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[2005] WASC 52
Supreme Court of WA
2005-04-07
McKechnie J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : PELKA -v- SUNDQUIST [2005] WASC 52
Citation : HENRY KARL PELKA v HANS WILHELM SUNDQUIST
Citation : HENRY KARL PELKA v COMPUTA PARK PTY LTD
Citation : HENRY KARL PELKA v PARKFURN PTY LTD, ROBERT OWEN EVANS, BORNAPP PTY LTD & MARK RAYMOND McCLUSKEY
File No : PE 16415 of 2004, PE 16418 of 2004, PE 16421 of 2004, PE 16424 of 2004
Retail trading - Whether a shop open at restricted time - Words and phrases - Offered or exposed for sale - Criminal law and evidence - Admissions and confessions - Whether requirement to advise right against self-incrimination before questioning person
Badman v Allchurch [1927] SASR 174
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
City Motors (1933) Pty Ltd v Tuting (1964) Tas SR 194
Electpark Pty Ltd & Anor v Minister of Fair Trading & Anor [1999] WASCA 286
Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378
Fisher v Bell [1961] 1 QB 394
Goodwin's of Newtown Pty Ltd v Gurry [1959] SASR 295
Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482
Plummer & Adams v Needham (1954) 56 WALR 1
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
Sherritt Gordon Mines Ltd v Federal Commissioner for Taxation [1977] VicRp 42; [1977] VR 342
Sun World International Inc v Registrar, Plant Breeders' Rights (1998) 87 FCR 405
Turnbull v Cocking [1899] 25 VLR 83
Director of Public Prosecutions v Merriman [1972] 3 All ER 42
Henning v Lynch [1974] 2 NSWLR 254
Keating v Horwood (1926) 28 Cox CC 198
Le Cornu Furniture & Carpet Centre Pty Ltd v Parsons (1990) 54 SASR 108
1 An air of unreality pervades these appeals. In both The West Australian newspaper on Saturday, 21 June 2003, and The Sunday Times newspaper on Sunday, 22 June 2003, large advertisements appeared headlined:
"Harvey Norman
OPEN SUNDAY
22nd JUNE 2003. 9 am - 5 pm".
2 Beneath the headline was a list of addresses, including:
"OSBORNE PARK - OPEN
475 Scarborough Beach Rd.".
3 The premises at 469 - 475 Scarborough Beach Road are the principal place of business of a company called Harvey Norman Osborne Park, the nature of business being "Franchising Retail Stores".
4 The address, 469 - 475 Scarborough Beach Road, Osborne Park, is also given as the principal place of business for:
• "Parkfurn Furniture Osborne Park", whose nature of business is described as "Retail Furniture". The corporation carrying on business under that name is Parkfurn Pty Ltd.
• "Bornapp Commercial Osborne Park", whose nature of business is described as "Retail Electrical Goods". The corporation carrying on business under that name is Bornapp Pty Ltd.
• "Osbed Bedding Osborne Park", whose nature of business is described as "Retail Bedding". The corporation carrying on business under that name is Osbed WA Pty Ltd.
• "Computa Park Computers Osborne Park", whose nature of business is described as "Retail Computers". The corporation carrying on business under that name is Computa Park Pty Ltd.
5 The site at 469 - 475 Scarborough Beach Road, Osborne Park, is occupied by a large building. On the face of the building is a prominent sign in black lettering on a yellow background reading "Harvey Norman". Other prominent signs read "Bedding", "Furniture" and "Computer Superstore". On two large banners printed red on a white background, and attached to balustrading, the words "Airconditioning" and "Sellout" were displayed at the relevant time.
6 On 22 June 2003 a bold, conspicuously displayed sign, printed red, black and blue on a white background, attached to the exterior of the building, the length of which was the width of four car parking bays, approximately, advised the fact of:
7 Mr Henry Karl Pelka, an inspector employed at the Department of Consumer and Employment Protection, attended at the Harvey Norman store at 469 - 475 Scarborough Beach Road, Osborne Park, at about 10.50 am on the morning of Sunday, 22 June 2003. Inspector Pelka observed that the store was open, there were members of the public walking throughout the carpark and entrance area to the store and the carpark was full.
8 Inspector Pelka entered the premises and noted that there was quite a high level of customer activity within the store. He came to the conclusion that there were four divisions within the premises - the furniture division, the bedding division, the computer division and the electrical division. He counted approximately 50 staff members throughout the store. He identified them as staff as they were "people being behind counters, assisting customers, in offices behind desks, at registers and so on". Apart from all goods which were on display for sale, Inspector Pelka made notes of several specific items to confirm those goods were on display and for sale. They had price tags attached to them. The particular goods included:
• a Cara 3-piece modular lounge with a price tag of $1749;
• a Kodak digital camera, with a price tag of $179;
• a 9-piece dining suite by Avanti with a price tag of $2199.
9 While Inspector Pelka was at the counter in the furniture division he saw a gentleman make a request of an attendant that he would like to purchase a marble coffee table. The attendant took the details, and advised the gentleman the price. Inspector Pelka witnessed the gentleman tender a cash payment in a stack of $50 notes.
10 Any person attending the Harvey Norman store in Osborne Park that Sunday, 22 June 2003, would have had no difficulty in concluding that the store was open for business. They would be no doubt surprised that the apparent evidence of their own eyes would be insufficient to decide whether the store was open for Sunday trading in contravention of the Retail Trading Hours Act 1987 (WA) s 12. Instead lawyers would argue, and a Magistrate and a Judge would consider and resolve legal principles to decide whether what was apparently obvious is also legally true.
