Plaintiffs v Defendants

(1) Charges 1, 2, 3 and 4 related to the handling of specific food items on or about 21 March 2002.

(2) Charge 12 related to the handling of specific food items on or about 26 March 2002.

(3) Charge 14 related to the handling of specific food items on or about 18 April 2002.

(4) Charge 16 related to the handling of specific food items on or about 23 May 2002.

(5) Charge 18 related to the handling of specific food items on or about 10 July 2002.

11 The charges were heard in the Magistrates' Court of Victoria at Melbourne on 5, 6 and 7 May 2003. The Magistrate found each of the plaintiffs guilty of five of the food handling charges (charges 1, 2, 12, 16 and 18) and two other charges. The charges of selling food that was unsuitable were all dismissed. In addition, Mr Mendonca was found guilty of an additional charge. Convictions were entered and fines imposed.

12 Section 12 of the Food Act regulates the handling and sale of food that is "unsuitable". Section 12 provides:

"12. Handling and sale of unsuitable food

(1) A person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsuitable.

Penalty: $40,000 in the case of an individual and

(2) A person must not sell food that is unsuitable.

Penalty: $40,000 in the case of an individual and

(3) For the purposes of this section, it is immaterial whether the food concerned is safe."

13 Section 4E(1) of the Food Act defines "unsuitable" for the purposes of the Food Act, in the following way:

"(1) For the purposes of this Act, food is 'unsuitable' if it is food that-

(a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use; or

(b) contains any damaged, deteriorated or perished substances that affects its reasonable intended use ... ."[1]

14 Section 4(1) of the Food Act contains a definition of "handling" in relation to food. It provides:

"'Handling', in relation to food, includes the making, manufacturing, producing, collecting, extracting, processing, storing, transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving or displaying of food." (Emphasis added.)

15 Section 50 of the Food Act contains certain evidentiary provisions which cast the onus of proof about certain matters upon the person charged in any prosecution under the Food Act. In particular, paragraphs 50(1)(a) and (b) provide:

(a) the onus of proof in any prosecution under this Act that any food was not... intended for sale for human consumption is on the person charged with the offence;

(b) any food found in any premises or other place or vehicle used for the sale or the handling for sale of food shall be presumed, until the contrary is proved, to be intended for sale for human consumption."

16 As I have said, the charges were heard and determined in the Magistrates' Court of Victoria at Melbourne on 5, 6 and 7 May 2003. At the conclusion of the evidence, the Magistrate heard submissions from the parties.

17 Mr Tweedie prosecuted the case on behalf of the informant in the Magistrates' Court. It is apparent from the transcript of the submissions that, on behalf of the informant, he submitted that the food handling charges were concerned with the process of handling food intended for sale in a manner that will or may render the food unsuitable. He submitted that s 12(1) was aimed at protecting the public from unsatisfactory food handling processes.

18 It is apparent that the Magistrate accepted that the intent of s 12(1) was to prohibit unsafe food handling processes. In this context, the Magistrate repeatedly expressed concern that the food handling charges were each "specific date counts". In the Magistrate's view, the evidence established that the food had been stored (storage being included in the definition of handling) over a period of time in a manner which rendered it unsuitable. Accordingly, the Magistrate repeatedly expressed the view that the food handling charges should be amended from specific date counts to "between dates counts" so as to accord with the evidence and the construction of s 12(1) which the informant had submitted the Magistrate should adopt.

19 In response to the Magistrate's concerns, it was submitted on behalf of the informant that it was not necessary to amend the food handling charges to "between dates" counts but that the Magistrate had the power, and indeed the obligation, to make such amendment if he was of the view that this was necessary to find the food handling charges proved.

20 When the possibility of amendments being made to the food handling charges was discussed with counsel for Candolim, she objected to any amendment and made submissions as to why amendments should not be made.

