Waxy O'Connors Ltd v Judge David Riordan

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 25 November 2009
• Neutral Citation: [2009] IEHC 515
• Court: High Court
• Date: 25 November 2009

[2009] IEHC 515

THE HIGH COURT

[No. 1234 J.R/2007]

Waxy O'Connors Ltd v Judge Riordan

[2009] IEHC 515

JUDICIAL REVIEW

BETWEEN

WAXY O'CONNORS LIMITED

APPLICANT

AND

JUDGE DAVID RIORDAN

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

INTOXICATING LIQUOR ACT 1988 (AGE CARD) REGS 1999 SI 4/1999

INTOXICATING LIQUOR ACT 1988 S31(1)

INTOXICATING LIQUOR ACT 1988 S34(1)

INTOXICATING LIQUOR ACT 2003 S14

INTOXICATING LIQUOR ACT 1988 S34(8)

INTOXICATING LIQUOR ACT 1988 S31(4)

INTOXICATING LIQUOR ACT 2000 S14(1)(B)

AG (MACNEILL) v CARROLL 1932 IR 1

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3

INTOXICATING LIQUOR ACT 1988 S31

INTOXICATING LIQUOR ACT 1988 S34(4)

INTOXICATING LIQUOR ACT 1988 S34

INTOXICATING LIQUOR ACT 1988 S34A

INTOXICATING LIQUOR ACT 2003 S15

INTOXICATING LIQUOR ACT 2008 S17

INTOXICATING LIQUOR ACT 2008 SCHED 1

INTOXICATING LIQUOR ACT 1988 S36A

INTOXICATING LIQUOR ACT 2000 S13

R v CITY OF SAULT STE MARIE 85 DLR (3D) 161 1978 2 SCR 1299

SHANNON REGIONAL FISHERIES BOARD v CAVAN CO COUNCIL 1996 3 IR 267 1996/15/4588

SHERRAS v DE RUTZEN 1895 1 QB 918

BRADY v ENVIRONMENTAL PROTECTION AGENCY 2007 3 IR 232 2007/6/1143 2007 IEHC 58

DUNCAN v GLEESON 1969 IR 116

INTOXICATING LIQUOR ACT 1988 S35

INTOXICATING LIQUOR ACT 1988 S35(7)

INTOXICATING LIQUOR ACT 2000 S14(2)

INTOXICATING LIQUOR ACT 1988 S31(2)

MINES & QUARRIES ACT 1965 S136

C (C) & G (P) v IRELAND & ORS 2006 4 IR 1

SWEET v PARSLEY 1970 AC 132 1969 2 WLR 470 1969 1 AER 347

PROUDMAN v DAYMAN 67 CLR 536 1941 HCA 28

STATUTE

Validity

Licensed premises - Sale of intoxicating to person under age of 18 years - Defence - Failure of section to continue to provide general defence of reasonable care or due diligence - Objective and intention of legislature - Whether age card production sole defence - Construction - Interpretation - Plain, literal and grammatical meaning of words - Whether two mutually exclusive defences available - Whether defence of due diligence retained - Whether competent for legislature to limit type of reasonable care upon which accused could rely to exculpate himself - Whether legislature could lawfully specify degree of care which would suffice as defence - Attorney General (MacNeill) v Carroll [1932] IR 1; Regina v City of Sault Ste Marie 85 (DLR) (3d) 161; Shannon Regional Fisheries Board v Cavan County Council [1996] 3 IR 267; Sherras v DeRutzen [1895] 1 QB 918; Brady v Environmental Protection Agency [2007] IEHC 58, [2007] 3 IR 232; Attorney General (MacNeill) v Carroll [1932] IR 1; Duncan v Gleeson [1969] IR 116; PG v Ireland [2006] 4 IR 1; Proudman v Dayman 67 CLR 536 and Sweet v Parsley [1970] AC 132, [1969] 2 WLR 470, [1969] 1 All ER 347 considered - Intoxicating Liquor Act 1988 (No 16), ss 31, 34 and 34A - Intoxicating Liquor Act 2000 (No 17), s 14(1)(b) - Intoxicating Liquor Act 2003 (No 31), ss 14 and 15 - Intoxicating Liquor Act 1988 (Age Card) Regulations 1999, (SI 4/99) - Constitution of Ireland 1937, Articles 38.1 and 40.3 - Relief refused (2007/1234JR - Herbert J - 25/11/2009) [2009] IEHC 515