11 The Retail Trading Hours Act 1987 ("RTHA") provides by s 12(1)(d) that a general retail shop shall be closed on Sunday in each week. The evidence before the Magistrate was that the premises known as Harvey Norman Osborne Park at 469 - 475 Scarborough Beach Road was a general retail shop and that each of Parkfurn Pty Ltd, Bornapp Pty Ltd, Osbed Pty Ltd and Computa Park Pty Ltd had not been issued with a small retail shop certificate in respect of premises at 469 - 475 Scarborough Beach Road, Osborne Park, known as Harvey Norman Osborne Park. A person who sells any goods in a retail shop at a time when the shop is required to be closed commits an offence: RTHA s 25(1)(a) and s 25(3).
12 In the fullness of time some 19 complaints were laid against the four companies referred to and three individuals - Mr Evans, Mr Sundquist and Mr McCluskey. The complaints alleged various offences against the provisions of the RTHA. A joint trial was held in October 2004. These appeals involve only some of those charges. Ultimately, the Magistrate upheld no case submissions in respect of three charges relating to Computa Park Pty Ltd, Osbed WA Pty Ltd and Mr Sundquist. He found Parkfurn Pty Ltd, Bornapp Pty Ltd, Mr Evans and Mr McCluskey guilty.
13 The complaints numbered PE 04/16433 (Computa Park Pty Ltd) and PE 04/16428 (Osbed WA Pty Ltd), in respect of which the no case submission was upheld, read as follows:
"while not exempted or authorised under the Retail Trading Hours Act 1987, sold goods from a retail shop, namely a general retail shop situated at 469-475 Scarborough Beach Road, Osborne Park, during a time when the retail shop was required to be closed by section 12(1)(d) of the Act, namely on a Sunday; contrary to sections 25(1)(a) and 25(3) of the Act."
14 The complaint against Mr Sundquist (PE 04/16430) was in similar form and read:
"HANS WILHELM SUNDQUIST
being a director of a body corporate, namely Osbed WA Pty Ltd ('the body corporate') consented to the commission of an offence by the body corporate, in that on 22 June 2003 at Osborne Park the body corporate whilst not exempted or authorised under the Retail Trading Hours Act 1987, sold goods in a retail shop, namely a general retail shop situated at 469-475 Scarborough Beach road, Osborne Park, during a time when the retail shop was required to be closed by section 12(1)(d) of the Act, namely on a Sunday, contrary to sections 25(1)(a) and 25(3) of the Act, contrary to section 34(1) of the Act."
15 The prosecution has been granted leave to appeal in respect of each of those charges as follows: SJA 1118 of 2004 (PE 04/16430) respondent Hans Wilhelm Sundquist; SJA 1119 of 2004 (PE 04/16433) respondent Computa Park Pty Ltd; SJA 1120 of 2004 (PE 04/16428) respondent Osbed WA Pty Ltd. The grounds of appeal are common and it is sufficient to refer only to SJA 1118 of 2004:
"(a) erred in fact and law in finding that the specific items exposed for sale, namely, a Cara 3-piece modular lounge, a Avanti 9-piece dining set, a Toshiba DVD player and a Kodak digital camera, in Harvey Norman Osborne Park on 22 June 2003, were not jointly exposed for sale;
(b) erred in fact and law in finding that the marble coffee table sold in Harvey Norman Osborne Park on 22 June 2003 was not jointly sold;
(c) erred in law in finding that in order to establish goods were sold by Osbed WA Pty Ltd on 22 June 2003 there needed to be evidence of a specific item exposed for sale in the bedding department;
(d) erred in fact and law in failing to find there was evidence capable of supporting the inference that goods were offered or exposed for sale in the bedding department;
Particulars of Evidence
(i) Harvey Norman Osborne Park was a general retail shop;
(ii) all departments of Harvey Norman Osborne Park were open on Sunday, 22 June 2003;
(e) erred in fact and in law in finding that the admissions of the Respondent were not capable of establishing that Osbed WA Pty Ltd offered or exposed goods for sale on 22 June 2003."
16 The Magistrate was satisfied beyond reasonable doubt that in respect of Parkfurn Pty Ltd (PE 04/16415), Mr Evans (PE 04/16418), Bornapp Pty Ltd (PE 04/16421) and Mark Raymond McCluskey (PE 04/16424) the prosecution had proved its case.
17 Each of these defendants has been granted leave to appeal on the following grounds:
"(a) His Worship erred in law and in fact in admitting a certificate purportedly tendered pursuant to Section 39(g) of the Retail Trading Hours Act 1987 ('the Act'), namely Exhibit A, in that such certificate:
(i) purported to have retrospective effect, when Section 39(g) does not authorise the giving of a statement having retrospective effect; and
(ii) the said certificate cannot properly be viewed as a statement issued pursuant to Section 39(g) of the Act. The certificate goes further than what is allowed under Section 39(g) which simply authorises a statement stating the class to which any retail shop belongs. In other words, Section 39(g) does not enable the issuing of a certificate that is evidence that the premises are in fact a retail shop. The proof that premises are a retail shop must be established at trial, and the certificate should not have been admitted.
(b) His Worship erred in law and in fact in admitting the question and answer sheets signed by Robert Owen Evans (Exhibit F) and Mark Raymond McCluskey (Exhibit G) in that Robert Owen Evans and Mark Raymond McCluskey were asked questions tending to incriminate them before the mandatory Section 31 caution was administered to them, and the answers to those questions were recorded in those statements. The statements should have been excluded in toto;
(c) His Worship erred in law and in fact in finding that there was sufficient evidence to establish that:
(i) the sale of a marble coffee table occurred;
(ii) alternatively, that such sale was attributable to Parkfurn Pty Ltd or Robert Owen Evans;
(iii) the four items referred to by Inspector Pelka, namely the Cara 3-piece modular lounge, the Avanti 9-piece dining suite, the Toshiba DVD player, and the Kodak digital camera, were sold or exposed for sale within the meaning of Section 3 of the Act, or alternatively that such sale or exposure for sale was attributable to any of the Applicants.