21 In his decision, the Magistrate accepted the submissions on behalf of the informant as to the proper interpretation of s 12(1). The Magistrate said:

"In my view, the fact that handling is defined in the Act to include storage, a word that contains within it the concept of time and passing, suggests that whilst this offence of handling may well be made out in a particular case, as I have just said, by evidence which relates to activities on a given date, it also in my view envisages an offence being committed by activities performed over a period of time, as is the case here. Further, in my view, whilst the interpretation that I accept of s 12(1) gives to the section a preventative operation, in my view this is to be preferred to an interpretation which has little to recommend it from a safety and regulatory point of view. In other words, I adopt this interpretation of the section rather than one that would suggest that the defendant company or a person running a food person (sic) can, with impunity under the Food Act, be in possession of food for sale, handle it in a way that leads to the food becoming unsuitable for sale, but at the end of the day and assuming that its unsuitability ... has become known to the defendant, deciding not to actually sell it and still not be able to be prosecuted."

22 As a result of his interpretation of s 12(1) of the Food Act, the Magistrate formally amended the food handling charges from specific date counts to between dates counts and found five of them to have been proved. In this regard, the Magistrate:

(1) Amended charge 1 to allege that the offence occurred between 14 February and 22 March 2002 and found it proved.

(2) Amended charge 2 to allege that the offence occurred between 14 February 2002 and 22 March 2002 and found it proved.

(3) Amended charge 12 to allege that the offence occurred between 21 March 2002 and 26 March 2002 and found it proved.

(4) Amended charge 16 to allege that the offence occurred between 18 April and 23 May 2002 and found it proved.

(5) Amended charge 18 to allege that the offence occurred between 23 May and 10 July 2002 and found it proved.

23 The Magistrate made the amendments pursuant to s 50(1) of the Magistrates' Court Act. Section 50(1) provides:

"50(1) On the hearing of a proceeding the Court must not allow an objection to a charge, summons or warrant on account of any defect or error in it in substance or in form or for any variance between it and the evidence presented in the proceeding but the Court may amend the charge, summons or warrant to correct the defect or error."

County Court Appeals

24 Each of the plaintiffs filed a notice of appeal from their conviction to the County Court of Victoria. The notices of appeal were filed pursuant to s 83 of the Magistrates' Court Act. Section 83 of that Act provides:

"83(1) A person may appeal to the County Court against any sentencing order made against that person by the Court in a criminal proceeding conducted in accordance with Schedule 2."

25 Section 3(1) of the Magistrates' Court Act defines "sentencing order" as meaning any order made under the Sentencing Act 1991 following upon a finding of guilt.

26 Section 85 of the Magistrates' Court Act provides:

"85. An appeal under sections 83 or 84 must be conducted as a re-hearing and the appellant is not bound by the plea entered in the Magistrates' Court."

27 Section 86(1) of the Magistrates' Court Act provides:

"86(1) On the hearing of an appeal under s 83 or 84, the County Court -

(a) must set aside the order of the Magistrates' Court; and

(b) may make any order which the County Court thinks just and which the Magistrates' Court made or could have made; and

(c) may exercise any power which the Magistrates' Court exercised or could have exercised."

28 As appears, s 85 of the Magistrates' Court Act requires an appeal to the County Court to be conducted as a "re-hearing". It is settled law that an appeal to the County Court is to be conducted in the form of a re-hearing de novo.[2]

29 As appears, s 86(1) of the Magistrates' Court Act requires the County Court, on the hearing of an appeal, to set aside the order of the Magistrates' Court and to start again, making such order as it thinks just and exercising any power which the Magistrates' Court could have exercised.

30 The effect of ss 85 and 86 of the Magistrates' Court Act is that everything which happened in the Magistrates' Court is to be disregarded on the hearing of the County Court appeal. In Mrs X v Department of Human Services[3] Gillard J said:

"The Appeal Court is not concerned with the reasons given by the body at first instance for they are irrelevant, and it is not concerned as to whether an error was made or not by the body at first instance or whether the decision was wrong. On the appeal, the party who brought the proceeding below presents his case first, the appeal is determined on the evidence called on the appeal, the parties call whatever relevant evidence each considers appropriate and the Court determines the appeal without regard to the reasons of the Magistrate. The parties may call other evidence, they are not bound to call evidence which was called on the first hearing, and the Court of Appeal substitutes its decision based on the facts proven and law as at the date of the appeal. In Quilter v Mapleson, Jessell MR said:

'On appeal strictly so-called, such judgment can only be given as ought to have been given at the original hearing; that on a re-hearing such a judgment may be given as ought to be given if the case came on before the Court of first instance'." (References omitted; original emphasis.)

