Failure to Leave Licensed Premises (NSW)

In NSW it is an offence to remain in or near a licensed premises after you have been refused entry or asked to leave. It is also an offence to try to re-enter a licensed premises if you have been refused entry or asked to leave. This offence is also sometimes referred to as a “Fail to Quit” offence. 

A person can be charged with this offence if they are told to leave a licensed premises, such as a pub, restaurant or club, and they fail to do so. A person can also be charged if they remain in the vicinity or if they attempt to re-enter the same premises within six hours of being asked to leave. Being within the “vicinity” of the licensed premises means being within 50m of it. The maximum penalty for this offence is 50 penalty units.

What is the offence of Failure to Leave?

The offence of Failure to Leave Licensed Premises is contained in Section 77(8) of the Liquor Act 2007 (NSW) and states:

A person who has been refused admission to, or turned out of, licensed premises in accordance with this section must not, without reasonable excuse:

• Remain in the vicinity of the premises, or

• Re-enter the vicinity of the premises within 6 hours of being refused admission or being turned out.

Maximum penalty: 50 penalty units.

The following acts may constitute an offence of Failure to Leave:

• Being asked to leave a pub because you are intoxicated, refusing to do so and having to be carried out by security;
• Being asked to leave a licensed restaurant and leaving, but staying out the front of the restaurant to argue with the owner about why you should be allowed back in; and
• Being asked to leave a nightclub, leaving, and then attempting to sneak in a separate entrance. 

What Must be Proven?

For a person to be found guilty of Failure to Leave, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You were refused entry or asked to leave a premises;
• You were refused entry or asked to leave by an authorised person;
• The premises was a licensed premises;
• You either:
  • Did not leave; 
  • Left but re-entered;
  • Left but attempted to re-enter; or
  • Left but remaining in the vicinity of the premises; and
• You had no reasonable excuse. 

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This offence is a Summary offence, which means that it must be finalised in the Local Court.

Possible Defences to Failure to Leave

The following defences may be available for an Failure to Leave charge:

• that you were not asked to leave;
• that you were not asked to leave by an authorised person; 
• that the premises was not a licensed premises;
• that you did not either:
  • refuse to leave;
  • re-enter; or
  • remained in the vicinity;

of the premises;

• that you had a reasonable excuse; or
• to raise the defence of duress, necessity or self-defence.

The legislation specifically notes that the following situations may provide a reasonable excuse:

1. A fear for safety;
2. Need to obtain transport; and
3. You reside in or within the vicinity of the licensed premises.

Common Questions

Will I receive a criminal conviction?

Not necessarily. Where a person pleads guilty or is found guilty, a conviction and criminal record for this offence may be recorded, but often isn’t as it is a fine only offence. If a person was to plead not guilty and was acquitted, they would not receive a conviction. 

In NSW, a Court can impose any of the following penalties for this charge.

• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what a person does for a living. Some jobs require no criminal convictions and a conviction might jeopardise a person’s employment or make it difficult to obtain visas for overseas travel. 

Will I go to Gaol?

No. As the maximum penalty is a fine only, a Gaol sentence cannot be imposed. 

Can the Court ban me from the venue?

Generally speaking, the Court cannot make an order that you are banned from entering the particular venue or licensed venues as part of a sentence. However, the Court can impose either a bail condition or a condition of a conditional release order prohibiting such. This is, generally speaking, rare for a single offence of this kind. It is however more common if there are other charges including violence offences. 

The NSW Police can also apply for both short and long term Banning Orders in certain circumstances. Such orders operate to ban or prohibit a person from entering certain licensed venues. A long term Banning Order can be for up to 12 months and can be appealed in certain circumstances. 

Venues also have their own ability to ban patrons.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.