Dr Denise Robinson v Eureka Operations Pty Ltd - [2008] NSWSC 1235

No judgment structure available for this case.

Reported Decision:
192 A Crim R 234
[2010] ALMD 3185

New South Wales

Supreme Court

CITATION: Dr Denise Robinson v Eureka Operations Pty Ltd [2008] NSWSC 1235

HEARING DATE(S): 24 November 2008

JUDGMENT DATE :
19 December 2008

JUDGMENT OF: James J

DECISION: Findings of contraventions of s 61B in proceedings 10262/08, 10217/08 and 10228/08.

CATCHWORDS: CRIMINAL LAW — summary jurisdiction of Supreme Court — Public Health Act Part 6 Division 4 — displaying tobacco advertisement — consent to prosecution — contravention of s 61B

LEGISLATION CITED: Clean Waters Act 1970
Environmental Offences and Penalties Act 1989
Evidence Act
Public Health Act 1991
Trades Practices Act
Trading Against the Enemy Act 1914

CASES CITED: Berwin v Donohoe (1915) 21 CLR 1
Carlton & United Breweries Limited v Tooth & Co Limited (No 3) (unreported 19 September 1986)
Chegwidden v Joppich (1983) 107 LSJS 75
Council of the City of Fairfield v Colorpak Products (NSW) Pty Ltd (unreported Hemmings J 2 December 1988 NSW LEC
Garrett v Freeman [2006] 68 NSWLR 729
Karounos v Flavel (1984) 9 ACLR 66
Kemp v Gough & Gilmour Holdings Pty Ltd (1995) 86 LGERA 63
Re Wilmer’s Trust; Wingfield v Moore (1910) 2 Ch 111
Traveland Pty Limited v Doherty (1982) 41 ALR 563

TEXTS CITED: Pearce & Geddes Statutory Interpretation in Australia 6th ed

PARTIES: Dr Denise Robinson - Plaintiff
Eureka Operations Pty Ltd trading as Coles Express

FILE NUMBER(S): SC 10262/08; 10217/08; 10228/08

COUNSEL: BD Hodgkinson QC / ID Bourke - Plaintiff
ID Temby AO QC / DH Mitchell - Defendants

SOLICITORS: NSW Department of Health Legal Branch

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

FRIDAY 19 DECEMBER 2008

10267/08 DR DENISE ROBINSON v EUREKA OPERATIONS PTY LTD
JUDGMENT

1 HIS HONOUR: Dr Denise Robinson the Chief Health Officer of the New South Wales Department of Health brought 26 prosecutions in the Supreme Court in its summary jurisdiction against Eureka Operations Pty Limited trading as Coles Express (“the defendant”), alleging contraventions by the defendant of s 61B of the Public Health Act 1991 (“the Act”). The hearing before me was confined to three of the prosecutions, which had been selected by agreement between the parties. These three prosecutions were for an offence allegedly committed on 13 July 2007 at Dundas, an offence allegedly committed on 13 July 2007 at Randwick and an offence allegedly committed on 17 July 2007 at Umina.

2 It is convenient at this stage to set out or refer to some of the provisions of the Act.

3 Part 6 of the Act which comprises ss 53-61P is headed “Tobacco and other smoking products”. Division 4 of Pt 6 which comprises ss 61A-61P is headed “Advertising of tobacco products”.

4 Section 61B(1) in Div 4 of Pt 6 provides:-

“(1) A person who in New South Wales for any direct or indirect benefit displays a tobacco advertisement in, or so that it can be seen or heard from, a public place or a place prescribed by the regulations is guilty of an offence.”

5 In sub-s (7) of s 61B “public place” as used in s 61B is defined as including “any place to which the public or a section of the public ordinarily has access, whether or not by payment or by invitation”.

6 Section 53 contains a number of definitions for the purposes of Pt 6 of the Act, including definitions of “display” and “tobacco advertisement”. These definitions are:-

“ Display , in relation to a tobacco advertisement, includes cause or permit to be displayed.

tobacco advertisement

7 Section 61L provides:-

“61L Consent required for prosecutions

(1) Proceedings for an offence against this Division or any regulations made under this Division are not to be commenced without the consent in writing of the Director-General or a person authorised by the Director-General in writing for the purposes of this section.

8 Later in this judgment it will be necessary to refer in some detail to evidence given and admissions made for the purposes of the proceedings. At this stage I will simply note that in each prosecution the plaintiff alleged, and the defendant did not dispute, that an environmental health officer had attended a shop conducted by the defendant; the officer had approached the counter of the shop; the officer had asked the person serving behind the counter (“the sales person”) for a (that is a single) packet of a particular brand of cigarettes; the sales person had then told the officer that the officer could have a second packet of the cigarettes at a reduced price; and the officer had bought and received two packets of the cigarettes, paying the reduced price.

9 The prosecution case in each prosecution was that the sales person by telling the officer that the officer could have a second packet of the cigarettes at a reduced price had “displayed” a “tobacco advertisement”, within the meaning of those terms as defined in the Act. It was not disputed at the hearing that the sales person had in each case been authorised by the defendant as his employer to say what he had said.

10 I have already set out the terms of s 61L of the Act, which requires that consent be given to proceedings for an offence under Div 4 of Pt 6. The defendant disputed that consent had been given. By agreement between the parties the hearing before me was conducted in two stages, the first stage in which the issue of whether consent had been given to the proceedings (“the consent issue”) was dealt with and a second stage in which the issue of whether the defendant had been guilty of contravention of s 61B (“the contravention issue”) was dealt with.