31 It follows that the County Court has the power to amend charges before it on appeal, in the same way that a Magistrate has such power under s 50 of the Magistrates' Court Act.

32 In Neill v County Court of Victoria[4], Redlich J considered a submission that the County Court on appeal has power to correct an error of law made by the Magistrate. His Honour said[5]:

"It was not for the Judge to consider whether the Magistrate had made an error in allowing the amendment but whether, if the prosecution sought to amend the information on the hearing of the appeal, it should be allowed to do so. The appeal was a re-hearing of the offence as expressed in the information at the time of the commencement of the summary hearing before the Magistrate. It was irrelevant on the County Court appeal that the information had been amended at the commencement of or during the Magistrates' Court hearing." (Emphasis added.)

33 Accordingly, the charges that were before the County Court on the hearing of the appeals by the plaintiffs were the charges stated on the charge sheets. The County Court had power, either on application or on its own motion, to amend the charges stated on the charge sheets if it thought it appropriate to do so. However, the County Court did not have power to proceed to hear and determine the charges as amended by the Magistrate. It was submitted on behalf of the plaintiffs that I should infer that this is what the County Court in fact did and that, in doing so, the County Court fundamentally misunderstood the jurisdiction conferred upon it by s 83 of the Magistrates' Court Act. As a result, so it was submitted, the County Court exercised a jurisdiction that it did not have.

34 These submissions on behalf of the plaintiffs were based upon the transcript of proceedings before the County Court and upon the Reasons for Decision of the County Court judge on the appeals. When read together, it was submitted that I should find that the County Court judge heard and determined the charges as amended by the Magistrate, without herself making any order amending the charges or giving any consideration as to whether amendment was necessary.

35 In his opening address, after taking the County Court judge through the relevant provisions of the Food Act, counsel for the informant said as follows:

"If I can also indicate that the sentencing orders which are before you on appeal are sentencing orders made in respect of charges which were amended by the learned Magistrate before the finding of guilt in relation to the dates of the charges. In relation to charge 1, the dates of the charges are that it is alleged that 'on or about 14 February 2002 to 22 March 2002'. In relation to charge 2, the dates are the same, so that 'on or about 14 February 2002 to 22 March 2002'.

Charge 10, the date was not amended, so it remained an allegation 'on or about 21 March'. Charge 11, similarly, was not amended and it is an allegation that the offence occurred on 26 March 2002. Charge 12 was amended so that it was 'on or about 21 March 2002 to 26 March 2002'. Charge 16 was amended so that the date was 'on or about 18 April 2002 to 23 May 2002'. I will just check in relation to charge 18. Charge 20 remained the same. Charge 18 remained the same, it is an allegation on or about 10 July 2002.

...

I am grateful that my learned friend, Ms Cure, has indicated that charge 18 was amended to '23 May to 10 July'."

36 Nothing further was said at the County Court hearing about amendment of the food handling charges.

37 I note that charges 10, 11 and 20 which were not amended by the Magistrate, and which remained as "specific date" charges, were not charges under s 12(1) of the Food Act. They were charges under s 12(2) that the plaintiffs had sold, as opposed to handled, food that was unsuitable.

38 On 8 December 2003, the County Court judge who heard the appeals delivered written reasons for judgment. The learned judge accepted, as had the Magistrate, the submission on behalf of the informant that s 12(1) is a preventative section concerned with the handling of food which is intended for sale, and that it is not necessary for the prosecution to prove that the intention to sell continues or continued once the food had become unsuitable. Her Honour found that the food in question was handled in a way which rendered it unsuitable due to contamination by mould.

39 The County Court judge expressed her conclusion on the food handling charges in the following way:

"I am not satisfied that the presumption that these items were for sale has been rebutted. I find with respect to Charges 1, 2, 12, 16, and 18 that the charges are proven. I find that the food involved in each of these charges became unsuitable due to the handling by the appellants over the dates which relate to each charge." (Emphasis added.)

