Affray charges withdrawn against S&B clients

Good evening readers.

Today we are able to report that Affray charges against our clients were recently withdrawn by the NSW Police prior to a hearing at the Liverpool Local Court. Affray charges (section 93C of the NSW Crimes Act) carry a maximum sentence of ten years imprisonment.

Brief Facts
Our clients were parking their vehicle in a Liverpool carpark when another male began yelling abuse. The clients ignored the abuse and continued to park their car. Upon walking towards the exit of the carpark, the abusive male and his partner approached our clients where a further argument began. The male's female partner began to film the incident on her mobile phone. A few seconds later, the male's partner sprayed a can of deodorant in the face of one of our clients at which point the abusive male punched our client in face. A fight ensued which lasted about 1-2 minutes. Several bystanders broke up the fight and a few minutes later Police attended the scene. Our two clients and the other male were arrested and taken to Liverpool Police Station where they were interviewed. Police were also shown video footage from the female's mobile phone which purportedly showed that our clients had started the fight and had assaulted the male and his female partner. No persons were charged on the day in question.

Approximately 4 weeks later, court attendance notices for the offence of Affray were issued to both of our clients as well as the abusive male.

After receipt of the brief of evidence and during preparation of the defence by Sylvester and Browne Lawyers, a review of the subject mobile phone footage revealed that the abusive male's assault allegations had in fact been fabricated. Further, the version of events given by the male to Police during his record of interview was completely inconsistent with the video footage. It was also clear that the female had in fact started the incident by spraying a can of deodorant into the eyes of one of our clients.

On the day of the hearing, the male failed to attend court despite being subpoenaed by the Police. A medical certificate was produced and the Police subsequently sought to adjourn the hearing. Interestingly, the male's female partner, who had in fact started the fight by spraying deodorant into the eyes of our client, was not subpoenaed to give evidence. The Police had also failed to obtain a statement from the female despite the fact that the Police intended to rely upon the woman's mobile phone video to prove their case. The adjournment application by the Police was subsequently rejected by the Magistrate.

Based upon the failure of the Police Prosecutor to obtain an adjournment together with evidentiary issues raised above, the Police Prosecutor withdrew the charges and the charges were formally dismissed against both of our clients.

Most concerning about the case was the failure of the Police officers involved to properly and thoroughly investigate the matter. If they had paid closer attention to the video footage provided to them by the alleged assault victims and compared it to the answers provided by the male in his record of interview, then it would have been quite clear that the allegations were baseless and the subject charges would not have been preferred in the first instance. Further, the failure of the Police to obtain a statement from the female regarding the incident or to cover the continuity of the subject mobile phone video evidence is inexplicable and borders upon incompetence. At the very least, the female should also have been charged with Affray or assault.

What emanates from this case and other similar cases is that Police have become over-reliant on the charge of Affray in matters involving often minor public assaults involving two or more persons. Quite clearly, Affray charges were designed by the Parliament of NSW to address violent assault incidents similar to the bikie melee that occurred at Sydney Domestic Airline Terminal a few years ago which also resulted in the death of one of the males.  In our opinion, Police management will need to address this issue sooner rather than later or they will likely be on the receiving end of some large cost orders dished out by the courts.

Articles in May 2014 edition of Australian Hotelier

Hello again readers,

Today I have posted a copy of two articles published in this month's (May 2014) edition of Australian Hotelier magazine. If you are have trouble reading the articles, simply right click the document and save to your desktop to view a larger version of the image. 

The first article relates to insurance and compliance issues facing the owners/managers of hotels/pubs/bars/nightclubs.

The second article discusses the recent lock-out laws facing venues in Kings Cross and the Sydney CBD precinct and the recently introduced 'risk-based' liquor licensing scheme.

Should licensees or venue managers have any queries regarding any of the articles, please feel free to contact me at our Sydney office on (02) 8251 0096.