11 At the request of counsel for the defendant and with the consent of counsel for the plaintiff, I did not require the defendant to enter a plea to the prosecutions before entering upon a hearing of the consent issue. After the hearing of the consent issue had concluded, I informed the parties that, having regard to the submissions which had been made and the authorities to which I had been referred, I would require further time for consideration and would not be able to give an immediate decision on the consent issue. I was then requested by the parties to proceed immediately to a hearing of the contravention issue and I complied with this request.

12 A consequence of the procedure adopted at the hearing was that at no stage did the defendant formally plead to the charges. However, when I raised this matter on the second day of the hearing, I was assured that the parties were content to proceed without any formal pleading to the charges, as if pleas of not guilty had been entered.

The consent issue

13 I will now proceed to consider the consent issue, whether consent was given to the proceedings as required by s 61L of the Act.

14 There was no certificate within s 61L(2) and, consequently, it was necessary for the plaintiff to establish that consent had been given in accordance with sub-s (1) of s 61L.

15 No consent to the proceedings had been given by the Director-General of the Department of Health. Accordingly, the part of s 61L(1) which was relevant was the part reading “proceedings for an offence against this Division … are not to be commenced without the consent in writing of …a person authorised by the Director-General in writing for the purposes of this section”.

16 Two documents were each relied on by the plaintiff as amounting to a consent within the part of s 61L(1) which I have quoted, namely:-

1. A document headed request for approval of prosecution with supporting documents, on which Dr Robinson wrote the word “approved”, her signature and the date “5/11/07” (“the approval document”)

2. An affidavit sworn by Dr Robinson on 16 January 2008.

17 The plaintiff’s primary submission was that the affidavit of 16 January 2008 was a sufficient consent in writing. Alternatively, it was submitted that the approval document was a sufficient consent in writing.

18 Counsel for the defendant submitted that neither the affidavit nor the approval document was a valid consent. As to both documents it was submitted that Dr Robinson as the plaintiff or prosecutor in the proceedings could not also be the person who consented to the commencement of the proceedings and, even if Dr Robinson could validly have consented to the commencement of the proceedings, she had not in fact consented to the commencement of the proceedings. It was not disputed by counsel for the defendant that Dr Robinson was a person who had been authorised by the Director-General in writing for the purposes of s 61L.

19 The evidence on the consent issue consisted of a bundle of documents (exhibit VD2), which included the affidavit and the approval document and documents attached to it and documents relating to the authorisation of Dr Robinson by the Director-General; admissions made by the defendant for the purposes of the consent issue (exhibit VD1); a letter from the New South Wales Department of Health to the defendant’s solicitors (exhibit VD3); and some oral evidence given by Dr Robinson.

20 The affidavit made by Dr Robinson was in the following terms:-

“On Wednesday 16th January 2008, I Dr Denise Robinson, Deputy Director-General Public Health and Chief Health Officer of the NSW Department of Health say on oath-

I am informed and believe that:

1. Eureka Operations Pty Ltd trading as Coles Express (‘Coles Express’) operates under the business name ‘Coles Express’ at a number of retail outlets in New South Wales, which sell tobacco and other products.

2. In July and August 2007 Coles Express instructed Coles Express staff that when a customer entered Coles Express and asked to purchase a single pack of Winfield brand cigarettes or Benson and Hedges brand cigarettes, staff members were to state words to the effect of "Did you know you can purchase 2 Winfield 25's packs for $20.95?" or "Did you know you can purchase 2 Benson and Hedges 25's packs for $21.95?"

3. Verbal inducements to advertise or promote the purchase or use of tobacco products are prohibited in NSW pursuant to section 61B(1) of the Public Health Act 1991 ('the Act').

4. Between 13 July 2007 and 23 July 2007 a number of employees of area health services (`officers') visited Coles Express stores across New South Wales and attempted to purchase a single packet of Winfield brand cigarettes or Benson and Hedges brand cigarettes.

5. On 13 July 2007 officer Ms Jane Thomas attempted to purchase a single packet of Winfield brand cigarettes at Coles Express Dundas.

6. When Jane Thomas attempted to make the purchase referred to in the paragraph above she was told by a member of Coles Express staff, "You can have another packet for eight dollars fifty" and "You can have two packets for twenty dollars ninety five".

7. Similar verbal offers were made to officers by Coles Express staff at other Coles Express locations within New South Wales.

8. Statements from those officers who were given verbal inducements to purchase tobacco products by Coles Express staff members are attached and are marked as follows:

STATEMENT DESCRIPTION	Annexure
Statement Jane Thomas – Coles Express Dundas	A
Statement Jane Thomas – Coles Express Parramatta	B
Statement Diane Smith – Coles Express Kingsford	C
Statement Diane Smith – Coles Express Waterloo	D
Statement Diane Smith – Coles Express Randwick	E
Statement David Basso – Coles Express Port Macquarie	F
Statement David Basso – Coles Express Wauchope	G
Statement Kerry Spratt – Coles Express Erina (offence dated 16.7.07)	H
Statement Mike Cassidy – Coles Express Griffith	I
Statement Alex Kiss – Coles Express Bass Hill	J
Statement Gerard van Yzendoom – Coles Express Bathurst West	K
Statement Gerard van Yzendoom – Coles Express Orange	L
Statement Kerry Spratt – Coles Express Umina	M
Statement Kerry Spratt – Coles Express Woy Woy	N
Statement Ron Bouwman – Coles Express Clarendon	O
Statement Ron Bouwman – Coles Express Berkshire Park	P
Statement Kerry Spratt – Coles Express Erina (offence dated 18.7.07)	Q
Statement Mitch Hibbens – Coles Express Albury	R
Statement John James – Coles Express Gorokan	S
Statement Gregory McAvoy – Coles Express Coffs Harbour	T
Statement Gregory McAvoy – Coles Express Woolgoolga	U
Statement Ian Goldthorpe – Coles Express Dural	V
Statement Ian Goldthorpe – Coles Express Merrylands	W
Statement Ian Goldthorpe – Coles Express Lidcombe	X
Statement Ian Goldthorpe – Coles Express Eastern Creek	Y
Statement Don Cook – Coles Express Ourimbah	Z

9. Section 61L of the Act permits the Director-General of the NSW Department of Health and persons authorised by the Director-General of the NSW Department of Health to consent to prosecutions under Part 6, Division 4 of the Act.

11. I consent to the prosecution of Eureka Operations Pty Ltd for tobacco advertising breaches referred to above.

Criminal Procedure Act

21 The first document annexed to the affidavit was a statement of Jane Thomas referred to in pars 5 and 6 of Dr Robinson’s affidavit. Ms Thomas’ statement, omitting formal parts, was in the following terms:-

“3. I am an Environmental Health Officer (EHO) employed by the Sydney West Area Health Service Public Heath Unit in the position of Tobacco Compliance and Education Officer.
4. On 13th July 2007 at 15.25 I attended Coles Express Petrol Station at Kissing Point Rd in Dundas, in New South Wales.

5. Coles Express is the shop sited at the petrol station that sells, amongst other things, tobacco products.

6. Tobacco sales in the Coles Express are conducted in a public area of the shop, where tobacco is displayed in a tobacco sales unit mounted on the wall behind the registers. Directly in front is a counter with a cash register resting on the top at which all purchases are conducted.

7. Upon entering the Coles Express I approached the sales counter.

8. Behind the sales counter I observed a male person with a nametag displaying the name, Murali ('Murali').

You can have another packet for eight dollars fifty

Pardon

You can have two packets for twenty dollars ninety five

OK, can I have a receipt please, because these are for someone else

22 The other 25 statements included statements by Ms Diane Smith relating to the Coles Express shop at Randwick and Ms Kerry Spratt relating to the Coles Express shop at Umina and were in substantially similar terms. In each statement the officer said that after the officer had asked for a packet of Winfield or Benson and Hedges cigarettes, the sales person had offered a second packet of that brand of cigarettes at a reduced price.

23 The approval document had attached to it a “brief” and other documents. The brief was in the following terms:-

“Purpose:
To seek consent to prosecute Eureka Operations Pty Ltd trading as Coles Express in the NSW Supreme Court for multiple counts of tobacco advertising, in breach of section 61B of the Public Health Act 1991.

· In July and August 2007 Coles Express conducted a tobacco promotion whereby their employees were instructed to verbally encourage customers to purchase tobacco products. For example, if customers entered Coles Express and asked to purchase a single pack of Winfield 25's or Benson & Hedges 25's, the Coles Express employee was required to state: "Did you know you can purchase 2 Winfield 25's packs for $20-95?" or "Did you know you can purchase 2 B&H 25's packs for $21-95?" (Tab A)

· Tobacco compliance officers were instructed to test Coles Express shops across the state, and, so far, approximately 20 Coles Express shops made similar offers.

· Verbal tobacco advertisements are banned in NSW via s. 61B(1) of the Act. (Tab B)

· The covert nature of the promotion, i.e. that it is to be verbal, and that the memorandum detailing the offer is not to be displayed in view of the customer could suggest that Coles Express is limiting the documentary evidence available for any prosecution and is aware of the potential for prosecution.

· It is recommended this matter be prosecuted in the Supreme Court in its summary jurisdiction. The penalties are higher in the Supreme Court, which provides a maximum penalty of $22,000.00 for a first offence, and $44,000.00 for any second or subsequent offence. The maximum monetary penalty that can be imposed by a Local Court for any such offence is $11,000.00.

· The statements relating to the relevant breaches are similar. One statement is attached for the Chief Health Officer's information at Tab C.

Recommendation:
That the Chief Health Officer consents to multiple prosecutions (approximately 20 counts as of this date, and perhaps more) of Eureka Operations Trading as Coles Express for tobacco advertising offences.

24 The statement attached to the brief was a statement by Ms Kerry Spratt relating to the Coles shop at Umina. As already noted, this statement is substantially similar to Ms Thomas’ statement relating to the Coles shop at Dundas. Paragraph 12 of Ms Spratt’s statement setting out the conversation she said she had with the sales person at Umina was in the following terms:-

“12. Whilst standing in the public area of the shop I said to the female sales person, "Can I please have a packet of Benson and Hedges 25's Fine ?"

She said: "You wouldn't like 2 packets for $21.95? I said, "Yes O.K. please"

"Yes, the Winnies and these have a special on."

25 Dr Robinson wrote on the brief “prosecutions supported & approved”, signed her name and wrote the date “5/11/07”. Dr Robinson wrote on the approval document “approved”, signed her name and wrote the date “5/11/07”.

