Mahaffey v Queensland Health

[2004] QDC 148

DISTRICT COURT OF QUEENSLAND

CITATION:	Mahaffey v Queensland Health [2004] QDC 148
PARTIES:	TREVOR JOHN MAHAFFEY (Appellant)
AND
QUEENSLAND HEALTH (CHIEF EXECUTIVE, DEPARTMENT OF HEALTH) (Respondent)
FILE NO/S:	Appeal No 14 of 2003
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING  COURT:	Maroochydore Magistrates Court
DELIVERED ON:	16 April 2004
DELIVERED AT:	Maroochydore
HEARING DATE:	2 April 2004
JUDGE:	Judge J.M. Robertson
ORDER:	The appeal is dismissed with costs.
CATCHWORDS:	APPEAL – unsafe and unsatisfactory verdict
EVIDENCE – exercise of discretion to exclude evidence – public policy discretion – unfairness.
SELF-REPRESENTED defendant, conduct of trial.
Legislation
Food Act 1981, ss 28(a) (ix), 28(8)
Cases
Bunning v Cross (1978) 141 CLR 54 R v Ireland (1970) 126 CLR 321 R v Perera (1986) 1 Qd R 211 R v Swaffield (1997) 192 CLR 159 Shepherd v The Queen (1990) 170 CLR 573 Van der Meer v The Queen (1988) 62 ALJR 656
COUNSEL:	The appellant appeared for himself with the assistance of Mr Bell.
Mr D Lang for the respondent.
SOLICITORS:	The appellant appeared for himself Crown Law for the respondent

1. The appellant was tried in the Maroochydore Magistrates Court over two days on 17 March 2003, and 14 May 2003 before Acting Magistrate Lebsanft and was convicted of two breaches of the Food Act 1981 namely:

1.	On 3 October 2001 at Forest Glen he did refuse or neglect, when required under the Food Act 1981, to render assistance or furnish information to an authorised officer or other person; and
2.	On 3 October 2001 at Forest Glen he did knowingly make a false or misleading statement orally or in writing to an authorised officer exercising a power or authority in discharging a function under the Food Act 1981.

1. The charges, on their face, are probably duplicitous, however each charge was particularised in fine detail in the Complaint and Summons which commenced the proceedings in the Maroochydore Magistrates Court.

2. The described particulars contain in part a summary of the evidence to be lead by the complainant in support of the changes. No complaint is made in the grounds of appeal about duplicity or a lack of particularity, and it is clear from the transcript of the proceedings that the appellant was well aware of the allegations he had to meet.

3. The charges arise out of an interview between the appellant and a Mr Cowell, an authorised officer under the Food Act on 3 October 2001. The interview was taped, and a transcription and the tape were tendered as exhibit 5 in the proceedings.

4. I permitted Mr Bell to make submissions on behalf of the appellant. I did so on the basis that he had, he told me, prepared the appellant’s outline of submissions and, has recently received his law degree. I agree with Counsel for the respondent that the appellant’s written outline is discursive, confusing, and unfocused which required the respondent to anticipate a number of possible submissions, which were not pressed. Although Mr Bell tended to get off the track and talk about irrelevancies, he concentrated ultimately on the Magistrate’s admission into evidence of the record of interview; and more faintly on general unfairness to the appellant in the trial itself.

5. To understand the appellant’s complaints, it is necessary to set out briefly the background which lead up to the interview on the 3 October 2001.

6. Background

   The authorised officer referred to in both charges is Noel Cowell. At all relevant times he was employed by Queensland Health as the director of Environmental Health for the Sunshine Coast Public Health Unit. There is no dispute that he is and was an authorised officer for the purposes of the Food Act 1981. He has been an authorised officer for 30 years. His duties include undertaking investigations into food safety under the Act.

