2.4 The hearing and the decision
Now that your preparation is complete, it is time for the hearing. This section provides information on how hearings operate and how to present your case.
Snapshot of this section
Hearings usually follow this format: opening and introduction; the applicant presents; reporting agencies present; objectors present; closing submissions; the hearing concludes.
You have a range of options for addressing any concerns about hearings, including: lodging an objection; requesting a meeting with the committee secretary; or lodging an appeal.
After the hearing has finished, the District Licensing Committee (DLC) will issue a written decision, giving the reasons for the decision and summarising the evidence and arguments at the hearing.
This step covers:
- Who attends hearings?
- Hearing format
- Presenting evidence in chief
- Examination of witnesses
- Managing exhibits
- Adjournment during a hearing
- What to do if processes are not being followed
- After the hearing
Legal requirements for Step 4- what the Act says
Powers of the DLC
District licensing committees (DLCs) have the powers of commissions of inquiry (s 201). Their powers under the Commissions of Inquiry Act 1908 allow them to require documents to be produced and to summon witnesses.
Hearings are public
DLC hearings must be open to the public (s 203(1)). However, the DLC may hold parts of the hearing in private (with the public excluded) if it thinks this is in the best interests of those appearing and of the public (s 203(3)). The DLC can also make an order prohibiting publication of aspects of the matter, but this does not extend to prohibition on publishing the names and descriptions of the parties or the particulars of any premises affected (s 203(5)).
The right to appear
The Sale and Supply of Alcohol Act 2012 (the Act) sets out who has the right to appear in proceedings under (ss 204-206).
The DLC may receive as evidence any information that it thinks may help it deal effectively with the matter in front of it, even if the information would not be admissible in a court of law (s 207). These wide powers emphasise the importance of a DLC following due process and the rules of natural justice.
Who can make decisions on applications?
A district licensing committee (DLC) may decide any application for a licence (s 104), renewal (s 130) or manager’s certificate (s 221). With the leave of the chair of ARLA, the DLC may refer an application to ARLA for a decision. The DLC must give ARLA the complete file for any application to be decided by ARLA (s 104, s 130, s 221).
Considerations when making a decision on an application
In deciding whether to issue a licence or a manager’s certificate, the DLC must have regard to the criteria set out in the following sections of the Sale and Supply of Alcohol Act 2012 (the Act):
- New licences (ss 105 and 106)
- Renewals (s 131)
- Special licences (s 142)
- Manager’s certificates (ss 222 and 227)
The purpose and object of the Act are also relevant.
What the decision must cover
The decision of the DLC on an application must be given in writing and must meet the criteria of (s 211) The decision must include:
- the reasons for the decision
- what reports on the application were received
- the attitude towards the application of every report (in general terms).
Who must receive a copy of the decision?
Under (s 211) the DLC must give a copy of the decision to:
- the applicant
- each objector who appeared at the hearing
- any other objector who requests a copy
- the Police, the inspector and the Medical Officer of Health.
The toolbox sets out the sections of the Act that are relevant to this step.
Those likely to attend a hearing include:
- the committee chairperson, members and advisors
- the applicant, and their representatives, lawyers and witnesses
- objectors and any associated representatives, lawyers and witnesses
- the Medical Officer of Health or their delegate, or counsel
- representatives of the Police or their counsel
- the council’s licensing inspector or their counsel
- other council officers, to give reports or technical advice to the committee, if called as witnesses
- any person granted leave to appear and be heard or their counsel
- members of the public
- news media representatives.
Hearings usually follow this format: opening and introduction; the applicant presents; reporting agencies present; objectors present; closing submissions; the hearing concludes.
The order of speakers may vary from hearing to hearing, but the chairperson of the DLC will outline the order of the day at your hearing.
This part of the guide sets out in detail what happens at each stage of the hearing.
Opening and introduction
- The chairperson introduces the committee members and advises which licence application is being heard.
- You and the other parties are asked to introduce yourselves. The easiest way to do this is to state your name, your role, and whether you are 'in opposition', or there 'to assist' the DLC.
- The chairperson gives a brief outline of the hearing procedure. The chairperson may also confirm that they and the committee members don't have any conflicts of interest and are able to consider the application impartially.
- The parties may be requested to briefly outline their position and evidence they intend to present. This is an opening address and is like a roadmap. It tells the committee what the case is about, what each party believes the evidence will show, and the verdict they are asking for.
The applicant presents
- The applicant (either personally or through a representative) introduces their application and presents their case.
- They can call witnesses to give evidence in support of their application. The applicant's representative can ask questions of its witnesses (examination).
- The committee may have questions for the applicant and their witnesses while they are giving evidence.
