Brisbane City Council v Red Rooster Foods Pty Ltd

Case •

[2011] QMC 6

•

2 February 2011

MAGISTRATES COURT OF QUEENSLAND

CITATION:Brisbane City Council v Red Rooster Foods Pty Ltd [2011] QMC 6

PARTIES:BRISBANE CITY COUNCIL

(respondents)

V

RED ROOSTER FOODS PTY LTD
                 (defendant/ applicant)

FILE NOS:  MAG 24724/10(7)

ORIGINATING COURT: Brisbane Magistrates Court

HEARING:25 January 2011  

DELIVERED ON:                  2 February 2011         

DELIVERED AT:                   Brisbane 

MAGISTRATE:  Judge Brendan Butler AM SC

ORDER:Application allowed in part

CATCHWORDS:                   Summary offences – particulars- duplicity – amendment after limitation period has elapsed.

COUNSEL:Perry, R SC.  Barrister for applicant

Godfrey, LA  Solicitor for respondent

SOLICITORS:  Norton Rose Australia for applicant

Brisbane City Legal Practice for respondent  

  1. This is an application by Red Rooster Foods Pty Ltd (the Applicant) for orders striking out a number of charges brought against it by the Brisbane City Council (the Respondent).

  1. In a single complaint dated 27 January 2010 the Respondent brought 60 charges against the Applicant for breaches of the Food Act 2006 (Qld) (the Food Act).

  1. Charge 1 is brought under s51(1) of the Food Act and the remaining 59 charges are brought under s39(1).

  1. The Applicant’s argument addresses 3 alleged deficiencies in the complaint.  Charges 1, 3, 5, 31 and 55 are challenged on the basis that they fail to identify the essential factual ingredients of the offences.  A further large number of charges are submitted to be duplicitous.  Finally charges 50 and 51 are challenged as alleging breaches of a non-existent section.  It is further submitted that any attempt to amend those charges now would be outside the 1 year limitation period.

  1. The respondent Council indicated it will offer no evidence on charges 4, 5 and 59.  As there is been no objection to that course, the charges will be dismissed.

  1. The Respondent seeks leave to amend charges 38, 50 and 51.

The facts

  1. The Applicant company conducts a fast food business at small premises situated at 838 Ipswich Road, Moorooka.  The Respondent carried out separate inspections of those premises on 17 March 2009 and 30 April 2009.  The charges relate to the alleged state of the premises on either one or other of those dates.

The Food Act  

  1. So far as is relevant here, the Food Act has the purpose of ensuring food for sale is safe and suitable for human consumption and a further purpose to apply the Food Standards Code.   These purposes are achieved in part by licensing of food businesses.

  1. The Food Act establishes offences relating to food in Chapter 2 and offences about carrying on licensable food businesses in Chapter 3.

  1. Section 39, which falls in Chapter 2, provides:

39 Compliance with food standards code

“(1) A person must comply with a requirement imposed on the
person by a provision of the food standards code in relation to
the conduct of a food business or to food intended for sale or
food for sale.”

Maximum penalty—500 penalty units. 

  1. Section 44 establishes a defence of due diligence for offences under Chapter 2.  That section provides in part:

44 Defence of due diligence

“(1) In proceedings for an offence under this chapter, it is a
defence for a person to prove that the person exercised all due
diligence to prevent the commission of the offence by the
person or by another person under the person’s control.”

The section goes on to indicate some of the ways a person may satisfy the requirement of due diligence.

  1. Section 51, which falls in Chapter 3, provides:

51 Licensee to comply with conditions of licence

“(1) A licensee must not contravene a condition of the licence.”

  1. Conditions of the licence are stated in s69. The conditions relevantly provide in subsection (1)(a) that the licensee must comply with the Act and in subsection (1)(c)(iii) that the licensee must ensure the licensee’s premises under the licence comply with the food standards code, standard 3.2.3.

The Charges 

  1. Each charge under s39(1) is framed in a similar way. Charge 2 is a suitable example:

“…contrary to section 39(1) of the Food Act 2006, failed to comply with standard 3.2.2 clause 6(1)(a) of the Food Standards Code, by failing to store food in such a way that it was protected from the likelihood of contamination.

Particulars

There were uncovered chickens in the coldroom, directly opposite mould and dirt covered fans.”

