Robinson v Zhang

CATCHWORDS: EVIDENCE - s138 of the Evidence Act 1995 (NSW) - improperly obtained evidence - whether prosecuting authority acted 'improperly' in procuring minors to purchase cigarettes as part of 'compliance testing' - extent to which common law principles of Ridgeway v the Queen survive the Evidence Act 1995 (NSW) - consideration of whether statements made in Second Reading Speech for the Public Health Act 1991 (NSW) that 'prosecution is used by public health units and the department as a last resort' informed the propriety of the conduct of the Department of Health for the purposes of s138 - whether finding that one of the minors could have been in her early twenties affected the propriety of the conduct of the Department of Health. - COSTS - whether the Suitors' Fund Act applies in relation to appeals from convictions for summary offences or is limited to civil proceedings.

Crimes (Local Courts Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) LEGISLATION CITED: Liquor Act 1982 (NSW) Public Health Act 1991 (NSW) Suitors' Fund Act 1951 (NSW)

Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Ex parte Neville; Re Suitors' Fund Act [1964-5] NSWLR 1526; (1964) 82 WN (Pt 1) (NSW) 89 Hickling v Laneyrie (1991) 21 NSWLR 730 John v Federal Commissioner of Taxation (1988-89) 166 CLR 417 Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 Ovens v Laneyrie (1987) 11 NSWLR 207 CASES CITED: Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Proudman v Dayman (1941) 67 CLR 536 R v Hsing (1992) 25 NSWLR 685 R v Sloane (1990) 49 A Crim R 270 R v Wang Kim Cheng (1999) 48 NSWLR 616 Ridgeway v The Queen (1994) 184 CLR 19 Robinson v Woolworths Ltd [2005] NSWCCA

Dr Denise Robinson (Plaintiff) PARTIES: Qun Zhang (Defendant)

R. Cogswell SC (Plaintiff) COUNSEL: T. Watts/A. Ryan

I V Knight, Crown Solicitor (Plaintiff) SOLICITORS: Gary Cleary & Associates, Ettalong (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40505/05 LC 5979-05-86

BASTEN JA BARR J HALL J

14 December 2005 DR DENISE ROBINSON v QUN ZHANG Judgment 1 BASTEN JA: On 31 August 2004 an officer of the Department of Health arranged for two girls, aged 15 and 16 years respectively, to enter a shop under the control of Ms Qun Zhang ("the Defendant") at Blackwall Road, Woy Woy, in order to seek to purchase a packet of cigarettes. The purchase was effected by the younger girl, as a result of which the Defendant was charged with an offence under s 59 of the Public Health Act 1991 (NSW). 2 That section makes it an offence to sell a tobacco product to a person who is under the age of 18 years. The only defence provided by the Act requires that the person is in fact over the age of 14 years at the time of the sale and "there was produced to the defendant documentary evidence that might reasonably be accepted as applying to the person to whom the tobacco product … was sold and as proving that the person was at least 18 years of age": s 59(2)(b). 3 At the commencement of the hearing of the charge in the Local Court, the solicitor for the Defendant stated to the magistrate: "Can I say there is no dispute about the facts per se, that is, it is admitted that the defendant sold cigarettes to a person who was in fact under the age of 18 years of age on the day in question."

It also appears to have been conceded that no steps were taken which could engage the statutory defence in s 59(2). 4 The solicitor then stated that the plea of not guilty was in effect based on the following defences:

(a) a defence of honest and reasonable mistake as to fact, and

(b) a supposed defence of entrapment. 5 According to a proposed notice of contention filed in this Court the Defendant did not pursue the first defence before the magistrate, considering herself precluded from that course by the judgment of this Court in Hickling v Laneyrie (1991) 21 NSWLR 730, a case dealing with a similar offence under the Liquor Act 1982 (NSW). 6 At the outset of the hearing in the Local Court, the magistrate asked, quite reasonably, whether it was necessary to hear from any witnesses. The solicitor for the Defendant replied that it would be if the Court found "that the defence of honest and reasonable belief is available". Even were it not, he said that "the entrapment issue" would become a live one and that all witnesses would need to be cross-examined "about the arrangements for the operation". 7 After some discussion, the magistrate declined to make a ruling that any defence was unavailable and the witnesses were called. In so far as their evidence was relevant to a defence of honest and reasonable mistake of fact, the Defendant was entitled to question the witnesses in some detail as to their appearance on the day in question, as compared with their appearance in Court and, if thought appropriate, to challenge the veracity of their responses. If no relevant defence were available, some limited evidence of that kind might have been relevant to sentence, but much of the cross-examination which actually occurred would probably have been rejected as offensive and unnecessary. 8 In relation to the second defence, the solicitor appearing for the prosecutor stated at the beginning of the hearing: "Your Honour, I can indicate that it is accepted that the Department of Health arranged for the two minors to go into the store and to ask for the cigarettes. They were told not - they were told that if they were asked how old they were to answer truthfully at all times if they were asked to provide ID, to say that they had no ID."

The solicitor for the Defendant accepted those statements. At the end of the Crown case, there was an adjournment for a little over two months, following which the parties made submissions. On the second day, being 5 May 2005, the solicitor for the Defendant accepted that the decision in Hickling "delivers the death knell to the honest and reasonable belief defence" and did not press that defence. Further, what had been identified as the "entrapment issue" was put forward as a proposal to exclude evidence under s 138 of the Evidence Act 1995 (NSW). In support of that submission, he relied upon the decision of Berman DCJ in Department of Health v Woolworths , handed down on 8 April 2005. 9 After a short adjournment, the magistrate returned to the Bench and noted there had been some further discussion with both legal representatives in chambers and that the Defendant was not to be called. The magistrate expressed the view that he would like to hear from the Defendant on an issue identified as "her level of understanding". From the evidence given, he appears to have been referring to her belief as to the age of the girl to whom the cigarettes were sold. 10 On 12 May 2005 the magistrate delivered a judgment reviewing much of the evidence. In the course of his remarks, he recounted the evidence, commented at one stage on the "selective" nature of the answers given by one of the girls and formed his own view as to how old they appeared to be. The relevance of these findings and accompanying remarks was not at any stage identified. The conclusion reached was an express adoption of the view taken by Berman DCJ of the relevant principles to be derived from Ridgeway v The Queen (1994) 184 CLR 19, an adoption of his Honour's conclusions with respect to what appears to have been the only relevant fact, namely that the selection of the Defendant for "compliance testing" was random and not based upon a reasonable suspicion, and determined that he would exclude the evidence. There