, its treatment of the
subject must be obeyed to the exclusion of the common law presumption
B
which would have operated in a context of legislative silence;
3. Where, as in the present case, the legislation has been amended over
time, it is relevant to derive the legislative purpose of the current provision
by comparing it with its predecessors. From the course of amendments it
may be possible the more readily to derive the policy which lies behind the
provision in order to ascertain whether, even a strong presumption is
rebutted. The permissibility of examining legislative history for this purpose C
is not in doubt: see Mathieson v Burton (1971) 124 CLR 1 at 14 per
Windeyer J; see also O'Grady v Northern Queensland Co Ltd (1990) 169
CLR 356 at 365f per Brennan J; and
4. The foregoing rule must not permit distortion of the task of ascertaining
Parliament's purpose from the language of legislation. It is an aid to the
achievement of that purpose. Care must be taken in the use of such tools of
construction so as not to stray from the language used by Parliament, D
whether by the use of legislative history or extrinsic materials such as Second
Reading Speeches or antecedent reports. The dangers of doing this have
been repeated in many decisions: see, eg, Regional Director of Education,
Metropolitan East, Department of Education NSW v International Grammar
School Sydney Ltd (1986) 7 NSWLR 302 at 308; Black-Clawson International
Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613 (HL);
Yuill v Corporate Affairs Commission of New South Wales (1990) 20 NSWLR
386; Gibbs v State of New South Wales (1990) 21 NSWLR 416. If the words E
are plain, the duty of the court is to give effect to them: see Re Bolton; Ex
parte Beane (1987) 162 CLR 514 at 518.
The prosecution construction involves some unfairness:
With these aids for construction in mind, I now approach the meaning of
s 114(5) of the Act. It must be conceded at once that there is force in a
number of the arguments advanced for Mr Hickling:
F
1. There is no express statutory removal of the Proudman grounds of
exculpation. The statute does not, for example, state that “it shall not be a
defence that the person selling or supplying liquor to [a minor] believed that
the minor was of or above the age of eighteen years”. Such a provision could
readily have been enacted. As Priestley JA pointed out in Binskin (at 43) the
rule in Proudman had a long ancestry and has been applied many times
since:
“Only if Rip Van Winkle was the draftsman in the present case could G
he be unaware that the present argument was highly likely to come
before a court in some prosecution.”
2. The conviction of an offence under the section not only stigmatises the
person convicted with a criminal record and renders that person liable to a
pecuniary penalty. It also has potentially serious consequences for the
 NSWLR] HICKLING v LANEYRIE (Kirby P) 737

A licensee. The self-same arguments raised against Mr Hickling concerning

exculpation, apply to a prosecution of the licensee. The licensee is subject to
a form of double jeopardy. He or she may be prosecuted by summons to
show cause why disciplinary action should not be taken. One of the grounds
upon which a complaint might be made for this purpose is that a licensee has
been convicted of an offence against the Act: see s 68(1)(a)(ii). The
seriousness of the consequence for a licensee, with a large financial
B investment in premises licensed for the sale of liquor, suggests that
conviction of a criminal offence and prosecution of a disciplinary charge
would only apply in circumstances of moral culpability. The appellant urged
that this was an added reason for presuming that Parliament intended the
Proudman defence to apply;
3. The provision in relation to the production of documentary evidence
now contained in s 114(5) sets forth a ready means to establish the age of a
customer. But, so it was said, it is merely machinery to facilitate proof of age.
C The offence remains that of selling to a minor. It could not be expected
realistically, in the circumstances of most liquor sale outlets, that licensees
and vendors would trouble customers unnecessarily for the production of
documentary evidence. To do so could be construed by those over the age of
eighteen years as demeaning, insulting or, at the least, highly inconvenient if
proof were not readily available. A liquor sale outlet known for persistently
asking customers for documentary proof of age might lose business to
D competitors. In such circumstances, to burden the licensee or the vendor
with liability to criminal prosecution (and the licensee to disciplinary action)
for a genuine mistake, based on reasonable grounds, of the age of the
purchaser would involve such a potential unfairness that it should not be a
purpose attributed to Parliament. The present case was said to provide a
good illustration of this argument. The purchaser, although chronologically
sixteen years of age, was tall, bearded, self-confident and presented in such a
E way as to convince the magistrate, who saw him, that there were reasonable
grounds for the vendor's belief that he was above the age of eighteen years;
4. Upon one view, the expression of the “defence” in s 114(5) was not apt
to oust the common law presumption entirely. It did not oust the
presumption that common law defences, apart from the defence relating to
age, would continue to be available. This much was not disputed for Sergeant
Laneyrie. It was urged that if a person were under the age of fourteen years
but could, on reasonable grounds, be believed to be above that age, the
F
common law presumption would be available. In such circumstance, it would
be an odd result to exclude its operation in respect of persons between the
ages of fourteen and eighteen years; and
5. The court was then taken to an examination of other provisions of the
Act which were enacted at the time of the amendment to s 114 which
introduced s 114(5) in its present form. It was argued that an examination of
the sections which surrounded s 114 (viz ss 115, 116, 117(4), 117A and 117B)
G demonstrated that there was no coherent scheme whereby Parliament had
sought to exhaust the availability of the common law presumption by the
provision of defences to charges under the sections. Thus it was said that a
licensee might avoid a conviction under s 117B if the minor “is not
reasonably suspected of being under eighteen years”, although he would
have the statutory defence available to him if he were prosecuted once the
738 SUPREME COURT [(1991) 21