26 The defendant made a number of admissions pursuant to s 184 of the Evidence Act for the purposes of the determination of the consent issue. The defendant made admissions amounting to an admission that Dr Robinson had been authorised by the Director-General for the purposes of s 61L and made admissions that Dr Robinson had signed the approval document and had made the affidavit of 16 January 2008 with the statements annexed to it.

27 In her evidence-in-chief at the hearing Dr Robinson said that, before signing the approval document, she had read the brief and the copies of the statements by the officers.

28 In cross-examination Dr Robinson said that her affidavit of 16 January 2008 had been prepared for her by the Department’s legal branch. In the affidavit her title “Deputy Director-General Public Health” should have read “Deputy Director-General Population Health”.

29 Dr Robinson said in cross-examination that she had read “the material which accompanied the affidavit” and that she had read every one of the statements referred to in par 8 of the affidavit. She could not recall whether she had herself referred to the Act but she had a copy of the Act in her office and it would have been her usual practice to refer to the Act. It would have been her usual practice to read s 61B and the whole of the “division” of the Act in which s 61B occurs. Dr Robinson said that the whole of the “division” was about 30 pages and that, apart from s 61B “there are a number of other surrounding sections that deal with the issue of advertising and tobacco regulation in general”. Although Dr Robinson spoke of the “division” of the Act, I consider that I should find that she was referring to the whole of Pt 6 of the Act.

30 As regards par 3 of the affidavit, Dr Robinson said that she accepted “that in the view of those who had a much stronger grasp of the law than I, paragraph 3 was likely to be accurate”.

31 As regards the approval document, Dr Robinson accepted that, apart from the alleged offence at Umina, she did not know at the time of signing the document when the offences were alleged to have been committed, except that they were alleged to have been committed in July-August 2007, that she did not know how many offences were alleged to have been committed, other than that there were approximately 20; and that she did not know where the offences were alleged to have been committed, apart from the offence allegedly committed at Umina.

32 A general submission made by counsel for the defendant, as to both the affidavit and the approval document, was that Dr Robinson as the prosecutor in the proposed proceedings could not also be the person who consented to the commencement of the proceedings.

33 As to the object of statutory provisions requiring consent to the commencement of proceedings for an offence, counsel referred to Berwin v Donohoe (1915) 21 CLR 1 especially at 24, where Isaacs J said, with reference to a provision (s 6(3)) of the Trading Against the Enemy Act 1914) that a prosecution for an offence under the Act not be instituted without the written consent of the Attorney-General:-

“The object of that subsection is obviously to prevent persons being harassed by private prosecutions, which patriotic fervour might induce, without careful examination of the circumstances of a particular case.”

34 Counsel also referred to Traveland Pty Limited v Doherty (1982) 41 ALR 563 (full court of the Federal Court) at 568 where the Court said:-

“The object of the requirement in s 163(4), that a prosecution shall not be instituted without the designated consent, is to protect the individual or corporation in danger of being charged, by ensuring that a prosecution will only be instituted if the Minister (or, where appropriate, his delegate) considers that it should.”

35 Counsel also referred to Karounos v Flavel (1984) 9 ACLR 66 (Supreme Court of South Australia Full Court) at 76 where Zelling J quoted what Bollen J had said in the earlier case of Chegwidden v Joppich (1983) 107 LSJS 75 at 79:-

“Parliament wishes a responsible person who understands the meaning and effect of these regulations to think about the matter and decide whether a prosecution should be launched.”

36 It was submitted that a statutory object of the kind identified could more effectively be achieved, if the person whose consent is given to the institution of proceedings is not the person proposing to institute the proceedings.

37 Counsel for the defendant referred to dictionary definitions of the word “consent”, submitted that these definitions implied that there should be two different parties to a consent, namely the party seeking consent and the party giving consent, and further submitted that there was nothing in the Act suggesting that the dictionary definitions should be departed from. The dictionary definitions of “consent” referred to were:-

Macquarie Dictionary “to give assent; agree; comply or yield; to consent to a request; to consent to do a thing”

38 Counsel for the defendant referred to the decisions on Local Government prosecutions in Council of the City of Fairfield v Colorpak Products (NSW) Pty Ltd (unreported Hemmings J 2 December 1988 NSW LEC) and Garrett v Freeman [2006] 68 NSWLR 729 at 742-3 (104-106).

39 Counsel for the defendant properly drew the attention of the Court to the decision of the Court of Criminal Appeal in Kemp v Gough & Gilmour Holdings Pty Ltd (1995) 86 LGERA 63, where the same person had instituted the proceedings and given consent, but submitted that the case was distinguishable on the basis that the issue before the Court of Criminal Appeal had been whether that person had in fact given his written consent to the proceedings, it having been assumed, without argument, that he could both institute the proceedings and give consent to the proceedings.

40 Counsel for the plaintiff submitted that the purpose of a statutory provision requiring consent to be given to a prosecution could still be fulfilled, even if the same person was both the prosecutor and the consent-giver. Counsel disputed that the dictionary definitions of “consent” imply that it is necessary for a consent that there be two parties, a person seeking consent and a person giving consent. Counsel analysed Kemp v Gough & Gilmour Holdings and submitted that, properly understood, it did support the plaintiff.