was no express attempt to identify the nature of the impropriety or to conduct any independent assessment of the discretionary factors considered by Berman DCJ. 11 It will be necessary to say something shortly about two aspects of this case, namely the procedure by which the matter reached this Court and the notice of contention by which the Defendant seeks to re-open the question of honest and reasonable mistake of fact. Before doing that it is convenient to note that the hearing of this appeal was undertaken on the same day as the hearing of a case stated under s 5B of the Criminal Appeal Act 1912 (NSW), the same bench comprising the Court in each case. The prosecutors in each matter were represented by the Crown Advocate who, in this matter, was largely content on the legal issue to adopt the submissions made in the case stated involving Woolworths Ltd. 12 The one additional point raised by the Defendant in this matter, not identified in Woolworths Ltd, concerned the appearance of the purchaser of the cigarettes. Although only 15 years of age, the magistrate thought she had the appearance of an older person and "could have even been in her early 20s". The Defendant further asserted in submissions that "it can be inferred from his judgment that he considered that the appellant's officers must have appreciated that [the purchaser] could have easily appeared to others, such as the respondent, to be 18 years or older". The adoption by the magistrate of the reasoning of Berman DCJ in Woolworths Ltd, without significant addition, is not consistent with that inference. However, that consideration is, in my view, not relevant to the present question. Some young people do look older than their actual age and, accordingly, that is a factor which vendors must take in to account in determining whether it is lawful to sell tobacco products to them. In Ovens v Laneyrie (1987) 11 NSWLR 207, Campbell J held that it was open for a court to conclude that a defendant had reasonable grounds for believing that a customer was over 18 years of age, purely on the basis of appearance. That decision, in relation to the supply of liquor, appears to have been trigger for the 1989 amendment of the Liquor Act which limited the defence available under that Act to one in substantially the same terms as that contained in s 59(2) of the Public Health Act: see generally, Hickling v Laneyrie (1991) 21 NSWLR 730 at 732G-733C (Kirby P) and 741G-742B (Clarke and Handley JJA). On the basis of the principles adopted in Woolworths Ltd, it must follow that the particular aspect of the girl's appearance does not affect the impugned conduct of the law enforcement officers. The fact that a young person, who was in fact 15 years of age, looked over 18 years of age, does not take the case out of the category of those involving the expectable conduct of ordinary purchasers, and is not capable of constituting impropriety for the purposes of s 138 of the Evidence Act. There was no element of deliberate trickery, for example by the use of a young person of unnaturally aged appearance. Had the case risen to that level, the pursuit of the prosecution might have seemed inappropriate for reasons unrelated to the involvement of a law enforcement officer. This was not such a case. 13 The Court has taken into account the submissions made on behalf of both defendants in reaching its judgment in the Woolworths matter. Consistently with its reasoning in that matter, the Court accepts the arguments put on behalf of the prosecutor in relation to the operation of s 138 of the Evidence Act and concludes that, as a matter of law, it was not open to the magistrate to reach the conclusion he did, for the same reasons that it was not open to Berman DCJ to conclude that there was relevant impropriety in the obtaining of evidence by a similar form of random compliance testing which operated in that case as in this. Accordingly it must follow that the magistrate erred in his conclusion with respect to the admissibility of the evidence.