Regards

Dave Sylvester
Principal Lawyer

Risk-based Liquor Licensing Fee Scheme a 'Cash Grab'

Greetings readers,

The details of the long anticipated Risk-based licence fee scheme were released by the NSW Government and the OLGR last Friday the 11th of April 2014. The Scheme dictates that every holder of a perpetual liquor licence will be required to pay an annual risk-based licence fee. We hold the view that the scheme is unfair, unnecessary and has the potential to discriminate against hotels and venues by virtue of their location, trading hours and patron capacity.

According to the OLGR, the scheme is designed to provide venues with a financial incentive to adopt and maintain safe, low-risk practices, with a renewed focus on the Responsible Service of Alcohol, in return for a lower annual licence fee.  Additionally, "the scheme introduces contemporary best practice in liquor regulation into NSW and aligns with existing practices in Victoria, Queensland and the ACT". 

All sounds great in theory doesn't it? However, the Government's attempts to justify the scheme fly in the face of their own statistics which clearly show that alcohol-related violence within licensed venues has dropped dramatically over the past two years. Aside from the lock-outs and alcohol sale cessation times, venues now have extra security, RSA marshals, sophisticated CCTV systems, incident registers and multiple inspections by law enforcement and regulatory bodies. Apparently, that wasn't enough to appease the anti-alcohol coalition, so now owners and operators are faced with the prospect of massive licence fee increases up to $24,000 per year.  It's also interesting to note that 12 months ago, the NSW Government weren't the slightest bit interested in aligning their liquor regulation practices with Victoria, Queensland or the ACT. Funny how things change, especially when you can generate massive funds through a so-called "risk based" licence fee scheme.

Take for example a venue within the Sydney CBD precinct with an unblemished compliance record that trades after 1.30pm, and has a capacity of over 120 persons. At present, a venue in that position would be hit with a standard $500 per year for their licence. Under the new scheme, if the venue trades after 1.30am, they are automatically hit with additional $5000 fee for no other reason than they have been authorised (under their existing licence) to trade til 3am. Now, let's imagine that in a large venue (150-300 people), one patron becomes intoxicated and is removed from the hotel by security personnel. Whilst being removed, the OLGR or Police identify that the person is apparently intoxicated and breach the licensee with 'Licensee permit intoxication'. Remember, this is a pub with an unblemished compliance history. The affect that this incident would have on the venue is enormous. Firstly, the compliance history loading indicates an additional fee of $3,000 on top of the $5,500 fee already imposed. That's $8,500. But it doesn't stop there. Then, if we add loading for the venue's patron capacity and location, another $7,000 is added to the fees. That's a total of $15,500. Again, the example we are using is that of a venue with a prior unblemished compliance record. Mr Premier or Mr Souris, please explain how the imposition of $15,000 in 'risk-based' licence fees can be viewed as anything more than a blatant cash-grab.  If the government are trying to put pubs/bars/nightclubs and other venues out of business, the new 'risk-based' licence fee scheme will certainly assist them to achieve their goal.                 

See below for a link to an article in The Shout online magazine today regarding the new scheme.

http://www.theshout.com.au/2014/04/14/article/Risk-based-licensing-a-cash-grab-Lawyer/BXIPWRCJMG

The OLGR calculator can be found here;

http://www.olgr.nsw.gov.au/risk_based_licence_fee_calculator.asp

David Sylvester
Principal Lawyer

'High Risk' venues within the Sydney CBD Precinct - Important Information

Notification of 'High Risk' venues within the Sydney CBD Precinct

Recently, the NSW Office of Liquor Gaming & Racing (OLGR) have sent letters to numerous licensees and/or licensed premises within the newly created Sydney CBD Precinct advising that pursuant to section 116B of the Liquor Act 2007 (the 'Act'), 'licensed premises' 

(i)  on which liquor may be sold for consumption on the premises, and
(ii)  that are authorised to trade after midnight at least once a week on a regular basis, and
(iii)  that have a patron capacity (as determined by the Director-General) of more than 120 patrons

will be deemed to be 'High Risk' venues and as such will be subject to the Lock-out & Sales Cessation restrictions for the Sydney CBD precinct (as outlined in sections 53Y(1)(d) & 53Z(1)(d) of the Liquor Regulations 2008). The imposition of these additional restrictions/conditions on venues within the Sydney CBD Precinct follows on from previous restrictions placed upon venues within the Kings Cross Precinct. 