- The reporting agencies (Police, Medical Officer of Health and licensing inspector) and any objectors may then ask questions (cross-examination).
- The committee members then have the chance to ask any additional questions.
- In some cases, after cross-examination the committee may allow the applicant's representative to ask clarifying questions of its witnesses (re-examination).
Reporting agencies present
- In some cases, you may only attend the hearing to assist the committee. In this situation, you 'stand by' your report, which can be formally handed up when requested and taken as read.
- If you are presenting evidence you will be sworn in (by oath or affirmation) before beforehand. You do not have to be sworn in if you are only presenting submissions.
- You can call witnesses to support your case. You may ask questions of your witnesses (examination).
- The committee members or chairperson may have questions for you or your witnesses.
- The applicant and the other reporting agencies can also ask you and your witnesses questions about your/their evidence (cross-examination).
- The committee members or chair may have questions you or your witnesses as well.
- In some cases, after cross-examination the committee may allow you to ask clarifying questions of your witnesses (re-examination).
- Any public objectors who wish to speak can talk about their objections – in person or through representatives. They cannot introduce new grounds for objecting, but can present evidence to support their formal objection.
- If they want to present evidence, they are sworn in.
- Objectors can also call witnesses to support their cases.They may ask questions of their witnesses (examination).
- The committee members or chairperson may have questions for the objectors or their witnesses.
- The applicant and the reporting agencies can also ask objectors and their witnesses questions about their evidence (cross-examination).
- The committee members or chair may have questions for the objectors or their witnesses as well.
- In some cases, after cross-examination the committee may allow objectors to ask clarifying questions of their witnesses (re-examination).
- Each party usually has a chance to make closing remarks to sum up their case. Closing submissions are usually made in reverse order to the order in which the parties called their witnesses. The applicant usually has the last right of reply, although the committee has discretion to change the order of submissions.
- If you are involved in a long, detailed hearing, you may wish to ask for an adjournment to draft your closing submissions.
The hearing concludes
- The chairperson advises everyone that the public part of the hearing is finished and outlines the next steps.
- All DLC decisions are issued in writing. Generally, the committee will issue a written ('reserved') decision to the applicant and other parties within 30 days of the hearing. Sometimes the committee confers in private for a short time and delivers an oral decision on the day, with the written decision issued later.
This section provides detailed guidance for presenting evidence in chief: if you are the witness, or if you have a witness presenting evidence for your case.
If you are presenting evidence in chief for your case
- When you are called to give evidence you must go to the witness box or seat (depending on the venue). You will then be required to swear on the Bible or make an affirmation ('verbal promise').
- Once you are settled, await direction from the committee before you begin reading your evidence.
- Remember to address the committee as “the committee”, the chair as “Sir” or “Madam” or “the chair”, and other committee members as “Sir” or “Madam”.
- Remember, the evidence is to the committee and your attention should be directed to the members of the committee.
- Be familiar with the evidence but don't attempt to memorise it.
- Stay calm and compose yourself. Don't rush it. Discipline yourself to speak slowly, clearly and loud enough to be heard, as your evidence is being recorded.
- If you are going to produce exhibits, ensure that you have sufficient copies assembled ready to hand to the registrar. Take your time. It is best to attach the exhibits to the brief and simply draw the committee's attention to them.
- Seek permission to refer to notes or documents.
- Avoid taking any large pile of papers with you that are not relevant to the evidence as this will make it difficult to sort out the relevant papers. If, when under cross-examination, you need to refer to a paper you do not have, explain this and ask for leave from the chairperson of the committee to retrieve the required papers. Have them set out logically on the desk so that you can find the required papers immediately.
- The person calling the witness may then ask some questions to add weight to the evidence or to bring out any additional detail.
- Once evidence in chief has been given, then all others who hold 'party' status will be given an opportunity to cross-examine you in relation to the evidence given and any other points that may assist the committee in its deliberations. You must also answer questions from the committee.
If you have a witness presenting evidence in chief for your case
- Spend some time before the hearing preparing your witness to give evidence: ensure that they are familiar with the contents of their brief of evidence; explain how the hearing will work and what is required of them; tell them how to address the various parties; who to direct their answers to etc. In an ARLA hearing expert witnesses must abide by the High Court Code of Conduct for witnesses.
- When they are called to give evidence, they must go to the witness box or seat (depending on the venue). They will then be required to swear on the Bible or make an affirmation ('verbal promise').
- You then stand and ask the witness to confirm their name.
- Thank them and ask them to read their brief of evidence which is their ‘evidence in chief’. Note that some DLCs may take the evidence 'as read' and allow the witness to go straight to cross-examination.