  1. A statement of an offence must identify the act or omission said to constitute the offence.[1] Section 39(1) is contravened where there has been a failure to comply with a specific requirement of the Food Standards Code. The relevant standard in the Code, Standard 3.2.2 is described thus:

Purpose
This Standard sets out specific requirements for food businesses and food handlers that, if complied with, will ensure food does not become unsafe or unsuitable.

This Standard specifies process control requirements to be satisfied at each step of the food handling process.  Some requirements related to the receipt, storage, processing, display, packaging, distribution disposal and recall of food.  Other requirements related to the skills and knowledge of food handlers and their supervisors, the health and hygiene of food handlers, and the cleaning, sanitising, and maintenance of premises and equipment.

[1] Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1 at [14]

  1. It is apparent that the requirement to be met will vary depending on the specific step of the food handling process involved. Section 39(1) is contravened where there has been a failure to take particular measures to comply with a relevant requirement. That is the relevant act or omission which gives rise to the offence.

  1. A defence is available to a person who has exercised all due diligence to prevent commission of the offence.[2]  The section provides that one way the requirements may be satisfied is by compliance with an accredited food safety program.[3] 

    [2] s44(1)

    [3]s44(3)(a)

  1. The charge under s51(1) is drafted in the following terms:

“…contrary to section 51 of the Food Act 2006, did contravene a condition of the licence for the food business on the premises.

Particulars

Failed to comply with the Food Standards Code.”

  1. The Respondent seeks leave to add the following particulars:

“The breaches are in relation to the alleged failure to comply with the Food Act 2006 (“the Act”) as per condition 1 of the Food Business Licence.

Further, Condition 2 of the licence specifically states that the Licensee’s premises where the food business is conducted must comply with the Food Standards Code (“the Code”), in particular, Standards 3.2.2 and 3.3.”

  1. Commission of an offence under s51(1) occurs where the licensee contravenes a condition of the licence. Under s69 it is a condition of the license that the licensee ensure its premises comply with the food standards code, Standard 3.2.3.

  1. Whereas standard 3.2.2 specifies requirements to be satisfied in the food handling process, Standard 3.2.3 sets out requirements for food premises and equipment that, if complied with, will facilitate compliance with the food safety requirements of Standard 3.2.2.

  1. Section 51(1) is contravened where a licensee fails to take particular measures to ensure his premises comply with a relevant requirement under Standard 3.2.3. That failure is the relevant act or omission which gives rise to the offence.

Particularising the essential factual ingredients

  1. The Applicant submits that five counts should be struck out as not providing sufficient particulars of the “essential factual ingredients” of the offence charged, namely charges 1, 3, 31 and 55.

  1. The law in this regard has recently been restated in the decision of the High Court in Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Kirk):

“[26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v A-G (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, “must at the least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”. McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.

  1. In Kirk the court concluded that the prosecutor failed to particularise an act or omission which constituted contravention of the offence sections.  The particulars were deficient because they did not identify the measures the defendant company could have taken to mitigate risk to employees.

  1. Whether a particular complaint is adequately particularised will vary depending upon the form of the legislation and the factual circumstances of the case.  NK Collins Industries v President of the Industrial Court of Queensland is an example of a case where the law in Kirk was applied but the court found there was no obligation on the prosecutor to particularise anything further in order to found a valid complaint.

Charge 1

  1. This charge as particularised, even having regard to the additional proposed particulars, does not identify the particular measures it is said the licensee failed to take to ensure his premises complied with a relevant requirement under Standard 3.2.3.  That constitutes a failure to specify the acts or omissions said to give rise to the offence. Those acts or omissions are “essential factual ingredients” of the offence which must be provided in the charge.

Charge 3

  1. This charge specifies the requirement imposed by the Food Standards Code, identifies the person upon whom it was imposed, alleges failure to comply with the requirement, identifies the specific act which constitutes that failure and in the additional particulars specifies how that act is alleged to expose the food to the likelihood of contamination.

  1. This charge discloses the essential legal elements of the offence and the essential factual ingredients of the offence.

  1. The Applicant seeks to point to evidence not before the court, namely that the food was protected by plastic wrapping, as demonstrating the inadequacy of those particulars.  The nature and efficiency of any wrapping is, in my view, a matter for evidence upon the trial and not relevant to the sufficiency of the particulars of the charge.