Notwithstanding that venues may be able to apply for an exemption (via the Regulations) in regard to the above restrictions, it is very important that licensees and venue owners familiarise themselves with the specifics of their current liquor licence and any restrictions and/or conditions that may have been imposed. 

As the law currently stands (and as outlined above), although licensees of declared High Risk venues in the Sydney CBD Precinct are generally caught by both the lock-out and sales cessation restrictions, they are NOT automatically subject to other conditions that may be instituted by the Director (OLGR) by virtue of section 116I of the Act. Section 116I outlines that high risk venues may also be subject to additional conditions including the prohibition/restriction on the use of glass containers and bottles within the venue and serving high alcohol content drinks such as shots.

Sylvester and Browne Lawyers are concerned that some licensees/venues have been incorrectly informed by licensing Police that their venues are subject to the restrictions as set out in section 116I of the Act when this is clearly not the case. Our interpretation of the Act and the Regulations has been confirmed by the OLGR who are now attempting to liaise with their colleagues in the NSW Police Force regarding the error. If and when approached by NSW Licensing Police, licensees and venue managers should request details of the breaches alleged including the section/s contravened under the Act or Regulations.  

Interestingly. the wording in the letters sent suggests that the OLGR and Police may be gearing up to impose additional conditions on some perceived high risk venues within the Sydney CBD Precinct in line with the Plan of Management for the Sydney CBD Precinct. As such, venue operators and licensees should remain vigilant towards managing conditions that may lead to alcohol related violence including the responsible service of alcohol. It is likely that any attempts by the OLGR or Police to impose further onerous conditions will be closely linked to intelligence gathered by both covert/non-covert surveillance and relevant incidents inside and in the vicinity of perceived high risk venues.    

Should any licensees, owners or venue management require further advice regarding these issues, please feel free to contact us on (02) 8251 0096 or via email enquiry@sylvesterbrowne.com.au.

Regards
David Sylvester
Principal Lawyer.       

Special Licence Conditions - Kings Cross - February 2014

 Hi readers,

We have been receiving numerous enquiries of late regarding the Special Licence Conditions applicable to premises/venues within the Kings Cross precinct.

I have inserted a link (below) to the OLGR's Fact Sheet regarding the new conditions.

Venue managers and licensees within the Kings cross precinct are strongly encouraged to review the attached link to ensure compliance with the new licence conditions.

Should you have any queries regarding the new conditions, please feel free to contact our office on (02) 8251 0096.

 http://www.olgr.nsw.gov.au/pdfs/kings_cross_spec_cond_factsheet.pdf  

Regards

David Sylvester
Principal Lawyer

Shout Magazine article addressing NSW Government's response to alcohol-related violence

Greetings readers.

Please see the attached link for an article in The Shout magazine regarding the Government's proposals to fight alcohol-related violence in Sydney's CBD.

 http://www.theshout.com.au/2014/01/29/article/OFarrell-plan-destined-to-fail-Lawyer/PLSFBHGFIQ.html



** Further updates on the way over the next few weeks.

Article in The Shout magazine - Pubs baulk at OLGR & Police pressure tactics

Article in The Shout magazine - Pubs baulk at OLGR & Police pressure tactics

http://www.theshout.com.au/2013/09/16/article/Pubs-baulk-at-OLGR-pressure-tactics/IFRHBPRGUA