- Asking questions of your witness is called 'examination in chief'. The purpose of the examination in chief is to elicit the evidence from your witness in such a way that:
- the witness tells the committee all they can properly say about the matters at issue in the case
- the evidence is clear, unambiguous and only about matters relevant to the case.
- The answer your witness gives you to your questions is that witness's evidence in chief.
- It is good practice to only ask open questions of your own witness (ie, who, what, when, how, why). You should avoid asking leading questions (ones which suggest an answer).
- Once your witness has read their brief of evidence, you will usually have few, if any, questions for them as all evidence should be contained in the brief.
- You may wish to ask your witness questions if evidence has been given earlier in the hearing that they can directly comment on.
- For example: “You've heard the evidence of Mr Jones. What is your view on [relevant point]/can you comment on [relevant point]?” You should be careful to do this only where your witness can directly comment on that evidence and has the standing to do so. For example, if a manager has given evidence that there have been no instances of intoxication at premises, you may choose to question a Police Officer who has dealt with previous intoxication issues at the premises.
- You can ask your witness questions on evidence that has yet to be delivered (but has been disclosed in a written brief of evidence prior to the hearing). For example: “You will hear from the applicant that xyz, do you have any comments on that?”
- You can prompt your witness to seek a fuller answer to the question. For example: “What did you do next?” or “Sergeant Brown, can I take you back to the 4th of July last year when you conducted a compliance check at Victoria's Tavern. What did you see there?”
- The applicant, and the other parties, will then have an opportunity to cross-examine your witness. They must also answer questions from the committee.
- After cross-examination, the committee may allow you to ask clarifying questions of your witness (re-examination).
This section provides guidance on cross-examination and re-examination.
The purpose of cross-examination
The purpose of cross-examination is to ask questions of the witnesses of the other parties in order to:
- elicit favourable evidence – from those who are able to confirm evidence or expand on helpful matters
- discredit the evidence – reliability, perception, memory (or lack thereof), contradictory facts
- discredit the witness – conduct, bias, prejudice, interest, motive, inconsistency.
The order of cross-examination of a witness
An applicant or their witness will be cross-examined in the following order:
- The agencies will each cross-examine the witness.
- The committee may ask questions.
- The committee may then invite the applicant to re-examine their witness.
An agency or their witness will be cross-examined in the following order:
- The applicant (or their lawyer) will first cross-examine the witness.
- The other agencies will then cross-examine the witness.
- The committee may then ask questions.
Guidelines for carrying out cross-examination
While the following points are not prescribed in law, they are helpful guidelines for carrying out cross-examination during a hearing:
- Use closed questions – try to ask only questions that require a “yes” or “no” answer. If, however, you have asked a question and the witness doesn't say “yes” or “no”, you must permit the witness to answer in full.
- Ask leading questions – a leading question suggests the answer to the witness. This gives you the ability to 'control' the witness.
- Ask single questions – keep the questions short. You can build to a big point with a series of short questions, allowing the witness to answer each question.
- Use simple language – use plain, straightforward, language.
- Put facts, not conclusions – the decision makers will draw conclusions based on the facts you have elicited in cross-examination.
- Consider your manner – you should be courteous, pleasant and non-confrontational when cross-examining a witness. You are likely to be more successful if you are not aggressive or irritated.
- TV shows or role plays frequently use the phrase “I put it to you, Mr Jones…” during cross-examination. Please don't do this. Where you are putting matters to a witness in cross-examination, simply state the proposition you wish to put to them. For example: “You were convicted in 2010, isn't that correct?” “That was for supplying Class A drugs, methamphetamine, to patrons in a tavern, wasn't it?” Short, simple sentences are best.
Points to consider if you are being cross-examined
- Don't get flustered or frustrated; answer truthfully and calmly. Don't try to second-guess the motivation of whoever is cross-examining you. Any significant misunderstanding can be clarified in re-examination.
- If you don't know the answer to a question – just say so. Don't try to guess.
- Be direct and detailed if possible. If you are estimating or approximating, say so.
- If you can answer a question with a “yes” or “no”, do so. Don't add waffle to your answers.
- If you don't understand a question, or you tuned out and missed a bit of the question, ask whoever is cross examining you to repeat or explain the question.
- Look towards the person who is asking the question. Don't make the mistake of nervously looking at colleagues as if seeking approval.
- Remember to address your answers to the members of the committee.
- The members of the committee will question you at the end of the cross-examination.
Whoever has called the witness then has the opportunity to re-examine their witness.
The purpose of re-examination is to clarify matters that have come up in cross-examination; it cannot be used to introduce any new matters.
Re-examination must be in the form of open questions – no leading questions are permitted.
As the DLC can regulate its own procedure, it may vary the accepted practice and allow further questions on a new topic if a serious question has been raised in cross-examination. This, however, is not the general rule, and all evidence should have been presented in the examination in chief.