Charge 31

  1. This charge alleges a failure to comply with clause 19(2)(d) of the Standard 3.2.2.  The clause reads:

“(2)  A food business must maintain all fixtures, fittings and equipment, having regard to its use, and those parts of vehicles that are used to transport food, and other items provided by the business to purchasers to transport food, to a standard of cleanliness where there is no accumulation of –

(a)    food waste;

(b)   dirt;

(c)    grease; or

(d)   other visible matter.”

  1. The section will be contravened where there has been a failure to take particular measures to maintain a fixture or fitting to a specified standard of cleanliness, having regard to its use.

  1. The charge specifies a failure to maintain, identifies the fixture or fitting, specifies the particular standard of cleanliness relied upon and nominates the nature of the uncleanliness.  It therefore specifies the act or omission said to constitute the offence.

  1. The charge fails to identify the “use” of the fixture or fitting which is relevant to why it ought to reach that standard of cleanliness. In the context of this charge this failure does not constitute a failure to particularise an essential factual ingredient but, in my view, the complainant should particularise “use” so as to apprise the applicant of the case it has to meet.

Charge 55 

  1. This charge alleges a failure to comply with clause 15(4)(b) of Standard 3.2.2.

  1. The charge is wholly misconceived. Section 39(1) places an obligation on a person to comply with requirements placed on the person by the Food Standards Code. Certain provisions of Standard 3.2.2 place an obligation on a food business. However clause 15(4)(b) places the obligation to wash hands on a food handler.

  1. The requirement particularised is not one imposed on a food business by the Standard and consequently the Applicant is charged with an offence not known to law. 

  1. The charge must be struck out.

Amendment of Particulars

  1. The Applicant submits that these charges should be struck out.  That is necessary in respect of Charge 55 which is incapable of amendment. The question arises whether amendment is available in respect of the other two charges.

  1. In each case the charge discloses the essential legal elements of the offence.  Charge 1 fails to specify the acts or omissions said to constitute the offence and accordingly fails to particularise all the essential factual ingredients. The charge is so defective as to be invalid in law.  In my view it is incapable of amendment.

  1. Charge 31 does disclose the legal elements of the offence and the essential factual ingredients.  It is therefore a valid complaint but requires further particularisation in order to allow the applicant to prepare its defence.

  1. There is an obligation upon a magistrate under s48 of the Justices Act 1886 to amend a complaint if “any variance between the complaint and the evidence adduced in support thereof” is revealed: Tunney V Keehn, ex-parte Keehn[4] . Such an application can be made at any point prior to decision.[5]  Such an amendment may be made after the expiry of the statutory limitation period.[6] 

[4] [1997] Qd R 6 per Williams J at 9

[5] Paulger v Hall [2003] 2 Qd R 294 per Holmes J

[6] Tunney v Keehn, ex-parte Keehn at 9-10

  1. Accordingly, I propose to permit the prosecutor to make an application to amend charge 31 if he so wishes.

Duplicity

  1. The Applicant challenges a large number of the charges on the basis of duplicity.  The objection is that a number of separate charges have been brought in respect of acts which properly constitute a single offence.

  1. The approach to be taken in considering whether particular legislation creates a single or two or more offences was outlined by Holmes JA, delivering the decision of the court in Cohen v Macefield P/L  & Ors[7]: 

“In a statement which is commonly cited as representing a correct approach[8], Bray CJ in Romeyko v Samuels[9] offered the following guide:

“The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statue which penalises one act if it possesses one or more forbidden characteristics.  In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics.”[10]

[7] [2010] QCA 95 at [24]

[8] See eg R v Manwaring [1983] 2 NSWLR 82; B v R [2008] NSWCCA 85; R v Castles (2007) 17 VR 329

[9] (1972) 2 SASR 529

[10] At 552

Charges 8 to 30

  1. Each of these charges alleges a breach of clause 19(1) of Standard 3.2.2 of the Food Standards Code committed on 17 March 2009.

  1. Clause 19(1) provides:

    “19  Cleanliness

    (1)     A food business must maintain food premises to a standard of cleanliness where there is no accumulation of –

    (a)garbage, except in garbage containers;

    (b)recycled matter, except in containers;

    (c)food waste;

    (d)dirt;

    (e)grease; or

    (f)other visible matter.