Pubs baulk at OLGR pressure tactics

By Clyde Mooney - editor Australian Hotelier
Amid reports that the State regulator is distributing 'suggestions' on adopting strict liquor accord standards, the industry has reacted with a resounding 'slow down!'
The Australian Hotels Association (AHA) NSW has received reports over recent weeks that Office of Liquor & Gaming (OLGR) officials and NSW Police licensing officers have been distributing documents based on their ‘suggestions for compliance’ to liquor accords. 
Reportedly some accords are being told they must accept these measures or ones similar to them, or face the prospect of conditions similar to those imposed on Newcastle or Kings Cross.
The AHA NSW has contacted senior OLGR staff, in response to numerous queries from both metropolitan and regional members relating to the distribution of the documents and the manner in which the information is delivered.  
The OLGR representatives informed the Association that the intent of the program is: ‘to ensure all areas have considered the terms of their accords’; that the documents are ‘a guide only’ to stimulate discussion, based on existing measures from around NSW; and ‘not by any means a list of recommended strategies that accords must adopt’.
AHA NSW has always supported member involvement in the establishment and participation in local liquor accords, but warns members to think carefully before they proceed.
“Liquor Accords are about developing local solutions to their issues,” said AHA NSW CEO Paul Nicolaou.
“On that basis, members are strongly advised to consider carefully the issues that are affecting [their] local area, and to make informed and voluntary decisions in relation to any strategies that are adopted.”
Liquor licensing specialist law firm Sylvester & Browne bode the wisdom of proceeding cautiously, having seen first hard the results of operators railroaded into stringent voluntary conditions. 
"Some of our clients have certainly been pressured into agreeing with the inclusion of certain conditions on a supposedly 'voluntary' basis,” David Sylvester, Principal Lawyer at Sylvester & Browne told TheShout.
“Others have been on the receiving end of Police using unrelated and biased intelligence in order to impose more stringent conditions. Many licensees adopt these terms and conditions through a fear of upsetting the Police or receiving increased attention from regulators.
“Unfortunately, and in line with the comments of the AHA, once formal conditions are imposed on a licensed venue, it is very difficult to have them removed. In our view, the large majority of venues are exceeding their responsibilities in so far as managing and reducing alcohol related violence is concerned.”
The AHA suggests that any operators who feel they are being intimidated or coerced into agreeing to terms for their accords, should not sign up to the terms in question.

NSW Police settle Tort claim in favour of S&B client

Sylvester and Browne Lawyers are proud to announce the settlement of a civil compensation (Tort) claim by the NSW Police in favour of our client. The numerous claims in tort related to the actions of two NSW Highway Patrol officers in detaining and later charging our client with a number of criminal offences in 2011.

Background
The client was driving to pick up his son from Tae Kwon Do lessons at Cronulla in Sydney's south when he was stopped by Highway Patrol Police who suspected that he had tried to avoid a random breath testing site further down the road.  When the client stepped from his vehicle to speak to officer, he was arrested, handcuffed and placed face down on the roadway for approximately 15 minutes in front of both his young son and daughter. During this time, other young Tae Kwon Do class participants and their families have walked past the client whilst handcuffed. In our view, it should have been obvious to the overzealous officers involved that our client was in fact picking up his son from the Tae Kwon Do class. This is backed up by the Police in-car-video footage which clearly shows the client pointing out of the driver's side window towards a group of boys dressed in Tae Kwon Do outfits. This appears to have been dismissed by the officers involved.

For some unknown reason, one of the officers has requested the attendance of a drug detection dog to conduct a search the client's car. No drugs were found. The client was then breath tested which proved negative. Perhaps fearing that they may have overstepped their authority, our client was then issued with court attendance notices for Assault Police and Resist Arrest. These charges were eventually withdrawn by Police Prosecutions some 5 months later without any apology or acknowledgement regarding the alleged wrongdoing of the officers involved.

In August 2013, the NSW Police agreed on confidential terms to settle the matter out of court.

Discussing the case generally, Principal Lawyer David Sylvester said, "It is unfortunate fact that sometimes Police abuse their powers during the execution of their duty. As a result, the victims of this abuse often suffer ongoing trauma associated with the incident. In many cases, the anger and hurt suffered by the aggrieved person tends to be exacerbated by the failure of the Police to apologise or accept responsibility for their actions."

Whilst the client is happy that the claim has been settled, he remains angered by the actions of the subject Highway Patrol officers. He is hopeful that this settlement will result in appropriate sanction for the officers and further training for Police generally so that tortious actions such as these can be avoided in the future.  