7. In mid August 2001, Mr Colwell, and/or his office, was notified by the Nambour Hospital that a number of children had been hospitalised with cryptosporidiosis, a disease caused by a food borne organism that can cause illness in humans. As a result, his unit conducted a public health investigation which included interviews with the parents of at least six young children who had fallen ill. As a result of the investigation, it was concluded that the cryptosporidiosis outbreak was probably sourced to the consumption of unpasteurised cows’ milk which had been purchased on the 12 August 2001 from Erbachers Fruit Farm at Bli Bli, Maroochydore.

8. In the course of the investigation, a parent provided investigators a pamphlet headed “Facts about Pasteurised Milk” which became exhibit 1 in the proceedings. The pamphlet refers to the “Society for Natural Nutrition, P.O. Box 489, Yandina”. On the 24 August 2001, Mr Colwell and Bradley Adams, another authorised officer, went to Erbachers Farm where initially 2 litres of milk was purchased. It was described as “Pet’s Organic Fresh Milk” and sourced to 4 Webster Road, Goomboorian via Gympie, which is a dairy farm.

9. An earlier investigation conducted by Adams into the sale of unpasteurised milk, which commenced in March 2001, had lead to the obtaining of a pamphlet about “Pet’s Organic Fresh Milk”, which was very similar to the pamphlet produced by one of the parents in the August investigation, with the notable exception that the source of the pamphlet was not “The Society for Natural Nutrition” but the diary farm at 4 Webster Road, Goomboorian. Mr Colwell gave evidence that he served the defendant at this address by arrangement with the complaint and summons which commenced the proceedings in the Magistrates Court.

10. On the 24th August 2001, at Erbachers farm, the officers observed a red haired lady who was sitting at a table near the entry to the fruit barn and she appeared to be handing out and promoting samples of the milk, which they suspected was the source of the earlier illness outbreak.

11. Both investigators spoke to the woman and their conversation was recorded on a field tape. The transcript and tape were tendered at the trial and became exhibit 4. There is some complaint about the admission of this transcript, however it was made clear at the time that it was not being tendered as proof of the truth of the facts asserted therein, rather its tender was to establish that certain statements were made, which in turn lead to further investigations.

12. When Adams first spoke to the lady, she mentioned that despite the label which states the milk was animal food only, and not fit for human consumption, it was indeed fit for human consumption, and she asserted that her children drank it. Later, when the investigators identified themselves, she denied that she had said this. Importantly, she told them that she had given out milk at Erbachers approximately two weeks earlier. She said she was employed by “Trevor” the “guy who’s got the dairy farm”. She refused to provide her name; indeed she told investigators she was a solicitor. She then refused to co-operate further, telling them to go and talk to Trevor. Despite a number of requests, she refused to give her name and address and she then left the premises with a crate of milk. The investigators then spoke to Cyril Erbacher, and ultimately after a number of attempts, Mr Colwell set up an interview with the appellant at Forest Glen on 3 October 2001. The tape and transcript became exhibit 5, and this interview substantially forms the basis of the respondent’s circumstantial case against the appellant. The appellant submits that in the exercise of his discretion, the Magistrate should have refused to admit the interview on the grounds of unfairness.

13. The Appeal

    Before dealing with this submission, it is necessary to refer to the particulars of the charges which are in part extracted from the interview. It is not suggested that the appellant did not say the things attributed to him in the interview.

14. The particulars of Count 1, (as set out in the complaint and summons, and as amended at the commencement of the hearing) are as follows:

    Particulars:

1.	On 3 October 2001, Mr Cowell as an authorised officer questioned Mr Mahaffy under section 28(a)(ix) Food Act 1981.
2.	Mr Mahaffy was asked questions regarding the name and address of a female person who was promoting Pet’s Organic Fresh Milk at a shop known as Erbachers.
3.	The person had previously confirmed or stated:

(i)         that she was employed by Trevor;

(ii)        that she just hands out the milk and pamphlets;

(iii)       that Trevor is the guy who’s got the dairy farm;

(iv)       that he produces the milk; and

(v)         that his number is on the bottom of the label on the bottle of Pet’s Organic Fresh Milk, being 5486 5613.