(d) His Worship erred in law and in fact in finding that the display of goods within the Harvey Norman Osborne Park complex on 22 June 2003, established a sale of goods within the meaning of Section 3 of the Act, or alternatively, that such display constituted a sale attributable to any of the Applicants;
(e) His Worship erred in law and in fact in finding that the photograph of a man in the Harvey Norman Osborne Park Complex (Exhibit J10) holding a box established a sale, or alternatively, a sale attributable to any of the Applicants."
(iv) Notices of contention and cross-appeal
18 In respect of the prosecution appeals, the respondent/defendants have filed a notice of contention similar in form to grounds (a), (d) and (e) to their appeal. In respect of complaint numbers PE 04/16428 and PE 04/16430, on the part of Osbed Pty Ltd and Mr Sundquist respectively, a notice of cross-appeal has been filed with the common ground that the judgment should be upheld, but otherwise to contend that the learned Magistrate erred in law and in fact in admitting into the evidence the question and answer sheets signed by Hans Wilhelm Sundquist (exhibit H).
"1. The Learned Magistrate erred in law and in fact in admitting into evidence the question and answer sheets signed by Hans Wilhelm Sundquiest [sic] (Exhibit H), in that the said Hans Vilhelm [sic] Sundquiest [sic] was asked questions tending to incriminate him before any caution pursuant to section 31 of the Retail Trading Hours Act, 1987 was administered to him, and answers to those questions were recorded in those statements.
2. The Learned Magistrate should have excluded the question and answer sheets signed by the said Hans Wilhelm Sundquiest [sic] in toto."
19 In turn, the prosecution lodged a notice of contention in respect of these defendants' appeals in terms similar to the grounds of appeal.
20 Despite the potential for confusion from the multiplicity of charges, parties and appeals, the actual issues to be decided can be simply stated.
21 At the appeal, counsel for the prosecution nominated a series of issues arising on the appeals. Counsel for the respondent/defendants, in general, agreed with them and I adopt them:
"(a) the validity of the statement issued pursuant to section 39(g) of the Act;
(b) the meaning of 'sale' in section 3 of the Act;
(c) the meaning of 'offered or exposed for sale' in section 3 of the Act;
(d) whether goods were jointly sold or offered or exposed for sale;
(e) the interpretation of sections 29 and 31 of the Act;
(f) the judicial discretion to exclude admissions obtained in breach of a statute; and
(g) whether the admissions of the Sundquist, Evans and McCluskey were capable of establishing that the Osbed WA Pty Ltd, Parkfurn Pty Ltd and Bornapp Pty Ltd exposed goods for sale."
22 I will deal with each one although I am inclined to think that (b) and (c) are aspects of the same issue.
(a) The validity of the statement issued pursuant to section 39(g) of the RTHA
23 Section 39 is entitled "Evidentiary" and s 39(g) relevantly reads:
"In any prosecution for offences against this Act:
...
(g) a statement signed by the chief executive officer stating the class to which any retail shop specified in the certificate belongs, or stating that a class of articles as so specified are usually sold in a specified class of business, is proof of the matters so specified until the contrary is proved;"
24 In the present case the Chief Executive Officer issued the following statement:
"Statement issued pursuant to Section 39(g) of the Retail Trading Hours Act 1987
This is to state that on 22 June 2003 the retail shop at 469-475 Scarborough Beach Road, Osborne Park, known as Harvey Norman Osborne Park, was a general retail shop as defined under section 10(2) of the Retail Trading Hours Act 1987."
26 It is submitted on behalf of the respondent/defendants that the Magistrate wrongly admitted the certificate which was inadmissible because s 39(g) did not authorise certificates to have a retrospective effect.
27 Moreover, it is submitted that the power given under s 39 only entitles the Chief Executive Officer to specify the class to which a retail shop belongs, not to specify that particular premises are a retail shop.
28 The Magistrate disposed of these arguments succinctly. In respect of the first he said:
"...the construction suggested by counsel is, in my view, a technical one which relies upon what might be described as a strict grammatical interpretation without any context or without any statutory interpretation. It is not a sensible or reasonable construction in the context of this Act and the intention and purpose of the provision. It is an evidentiary provision intended to assist the prosecution."
29 As to the second point, the Magistrate noted the wording of the complaint. The RTHA s 39(d) provides:
"the allegation in or averment in any complaint that any building, premises or other place is, or was at the time stated therein, a retail shop, is evidence thereof;"
30 The Magistrate held that the certificate under s 39(g):
"...when read together it is sufficient to meet the averment provisions that the retail shop is situated at a place and the certificate, or the statement which has been tendered, does refer to a retail shop at a place, which is 469 Scarborough Beach Road, Osborne Park."
31 I can dispose of the submissions with equal brevity. In my opinion, the Magistrate was quite correct.
"Written laws always speaking
A written law shall be considered as always speaking and whenever a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to every part of the law according to its true spirit, intent, and meaning."
33 Section 8 of the Interpretation Act is sufficient authority to read "belongs" in s 39(g) of the RTHA as encompassing the past tense. A certificate is valid if it specifies that a retail shop "belonged" to a class at a particular time. The interpretation proffered by counsel for the respondent/defendants does not give the law its true spirit, intent, and meaning when regard is had to the purpose of s 39 of the RTHA. I mention (so that it should not be thought I have overlooked it) that the fact that other sub-sections within s 39 speak in the past tense does not affect my conclusion about the construction of s 39(g). Section 8 of the Interpretation Act is of general application.
34 The retail shop was identified in the certificate by its geographical location and the name under which it was known. The Chief Executive Officer certified that it "was a general retail shop". The averment in the complaint was sufficient evidence, at least for the purposes of deciding whether or not there was a case to answer, that the premises at 469 - 475 Scarborough Beach Road, Osborne Park, was a retail shop. A combination of the averment provisions, the complaints and the certificate established that the building at 469 - 475 Scarborough Beach Road, Osborne Park, was a general retail shop.