             

Sylvester and Browne Lawyers successfully defend Defamation claim against nightclub

Sylvester and Browne Lawyers are pleased to advise that they have successfully defended a defamation claim against our client 'Palms on Oxford' nightclub located in Darlinghurst, Sydney.

In 2012, the complainant launched a defamation claim against the club, its Director and the Licensee. He claimed that he was told by security guards at the club that he was too drunk to enter and should go away and sober up somewhere else. These words were denied by the club, the licensee and the security guard involved. The complainant, who is a Sydney journalist, outlined in his statement of claim that the words alleged to have been spoken had defamed him and affected his reputation.

However, after a five day hearing in the NSW District Court before Judge Judith Gibson, the case was dismissed and the complainant was ordered to pay the costs of all three Defendants. For a copy of the judgment click on the link below.

http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=165491    

The Director of Tulloch Pty Ltd Mr Peter Inwood, the company that owns Palms on Oxford said in relation to case, "We engaged Sylvester & Browne Lawyers in 2012 after we received the initial anti-discrimination complaint. They also handled the subsequent defamation claim against the club. We could not be any happier with their representation of us in both of these matters. We are understandably ecstatic with the decision of the court. Unlike many other lawyers representing pubs and clubs in Sydney,  David and his team achieved what they said they would achieve.  I would highly recommend David and his team for the brilliant job they did in defending the defamation claim against us."

Commenting on the case generally, Principal Lawyer David Sylvester said, "This defamation judgment is a very important decision for those who own, operate or manage licensed venues in Australia. As the law currently stands, venues that engage in appropriate and responsible vetting procedures in relation to patrons and potential patrons should not be concerned when refusing entry to patrons pursuant to their responsibilities under both the Liquor and Anti-Discrimination Acts".

The following links relate to media coverage of the case.

http://www.youtube.com/watch?v=fcSkeUqeS14&feature=youtu.be

 

http://www.smh.com.au/nsw/i-was-being-excluded-because-i-was-too-old-20130606-2nr1u.html

http://www.smh.com.au/nsw/journalist-denied-nightclub-entry-loses-defamation-case-20130619-2oj03.html

http://www.smh.com.au/nsw/sports-writer-barred-from-nightclub-loses-defamation-claim-20130619-2oj8o.html

http://www.theshout.com.au/2013/06/21/article/Nightclub-wins-defamation-test-case/RQXPAUARCV.html

NSW Police withdraw liquor licensing breach

NSW Police withdraw Liquor Licensing breach

Sylvester and Browne Lawyers are proud to report that a liquor licensing breach issued against a Licensee of one of our Hotel clients based in the Darlinghurst area was withdrawn by NSW Police prior to a hearing at the Downing Centre Local Court last Wednesday the 13th of February 2013.

The case alleged by Liquor Licensing Police attached to the Surry Hills Command was that the Licensee had failed to provide CCTV footage to Police upon request pursuant to a condition on his licence. However, based on the evidence, it should have been clear to the investigating Police that there was in fact a person on the premises at the time who was able to burn the subject footage to DVD and that a thorough investigation by the Police, rather than assumptions, would certainly have uncovered that fact.

Interestingly, the case highlighted an issue regarding the urgency of the Police request for CCTV footage. The evidence outlined that the subject incident being investigated allegedly occurred 7 days prior to the request. Why then did it take so long for investigating Police to attend the hotel and request the footage? Further, the relevant Notice to produce the CCTV footage that was issued to the Licensee had been backdated to the week before the Police attended the hotel. Whether this was a typographical error or otherwise remains to be seen.  Suffice it to say, licensees should ensure that they carefully check any documentation produced or relied upon by the Police prior to deciding upon a specific course of action.

Thankfully, sanity prevailed in this particular case and the Police Prosecutor withdrew the breach prior to the hearing. Sylvester and Browne Lawyers highly recommend that Licensees seek specialised legal advice prior to making  admissions to Police or paying fines issued for liquor licensing breaches. It is important to remember that when a breach or fine is paid by a licensee and/or manager, that information may be used by licensing Police and other regulatory agencies in unrelated proceedings in the future to indicate a pattern of offending by a particular licensee.  Food for thought.