minor was inside the licensed premises: see s 117(5). The differential A
treatment of the subject in the surrounding sections was urged as a reason
for concluding that the production of documentary evidence was a simple
means of avoiding liability in an objective and indisputable way.
But the common law presumption is rebutted:
I have acknowledged that there is force in these arguments. The cases
which come before courts, and especially this Court, are, of their nature,
likely to be on the borderline. There is no wholly objective and indisputable B
means of classifying a provision on one side of the line or the other. The task
of classification is in part one of impression. However, in the present case I
have concluded, with Allen J, that the better view is that s 114(5) in its
current form excludes the operation of the common law ground of
exculpation based upon reasonable and honest belief of the accused. As I am
differing from the magistrate, I shall state why I prefer this view:
1. The legislative history is most instructive in this case. In the 1912 Act, C
and in the 1982 Act as first enacted, there was an express statutory provision
which would have excluded the operation of the Proudman “defence”.
Parliament had specifically addressed the subject of reasonable and honest
belief. The legislative defence would therefore have applied to the exclusion
of any common law doctrine. But in 1989 the law was changed. The change
was clearly deliberate. The language of the amendment is itself instructive.
The insertion of the present provision was gained by the deletion of the
statutory “defence”. The mode of amendment is itself suggestive of a D
legislative intention to remove reasonable and honest belief as a defence. So
much is also suggested by the fact that that defence had endured in the Act
and its predecessor for the best part of the century;
2. The appellant nonetheless suggests that the pre-existing common law
then revived to fill the gap created by the excision of the statutory equivalent
to a defence of reasonable and honest belief: cf Maxwell v Murphy (1957) 96
CLR 261 at 267; Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR E
629 at 637 and Mathieson v Burton (at 14). However, as Windeyer J pointed
out in Mathieson the doctrine of the revival of the common law has no
application if the history of the enactment points to an opposite conclusion.
Here, had it been the intention of Parliament to provide machinery for the
indisputable proof of age, as no more than an adjunct, additional to the
statutory defence of reasonable and honest belief, it would have been simple
for Parliament to have added such a machinery provision to the long- F
standing defence which was already in existence. Instead, that defence was
wholly withdrawn. The inference to be derived is that the intention of
Parliament was henceforth to make the defence dependent upon the
documentary evidence contained in the section, as amended;
3. Support for this construction is also found in the passages of the Second
Reading Speeches by which the 1989 amending Bill was introduced into the
Legislative Assembly and Legislative Council of New South Wales. In the
Assembly, for example, Mr West, then Chief Secretary, moving the adoption G
of the Bill stated:
“The main thrusts of the Bill involve … providing strict controls over
access to liquor by minors … The Bill proposes an amendment to the
present statutory defence in relation to minors by requiring instead of a
reasonable belief that the person to whom the liquor was sold was at
 NSWLR] HICKLING v LANEYRIE (Kirby P) 739