**(b) The meaning of "sale" in s 3 of the Act; and
35 The noun is not defined but the verb is. This is consistent: Interpretation Act s 9.
"'sell' includes barter, supply for profit, offer for sale, expose for sale, send forward or deliver for sale, cause or suffer or permit to be sold and disposal or offer for disposal of goods under credit sale agreement or hire purchase agreement."
37 The Interpretation Act s 6 also defines "sell" in similar though less comprehensive terms.
38 The definition is inclusive. In Sherritt Gordon Mines Ltd v Federal Commissioner for Taxation [1977] VicRp 42; [1977] VR 342 McInerney J said at 353:
"...the definition adds the meanings given in the definition clause to the natural meaning of the word. The added meaning is often one not otherwise within the natural meaning, so that the natural meaning of the word is to that extent amplified."
Obviously the phrases "offer for sale" and "expose for sale" are within the definition of "sell".
39 A point of contention is whether the definition of "sale" should be construed strictly in the way in which lawyers might in contract law, or whether the word should be construed widely as a lay-person might use the word in ordinary every day use. At issue though is the proper construction to be placed on the word. What was Parliament's intention?
"An Act relating to the hours of trading for retail shops and for other and incidental purposes."
This description and the subject matter of the RHTA strongly indicate that a wide definition should be given to the word "sale". Legislation dealing with similar or analogous legislation has been consistently so interpreted.
41 In Badman v Allchurch [1927] SASR 174, the issue concerned whether liquor was exposed for sale. Murray CJ, after holding that, in the particular circumstances, the liquor had not been exposed for sale, continued at 177 - 178:
"To expose for sale implies something more than merely allowing the things exposed to be seen. Pictures are exposed in an art gallery, but they are not exposed for sale. They may even be exposed in a shop window, and yet not be for sale. On the other hand, if they are hung in an auction mart, or in a private gallery, to which purchasers are invited, they may fairly be regarded as exposed for sale. Exposure alone, then, is not enough. There must be exposure coupled with an intention to sell to anyone who wishes to buy. The difficulty in each case is to prove the intention. But the methods of proving the intention are well settled. Acts and declarations may be used as evidence. Declarations of intentions speak for themselves, as, for example, where the person exposing the goods states that they are for sale, or attaches a card to them with the price or the words 'for sale' upon it. Acts are evidence if they justify or tend to justify the inference that the goods are exposed for sale. Thus, if one goes up to a fruit barrow in the street, and asks for a dozen of apples, tendering a 10 shilling note, and the person in charge takes a dozen of apples from the front of the barrow, and hands them to the customer with eight shillings change but without saying a word, it may be inferred that the fruit was exposed for sale."
42 In Goodwin's of Newtown Pty Ltd v Gurry [1959] SASR 295, the question at issue was whether goods were offered for sale by retail contrary to the Early Closing Act 1926 of South Australia. The arrangement as described by Brazel J was that the occupied premises had every appearance of a "shop" within the ordinary meaning of that word. In the premises there were at all material items, some 40 television sets. The sets were the property of a vendor of television sets and had been placed in the Jetty Road premises by arrangement with the appellant company. Each set was on display in the premises, and had attached to it a card or ticket showing the cash price of the set. Members of the public were admitted to the premises to view the sets and servants of the appellant company were there to answer inquiries made by the public and to give them information concerning the sets. No sales took place at Jetty Road. If any person resorting to the premises expressed a desire to purchase a set, one of the appellant company's servants would inform them that the particular set there on display was not for sale but its counterpart could be purchased from the vendor company at the price shown upon the set displayed in the premises. A representative would in due course call upon the buyer. After discussing the arguments submitted before him and the legislation, Brazel J continued at 299:
"I think the words 'offered for sale by retail' in an Act designed to regulate retail shopping hours must be construed in the sense in which those words are understood in ordinary every-day use and, particularly, in commerce. Murray's Dictionary, sub 'offer,' gives the commercial meaning of that word as 'present for sale.' That expression, I think, aptly describes what was done in the appellant's premises. The television sets at 60 Jetty Road, Glenelg, were 'presented,' or put forward, or displayed for sale to the public in such circumstances as were calculated to influence or induce the public to buy their counterparts from the vendor Company. This amounts, in my opinion, to offering goods for sale by retail."
43 In City Motors (1933) Pty Ltd v Tuting (1964) Tas SR 194 a number of cars, some with prices on them, parked on a piece of land, fenced but without gates, were exposed for sale. A person calling himself the used car manager was in an office on the premises.
44 The construction of "shop" under the Factories Shops and Offices Act 1958 (Tas) was in issue. Gibson ACJ held at 198:
"Finally, was this 'place' actually being used to offer or expose goods for sale to the public, so as to constitute it a shop? Whether or not any sales took place or were being negotiated or discussed is immaterial. Madden CJ said in Turnbull v Cocking [1899] 25 VLR 83 at 84:
'Here the shop was open the same as usual, but no sales were effected nor money passed. It was practically a show. But the shop was not 'closed'. Goods were, it is true, not offered for immediate sale, but they were offered for sale in this way - that people were meant to look at them today and buy tomorrow, and it was for that reason the shop was kept open. Therefore I think that within the meaning of the Act the goods were offered and exposed for sale. We do no violence to the Act in thus holding, for the words of the section, though general, are wide enough to cover the facts of this case. The evidence was all one way, and it does not matter whether there was an actual sale or not.'