41 Kemp v Gough & Gilmour Holdings was referred to a number of times in the course of the argument at the hearing and there is utility in making a fairly close analysis of the case.

42 In Kemp v Gough & Gilmour Holdings a prosecution had been brought for an environmental offence under the Clean Waters Act 1970. Section 13(1) of the Environmental Offences and Penalties Act 1989 provided that proceedings for an offence could be instituted only with the written consent of the Environment Protection Authority or an authorised member of its staff. However, s 13(4)(a) of the Environmental Offences and Penalties Act provided that sub-s (1) did not apply to the institution of proceedings under the Clean Waters Act by a Council or an employee of a Council, if the proceedings were instituted with the consent of the Council or with the written consent of an authorised member or employee of the Council.

43 Kemp was an employee of a Council to whom the Council had given a general authority to institute proceedings for offences under the Clean Waters Act. Kemp brought proceedings against Gough & Gilmour Holdings by laying an information and making an oath substantiating the information.

44 The primary judge held that written consent to the institution of the proceedings had not been given. A case was then stated to the Court of Criminal Appeal.

45 The principal judgment in the Court of Criminal Appeal was given by Carruthers J, with whose judgment the other members of the Court agreed. Carruthers J held that consent had been given within s 13(4)(a) of the Environmental Offences and Penalties Act. His Honour said at p 68:-

“Subsection (4)(a) was, in my view, complied with by the fact that the appellant laid the information in writing and substantiated “the matter thereof” by oath, as required by s 22 of the Justices Act 1902 (NSW), as amended. Such conduct clearly demonstrated that the appellant (as the duly authorised delegate of the Council) considered it appropriate that the proceedings should be instituted and in truth consented to the institution of those proceedings.”

46 It is correct, as counsel for the defendant in the present case submitted, that the issue argued in Kemp v Gough & Gilmour Holdings in the Court of Criminal Appeal was “whether the appellant has given his written consent to the institution of the subject proceedings” (at p 67) and not whether the appellant as the person instituting the proceedings was able to give a valid consent to the institution of the proceedings. However, parts of Carruthers J’s judgment strongly suggest that his Honour was of the opinion that the appellant, notwithstanding that he was the informant, could give a valid consent to the institution of the proceedings.

47 At p 68 Carruthers J quoted from Stroud’s Judicial dictionary (5th edition 1986 vol 1 at p 5510):-

“You consent to the doing of that which you are yourself doing.”

48 His Honour then proceeded to refer to Re Wilmer’s Trust; Wingfield v Moore (1910) 2 Ch 111. That case was concerned with an English statutory provision that a tenant in tail under a settlement, where there was a protector of the settlement, could dispose of the lands entailed, if the protector consented. It was held that where a tenant in tail who was also the protector of the settlement had executed a disentailing deed, he gave his consent in his capacity as protector, although it was not expressly stated in the deed that he was consenting. Parker J said at 119:-

“I must assume that he (i.e. the protector) was a consenting party to what he himself did, and, therefore, that the deed does operate to bar not only the estate tail which he had but also the remainders upon that estate tail.”

49 In Kemp v Gough & Gilmour Holdings Carruthers J noted that the principle that a person consents to that which he or she does was applied by Young J, as his Honour then was, in Carlton & United Breweries Limited v Tooth & Co Limited (No 3) (unreported 19 September 1986).

50 The existence of a well-authenticated legal principle that a person consents to what he himself does and the decisions in Kemp v Gough & Gilmour Holdings, Re Wilmer’s Trust and Carlton & United Breweries Limited v Tooth & Co Limited (No 3) are destructive of the submission made by counsel for the defendant that it is implicit in the ordinary meaning of the word “consent” that there should be two different persons, that is a person seeking consent and a person giving consent.

51 I accept that the object of legislative provisions prohibiting the institution of proceedings for an offence without consent having been given is to protect prospective defendants from arbitrary or unfair exercises of the power to prosecute by members of the public. However, this object is achieved by the provisions of s 61L of the Act, which require that consent in writing be given by the Director-General of the Department of Health or a person authorised in writing by the Director-General, without any need for the person giving consent to be a different person from the person instituting the proceedings.

52 The decision of Hemmings J in Council of the City of Fairfield v Colorpak Products does not assist the defendant. The issue in that case was whether proceedings which had been instituted had been instituted by the Council or by a servant of the Council. The present issue was not contested in Garrett v Freeman.

53 I reject the first general submission made by counsel for the defendant.

54 The second general submission made by counsel for the defendant on the consent issue was that what Dr Robinson had done did not amount to a valid consent.

55 It was submitted by counsel for the defendant that, in order for a purported consent to be a valid consent, it is necessary that the purported consent be a consent “in truthful reality”. It was submitted that it was necessary for Dr Robinson to have examined each of the proposed prosecutions and to have had a proper understanding of s 61B of the Act as affected by the other provisions of the Act and in the light of such an examination and a proper understanding of s 61B to have given consideration to whether she should consent to the proposed prosecutions being commenced. Counsel submitted that, if these criteria were applied, then neither the affidavit nor the approval document was a valid consent.

56 With regard to the affidavit, particular submissions were made that Dr Robinson in giving evidence had said that she had no actual recollection of looking at her copy of the Act and could only say that it would have been in accordance with her usual practice for her to have looked at the Act. It was submitted that the statement in par 3 of the affidavit that “verbal inducements to advertise or promote tobacco products in New South Wales are prohibited pursuant to s 61B(1)” grossly misrepresented the effect of s 61B(1) and contained no reference to s 53 of the Act, to which it was necessary to refer in order to properly understand the effect of s 61B. The expression “inducement” was also criticised as not being an expression used in either s 61B or s 53.