A least eighteen years old, that the licensee or employee sought and was
tendered documentary evidence of acceptable age.”
See New South Wales Parliamentary Debates (Legislative Assembly), 3 May
1989 at 7335. The same explanation of the amendment was given to the
Council: see Hansard, 24 May 1989 at 8300.
Mr Hickling disputed the legitimacy of access to the Second Reading
Speech. However, such access is certainly permitted in this case where it is
B contended that the section, as amended, is ambiguous. Quite apart from any
common law principle, Parliament has itself permitted courts to have regard
to the Second Reading Speech. A court may take access to that material in
the interpretation of the provision of the Act where the material “is capable
of assisting in the ascertainment of the meaning of the provision”. It may do
so if such access helps to confirm that the meaning of the provision is the
ordinary meaning conveyed by the text or to determine the meaning where
the provision is ambiguous or obscure: see Interpretation Act 1987, s 34(1)
C and s 34(2)(f). The ambiguity here is whether, in effect, by the provision of
s 114(5), Parliament was intending to “cover the field” in respect of the
defence based upon a reasonable but honest mistake as to the age of a
purchaser of liquor. The section on its face is clear enough and specific as to
age. But the ambiguity is said to exist by virtue of the common law
presumption. That ambiguity can be considered by reference to the history
behind the amendment and the speech commending to Parliament the Bill
D which became the Act effecting the amendment.
4. Whereas the presumption of the operation, and even the revival, of the
common law exculpation for reasonable and honest belief is one repeatedly
and strongly expressed, it must operate in the present case in relation to a
section which deals expressly with the problem presented by doubt about the
age of a young purchaser of liquor. This is thus not a case of silence on the
part of the legislature. Silence may more readily be filled by the common law
E grounds of exculpation. Where, however, Parliament has specifically dealt
with the matter of age, and in a special and novel way, it cannot really be
said that it has left a gap to be filled by the common law; and
5. Although it is true that, at the borderline, the operation of the present
section may cause some unfairness to vendors and licensees (as was
conceded for Sergeant Laneyrie) the answers given are convincing. First, the
offence must be detected. Secondly, a decision must be taken that it is a
F proper case for prosecution. Thirdly, the prosecution case must be
established. Fourthly, the defendant has available the defence if he or she
has taken the precaution of requiring a purchaser, apparently above the age
of fourteen years, to produce documentary evidence that might reasonably
be accepted, to establish that the purchaser was of or above the age of
eighteen years. Fifthly, if that precaution had not been taken and it is
established by the prosecution that the purchaser was less than eighteen
years of age, a conviction may follow. But in measuring the penalty
G appropriate in the circumstances, it would undoubtedly be proper to take
into account the apparent age of the purchaser and the reasonableness of the
belief of the vendor or licensee that he or she was of or above the age of
eighteen years. As to a further summons for a disciplinary offence, the
commencement of such proceedings would undoubtedly require the whole of
the circumstances to be taken into account, including the reasonable needs
740 SUPREME COURT [(1991) 21

of any honest belief of the vendor and licensee as to the age of the customer. A
Likewise, upon a disciplinary offence having been established, the circum-
stances of the sale would be taken into account in determining what response
was appropriate. It is true that the availability of consideration after
conviction is not a full answer to the argument that the common law
presumption operates. So much was said in He Kaw Teh (at 528). However,
on the face of the present provision as to age and in the light of the history
which preceded it, it seems clear that Parliament was endeavouring to instil a B
high degree of care in those engaged in the sale of liquor to minors. It did so
by effectively imposing upon them, in the event of the slightest cause for
doubt, the obligation to secure reasonable documentary proof of age. The
Court was informed that as a result of the amendment, various forms of
documentary proof of age are now being used including one popularly
known as the “pub card”. The very existence of this card, which would be
commonly known amongst people of or about the age of eighteen years,
demonstrates the way in which the section is operating in practice in the
C
community. It can be inferred from the amendment that it is the purpose of
Parliament to increase the care of licensees and their employees in the sale
of liquor to young people. In the event that they are not sufficiently careful
or make a mistake, however reasonable, Parliament has rendered them
liable. It has done so in pursuit of a social policy which it is in a better
position to fashion than this Court is. The Court should not frustrate the
achievement of that policy. As the words are sufficiently clear, the Court D
must ensure obedience to them.

Conclusions and orders:

I have therefore concluded that Allen J was right to determine that the
provisions of s 114(5) of the Act exclude the operation of the “defence” of
reasonable and honest belief as expressed in Proudman v Dayman. The only
defence relevant to the age of the purchaser is that provided by the section. E
Such provision excludes, in that respect, the common law. It does so
whatever the age of the purchaser, including if he or she is under the age of
fourteen years. Necessarily, this conclusion says nothing about the operation
of other common law defences. It says nothing about the operation of the
principle of exculpation expressed in Proudman in respect of other sections
of the Act which are not now before the Court.
The appeal should be dismissed with costs. F
CLARKE JA and HANDLEY JA. This appeal arises out of a prosecution
of the appellant for contravention of s 114(1) of the Liquor Act 1982 as
amended by Act No 91 of 1989. The section, together with the subsection
defining the relevant statutory defence, are as follows:
“(1) A person shall not sell or supply liquor to a person under the age
of 18 years.
… G
(5) It is a defence to a prosecution for an offence under
subsection (1) … if it is proved that the person to whom the liquor was
sold or supplied … was of or above the age of 14 years and that, before
the liquor was sold, supplied or obtained, there was produced to the
defendant documentary evidence that might reasonably be accepted as
 NSWLR] HICKLING v LANEYRIE (Clarke Ja and Handley JA) 741

