Hughes v Steel

This case concerned an appeal from the Supreme Court of New South Wales regarding a prosecution for selling adulterated liquor under the *Public Health Act 1902* (N.S.W.). The appellant, an inspector, had purchased brandy and rum from the respondent hotel keeper and, after offering to divide the samples into three parts as required by section 80 of the Act, submitted them for analysis. The respondent refused the offer to divide the samples. A certificate from the government analyst detailing the results of the analysis was admitted into evidence without objection. However, the magistrate dismissed the information on the grounds that there was no evidence that the analyst had divided the submitted liquor into two parts and retained one for production, as stipulated by section 81 of the Act.

The legal issue before the High Court was whether proof of the analyst's compliance with the requirements of section 81 of the *Public Health Act 1902*, specifically the division of the sample and retention of a part, was a necessary prerequisite for the admission and efficacy of the analyst's certificate in proceedings for selling food not of the nature, substance, or quality demanded by the purchaser.

The Court held that proof of the analyst's compliance with section 81 was not a condition precedent to the admission of the certificate under section 82. The Court reasoned that the primary purpose of section 82 was to obviate the necessity of calling the analyst as a witness, a provision particularly important in a large state like New South Wales. If proof of the analyst's actions under section 81 were required, it would negate the intended convenience of using the certificate. While the division of the sample was a duty imposed on the analyst for the benefit of the defendant, the failure to comply with this duty did not automatically invalidate the certificate or prevent a conviction. Such a failure might, if established by the defendant, afford a defence, but it was not incumbent on the prosecution to prove affirmatively that the analyst had complied with section 81. The Court distinguished the scheme of the New South Wales Act from that of the English Act, where a certificate was a prerequisite to prosecution and the defendant had a right to have the analyst called.

The appeal was allowed, the order of the Supreme Court was discharged, and the case was remitted to the magistrate for determination. The respondent was ordered to pay the costs in the Supreme Court, but no costs were awarded on the appeal.