57 With regard to the approval document, particular submissions were made that there was no evidence that Dr Robinson had looked at the Act before giving her approval to the prosecution, that the summary of the effect of s 61B in the brief “verbal tobacco advertisements are banned in New South Wales via s 61B(1) of the Act” was a misrepresentation of the effect of s 61B and contained no reference to s 53. Dr Robinson had clearly not considered each of the proposed prosecutions individually. The only witness statement she had been provided with was the statement by Kerry Spratt relating to the Coles store at Umina. Dr Robinson did not know the precise number of prosecutions she was approving and, with the exception of the alleged offence at Umina, did not know the dates or places of the alleged offences (apart from knowing that it was alleged that the offences had been committed in the period July-August 2007).

58 It was submitted by counsel for the plaintiff that the requirements for a valid consent had been overstated by counsel for the defendant. Contrary to what was submitted by counsel for the defendant, the conditions for a valid consent are fairly liberal. Counsel referred particularly to a part of the judgment of the Full Court of the Federal Court in Traveland Pty Limited v Doherty, which was quoted by Carruthers J in Kemp v Gough & Gilmour Holdings.

59 Counsel for the plaintiff said that it will often be the case that a person giving consent to a prosecution for a statutory offence will not be legally trained and the person giving consent can properly proceed on a broad understanding of the nature of an offence. The descriptions of the nature of the offence under s 61B in par 3 of the affidavit and in the brief accompanying the approval document were broadly accurate.

60 It was submitted that in the case of the affidavit I should accept Dr Robinson’s evidence that she had read all of the statements and I should accept that, in accordance with her usual practice, she had looked at, not only s 61B, but all the provisions of the Act relating to tobacco advertisements.

61 I note that in Traveland 12 prosecutions under the Trades Practices Act had been brought. Under s 163(4) of the Act prosecutions could not be instituted without the consent of the responsible Minister. The Minister had purported to give consents to the 12 prosecutions. At p 568 the Full Court of the Federal Court said:-

Crichton v Victorian Dairies Ltd

62 In my opinion, the statement by the Full Court of the Federal Court that a consent can be a valid consent, even though the precise offence to be charged had not been identified, shows that it was not necessary in the present case for Dr Robinson to have had a precise understanding of the effect of s 61B, either standing by itself or as affected by the other provisions of Pt 6 of the Act and particularly s 53. The statements of principle by the Full Court of the Federal Court impose less stringent requirements than those stated by Bollen J in Chegwidden v Joppich.

63 In my opinion, it was sufficient for Dr Robinson to have received a broad statement of the effect of s 61B, such as she repeated in par 3 of her affidavit and such as was stated in the brief accompanying the approval document.

64 As regards the affidavit, I accept Dr Robinson’s evidence that, having been supplied with copies of the statements of the officers in all of the matters, she read all of the statements and I accept her evidence that, in accordance with her usual practice, she consulted her own copy of the Act and read the provisions of s 61B and that she read all of the other provisions in Pt 6 of the Act. Having done these things, she consented to the prosecutions (par 11 of her affidavit). The test propounded by the Full Court of the Federal Court in Traveland that the person whose consent is required should give his or her consent in terms which enable it to be said that the proceedings which are instituted were instituted with his or her consent is satisfied. I hold that the affidavit by Dr Robinson was a valid consent for the purposes of s 61L of the Act.

65 Having reached this conclusion, it is unnecessary for me to consider whether the approval document also amounted to a valid consent.

The contravention issue

66 The evidence on the contravention issue was different from the evidence on the consent issue. The evidence on the contravention issue consisted of the statements of Jane Thomas relating to the Coles shop at Dundas, of Diane Smith relating to the Coles shop at Randwick and of Kerry Spratt relating to the Coles shop at Umina and of admissions made by the defendant pursuant to s 184 of the Evidence Act.

67 I have already set out most of the contents of Ms Thomas’ statement and have noted that the statements of the other officers were in substantially similar terms. I have also set out the terms of par 12 of Ms Spratt’s statement, which contains her account of the conversation between herself and the sales person at Umina.

68 Paragraphs 1 and 2 of the admissions made by the defendant for the prosecution for the alleged offence at Dundas were in the following terms:-

“1. It (the defendant) did, at all material times, operate a service station under the business name “Coles Express” from premises located at the corner of Kissing Point Road and Kirby Street, Dundas in the State of New South Wales (“Premises”).

2. The Premises included a shop from which, among other items, cigarettes were sold in the following manner:

(a) all cigarettes were, at all material times, located in a sales unit behind the service counter and in an area that could only be accessed by service station staff, ie the ‘service area” within the meaning of cl.3(1) of the Public Health (Tobacco) Regulation 1999 (“Regulation”);

(b) the retail prices of cigarette product lines were displayed within the service area as required by sl.11 of the Regulation and s.61B(3)(e) of the Public Health Act 1991 (“Act”).”

69 In pars 3, 4 and 5 of the admissions admissions were made which were consistent with the allegations made in pars 4, 7 8, 9 and 10 of Ms Thomas’ statement. Paragraphs 6, 7, and 8 of the admissions were in the following terms:-

“6. The store attendant was, at 13 July 2007, an employee of the defendant.