David Sylvester
Principal Lawyer

S&B Lawyers sign agreement with Diageo Australia

Sylvester & Browne Lawyers to provide liquor licensing advice to Diageo Australia 

The directors of Sylvester and Browne Lawyers are proud to announce that the firm has been selected to provide specialised liquor licensing advice to Diageo Australia. Diageo plc is a British multinational alcoholic beverages company headquartered in London. Diageo is also the world's largest producer of spirits and a major producer of beer and wine. Diageo's major brands include Smirnoff vodka, JohnnyWalker Scotch Whiskey, Baileys liqueur, Guinness stout and Jose' Cuervo tequila.

When commenting on the agreement, Sylvester and Browne Lawyers' Managing Director Mr David Sylvester said, "We are extremely pleased to have been selected to provide liquor licensing advice to Diageo Australia. Not only is Diageo a worldwide leader in their field, they are also at the forefront of industry efforts in relation to the promotion of responsible alcohol consumption. We look forward to providing specialist advice and legal representation to the Diageo Australia team for the foreseeable future."

PIC hypocrisy at its highest

See the link below for an article outlining that the hypocrisy of the Police Integrity Commission (PIC) appears to know no bounds.

http://www.theaustralian.com.au/news/former-police-integrity-commissione-john-pritchards-downfall-shrouded-in-secrets/story-e6frg6n6-1226534837469

Considering that this particular PIC inquiry was (among other issues) investigating the alleged improper release of information to the media by senior Police, it's quite ironic that the PIC Commissioner Mr John Pritchard himself was found to have illegally provided confidential material to the media.  Contrary to the treatment dished out to the veteran NSW Police Superintendent who was the subject of the inquiry, Mr Pritchard was simply allowed to resign from his next appointment as head of the Australian Crime Commission rather than face criminal charges for breaching the PIC's secrecy provisions. According to the report, the PIC Inspector found that Pritchard had apparently "paid a high personal and professional price for his actions". Please.

Even more disturbing is the journalist's reference to the fact that the PIC Inspector's report found that the PIC's current No.3, Michelle O'Brien had apparently joked with Pritchard about the leak of confidential information. The total disregard of the privacy of those individuals involved in this matter can only be described as appalling. And all of this to make the beleaguered PIC "look better"! If O'Brien was complicit in the release of confidential information, surely her senior position at the PIC is untenable. Time for action Mr Premier.

Xmas and New Years greetings

The Directors of Sylvester & Browne Lawyers wish a very merry Christmas and prosperous new year to all of our clients (& their families) and to those who have provided assistance to the firm throughout 2012. We are excited about what 2013 holds for our existing clients including the successful culmination of several large cases.

We hope that you enjoy the holiday break and return to work stress-free in 2013.

Warm wishes

David Sylvester & Stuart Browne.
Directors

    

AHA Golf Day photos

Below are a few photos from the AHA NSW Golf Day held at Strathfield GC last Tuesday the 10th of December 2012. More photos to follow over the next week.

 

Director - Stuart Browne in full swing

 

Peter McIntyre (NSW GC) lining up.

Sylvester & Browne Lawyers sponsor AHA (NSW) Golf Club Golf Day

Sylvester & Browne Lawyers sponsor AHA (NSW) GC Golf Day

Sylvester and Browne Lawyers are proud to announce that they will sponsor the NSW Australian Hotels Association GC (NSW Branch) Golf Day on Tuesday the 11th of December 2012 at Strathfield Golf Club. The event will be a shotgun start commencing at 12pm. The event will be followed by the annual Xmas dinner at 6pm.

"We are very proud to be associated with the NSW AHA Golf Club for this years final event before Xmas" said Mr Stuart Browne, Director of Sylvester & Browne Lawyers. "We are really looking forward to the day and hope to be involved for many years to come".

There are a few spots still available, so if you are interested in attending let us know. Hope to see you there.