Exhibits are any items of evidence used during a hearing. These can be photos, video, audio, statements, diagrams, weapons, or any relevant object or material.
Where practical, copies of documentary evidence should be attached to the briefs of evidence. If this is not practical, then they should be made readily available, eg in electronic form. Reference should be made to these exhibits in the briefs themselves and sufficiently identified for easy reference.
Documentary exhibits are always taken by the committee, whereas other physical exhibits may not be accepted by the committee if all parties agree.
When exhibits are handed up, wait for the committee members to either read the material or examine a physical exhibit before continuing on. They will usually look up or give you a small nod to continue with your questioning or witness brief.
Any of the parties to a hearing can ask for an adjournment during the hearing. This can be for many reasons (eg a witness is unable to attend), and the time periods requested for adjournment can vary (eg a few hours to a few weeks).
The committee must rule on whether to grant the adjournment or not. Similarly, the committee might order an adjournment to take advice or direct that the parties meet in private to see if a matter can be resolved.
Correct process may not always be followed
Hearings should be run with formal procedures, although still not as rigidly as a hearing presided over by a District Court Judge. DLCs around the country still vary greatly in their membership and experience. Some committees may not conduct a hearing as a judicial body; rather they may run a hearing as if it were a public meeting. In some cases, this means that correct procedures are not being followed.
For example, members may ask questions while evidence is being given, so you may find members cross-examining your witness while the witness is still giving evidence in chief. The chair may allow other parties to do the same. In other cases, members of the committee may look to the regulatory agencies for some guidance on the procedure or format of the hearing.
What should you do if correct process is not being followed?
Sometimes it may be appropriate to allow the proceedings to follow their course.
However, if you are a party to the proceedings and you are particularly concerned about what is occurring, you may decide to stand and lodge an objection.
Because the reasons for your objection might give rise to grounds for appeal (if your opposition is unsuccessful) it is important that your concerns are included in the record of the hearing. You should therefore identify both your concern and the request to have your concern expressly noted in the record. For example: “Madam, I have concerns about the questions being asked because xyz... I would like the committee record to note my objections and the reasons for them.”
If you wish to discuss your concerns with the chair of the committee you can ask the committee secretary to request a meeting with the chair.
The role of the secretary in ensuring correct process
The secretary takes an active role in managing the functioning of the licensing process and the committee. Check with your committee secretary if they have a Local Hearing Procedure Policy setting out hearings procedures and protocols. The secretary can also take a role in supporting the committee to comply with it.
The committee is an independent decision maker and while the secretary will provide guidance and support to the committee it must not impinge on the committee's independence. The secretary can provide advice and support to the committee outside of hearings, but not during hearings.
Outside of hearings, the secretary could advise committee members that they:
- should reserve their questions until the witness has finished their evidence
- should reserve questions for the leading agency until they are in the witness box
- should reserve questions for the respondent until the conclusion of the hearing
- must record their decision in writing stating all reasons for a position taken.
The role of the council
It is the responsibility of the relevant council – and ultimately the chief executive – to actively monitor and support the committee and provide any training and assistance needed. It is not the responsibility of the inspector to do this.
Formal processes to address your concerns
If you believe there has been an incorrect application of the law or a breach of natural justice, the formal mechanism is either appeal or judicial review.
At the conclusion of the hearing, the chairperson advises everyone that the public part of the hearing is finished and outlines the next steps.
After the hearing has finished, the committee meets privately and makes a decision on the application. This is in writing, giving the reasons for the decision and summarising the evidence and arguments at the hearing. You, along with the other parties, will be sent a copy of the decision. It may take several weeks for the decision to be issued.
Sometimes the DLC confers in private for a short time and delivers an oral decision on the day, with the written decision issued later.
Step 4 – The hearing
Sale and Supply of Alcohol Act 2012 references
104 Who decides application for licence
105 Criteria for issue of licences
106 Considering effects of issue or renewal of licence on amenity and good
order of locality
107 Authority or committee may refuse licence even if application not
108 Licence may be refused if contrary to local alcohol policy
109 Conditions may be imposed if required by local alcohol policy
136 Temporary authorities: on-licences and off-licences
137-150 Applications for special licences
201 Licensing authority and licensing committees have powers of
commissions of inquiry
203 Proceedings of licensing authority and licensing committees
204 Right of certain persons to appear in proceedings
205 Right of persons to appear in relation to appeal under section 81
206 Right of persons to appear in relation to certain applications for variation,
suspension, and cancellation
207 Evidence in proceedings before licensing authority or licensing committee
211 Decisions to be given in writing
216-228 Manager’s certificates