Procedural matters 14 This proceeding was brought pursuant to s 56 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW). That section provides: 56(1) The prosecutor may appeal to the Supreme Court against: … (b) an order made by a Local Court that stays any summary proceedings for the prosecution of an offence, or (c) an order made by a Local Court dismissing a matter the subject of any summary proceedings, or … (e) an order for costs made by a Local Court against the prosecutor in any summary proceedings, other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone.

Pursuant to s 3(1), the term "Local Court" includes, at par (d), any court that is constituted by a magistrate and that exercises criminal jurisdiction. Section 3(1) also defines "prosecutor" in the following terms: "prosecutor", in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings. 15 The proceedings in the Local Court were commenced by the issue of a "court attendance notice" signed by a public officer, namely the present Plaintiff. That person should be identified as the "prosecutor" and is the correct party to the appeal. 16 The next question is whether the prosecutor requires leave to proceed in this Court. Section 56, set out above, deals with appeals as of right. Section 57 deals with appeals which require leave and provides, relevantly, as follows: 57.(1) The prosecutor may appeal to the Supreme Court against: … (c) an interlocutory order that has been made by a local court in relation to a person in summary proceedings, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. 17 On 12 May 2005, the magistrate did two things. First, he said that he would "exclude the evidence". What evidence he excluded is unclear, but it may be inferred that he excluded the whole of the prosecution case. There being no suggestion that there was any other evidence he stated "I formally dismiss the matter". Both counsel addressed on costs, and it seems likely that some order was made, but it is not identified in the material before this Court. For the purposes of ss 56 and 57, it is apparent that an order dismissing a matter is an order against which an appeal lies as of right, and is therefore not an interlocutory order requiring leave. The fact that the dismissal is based on a decision to reject evidence does not vary that conclusion. In any event, a decision to reject the whole of the prosecution case has been held not to be "an interlocutory judgment or order" for the purposes of s 5F(2) of the Criminal Appeal Act 1912: see R v Wang Kim Cheng (1999) 48 NSWLR 616. 18 In my view the prosecutor does not require leave, but if she did, she should have it in the circumstances of the case: the application is not, in any event, opposed. 19 The next procedural step is to note that the summons was returnable in the common law division, but was, at the prosecutor's request, referred to this Court with the intention that it be heard by the same Bench that considered the judgment in the Woolworths matter. That course has been taken. For the reasons given in the Woolworths matter, the prosecutor is entitled to an order setting aside the order of the Local Court dismissing the proceedings. The reason for making that order is that he was in error in rejecting the evidence tendered by the prosecutor. 20 In Woolworths Ltd, the Court of Criminal Appeal noted that there was some awkwardness in seeking to invoke the evidentiary principles set out in s 138 of the Evidence Act, rather than seeking a stay of the proceedings on the basis of prosecutorial impropriety, a course adopted in R v Sloane (1990) 49 A Crim R 270 and approved in R v Hsing (1992) 25 NSWLR 685 at 696F - see Robinson v Woolworths Ltd [2005] NSWCCA 426 at [41]. The point is relevant in this case because, subject to the possible defence of honest and reasonable mistake of fact, it is clear from the admission referred to at [3] above that there is no issue in dispute between the parties. 21 The Defendant seeks to raise by way of contention the proposition that the Defendant was entitled to run a defence based on honest and reasonable mistake of fact. Technically, this is not a contention, because it would have required a finding of fact, where none was made in the Local Court. The appeal to this Court is limited to questions of law only and it would not be open to this Court to make a finding of fact. All that the Court could do, would be, if the defence were not found to be unavailable, to remit the matter to the Local Court for it to continue the hearing on the basis that, absent the satisfaction of such a defence, the Defendant should be convicted. 22 Despite the fact that this was not strictly a contention point, the parties agreed that it would be appropriate for this Court to address the issue, on the basis that the existence or not of the defence would affect whether, and if so what, other order, the Court might make assuming that it was to set aside the order made by the magistrate. Accordingly, it is appropriate to consider the availability of the defence. In the Local Court, the prosecutor asserted, and the Defendant accepted, that the availability of a defence of honest and reasonable mistake of fact was resolved by the decision of this Court in Hickling v Laneyrie (1991) 21 NSWLR 730. Although that case dealt with the Liquor Act 1982, s 114, it was not suggested that the provision in question had any materially different operation to s 59 of the Public Health Act. Nor was that proposition pursued in this Court. Accordingly, the Defendant undertook the burden of seeking to reopen the decision in Hickling. 23 Before turning to the question of reopening it is necessary to address a specific argument based on Hickling which sought to adopt, rather than challenge, one aspect of the reasoning of Kirby P, in 21 NSWLR at 740B. Before referring to his Honour's comment, it is necessary to note the context in which it was uttered. At p 738B, his Honour stated his conclusion that the relevant section of the Liquor Act "excludes the operation of the common law ground of exculpation based upon reasonable and honest belief of the accused". He went on to give five reasons for adopting that view. The last commenced with the concession that "at the borderline, the operation of the present section may cause some unfairness to vendors and licensees", but noted that the answers given in relation to that concern "are convincing": p 739E-F. In the course of explaining that conclusion, his Honour noted, in the passage relied upon by the defendant: "However, on the face on the present provision as to age and in the light of the history which preceded it, it seems clear that Parliament was endeavouring to instil a high degree of care in those engaged in the sale of liquor to minors. It did so by effectively imposing upon them, in the event of the slightest cause for doubt, the obligation to secure reasonable documentary proof of age."

This passage, it was argued, allowed the conclusion that no offence was committed where there was not the slightest doubt in the vendor's mind as to the age of the purchaser. 24 There are a number of reasons why that contention cannot be accepted, but three will suffice. First, the context demonstrates that his Honour was not engaged in an exercise of statutory construction in this passage, but was identifying policy considerations which led the Parliament to adopt a particular approach. Secondly, the meaning sought to be extracted from this passage by the Defendant would be inconsistent with the conclusion his Honour was addressing, namely that the common law defence did not apply. Thirdly, even if some qualification of the kind sought to be discerned by the Defendant were open, no such qualification is to be found in the judgment of Clarke JA and Handley JA, leaving the President in a minority. I repeat, however, that it is simply not possible to read the President's judgment in the way proposed.