The words 'offered ... for sale' do not bear the meaning of the law of contracts. The object of the Act indicates that the display of goods with prices on them, although an invitation to treat for the purposes of contract, is an offer to sell for the purposes of the Act. (Goodwin's of Newton Pty Ltd v Gurry)"
45 In Turnbull v Cocking [1899] 25 VLR 83, a portion of which is quoted in City Motors v Tuting, the defendant had his shop open after the hour prohibited by regulation and goods in the shop were shown and employees were present. No sales of goods took place and placards were exhibited announcing that the shop was open only for show purposes. It was held that the goods were exposed for sale.
46 In Plummer & Adams v Needham (1954) 56 WALR 1, the appellants carried on business as second hand car dealers from premises being a fenced allotment, vacant except for an auctioneer's rostrum and a caravan used as an office. From these premises cars were sold by auction. They were charged under the Factories and Shops Act 1920 - 1952 with keeping premises open after the prescribed hour. Dwyer CJ, in the course of his reasons dismissing the appeal against conviction, made the following comments at 6:
"Furthermore, I think that to come within the first two parts of the definition, goods for sale must be present in situ though this is obviously a condition that is not necessary in show rooms and sample rooms."
47 In Fisher v Bell [1961] 1 QB 394, a shopkeeper displayed a flick-knife in his shop window with a ticket behind it describing the knife and giving a price. The information against him alleged that he had offered the knife for sale. The Court of Appeal concluded that in the absence of any definition in the Restriction of Offensive Weapons Act 1959 extending the meaning of "offers for sale", that term must be given the meaning attributed to it in the ordinary law of contract. The court therefore held that there had not been an offer for sale. The absence from the definition of the words "exposing for sale" was crucial to the decision.
48 The authorities to which I have made reference so far all concern legislation with similar objects to that of the RTHA. The principles set out in them seem to me appropriate to apply to the RTHA.
49 Counsel for the respondent/defendants referred to two further cases. In Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378, the issue was whether parcels of shares were sold in the year of income. The taxpayer had asserted that the shares were not sold within the meaning of the Income Tax Assessment Act 1936 (Cth), s 26AAA, as they were compulsorily acquired following a takeover. It is in that context that French J conducted a considerable review of the authorities. However, the statutory meaning of "sale" within the Income Tax Assessment Act provides little assistance in the construction of the RTHA. In Sun World International Inc v Registrar, Plant Breeders' Rights (1998) 87 FCR 405, the Full Court of the Federal Court was concerned about the construction of the words "sell" and "sale" where used in the Plant Variety Rights Act 1987 (Cth). The issue was whether the word "sale" should be understood according to the technical sense it bears in the common law. At 412, Carr J, with whom Burchett and Mansfield JJ agreed, said:
"But in the end, in my view, it all comes back to whether Parliament intended the word 'sell' in the Act to be construed as being confined to a transfer of the general absolute property in the plant or reproductive material for a consideration limited to money.
I accept Dr Emmerson's submission that one starts with the prima facie meaning of the word 'sell' and then one looks to the statutory context to see whether one departs from that prima facie meaning. Accepting that in Australian law the primary meaning of the word 'sell' is the conveyance of some article for money, the question is whether Parliament intended to use the word 'sell' in the Act in some sense other than that primary meaning, that is, in some secondary sense. The point is not an easy one to resolve. However, in my opinion, when Parliament provided in s 3 of the Act that 'sell' in relation to a plant or reproductive material of a plant includes let on hire and exchange by way of barter, it intended the word 'sell' to be interpreted in a very wide sense and not just in its primary sense. In my view, so construed, 'sell' encompasses the sales which were made as part of the five transactions described above. Put another way, I do not think that the above definition of 'sell' should be construed as 'sell' means sell (stricto sensu) and includes 'let on hire and exchange by way of barter'. In my opinion there are sufficient contextual indications that the words 'sale' and 'sell' were used in the Act, not in their strict technical sense, but in their ordinary English meaning."
50 The reasoning expressed by Carr J can be adapted directly to the construction of the RTHA so that the word "sell" is to be given its ordinary meaning and not a restricted legal meaning.
51 My conclusion is that the definition of "sale" is to be construed widely. It is not necessary for the prosecution to prove that there was a formal offer for sale by one party to be followed by an acceptance of that offer. While such a transaction would be caught by the definition of "sale", the definition would also apply when, in a shop, there are a number of goods on display bearing price tags or other indicia that the shop owner would entertain the exchange of goods for money. To take a specific example, the transaction involving the coffee table outlined earlier in these reasons constitutes an offer for sale by the shop owner, despite the ingenious arguments of counsel for the respondent who tried to explain away a commonplace event by resort to a technical dissection of the legal possibilities inherent in the transaction.
52 In short, "sale" and "exposed for sale" are more or less interchangeable terms to be interpreted according to their ordinary usage.
53 The purpose of the RTHA is to regulate and restrict trading by certain retail shops outside certain hours. Specifically Sunday trading is restricted. Having regard to that purpose and to Parliament's intention in enacting the RTHA, a wide and embracing construction of "sale" is called for.
(d) Whether the goods were jointly sold or offered or exposed for sale
54 The Magistrate upheld the submission of no case to answer as follows:
"As to evidence of any sales involving Computa Park there is a reference by Mr Pelka to him contacting a person called Mr Firkin, apparently a director of Computa Park, who declined to participate in an interview. I also note the business name extract, exhibit D4, where there's a business name Computa Park Computers, Osborne Park. The business is - - nature of the business is retail computers. The principal place of business is 469-475 Scarborough Beach Road, Osborne Park, and the corporation carrying on the business is Computer Park Pty Ltd. So there's that reference to Computa Park in the evidence and the only other evidence of that particular entity or concern is what I've just mentioned which came from the lips of Mr Pelka."