7. The words spoken by the store attendant and set out in paragraph 4 were heard by Ms Thomas, who was in a public place within the meaning of s.61B(7) of Act.

8. Winfield Gold are a tobacco product within the meaning of s.53 of the Act.”

70 The admissions made in the other two matters were mutatis mutandis in similar terms to the admissions made in the Dundas matter.

71 It was conceded by counsel for the defendant that in the case of each prosecution all the elements of an offence under s 61B(1) were established, apart from the elements that the defendant “displayed” a “tobacco advertisement”. It was disputed that the defendant had “displayed” a “tobacco advertisement”, when regard was had to five matters:-

72 Each of these matters was developed by counsel for the defendant.

73 It was submitted that the conduct complained of, that is what the sales person had said in offering a second packet of a named brand of cigarettes at a reduced price, was part of an ordinary negotiation for a sale of goods and that the right of parties to negotiate the terms of a contract between them is an important attribute of a free society.

74 The definition of the word “display” in s 53 is an inclusive definition and does not alter the ordinary meaning of the word “display”. It was submitted that the word “display” in its ordinary meaning connotes something more permanent and obvious than the saying of words in the course of a contractual negotiation.

75 The definition of “tobacco advertisement” in s 53 of the Act is an exhaustive definition. The only part of the definition which could be applicable would be the part whereby an “audible message” is included within the definition. It was submitted by counsel for the defendant that “audible message” in the definition should be confined to something more permanent than a statement made by a sales person, that is, should be confined to something recorded, amplified or broadcast.

76 It was submitted that an interpretation of s 61B(1) whereby what the sales person said would amount to a contravention of the section would not promote the objects of Div 4 of Pt 6 of the Act, which are stated in s 61A to be:-

“61A Objects of this Division

77 Each of the officers by asking for a packet of cigarettes had represented himself or herself to be a smoker and not a non-smoker. It could not be inferred that supplying a second packet of cigarettes to a customer would cause the customer to smoke more cigarettes than he or she would otherwise have done. The more likely consequence of supplying a second packet of cigarettes would simply be that a customer purchased cigarettes on one less occasion.

78 It was submitted that the manner in which the word “display” and the term “tobacco advertisement” were used in other sections of the Act supported counsel for the defendant’s submissions. Counsel pointed particularly to s 61K and s 61B(3) of the Act. Section 61K provides that, if a tobacco advertisement is displayed in contravention of Div 4, a Local Court may order that the advertisement be removed or obscured by an authorised officer. It was submitted that the existence of the power to make such an order implies that a tobacco advertisement must have some degree of permanency and not be merely transient, so that it is capable of being removed or obscured.

79 Counsel submitted that, if displaying a tobacco advertisement was interpreted as widely as urged by the plaintiff, then the absurd consequence would follow that, if a sales person was asked by a customer the price of a packet of cigarettes, he could not say what the price was without contravening s 61B(1), because saying what the price was would be the displaying of an audible message amounting to a tobacco advertisement and pointing to a display of prices, even if the display of prices was one permitted under s 61B(3)(e) of the Act, would be a displaying of a visual message amounting to a tobacco advertisement.

80 It was finally submitted that, as s 61B was a penal provision, any doubt about its interpretation should be resolved in favour of the defendant.

81 Counsel for the plaintiff contested these submissions by counsel for the defendant.

82 It was submitted that what the sales person said should not be regarded as part of an ordinary negotiation for the sale of goods. What the sales person said was not a response to what the officer had said but a counter- offer of a different kind. In any event, it was clear that the provisions of Div 4 Pt 6 were intended to radically curtail the freedom to promote tobacco products.

83 It might be true that, according to the ordinary meaning of “display”, what was said by the sales person was not the “display” of anything. However, the legislature by prohibiting in s 61B the displaying of a tobacco advertisement and by including “audible message” in the definition of tobacco advertisement in s 53, had itself indicated that the word “display” in the Act is not to be interpreted as limited to its ordinary meaning. It was submitted that there is no warrant for holding that the word “display” in Div 4 connotes something more permanent than a statement by a sales person.

84 It was submitted that what the sales person said fell within the statutory definition of tobacco advertisement. As in the case of the word “display”, there was no warrant for requiring a tobacco advertisement to have some degree of permanency before it could fall within the definition.

85 It was submitted that many of the provisions of Div 4 are not limited in their application to non-smokers, young people or children and hence do not advance the objects of Div 4 as set out in par (a) of s 61A.

86 As to s 61K, it was submitted that the fact that a particular remedy provided for in s 61K might not be available did not show that the defendant’s conduct could not amount to a contravention of s 61B.

87 It was finally submitted that the rule of statutory construction that a penal statute should be strictly construed is, according to more recent authority, only to be applied as a last resort.

Decision

88 In my opinion, I should find that in the case of each prosecution the defendant “displayed” a “tobacco advertisement”. I will refer seriatim to the submissions made by counsel for the defendant.

89 As to the effect on freedom of contract of a finding that the defendant had committed an offence in each sales person saying what the sales person did, it is clear, as was submitted by counsel for the plaintiff, that the provisions of Div 4 of Pt 6 are intended to radically curtail the freedom to promote tobacco products and the manner in which tobacco products are sold and there could be no presumption, or only a very weak presumption, in favour of interpreting the relevant provisions of the Act in such a way as not to curtail freedom of contract.