Reconsidering a prior authority 25 It is well-established that, for this Court to review its own prior decision, leave is required: see Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 171F (Moffit P). 26 The circumstances in which the High Court will review and depart from its own previous decisions were considered in John v Federal Commissioner of Taxation (1988-89) 166 CLR 417 at 438-440. The joint judgment referred to four matters which might justify departure. Their Honours stated at 438: "The first was that the earlier decisions did not rest upon a principle carefully worked out in significant succession of cases. The second was a difference between the reasons of the justices constituting the majority in one of the earlier decisions. The third was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration… ." 27 In truth, no persuasive case was made by the defendant to reconsider Hickling. However, considering the matters identified by the High Court in John, it may be said that Hickling depended upon a careful consideration of the context, statutory history and policy considerations underlying the statute. The first factor would not be satisfied. 28 The decision involved two judgments, one of the President and one joint judgment of Clarke and Handley JJA. There is no material difference in the reasons of the justices. The second consideration is therefore not satisfied. 29 There is no evidence to suggest that the judgment in Hickling has led to any inconvenience or disquiet. The lack of further litigation involving the principle rather suggests that it has been accepted and applied without difficulty or inconvenience. Accordingly, it has not been shown that the third consideration is engaged. 30 The principles espoused in John and other High Court authorities were applied in this Court by Gleeson CJ in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99-101, in a judgment with which Samuels and Priestley JJA and Hope AJA agreed. In addition to those matters, his Honour noted at 100F-G: "However, making due allowance for the need for retaining flexibility and avoiding intransigence, it is generally accepted that before it is appropriate for an appellate court to overrule one of its own earlier decision[s] it must entertain a strong conviction as to incorrectness of the earlier decision. Where the point concerns the meaning of unclear statutory language, and the view expressed in the earlier decisions is well and truly open, a mere preference for a different view will not suffice." 31 Finally, so far as one may assess the matter, it would appear that the formula adopted in the Liquor Act more than 20 years ago has been accepted by the Parliament as an appropriate formula to adopt to give effect to the principle accepted in Hickling, which would have been known and understood when s 59 was inserted in the Public Health Act in 1996. In short, no reason has been given to revisit Hickling, but rather there are reasons for thinking that if the principle is to be disturbed, it is not a matter for this Court. I would add that my tentative view, the matter not having been fully agitated before the Court, is that Hickling was correctly decided and that the reasoning is directly applicable to s 59, with the result that a general law defence of a kind identified in Proudman v Dayman (1941) 67 CLR 536, is not available under s 59 of the Public Health Act. 32 If there be doubt attending the intention of the 1996 amendments, that doubt is removed by the Second Reading Speech to the Public Health Amendment (Tobacco) Bill: Hansard, Legislative Assembly, 24 April 1996. Dr Refshauge, the Deputy Premier and Minister for Health, after noting the effect of s 59 of the Public Health Act stated: "The existing section also provides a defence to prosecution if sellers can established, to the satisfaction of the court, that they believed on reasonable grounds that the purchaser was at least 18 years of age. In recent years, the New South Wales Department of Health has implemented a number of strategies to improve compliance with the existing provisions of the Act to combat the illegal sale of tobacco to young people. … These strategies have been backed by an increase in the number of prosecutions. … However, the Government recognises that still more can be done to improve compliance with the legislation and to assist tobacco retailers to comply with the law. … … The amendment to s 59 of the Public Health Act proposed in the bill will remove the current wide and uncertain defence to prosecution that I have already outlined and replace it with a clear, objective requirement which can be implemented by all tobacco retailers. To establish the defence, the court must be satisfied that purchasers of tobacco were over the age of 14 and that they provided documentary evidence to the retailer showing they were at least 18 years of age. … … Honourable members should note that, in common with the provisions of the Liquor Act 1982, when the person is under the age of 14 years there is no defence to prosecution."