55 The Magistrate referred to Fisher v Bell and to other authorities. He said:
"I also accept there's evidence there were four separate sections or departments within the shop. The sale in the circumstances can refer clearly to an item of furniture and the item of furniture, bearing in mind the nature of the businesses within the shop, was an item relating to Parkfurn and not the other companies which are in the complaint, so I find there was evidence of a sale by Parkfurn of the marble coffee table. There's nothing to indicate the other companies were involved with Parkfurn in the sale of that marble coffee table.
There's a retail shop known as Harvey Norman Osborne Park which is described in exhibit A. There's evidence that that store, that complex, was open on the day because among other things Mr Pelka and Mr Dowling went in there and there were items displayed for sale. There's only evidence of one sale that's been given to this court and one must at this stage take the prosecution evidence at its highest point.
So the next question arises, were items in the store aside from the marble coffee table exposed for sale? There were it seems many goods in the store but the only ones noted by Mr Pelka were the following: 3-piece modular lounge, a Cara lounge, the price tag $1749, clearly an item of furniture and retail furniture was the business of Parkfurn; secondly, a Toshiba DVD player, price tag $249, clearly an electrical item; number 3, Kodak digital camera, price tag $179, an electrical item. The fourth item is a 9-piece dining set, Avanti, price tag $2199, a furniture item.
So the only items that were noted by Mr Pelka on their face displayed or exposed for sale were those items over and above the sale I've mentioned. So the question therefore is were those four items or good exposed for sale? There's nothing to indicate they were simply display items. They had price tags on them. The photographs indicate that they were exposed for sale and I refer back to the comments in Fisher and Bell, the case at page 399 and page 400. At page 399 Lord Parker CJ said:
'"Exposing for sale" being clearly words which would cover the display of goods in a shop window.'
And then there's a reference that I mentioned earlier to Keating and Harwood, the bread case whereby at least one of the judges considered it was clearly exposing for sale. In my judgment the only reasonable inference is that these four items at least were being exposed for sale. Some of the records of interview are not particularly helpful because in respect to question 2 there's a reference to, 'Were the goods on display for sale to the public?' It doesn't identify what goods in what area. It could be an invitation to treat and 'displayed for sale' is not an expression which is used in the 'sell' definition in the Act itself.
So there's no evidence that all four items I've just mentioned were jointly exposed for sale, bearing in mind I accept that there appears to have been separate franchises and areas on the shop, but there is evidence I find that's sufficient to establish a case there was evidence of sale by Parkfurn of the marble coffee table which was also within the knowledge and consent of the director, that's Mr Evans, and there's also evidence that - - four other items being goods exposed for sale and those four goods are the goods I've mentioned, the Cara modular lounge, the 9-piece dining set, both items of furniture and therefore items relating to Parkfurn and the other two items, the DVD player and the digital camera being items relating to Bornapp being retail electrical goods."
56 Ultimately, it is a question of fact whether the proven acts or circumstances, and inferences to be drawn from acts and circumstances, amount to a selling. At the time of a no case submission, a Magistrate is required to ask whether the evidence of the prosecution, taken at its highest, is capable of establishing beyond reasonable doubt the guilt of the defendant: Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482.
57 The provisions of the Criminal Code s 7 apply:
"7. Principal offenders
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say −
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
..."
58 With great respect to the Magistrate he appears to have concentrated on four items being exposed for sale and overlooked the evidence of Mr Pelka as to his general observations of the scene outside and inside the premises. This was a joint prosecution and it was necessary for the prosecution to establish the guilt of each defendant. However, as I have set out, there was evidence that the whole premises were open for trade. The advertisements in the newspapers and the sign attached to the building made it abundantly clear that the building bearing the sign "Harvey Norman" was open for business. All four corporations who nominated the address 469 - 475 Scarborough Beach road, Osborne Park, as the place where they carried on business gave the appearance of trading. There were numerous items on display.
59 The conclusion, at least, prima facie, that every part of the store was exposing goods for sale is inescapable. There is prima facie evidence that each corporate entity did an act which rendered it liable to punishment. Each corporate entity exposed goods for sale in a retail shop during a time when the shop was required to be closed.
60 In the circumstances it was an error to divide the store into its constituent divisions. All four franchisees were participating in an exercise to expose for sale the whole range of goods available in the Harvey Norman store.
61 There is no evidence that any area of the premises was inaccessible to members of the public. On the contrary, all parts of the premises appeared to be open for trading. It is also a reasonable inference, prima facie, that they were open for trading as a part of a preconcert to do so. The Magistrate erred in dismissing the charges against Computa Park Pty Ltd and Osbed Pty Ltd. He ought to have held that the prosecution had established a case for each to answer.
62 In reaching this conclusion I have left out of consideration the contentious records of interview. I have not taken their contents into consideration at all so far. For this reason I postpone consideration of the charge against Mr Sundquist and the Magistrate's decision to dismiss the charge against him. I now turn to the issues raised in respect of the records of interview.
(e) The interpretation of s 29 and s 31 of the RTHA
63 Following a voir dire the Magistrate admitted, what I will refer to as, the records of interview of Mr Sundquist, Mr Evans and Mr McCluskey. Mr Evans is a director of Parkfurn Pty Ltd. Mr McCluskey is a director of Bornapp Pty Ltd and Mr Sundquist is a director of Osbed WA Pty Ltd. Each was charged with consenting to the commission of an offence by the body corporate. The interviews proceeded by Inspector Pelka asking questions from a typewritten sheet which he had prepared. He noted the answers to the prepared questions and other questions that he asked. Mr Sundquist, Mr Evans and Mr McCluskey each signed their respective record of interview.
64 The typewritten sheets listed the first three questions as follows:
"TIME: _________________ DATE: ___________________
1. I Introduced and identified myself to ________________ who purported to be the person in charge of the shop located at ___________________________________.
2. Mr/Mrs/Ms _______________________ stated his/her full name and private address was __________________ of _____________________________.