Jurisdictional Error?

40 On the basis of:

(1) the opening statements by counsel for the informant to the County Court judge;

(2) the fact that the form of the charges was not discussed further during the hearing of the appeals; and

(3) the way in which the County Court judge expressed her conclusions that the food handling charges were proven,

I find, by inference on the balance of probabilities, that the County Court judge mistakenly believed that she was hearing and determining the charges as amended by the Magistrate.

41 I find that this mistake was the result of the opening remarks of counsel for the informant and of the failure of counsel for the plaintiffs, or Mr Mendonca himself, to draw her Honour's attention to the fact that it was the unamended charges as stated on the charge sheets which were before her.

42 It may well be that this mistake was shared by counsel for the informant and by counsel for the plaintiffs, and that the appeals were conducted by all parties on the mistaken assumption that they involved a re-hearing of the amended charges. However, this is not to the point. The material question is whether this mistake which I have found was made by the County Court judge has the effect that the County Court fell into jurisdictional error.

43 On behalf of the informant, it was submitted that there was no jurisdictional error. A number of grounds were relied upon. First, it was submitted that it was necessary to identify a jurisdictional error "on the face of the record", and that this had not been done in this case because all that had been pointed to was a mere possibility of error. I do not accept this submission. Where relief in the nature of certiorari is sought on the ground of jurisdictional error, a court is entitled, subject to applicable procedural and evidentiary rules, to take account of any relevant material placed before it[6]. Further, as I have said, this is not a case of a mere possibility of error. Having regard to the combination of factors to which I have referred, I am satisfied that the mistake to which I have referred was in fact made by the County Court judge.

44 Secondly, it was argued on behalf of the defendants that the County Court had power to hear and determine the handling charges without any application being made for an amendment, or, indeed, without making any order amending the charges. This is because the disconformity between the evidence and the handling charges as stated on the charge sheets was a "mere variance" between the mode of stating and the mode of proving what was, in substance, the same charge.[7] I accept this submission. Further, I accept that, having regard to the wording of s 50(1) of the Magistrates' Court Act, it was open to the learned County Court judge to convict the plaintiffs of the unamended charge[8]. However, as I have said, this is not what her Honour did. I am satisfied that her Honour heard and determined the appeals on the mistaken assumption that she was hearing and determining the amended charges.

45 Thirdly, it was submitted on behalf of the informant that the highest at which the plaintiffs' case could be put was that the learned County Court judge had simply "made a wrong decision within her area" and that is not amenable to judicial review. Reliance was placed upon DPP v Fricke[9]. As will be apparent, I do not accept this submission. It would be made out if the informant could establish that the learned County Court judge had in fact proceeded to hear and determine the unamended charges. However, as I have said, that is not the case. I am of the view that the learned County Court judge was fundamentally mistaken as to what she was doing and that this mistake was caused by the conduct of both parties.

46 In my view, the mistake made by the County Court judge as to the nature of her function constitutes a jurisdictional error. In Craig v South Australia[10], the High Court confirmed the jurisdiction of superior courts to grant prerogative relief to quash orders of inferior courts or tribunals on the ground of jurisdictional error. It is established that this Court may grant prerogative relief to correct a jurisdictional error by the County Court[11].

47 In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ said[12]:

"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist."

Their Honours proceeded to consider a number of ways in which a court may fall into jurisdictional error. These included:

"Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the exercise of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case." (Emphasis added.)

48 I find that the County Court did fall into jurisdictional error. Although the County Court clearly had jurisdiction to hear and determine the appeals, the mistake which I have found was made by the County Court judge amounted, in my view, to a misapprehension of the nature of her Honour's functions and powers on the hearing of the appeals. This misapprehension was constituted by her Honour by failing to ignore, or disregard, the amendments to the charges made by the Magistrate, and then proceeding to hear and determine those amended charges. This was contrary to ss 85 and 86(1)(a) of the Magistrates' Court Act. Those provisions obliged her Honour to set aside all of the orders of the Magistrates' Court, including the orders for amendment of the charges, and to start again on the basis of the original charges. As I have said, I find that her Honour was led into error in this regard and so failed to exercise the jurisdiction conferred by these provisions of the Magistrates' Court Act.