The history of amendment makes clear the intention to remove the defence (then in statutory form) of a belief on reasonable grounds that the purchaser was 18 years of age with the current defence. Further, the current defence was said to involve greater certainty. Both of these factors are inconsistent with the continued, or renewed, availability of a common law defence. Further, the express reference to the Liquor Act 1982 demonstrates an understanding of the relevance of the regime which existed under that law.

Conclusions 33 It follows from the reasoning in Woolworths Ltd and for the further reasons set out above that the magistrate erred and his decision should be set aside. The evidence tendered by the prosecutor should not have been excluded and, in accordance with the facts accepted by the Defendant, and in the absence of any relevant defence, the matter should be remitted to the Local Court for the purpose of determining the matter in accordance with this conclusion. 34 The prosecutor indicated after the conclusion of the hearing that it did not seek costs against the Defendant in this Court. Accordingly, there should be no order in relation to the costs of this appeal. 35 If an order for costs were made in the Local Court, it also should be set aside so that the magistrate who hears and determines the outstanding issues may make such order as seems fit in the circumstances. 36 Somewhat belatedly, after the hearing, the Defendant made an application for a Suitors' Fund certificate, in the event that the prosecutor's appeal succeeded. 37 There is no reason to doubt that these proceedings constitute an appeal against a decision of a court, to the Supreme Court, on a question of law or fact, for the purposes of s 6(1) of the Suitors' Fund Act. As noted at [14] above, the proceedings were brought pursuant to s 56 of the Crimes (Local Courts Appeal and Review) Act. The only question which might arise in these circumstances is whether the Suitors' Fund Act applies in relation to appeals from convictions for summary offences, or is limited to civil proceedings. In my view, there is no reason to doubt that it is so available. Although s 6 is silent in relation to this question, other provisions, including s 6A, provide expressly that it may apply in relation to civil or criminal proceedings. Further, certificates have been granted in relation to cases stated under s 5B of the Criminal Appeal Act 1912 (NSW). In Ex parte Neville; Re Suitors' Fund Act [1964-5] NSWLR 1526, and (1966) 85 WN (Pt 1) (NSW) 372, Maguire J held that the requirements of the section would be satisfied, if it could be said that the proceedings constituted an appeal "against the decision" of the Court below. That issue does not arise in the present case. Accordingly the power is available to grant such a certificate. 38 Where the power is available, a certificate is usually granted as a matter of course, in the absence of particular considerations which would warrant withholding a certificate in the exercise of the Court's discretion. There are no such circumstances in this case and the grant would satisfy the purposes of the legislation, as identified by Kirby P and Samuels JA in Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 at 494. The only unusual feature of this case is that the successful prosecutor does not seek an order for costs against the Defendant. Accordingly a certificate is not required to indemnify her in relation to an adverse costs order. Nevertheless, s 6(2)(b) envisages that part at least of the Defendant's own costs may be recovered from the Fund, including in circumstances where no amount is payable to another party. Accordingly the certificate should be granted. 39 I would proposed the following orders:

(1) Set aside the order of the Local Court made on 12 May 2005 dismissing the proceedings brought against the Defendant alleging an offence under s 59 of the Public Health Act 1991 (NSW);

(2) Remit the matter to the Local Court to be determined in accordance with the conclusions of this Court that, (a) the evidence relied on by the Defendant was not capable of establishing an impropriety for the purpose of s 138(1)(b) of the Evidence Act 1995 (NSW), nor was the evidence tendered by the prosecutor capable of being evidence improperly obtained for the purposes of par (a) or evidence obtained in consequence of an impropriety for the purposes of par (b) of s 138(1) of that Act, and (b) the common law defence of honest and reasonable mistake of fact was not available to the Defendant.

(3) Grant a certificate under the Suitors' Fund Act 1951 (NSW) to the Defendant. 40 BARR J: I agree with Basten JA. 41 HALL J: I agree with Basten JA. **********

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