4.          Mr Mahaffey delivered milk to Erbachers where the promotion took place.

5.          Mr Mahaffey confirmed or stated:

(i)         that the person purchased milk from him;

(ii)        that he took the milk to Erbachers for her;

(iii)       that she had phoned Mr Mahaffey;

(iv)       that she is a member of the same society as Mr Mahaffey, namely the Society of Natural Nutrition;

(v)         that he recalls her name may be Fiona;

(vi)       that she may live at Brisbane North; and

(vii)     that he was the original author of the marketing brochure/pamphlet titled, “Facts about pasteurised milk” which bears the name of The Society of Natural Nutrition;

6.          Mr Mahaffey refused to provide the name and address of the female promoting Pets Organic Fresh Milk.

1. The particulars of Count 2 (as set out in the complaint and summons and as amended at the commencement of the hearing) are as follows:

   Particulars

1.	On 3 October 2001, Mr Cowell as an authorised officer questioned Mr Mahaffey under section 28(a)(ix) of the Food Act 1981.
2.	Mr Mahaffey essentially confirmed or stated:

(i)         that the proceeds from the sale of Pets’ Organic Fresh Milk go to the family business trading as H W Mahaffey and that there was no company involved.

(ii)        That proceeds go to Mr Mahaffey’s father, Harland, and not to him;

(iii)       That he was not employed by his father and that the proceeds go to Mr Trevor Mahaffey’s wife who owns the business Pet’s Organic Fresh Milk;

(iv)       That the proceeds go to Pet’s Organic Fresh Milk and that his wife, Mrs Cheryll Deborah Mahaffey is the registered owner of that business and that he was not an owner;

(v)         That he believed that the business was a registered business name within the State of Queensland;

(vi)       That his wife does not exactly receive the proceeds or is not the sole owner of the business;

(vii)      That the proceeds from the sale of the packaged milk go to a business that markets milk, namely Organic Food Distributors Pty Ltd (ACN 095 465 375) (ABN 38 095 465 375) which is a registered company of which Mr Neil Blair is the director;

(viii)     That he is employed by Organic Food Distributors Pty Ltd but receives no pay;

(ix)       That Organic Food Distributors Pty Ltd buys the milk off his father and is responsible for marketing and delivering it;

(x)         That he wrote Organic Food Dist. on the invoice provided to the shops that buy the milk.

3.          Organic Food Distributors Pty Ltd had no ownership over Pet’s Organic Fresh Milk.

4.          Organic Food Distributors Pty Ltd was not responsible for the marketing and delivery of Pet’s Organic Fresh Milk to stores;

5.          Mr Mahaffey was not employed by Organic Food Distributors Pty Ltd.

6.          Mr Mahaffey was not authorised to sell the milk on behalf of Organic Food Distributors Pty Ltd.

7.          Organic Food Distributors Pty Ltd has no real financial interest in the marketing of Pets’ Organic Fresh Milk.

8.          No authorisation was given by Organic Food Distributors Pty Ltd for Mr Mahaffey to use its name on the milk sale invoices.

9.          The invoices referred to Organic Food Distributors Pty Ltd.

1. The Fairness Submission

   In conducting the investigation into the sale of unpasteurised milk, Mr Cowell was acting pursuant to the powers conferred on him under the Food Act 1981. Although, the power to question any person contained in section 28(1)(a)(ix) is constrained by reference to powers to be exercised in “any premises or other place”, the questioning of the appellant followed on from the investigations on the 24 August and at no time was he required “to answer any question put”. Indeed, the interview was arranged between Mr Cowell and the appellant, and there is no suggestion of compulsion. The appellant appears to have voluntarily submitted to questions, and voluntarily attended for the interview. The point made by the appellant is that section 28 (8) states:

“A person is not obliged under this Act to answer any question or give any
information or evidence tending to criminate the person”.