Relief: exercise of discretion

49 There remains to be considered the question of whether, in the exercise of my discretion, I should grant the plaintiffs the relief which they seek.

50 On the question of discretion to grant relief, it was submitted on behalf of the informant that I should refuse relief, even if satisfied that there has been jurisdictional error, because the plaintiffs, represented by experienced senior and junior counsel, did not "take the point" at the hearing before the County Court. In this regard, I note that there was an issue as to whether Mr Mendonca was represented before the County Court. He swore that he was not, and that senior and junior counsel only appeared on behalf of Candolim and Mrs Mendonca and, in respect of the charges against him, as amicus curiae. Mr Mendonca was cross-examined in respect of this issue. Although it is not necessary for me to decide it, having regard to the view that I take as to the proper exercise of my discretion, I find that Mr Mendonca gave instructions to and was represented by senior and junior counsel who announced their appearance on behalf of Candolim and Mrs Mendonca in the County Court.

51 I do not accept the submissions put on behalf of the informant in relation to discretion. No application was made on behalf of the informant to amend the handling charges. Nor did the County Court judge raise the issue. Although the opening remarks by counsel for the informant may have alerted counsel for the plaintiffs that there was an issue as to the form of the charges which were the subject of the re-hearing before the County Court, I am not satisfied that the failure of counsel for the plaintiffs to raise the matter with the County Court judge amounts to a waiver, if waiver of jurisdictional error is possible, or other conduct disentitling the plaintiffs to the relief which they seek.

52 In my view, as a matter of discretion, I should grant the relief sought. As I have said, it seems to me that the learned County Court judge was led into error by a combination of factors including the opening remarks of counsel for the informant and the failure of senior counsel for Candolim and Mrs Mendonca, or Mr Mendonca, to draw to her Honour's attention the fact that it was the original unamended charges which were before her by way of re-hearing.

53 However, the fact remains that the charges were not, by reason of jurisdictional error, heard and determined according to law. Findings of guilt in respect of each of the food handling charges were made against each of the plaintiffs, and convictions entered. This situation ought not be allowed to stand if infected by jurisdictional error. It may well be, if the nature of the charges had been fully explored in the County Court hearing, that the learned County Court judge would have amended the charges, either on the basis of an application made in that regard or of her Honour's own volition. However, that should not be presumed. This Court should not speculate as to what course would have been adopted if the issues concerning the nature of the charges to be heard and determined had been fully ventilated on the hearing of the appeals. In my view, the proper course is for me to exercise my discretion to quash each of the convictions against the plaintiffs on the food handling charges and to remit the appeals in respect of the food handling charges to the County Court for re-hearing according to law.

54 I will hear counsel as to the appropriate form of orders and as to costs.

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[1] The other aspects of the definition of "unsuitable" in s 4E are not relevant.

[2] DPP v Fricke [1993] VicRp 27; [1993] 1 VR 369 at 374; Neill v County Court of Victoria [2003] VSC 328, (2003) 40 MVR 255 at [14].

[3] [2003] VSC 140 at [60].

[4] [2003] VSC 328; (2003) 40 MVR 255.

[5] [2003] VSC 328; (2003) 40 MVR 255 at [19].

[6] Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163 at 176.

[7] Reliance was placed on Hackwill v Kay [1960] VicRp 98; [1960] VR 632 at 636-7 and Gigante v Hickson (2001) 3 VR 266 at [17], per Batt JA.

[8] See Gigante v Hickson [2001] VSCA 4; (2001) 3 VR 296 at [18], per Batt JA.

[9] [1993] VicRp 27; [1993] 1 VR 369 at 376.

[10] [1995] HCA 58; (1994) 184 CLR 163.

[11] Hansford v Judge Neesham (1994) VAR 172 at 177; Flynn v DPP [1998] 1 VR 322 at 334-336.

[12] [1995] HCA 58; (1994) 184 CLR 163 at 177.