  1. The complaint charges numerous separate examples of dirty or unsanitary equipment in separate counts. 

  1. These charges in my opinion, fall within the second of the categories described in Romeyko.   The essence of the offence is a failure to maintain premises to a standard of cleanliness where there is no accumulation of unsanitary matter.  It is the “failure to maintain premises to the necessary standard” on the specified date which constitutes an act or omission giving rise to a single offence.

  1. The existence of more than one category of unsanitary matter, as described in paragraphs (a) to (f), evidences a single accumulation of unsanitary matter.

  1. These allegations constitute a single offence and should be charged as a single matter of complaint under s43 of the Justices Act.

Charges 44 to 49 and 52

  1. Each of these charges alleges a breach of Clause 19(1) of Standard 3.2.2 of the Food Standards code committed on 30 April 2009.

  1. For the reasons given in relation to Charges 8 to 30 these allegations also constitute a single offence.

Charges 33 to 39

  1. Each of these charges alleges a breach of clause 21(1) of Standard 3.2.2 of the Food Standards Code on 17 March 2009.

  1. Clause 21 reads:

“21  Maintenance

(a)    A food business must maintain food premises and all fixtures, fittings and equipment, having regard to their use, and those parts of vehicles are used to transport food, and other items provided by the business to purchasers to transport food, in a good state of repair and working order having regard to their use.”

  1. The complaint charges a number of examples of poorly maintained items as separate counts.

  1. In my view the essence of the offence created by this section is a failure to maintain “food premises and all fixtures, fittings and equipment” in “a good state of repair and working order.”  The focus is on good maintenance of the food premises and includes fixtures, fittings and equipment within those premises.

  1. It is unnecessary for me to consider whether failure to maintain vehicles constitutes a separate offence.

  1. In my view separate examples, on the one date, of poor maintenance of the premises (and the included fixtures, fittings and equipment) are multiple characteristics of a single failure to maintain.

  1. The allegations in these charges constitute a single offence.

Charges 53, 54 and 56

  1. Each of these charges alleges a breach of clause 21(1) of Standard 3.2.2 on 30 April 2009.

  1. For the reasons given in respect to Charges 33 to 39 the allegations in these charges constitute a single offence.

Charges 57 and 58

  1. These two charges each allege a breach of clause 3(1)(b) of section 3.2.2 of the Food Standards Code on 30 April 2009.

  1. Clause 3(1) reads:

“3  Food handling – skills and knowledge   

(a)A food business must ensure that persons undertaking or supervising food handling operations have –

(a)    skills in food safety and food hygiene matters; and

(b)   knowledge of food safety and food hygiene matters, commensurate with their work activities.”

  1. The essence of the offence is a failure to ensure workers have the skill and knowledge necessary to do their work. Skill is ability that comes from knowledge. Lack of relevant knowledge would necessitate lack of the associated skill. A worker might lack the necessary skill or knowledge but in either case it would be a characteristic of a single offence of a “failure to ensure” on the part of the food business.

  1. In my view the allegations in Charges 57 and 58 constitute a single offence which should be charged in a single count.

Election and amendment

  1. In the event of the court making a finding of duplicity, the Respondent has submitted that it should be permitted to amend or elect.

  1. The Applicant contends that it is not available to the Prosecutor to wait until the close of the evidence or his own case before making any election available to him.[11]  This submission is accepted.  It is clearly appropriate that the Applicant is apprised of the course the Respondent proposes to take before the commencement of the hearing.  That can be readily given effect in this matter because these issues are being argued as an interlocutory application before the listing of any hearing date.

[11] The Queen v Elliott (1974) 8 SASR 329 at 339

  1. The appropriate course appears to be that described in Ex-parte Graham; Re Dowling:

“If ex facie it is apparent that an information is in respect of two or more offences the magistrate should not proceed to hear the information but should request the prosecutor to elect on which charge he will proceed and upon his election should strike out the other charge.  If the prosecutor declines to elect, that information is bad for duplicity and should be dismissed.”[12]

[12] (1969) 1 NSW R 231 at 242, cited in Elliott at 337

  1. Indeed the court is obliged under s43(3) of the Justices Act to require the complainant to choose one matter on which to proceed at hearing.