Waxy O'Connors Ltd v Judge Riordan

Facts The applicant had been charged with an offence under s. 31(1) of the Intoxicating Liquor Act 1988 of permitting a person to sell or deliver intoxicating liquor for consumption on his licensed premises to a minor. Section 31(4) of the Act of 1988, as amended, provides a defence in the following terms:- "In any proceedings for a contravention of subsection (1)it shall be a defence for the defendant to prove that the person in respect of whom the charge is brought producedan age card relating to that person…" The applicant had been granted leave to seek, by way of application for judicial review, an order of certiorari of the decision of the respondent to convict him of an offence under section 31(1) of the Act of 1988. It was submitted by the applicant, that the respondent had misdirected himself in law in concluding that the defence provided by s. 31(4), as substituted, of the Act of 1988, was the only defence to a charge preferred under s. 31(1) of that Act. It was submitted that the correct interpretation of the intention of the legislature was to provide an additional defence to an existing defence of "reasonable care" or "due diligence". It was also submitted that the purported restricted defence provided by s. 31(4), if held to be the sole defence available to an accused in respect of an offence under s. 31(1), was unreasonably and disproportionately restrictive and that the failure of the section to continue to provide a general defence of reasonable care or due diligence in fact constituted the offence one of "absolute liability", since it was not in any reasonable sense open to an accused to exculpate himself by showing that he was not at fault which infringed the provisions of Article 38.1 and Article 40.3 of the Constitution.

Held by Mr. Justice Herbert in refusing the reliefs sought that the provisions of s. 31 of the Act of 1988, as amended, did not constitute an impermissible infringement of the right of an accused to a trial in due course of law, as guaranteed by the provisions of the Constitution. The offences established by s. 31(1) of the Act of 1988 were offences of doing or permitting the selling or consumption of intoxicating liquor on a licensed premises by a minor. The clear object of the Legislature in establishing the offences was to endeavour to curtail the mischief of underage drinking of intoxicating liquor by minors and, not to establish a type of identity card system for accessing licensed premises. Non-production of an age card was not an ingredient of any of the offences. Section 31(4) drew a clear distinction between the offence and the permitted defence to that offence. The Legislature had transferred the onus therein so that once the prosecution had established the necessary facts beyond reasonable doubt the accused had then to convince the Court, on the balance of probabilities, that he "took reasonable care" or exercised "due diligence" to avoid committing the offence. There was no reason why the Legislature, in the interests of the public good and the proper regulation of the licensed trade in that interest, could not lawfully specify the degree of care which alone would suffice as a defence provided that the stipulated defence was not unfair, unreasonable, irrational, unduly burdensome or disproportionate as respects the benefit sought to be achieved and the mischief sought to be remedied. It followed that s. 31(1) of the Act of 1988, so long as it provided a valid and lawful defence to an accused person, did not establish an offence of absolute liability rather than an offence of strict liability.

Reporter: P.C.

1 Mr. Justice Herbert delivered on the 25th day of November, 2009

2 In this case the applicant was granted leave by Order of this Court to seek, by way of judicial review, certiorari or, if necessary, a declaration of invalidity.

THE FACTS

3 The applicant is the holder of an Intoxicating Liquor licence in respect of a licensed premises in the centre of Cork city. On the 22 ^nd April, 2006, a young women, - who it is accepted did not become 18 years old until the 18 ^th May, 2006, - assumed the identity of another person and presented that person's drivers licence and passport to the doorman at the applicant's premises. There is a difference in recollection between the young lady and the doorman as to whether or not she also produced an Age Card, issued pursuant to the provisions of the Intoxicating Liquor Act 1988, (Age Card) Regulations 1999, (Statutory Instrument No. 4/99). It is not clear whether the learned Respondent found as a fact whether she had or she had not. However, it appears to have been the evidence of the doorman that an Age Card was produced to him but that the photograph on the card was so blurred that he refused to accept it. He admitted the young lady to the licensed premises on foot of the passport and the drivers licence. She was there sold a bottle of beer which was supplied and delivered to her and which she consumed on the premises.

4 When challenged by a member of An Garda Síochána as to her age, this young lady maintained for a period of between 5 and 10 minutes that she was the person named on the passport and the drivers licence. She maintained this deception even to the extent of writing the signature of the holder as appearing on these documents a number of times. Eventually she was obliged to disclose her true identity.

5 The applicant was charged with an offence under s. 31(1) of the Intoxicating Liquor Act 1988, (No. 16/1988) of permitting a person to sell or deliver intoxicating Liquor for consumption on his licensed premises to a person under the age of 18 years. The applicant was also charged with an offence under s. 34(1) of the Intoxicating Liquor Act 1988, as substituted by s. 14 of the Intoxicating Liquor Act 2003(No. 31/2003), of allowing a person under the age of 18 years to be in the bar of his licensed premises at any time.

6 On the 4 ^th September, 2007, the learned Respondent dismissed the charge against the applicant on foot of s. 34(1) of the Act of 1988, (as substituted). Section 34(8), (as substituted) provides that:-

"In any proceedings against the holder of a licence of licensed premises for a contravention of subsection (1) of this section it shall be a defence to prove that the holder used all due diligence to prevent the person concerned from being admitted to or remaining in the bar."

7 On the same date the learned Respondent convicted the applicant of an offence under s. 31(1) of the Intoxicating Liquor Act 1988. This section provides as follows:-

"The holder of any licence shall not -"

8 (a) sell or deliver or permit any person to sell...