90 It is true that the definition of the word “display” in s 53 of the Act is a merely inclusive definition and in the absence of any relevant definition in a statute of a word used in the statute, the ordinary meaning of the word would be likely to apply. However, in the present case, as was submitted by counsel for the plaintiff, the legislature, by prohibiting in s 61B the displaying of a tobacco advertisement and by including “audible message” in the definition of “tobacco advertisement” in s 53, has itself indicated that the word “display” in the Act is not to be interpreted as limited to its ordinary meaning. Once it is accepted that an audible message is capable of being “displayed” within the meaning of the word as used in the Act, I do not consider that there is any warrant for limiting the display of an audible message to a display which has some degree of permanency. Obviously, if such a requirement was adopted, difficult questions would be likely to arise as to whether a particular display had the requisite degree of permanency or was too transient to amount to a display within the meaning of the word in the Act.

91 Unlike the word “display”, the expression “tobacco advertisement” is defined exhaustively in the Act. The definition includes “any … audible message … that gives publicity to or otherwise promotes or is intended to promote (a) the purchase or use of a tobacco product”. What was said by the sales person in each case falls squarely within the definition. As in the case of the word “display”, there is, in my opinion, no warrant for requiring what was said to have some degree of permanency before it could fall within the definition.

92 I accept the submission by counsel for the plaintiff that many of the provisions in Div 4, including other parts of s 61B, s 61C, s 61D and s 61E, are not limited in their application to the persons mentioned in s 61A(a), that is non-smokers, children and young people. It seems to me that the offering to a person who is already a smoker of a second packet of cigarettes at a reduced price could lead to that person smoking more cigarettes, even if only one additional packet of cigarettes. Accordingly, I do not consider that the relevant provisions of the Act should be read down in any way by reference to the objects of Div 4 as set out in s 61A.

93 As to s 61K, I accept the submission made by counsel for the plaintiff that the fact that a particular remedy provided for in s 61K might not be available does not show that the defendant’s conduct could not amount to a contravention of s 61B. It seems to be that there could be many instances of audible messages and indeed verbal images or messages which would fall within the definition of “tobacco advertisement” and yet no longer be susceptible at the time of a hearing in the Local Court to being removed or obscured.

94 The example of the alleged absurd consequences of the interpretation of the statutory provisions urged by the plaintiff involved the giving by a sales person of a direct answer to a question from a person asking the price of a packet of cigarettes. I do not consider that I should express any opinion on whether such conduct would amount to a contravention of the Act. However, I observe that the conduct in the present case was conduct that more obviously promoted or was intended to promote the purchase of a tobacco product.

95 According to more recent authorities, the principle of statutory interpretation that any doubt about the interpretation of a penal provision should be resolved in favour of the defendant has lost much of its former strength. See Pearce & Geddes Statutory Interpretation in Australia 6th ed pars 9.8-9.10.

96 I conclude that I should find the defendant guilty of the offences charged of contravening s 61B of the Act on 13 July 2007 at Dundas, on 13 July 2007 at Randwick and on 17 July 2007 at Umina.

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Citations

Dr Denise Robinson v Eureka Operations Pty Ltd [2008] NSWSC 1235

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Commonwealth Director of Public Prosecutions v Haddad, Daher [2019] NSWCA 55

McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367

CITATION:	Dr Denise Robinson v Eureka Operations Pty Ltd [2008] NSWSC 1235
HEARING DATE(S):	24 November 2008
JUDGMENT DATE :	19 December 2008
JUDGMENT OF:	James J
DECISION:	Findings of contraventions of s 61B in proceedings 10262/08, 10217/08 and 10228/08.
CATCHWORDS:	CRIMINAL LAW — summary jurisdiction of Supreme Court — Public Health Act Part 6 Division 4 — displaying tobacco advertisement — consent to prosecution — contravention of s 61B
LEGISLATION CITED:	Clean Waters Act 1970 Environmental Offences and Penalties Act 1989 Evidence Act Public Health Act 1991 Trades Practices Act Trading Against the Enemy Act 1914
CASES CITED:	Berwin v Donohoe (1915) 21 CLR 1 Carlton & United Breweries Limited v Tooth & Co Limited (No 3) (unreported 19 September 1986) Chegwidden v Joppich (1983) 107 LSJS 75 Council of the City of Fairfield v Colorpak Products (NSW) Pty Ltd (unreported Hemmings J 2 December 1988 NSW LEC Garrett v Freeman [2006] 68 NSWLR 729 Karounos v Flavel (1984) 9 ACLR 66 Kemp v Gough & Gilmour Holdings Pty Ltd (1995) 86 LGERA 63 Re Wilmer’s Trust; Wingfield v Moore (1910) 2 Ch 111 Traveland Pty Limited v Doherty (1982) 41 ALR 563
TEXTS CITED:	Pearce & Geddes Statutory Interpretation in Australia 6th ed
PARTIES:	Dr Denise Robinson - Plaintiff Eureka Operations Pty Ltd trading as Coles Express
FILE NUMBER(S):	SC 10262/08; 10217/08; 10228/08
COUNSEL:	BD Hodgkinson QC / ID Bourke - Plaintiff ID Temby AO QC / DH Mitchell - Defendants
SOLICITORS:	NSW Department of Health Legal Branch