  1. That was confirmed by Gibbs J in Spiller v Scale; ex-parte Spiller:

“If there had been a complaint which was bad for multiplicity, the duty of the Magistrate would have been to require the complainant to choose one matter of complaint on which to proceed, and then to proceed on the matter of complaint so chosen (see s43 of the Justices Acts, 1886 to 1965).”[13] 

[13] [1996] QWN 45

  1. An election by the complainant upon a finding of duplicity may occur after the expiry of the limitation period for bringing a prosecution.[14]

[14] R v Bartlett [1972] Qd R 337, per WB Campbell J at 342. See also Johnson v Miller (1937) 59 CLR 467 per Dixon J at 489

  1. Where an election is required on a duplicitous charge, the date upon which the charge was first laid is treated as being the initiating date in respect of whichever offence the prosecution elects to proceed on.[15]

[15] Koress v The Crown Dist Court of WA (IND 75 of 1995)

  1. It follows that having found duplicity of charges; I should now call on the Prosecutor to elect which charge in each instance he wishes to proceed upon. 

  1. Furthermore, amendment of the elected charge under s 48 of the Justices Act may be available, on application, where the amendment is to particularise in that charge the various subsidiary characteristics formerly particularised in the multiple charges held to be duplex. This amendment under s48 would be to resolve a variance between the complaint and evidence to be adduced at hearing in support of it.[16]

    [16] Paulger v Hall [2003] 2 Qd R 294 at 303

Nonexistent offence alleged

Charges 50 and 51

  1. The statement of charge in respect of each of charges 50 and 51 alleges the Defendant:

“…failed to comply with Standard 3.2.2 clause 19(2)(f) of the Food Standards Code by failing to maintain all fixtures, fittings and equipment, having regard to their use; to a standard of cleanliness where there is no accumulation of other visible matter.”

  1. The Applicant observes that there is no clause 19(2)(f) in the Food Standards Code and contends the charge therefore “fails as no offence can be said to exist.”  It is further submitted that a new charge cannot be substituted after the time limitation has expired.

  1. Clause 19(2) reads:

“(2)  A food business must maintain all fixtures, fittings and equipment, having regard to its use, and those parts of vehicles that are used to transport food, and other items provided by the business to purchasers to transport food, to a standard of cleanliness where there is no accumulation of –

(a)    food waste;

(b)   dirt;

(c)    grease; or

(d)   other visible matter.”

  1. While it is to be accepted that there is no paragraph (f) in clause 19(2) it is also clear from their wording that the charges are brought under clause 19(2) of the Code.  Reference to paragraph (f) or any other paragraph designation was unnecessary for the drafting of a valid charge.  The charge read without reference to “(f)” adequately incorporates all the necessary legal features of the offence.

  1. The inclusion of reference to “(f)” may be considered surplusage. Amendment of the charges to delete “(f)” pursuant to s.48 would be desirable in the interests of justice.

  1. Such an amendment would not amount to substituting a new charge as submitted by the Applicant.  It is not an amendment of any substantive element of the offence charged; rather it is the amendment of a valid charge to remove surplusage.

Findings and Orders

  1. The court makes the following orders upon the application:

Charges 4, 5 and 59
Finding:        The complaint offers no evidence on these charges.

Order:Each of charges 4, 5 and 59 are dismissed and the Defendant is discharged on those charges.

Charge 1 

Finding:The charge fails to specify the acts and omissions constituting the offence.

Order:          The charge is dismissed and the defendant is discharged on

the charge.

Charge 3      
Finding:        The charge is validly framed.
Order:          The application in respect of this charge is refused.

Charge 31

Finding:The charge fails to particularise a matter necessary to apprise the applicant of the case it has to answer.

Order:The complainant has leave to apply to amend to remedy the deficiency identified in the finding. 

Charge 55
Finding:        The charge does not disclose an offence.
Order:          The charge is dismissed and the defendant is discharged on

the charge.

Charges 44 to 49 and 52

Charges 33 to 39

Charges 53,54 and 56

Charges 57 and 58

Charges 8 to 30
Finding:        The charges in each of the above groups are bad for duplicity.

Order:The complainant has leave to elect one charge on which to proceed in respect of each group of charges and leave to apply to amend that charge.

Charges 50 and 51

Finding:These offences are validly charged. The surplus reference to a paragraph number may be deleted by amendment.

Order:          The complainant may apply to amend the charges.

Conclusion

  1. The application is allowed in part.  I will hear further submissions from the parties if other orders are sought.


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Statutory Material Cited

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Kirk v Industrial Court of New South Wales [2010] HCA 1
Cohen v Macefield Pty Ltd [2010] QCA 95
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