A applying to the person and as proving that the person was of or above
the age of 18 years.”
The appellant supplied bottled liquor to a customer who was in fact
sixteen. He was male, over 6 feet in height, and had a beard. The appellant
did not ask him to produce documentary evidence that would have satisfied
s 114(5). The magistrate who heard the prosecution held that the appellant
genuinely believed on reasonable grounds that the customer was over
B eighteen and he dismissed the information.
On appeal by the prosecution, Allen J held that the finding by the
magistrate as to the appellant's honest and reasonable belief did not entitle
the defendant, in law, to an acquittal. The defendant has appealed by leave
to this Court. Mr Whealy QC for the appellant did not submit that the
ingredients of the offence under s 114(1) included the ordinary requirement
of mens rea so that the prosecution had to establish guilty knowledge by the
defendant that the customer was under age. His submission was that the
C offence was not absolute but required proof of the qualified form of mens
rea recognised in Proudman v Dayman (1941) 67 CLR 536 at 540.
Accordingly a defendant could not be convicted if he or she had a reasonable
but mistaken belief as to the existence of an exculpating fact. It is well-
established that this qualified form of mens rea is not a true defence
because, subject to an evidentiary onus on the defendant, the legal onus
remains on the prosecution.
D In each case the legislation must be construed in order to determine
whether a statutory offence is absolute, whether the ordinary requirement of
mens rea applies or whether the only mens rea required is the qualified
form: see generally He Kaw Teh v The Queen (1985) 157 CLR 523; Binskin v
Watson (1990) 48 A Crim R 33 and Von Lieven v Stewart (1990) 21 NSWLR
52.
While in each case the question is one of statutory construction the search
E for the intention of Parliament is guided by the principle applied by the High
Court in He Kaw Teh where (at 567) Brennan J said:
“… It requires clear language before it can be said that a statute
provides for a person to do or to abstain from doing something at his
peril and to make him criminally liable if his conduct turns out to be
prohibited because of circumstances that that person did not know.”
Section 114(1) and s 114(3) of the 1982 Act re-enacted corresponding
F provisions of the Liquor Act 1912 (s 49(1) and s 49(3)) with minimal
changes. Section 114(3) between 1982 and the commencement of the Liquor
(Amendment) Act 1987 provided for a statutory defence of reasonable but
mistaken belief that a customer was over eighteen. Section 114 was repealed
by the 1987 Act but subs (1) was re-enacted without amendment and
subs (3) was re-enacted without relevant amendments as subs (5).
The express statutory defence under s 114(3) prior to 1987 and under
subs (5) between 1987 and 1989 placed the onus of proof of reasonable
G mistake on the defendant.
In 1989, Parliament altered s 114(5) to require persons supplying liquor to
ask for and sight appropriate documentary evidence that the customer was
over eighteen before they could avail themselves of the statutory defence.
However, there was no change to the language of s 114(1). The amendment
to s 114(5) was effected by omitting certain words and replacing them with
742 SUPREME COURT [(1991) 21

other words. It followed the decision in Ovens v Laneyrie (1987) 11 NSWLR A

207, where Campbell J held that the appearance of a customer alone might
afford the defendant reasonable grounds for believing that he or she was
over eighteen.
This legislative history demonstrates that in 1989 Parliament sought to
tighten the law dealing with under-age drinking by narrowing the existing
defence under s 114(5). It therefore required persons supplying liquor to
follow a simple procedure if they wished to avoid the risk of conviction for
supplying under-age persons. In amending s 114(5) in this way Parliament B
was seeking to use the law as a means of social control, and to encourage
suppliers of liquor to adopt and follow the procedure.
The previous statutory defence, by placing the onus of proving reasonable
mistake on the defendant, made it clear that the prosecution did not carry
the onus of rebutting such a mistake in any circumstances. The narrowing of
that defence in 1989 even more clearly demonstrates that under the current
s 114 there can be no such onus on the prosecution.
It must follow that the qualified form of mens rea recognised in Proudman C
v Dayman, in which the legal onus is on the prosecution, is not an ingredient
in the offence created by s 114, at least in respect of the age of a customer,
and subject to any relevant statutory defences the offence in this respect at
least is absolute.
In our opinion therefore the decision of Allen J was correct and the
appeal must be dismissed with costs. We would only add that the existence of
a reasonable but mistaken belief on the part of the defendant as to the age of
the customer is clearly a matter which is relevant in fixing any penalty. D
Where the defendant is a licensee the same matters would also be relevant in
any case where the disciplinary powers of the Licensing Court were invoked
against the licensee.
Appeal dismissed
Solicitors for the appellant: Freehill Hollingdale & Page.
Solicitor for the respondent: S E O'Connor (Solicitor for Director of
Public Prosecutions). E
G PESCE,
Barrister.