1. I think that the word intended is “incriminate” but nothing turns on that. The appellant was not warned until page 18 of the interview, at a time where it appears that Mr Cowell reasonably suspected (because of what he’d been told, or not told by the appellant) that he was being misled, and that offences pursuant to section 30 of the Act may have been committed.

2. The appellant’s argument is that on a proper reading of the Act, there was an obligation on Mr Cowell to warn the appellant at the outset, and as he failed to do so, he was acting beyond the scope of his powers and the evidence contained in the interview, prior to a warning, was unlawfully obtained and should be excluded on what is sometimes called the unfairness discretion. In R v Swaffield (1997) 192 CLR 159, various members of the High Court examined the operation of this discretion. At page 174, Brennan CJ referred with approval to the judgment of Wilson, Dawson and Toohey JJ in Van der Meer v The Queen (1988) 62 ALJR 656 at 666 where it was said:

   “…the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him. Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.”

3. The appellant also relies on what is referred to in Swaffield as the public policy discretion. The origin of this discretion can be found in the judgment of Barwick CJ in R v Ireland (1970) 126 CLR 321 at 334-335 where the Chief Justice said:

   “Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible…On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual for unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.”

4. His Honour emphasised with more definition the nature of the balancing act that comes into play whenever this discretion arises in his judgment in Bunning v Cross (1978) 141 CLR 54 at 64 in which he said:

   “The question is whether the public interest in the enforcement of the law as to safety in the driving of vehicles on the roads and in obtaining evidence in aid of that enforcement is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into the hands of the Crown that, notwithstanding its admissibility and cogency, it should be rejected.”

5. In his judgment in Swaffield, Brennan CJ summarised the object of the discretion in this way (at 178):

   “Thus, the chief object of the public policy discretion is the constraining of law enforcement authorities, so as to prevent their engaging in illegal or improper conduct, although the securing of fairness to an accused is a relevant factor in the exercise of the discretion”.

6. Essentially, the appellant’s argument comes down to this: there is a statutory obligation upon an investigator to warn under the Act; Mr Cowell did not, therefore he acted unlawfully, therefore the evidence should be excluded. Clearly, the Food Act does not impose a statutory obligation upon an investigator to warn. Section 28(8) entitles a person to claim privilege; it does not impose any positive duty to warn.

7. The question then must be, in the circumstances of this case, was there such unfairness, and/or impropriety as to invoke the court’s discretion to exclude on either of the discretionary bases referred to earlier? In my view, the circumstances in this case do not even enliven the discretion, but if I was wrong in that, in my opinion the public interest in getting to the bottom of what was clearly a serious health issue far outweighs any unfairness to the appellant. My reasons for concluding that there was no unfairness or impropriety are as follows:

(a)	the appellant came voluntarily to the interview which had been mutually arranged for his convenience by Mr Cowell.
(b)	prior to coming to the interview, the defendant was well aware of the powers of inspectors under the Food Act, as he told the Magistrate that in September he had taken legal advice from solicitors on this very point. At no time did he exercise a right to refuse to answer questions.
(c)	The first eighteen pages of the interview clearly confirm that Mr Cowell was following up on the information that had been gathered, including the interview with the red haired lady on the 24 August 2001. He was not then questioning the appellant on the basis that he the appellant had committed an offence; rather he was making further enquiries. It was not until he reasonably suspected that the appellant was deliberately trying to mislead him that he administered a warning.

1. There is no validity in the appellant’s argument on this point. The Magistrate was clearly correct to admit the interview into evidence.

2. The appellant’s outline of argument raises other matters, but, as the respondent submits, there is very little clarity and many of the so called “grounds” are merely unfocused complaints about irrelevant issues.