3. Mr/Mrs/Ms ________________________ was acquainted with the terms of Section 31 of the Retail Trading Hours Act 1987.
MR/MRS/MS _____________________ PROVIDED THE FOLLOWING ANSWERS TO THE QUESTIONS LISTED BELOW."
65 On the voir dire in respect of Mr Evans, the Magistrate found:
"I therefore find that an oral caution was given by Mr Pelka to Mr Evans. I accept the evidence of Mr Pelka and Mr Dowling in that respect and find that at least in that respect, as to the giving of the caution and the terms of the caution, that Mr Evans must be mistaken. He said he was under pressure, he wanted to get back because there were customers in the store.
In conclusion, any discretion to exclude does not arise because the only requirement here, in effect, was the name and address. That is expressly permitted within the legislation. The answer to that question does not tend to incriminate but, certainly, the later questions may have that tendency and Mr Pelka says, and I accept his evidence for present purposes, that he mentioned section 31 specifically and gave a caution in substance under section 31 to Mr Evans after Mr Evans gave his name and address in response to the question."
66 In respect of Mr McCluskey and Mr Sundquist, the Magistrate held:
"I do accept for the purposes of this issue the evidence of Mr Pelka and the evidence of Mr Dowling. I find that the cautions were given after the name and address request was made and at that stage there was nothing incriminating in the questions that were asked, including the name and address. I therefore find that Mr McCluskey and Mr Sundquist are mistaken."
68 As a result of those findings, the records of interview were admitted into evidence.
69 The contention on behalf of each of the three men, in summary, is that each was asked questions tending to incriminate them before the mandatory caution under s 31 was administered to them and the answers to those questions were recorded in the statements. It is submitted that the statements should have been excluded entirely.
(1) An inspector or any person authorised by the chief executive officer under section 27 may question any person whom the inspector has reasonable cause to believe may be able to assist him with his inquiries under this Act.
(2) An inspector or any person authorised by the chief executive officer under section 27 may require any person who he finds committing or who he reasonably suspects has committed an offence against this Act or whom the inspector or authorised person is authorised to question under this Act, or whose name and address is in the opinion of the inspector or authorised person, reasonably required for the purpose of carrying out his duties under this Act, to state his name and address, and, if he has reasonable ground for suspecting that the name or address as stated is false, require evidence of the correctness thereof."
"Obstructing an inspector, etc.-
A person shall not
...
(b) fail, without lawful excuse, to answer any question put to him in pursuance of this Act by an inspector or authorised person or a person acting as interpreter for an inspector or authorised person or give a false or misleading answer to any such question, or refuse to sign any declaration that he is required by or under this Act to sign;"
"Protection of person questioned
A person shall not be required, under section 28 or 29, to answer any question or give any information tending to incriminate him, and before any person is questioned by an inspector or authorised person pursuant to this section the inspector shall advise the person accordingly."
73 It is submitted that the records of interview were obtained in circumstances where there was a breach of the requirement in s 31 to warn. As a result the evidence was illegally obtained. If evidence is illegally obtained a discretion arises as to whether the evidence should nevertheless be admitted. It is submitted that having regard to the nature of the breach, a proper exercise of discretion would result in the evidence being excluded.
74 In the present case, the Magistrate did not exercise any discretion because, on the facts that he found and as I have set out, he concluded that the evidence was not illegally obtained.
75 In Electpark Pty Ltd & Anor v Minister of Fair Trading & Anor [1999] WASCA 286, a case with some similarities to the present, and involving Harvey Norman franchisees, Ipp J remarked with his usual understatement: "The legislation is not a model of clarity". The parts of the RHTA just quoted read literally can create difficulties in the execution of the intention of the RHTA. Section 28 and s 29 are empowering provisions. Section 30 provides a penal sanction for failing to answer questions without lawful excuse.
76 Section 31 accomplishes two things. First, it codifies and preserves the common law right against self-incrimination. Secondly, it requires a person to be advised of this right before they are questioned. It would be a lawful excuse to fail to answer a question, put by an inspector to a person, if the answer tended to incriminate the person. However, it may be very difficult at the time of an interview for an inspector, or an interviewee, to know whether an answer may tend to incriminate him (in which case the interviewee is protected from answering) or whether it does not (in which case he is committing an offence under s 30).
77 These are observations pointing to the practical difficulties which ensue with a strict reading of the RHTA.
78 In my opinion, the provision of a name and address is not an answer tending to incriminate. Nevertheless, I cannot accept the prosecution's submission that the requirement in the RHTA s 31 to advise the interviewee of their rights should not be construed as coming into effect prior to asking a person his or her name or address (or any other non-incriminating question) because of the existence of the specific power in s 29(2) of the Act. The RHTA s 31 is clear and its effect requires that before any questioning a person must be advised of their right against self-incrimination regardless of the nature of the questions and answers, whether or not they are incriminating.
79 I consider the Magistrate was in error in holding that the records of interview were not unlawfully obtained. They were unlawful because Inspector Pelka did not strictly comply with RHTA s 31. This ground of appeal and cross-appeal is made out.
80 The consequence is that the appeal should be allowed unless it is established that there is no substantial miscarriage of justice: Justices Act 1902 (WA) s 199.
(f) The judicial discretions to exclude admissions obtained in breach of a statute
81 When evidence is unlawfully obtained, a discretion arises as to whether it should nonetheless be admitted into the trial.
82 The principles to be applied are those set out in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. These principles have been discussed and explained in many cases but they remain the touchstone as to the considerations which should be taken into account.
83 I do not think the Bunning v Cross principles have been altered by Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177. Although there is some superficial similarity between Pollard and the requirement to advise in the present appeals, the legislation and background are quite different.
84 That said, I should allow the appeal unless the Magistrate would have inevitably admitted the records of interview, had he considered that the judicial discretion was enlivened.