3. One matter that was pursued related to the refusal of the learned Magistrate to permit Mr Bell to, as it were, represent the appellant at his trial. The Magistrate permitted Mr Bell to remain to assist the appellant which he apparently did do, for at least one day of the hearing. There is no substance in this ground. The appellant gave a good account of himself at the hearing, and presents on paper as being intelligent, articulate, and well aware of his rights. He chose to be unrepresented, and the Magistrate patiently and carefully explained the appellant’s rights as an unrepresented litigant. The appellant obviously has great faith in his cause and this caused him to depart from relevancy on a number of occasions, but, the Magistrate appears to have conducted a difficult hearing with patience, courtesy and fairness. There is no substance in this ground.

4. Unsafe and Unsatisfactory

   This ground has not been pleaded, but is “hinted at” in the outline. The prosecution case was circumstantial, and largely uncontested. It was for the prosecution to satisfy the Magistrate that not only was guilt a rational inference that could be drawn from the proved facts, but that it was the only rational inference: Shepherd v The Queen (1990) 170 CLR 573 at 578. This meant that the prosecution was required to exclude beyond a reasonable doubt any reasonable hypothesis consistent with innocence: R v Perera (1986) 1 Qd R 211 at 217. The Magistrate was entitled to accept the facts set out in particulars 4 and 5 of Count 1 as proved. From these facts the Magistrate was entitled to infer that the appellant knew the name and address of the woman who had been observed promoting the milk on the 24 August 2001. The hypothesis consistent with innocence relied upon by the appellant was that he did not know the name and address of the woman concerned, and therefore could not supply the details. The defendant positively denied that he knew her name or address. The submission by the appellant is that in light of the Magistrate’s findings as to credibility, he must have been in a state of reasonable doubt about this hypothesis, and therefore should have acquitted.

1. At the commencement of his submission, Mr Bell made some reference to the reported comments of the Magistrate at the commencement of his judgment at the conclusion of the hearing. He is reported to have said, “I have indicated this is a temporary judgment”. Clearly, it is a misprint, and should read “ex tempore judgment” which it was, and which might explain why his wording at times is not as precise as it would be if it was a considered judgment. Magistrates must give ex tempore judgments frequently, simply to keep up with the volume of work being undertaken in that Court.

2. In any event, the Magistrate said this on issues of credit:

   “I have had the opportunity to observe the demeanour of each witness whilst they gave their evidence and this has assisted me in assessing the credibility or otherwise, of those respective witnesses.

   Prosecution witnesses gave their evidence in a positive forthright manner and certainly their evidence is credible. I accept their evidence. The defendant, too, gave his evidence in a forthright manner.

   Overall, the defence version of events differs considerably with that of the prosecution. I am not going to go into highlighting the differences; that is as per the record.”

3. It is important, in my opinion, that the Magistrate did not make any reference to the evidence of the defendant being credible. He set out his acceptance of the facts relied upon by the prosecution. It must follow, that where the defendant’s sworn evidence conflicted with those facts, the Magistrate preferred the evidence of the prosecution witnesses and rejected the defendant’s evidence. I agree that a fair reading of the interview leaves one with no reasonable doubt that the appellant by his responses was refusing to identify a person who, on the evidence accepted by the Magistrate, he must have known. Having regard to the evidence of Mr Blair, which was accepted by the Magistrate in conjunction with the answers in the interview, the Magistrate was entitled to infer beyond a reasonable doubt that the appellant knowingly made a number of misleading statements to Mr Cowell concerning the involvement of Organic Food Distributors Pty Ltd in the marketing and distribution of the milk, and his connection with that company.

4. I have considered the other so called grounds in the outline, many of which were not pressed by Mr Bell on behalf of the appellant. There is no merit in any of them, insofar as one is able to discern the nature of the complaint. There is also absolutely no validity in any suggestion of bias on the part of the Magistrate to which Mr Bell seemed to allude in oral argument. As I have noted, the Magistrate conducted a difficult hearing with courtesy and fairness. The appeal is dismissed with costs.