85 In my judgment the circumstances here are such that the records of interview ought to have been admitted in discretion. I explain why. There is no evidence of a wilful or contumelious disregard for the law or a deliberate infringement of the rights of the defendants. Inspector Pelka said in answer to the following:
"So you knew you should have given Mr Evans a caution the moment he became a person of interest?---Well, I knew before I asked questions which could lead to self-incrimination that I was required to give him a caution."
86 There is an issue about the first question and whether the interviewee was asked if he was the person in charge of the shop. The answer to that question would tend to incriminate. In the case of Mr Evans, he was actually at the shop. Inspector Pelka conceded:
"Did you ask him whether he was the person in charge of the shop?---Yes, I did.
Before you got to this section?---Yes.
All right. So before you asked him his full name and address you asked him if he was the person in charge of the shop?---From memory I can't - - - I'm not too sure at what stage I did.
Well, it's there in paragraph number 1?---Mm.
Paragraph number 2 is:
'Rob Owen Evans stated his/her full name and private address was' -
so does that suggest you asked him before you asked his full name and address?---I'm not certain.
Whatever it was, it was before you spoke to him about section 31, if at all, wasn't it?---That's correct."
87 Inspector Pelka described his interview with Mr McCluskey. He was given Mr McCluskey's full name but no address and he then advised Mr McCluskey that:
"...I was required to advise him of his rights under section 31 whereby he was not required to answer any question or give any information which he felt would incriminate himself."
88 Inspector Pelka then proceeded to go through the questions that he had prepared for the occasion individually and sought Mr McCluskey's answers to each question. Before moving on to the next question he wrote down the answers before Mr McCluskey read through and signed the record of interview.
89 A similar procedure was followed in respect of Mr Sundquist.
90 In cross-examination about his interview with Mr McCluskey, Inspector Pelka seems to have conceded that he asked whether Mr McCluskey was the person in charge of the shop at 569 - 575 (sic) Scarborough Beach Road, Osborne Park. (That was the address number Mr McCluskey gave Inspector Pelka).
91 Inspector Pelka gave evidence in cross-examination about his interview with Mr Sundquist and his evidence was to the effect that he did not ask Mr Sundquist whether he was the person in charge of the bedding department.
92 The answers to questions about who was in charge of the shop are answers which do tend to incriminate. The questions ought to have been the subject of advice under s 31. Although the typed form is ambiguous as to whether question 1 was a question or an observation, I think the effect of Inspector Pelka's answers under cross-examination were that question 1 was in fact posed in the form of a question and I proceed on that basis. Contrary to the submissions of the respondent/defendants, I do not regard the provision of a name and address as an answer which may tend to incriminate the person. That is the second question asked. However, I note that each of Mr Evans, Mr McCluskey and Mr Sundquist, after being advised of their rights against self-incrimination, nevertheless freely and voluntarily participated in the interview and declared that the answers given were true and correct. The fact that the advice about the right against self-incrimination was administered in each case, relatively early in the interview and before significant questions were answered, is a factor in the exercise of discretion.
93 Courts should always be aware of the public policy which may require a voluntary confession to be excluded where there has been unlawfulness in its attainment. In this case I do not consider the public policy interests required the exclusion. The evidence suggests that Inspector Pelka mistakenly thought that the advice pursuant to RHTA s 31 should be administered before incriminating answers were sought rather than before a questioning commenced. There is no element of wilful disobedience to the law. Very substantially, all questions were in fact obtained after advice on self-incrimination was given.
94 There being no indication that the confessions were otherwise than free and voluntary or unfair in any way, there is no reason of public policy to exclude them on the basis of the particular unlawfulness brought about by the short delay in advising each interviewee of their right against self-incrimination. In the circumstances of these cases I do not consider that mere unlawfulness, without more, mandates exclusion. Even though the Magistrate erred in admitting the records of interview for the reasons he gave, there was no substantial miscarriage of justice. Had the Magistrate exercised judicial discretion the result should have been that the records of interview be admitted in any event.
(g) Whether the admissions of Sundquist, Evans and McCluskey were capable of establishing that the Osbed WA Pty Ltd, Parkfurn Pty Ltd and Bornapp Pty Ltd exposed goods for sale
95 Once the interviews were admitted, they became evidence not only in respect of the individuals but also evidence against the company made by a person in apparent authority in the company able to speak on its behalf. Mr Evans acknowledged that his store was open and trading; that goods were on display for sale to the public; that members of the public were present and that he authorised the shop to be open.
96 Mr McCluskey admitted that the premises were open to his knowledge; that goods were on display for sale to the public on Sunday, 22 June 2003; that members of the public were present and that he authorised the opening. In my opinion, the Magistrate was correct to convict Mr McCluskey and Mr Evans and their respective companies.
97 In the case of Mr Sundquist, there was an admission that the premises were open and trading; that goods were on display for sale to the public; that members of the public were present and that he authorised his franchise to trade. In my opinion his evidence established a case to answer and the complaint should not have been dismissed.
98 The prosecution appeals SJA 1118, 1119 and 1120 of 2004 succeed. The order of the Magistrate dismissing the complaints is set aside. Complaint numbers PE 04/16430, PE 04/16433 and PE 04/16428 are remitted to the Magistrate to be dealt with according to law in the light of these reasons finding that there is a case to answer in respect of each complaint.
• The cross-appeals in SJA 1118 of 2004 (PE 04/16430) and SJA 1120 of 2004 (PE 04/16428) are dismissed.
• The appeal in SJA 1121 of 2004 (PE 04/16415, 16418, 16421 and 16424) is dismissed.
# Pelka
Sundquist \[2005\] WASC 52
(1978) 141 CLR 54
(1988) 19 FCR 378
(1998) 19 WAR 482
(1992) 176 CLR 177
(1998) 87 FCR 405
(1990) 54 SASR 108