Nyoni v Murphy - [2013] WASC 298

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NYONI -v- MURPHY [2013] WASC 298

CORAM: EM HEENAN J

HEARD: 26 JULY 2013

DELIVERED : 26 JULY 2013

PUBLISHED : 13 AUGUST 2013

FILE NO/S: SJA 1013 of 2013

BETWEEN: EMSON NYONI
Appellant
AND
JILLIAN DACRE MURPHY
Respondent

ON APPEAL FROM:
For File No               :  SJA 1013 of 2013
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :NO 1274 of 2012, NO 1275 of 2012, NO 1276 of 2012, NO 1277 of 2012, NO 1278 of 2012, NO 1279 of 2012

Catchwords:

Criminal law - Application for leave to appeal against conviction and sentence - Pharmacist - Failure to comply with Poisons Regulations applying to storage of Schedule 8 medications - Fine - No reasonable prospect of success in proposed appeal against conviction - Leave refused - Concession that fines imposed excessive - Leave to appeal against sentence

Legislation:

Poisons Regulations 1965 (WA), reg 44, reg 45, reg 56

Result:

Application for leave to appeal against conviction refused
Application for leave to appeal against sentence granted
The two separate fines on charges 5 and 6 are set aside
Fine of $2,000 is imposed on charge 5
No fine imposed for charge 6
Aggregate fine of $14,000 reduced to $10,000

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr D E Leigh

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Carroll v The Queen [2009] HCA 13
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The King (1936) HCA 40
Samuels v The State of Western Australia [2005] WASCA 193

EM HEENAN J: This is an application for leave to appeal against certain convictions, and also an application for leave to appeal against sentences imposed. The applicant, Emson Nyoni, was charged by a prosecution notice dated 13 June 2012 with six separate offences. He is a pharmacist at Kellerberrin, and the charges related to alleged non‑compliance with the Poisons Regulations 1965 (WA) in relation to the securing and reporting of drugs kept by the pharmacy for supply.
The prosecution notice was issued in the name of an officer of the Department of Health by the name of Jillian Murphy, yet the proceedings have been recorded as if it were a prosecution by the Department of Health and Ageing (Cth) against Emson Nyoni rather than by the individual prosecutor. For reasons outlined by Jenkins J in Tey v Plotz [2011] WASC 34, this is an acceptable procedure for the prosecution and trial of such a charge at first instance. However, when it comes to the conduct of any appeal or application for leave to appeal, the proceedings should be entitled in the names of the individual parties. Mr Nyoni and counsel for the Department of Health (WA) both agree that these proceedings should be formally amended so that Emson Nyoni remains as the appellant and, instead of the Department of Health and Ageing, that Jillian Murphy should be substituted as the sole respondent. I will make that amendment and treat it as having been made from the commencement of proceedings today, and dispense with the need for any service of the amendment.
The six charges are set out in the notice of prosecution. The first group of charges include two charges contrary to reg 44(4) of the Poisons Regulations, namely failing to maintain the register which the pharmacist is required to maintain under reg 44(2) in such a way that the amount of the particular drug capsules was clearly apparent. The first of these charges related to a quantity of OxyNorm 5 milligram capsules, and the second to a quantity of slow release Durogesic 25 microgram per hour capsules. The second group of charges includes charges 3 and 4, and they each alleged an offence of failing to make an inventory of drugs of addiction held in stock at an interval of not more than one month, and failing to record the result of that inventory in the register in accordance with reg 44(3A), contrary to reg 45(1) of the Poisons Regulations.
The third group of charges, charges 5 and 6, alleged breaches of reg 56C and reg 56D of the Poisons Regulations. The first charge is that when storing drugs of addiction in a safe in accordance with reg 56(2), which safe was of a kind that may be locked by a key, Mr Nyoni failed to keep the key to the safe in his immediate and personal possession, or to ensure that the key to the safe was in the immediate and personal possession of a person authorised by the CEO to have possession of the key. The second charge is, being in possession of a key to the safe in which was stored drugs of addiction, he failed to ensure that the safe was kept locked at all times, except when items are being placed into or being removed from the safe, contrary to reg 56D of the Poisons Regulations.
At the trial before his Honour, Chief Magistrate Heath, evidence was adduced from two representatives of the Department of Health who attended at the premises of the pharmacy at Kellerberrin on 17 August 2011. Shortly stated, their evidence consisted of the narration of observations which they had made about the unlocked safe, the presence of the key in the safe, the checking of the drug register, counting of Schedule 8 drugs of particular kinds on hand, and a comparison of the result with the records in the drug register and checking the drug registers to see whether or not they had been written up, reconciled, or corrected at least at monthly intervals. This emerged from a combination of oral evidence and photographic evidence of what was observed by the two representatives of the Department.
In the pharmacy at the time of this visit the evidence demonstrated that offences of the type alleged being of the nature specifically alleged had been committed. It seems that the visit by the representatives of the Department of Health on 17 August 2011 was in fact the last of a number of prior visits by representatives of the Department carrying out orders to check compliance with the Poisons Regulations, and in particular the matter in which Schedule 8 drugs were kept and recorded, which previously had indicated discrepancies resulting in warnings then being given to the applicant.
That history is not relevant to a determination of whether or not any offence was committed on the day, or days, the subject of these charges. But it was raised by Mr Nyoni as indicating ill will on behalf of the previous inspectors and these officers towards him, and to explain what he constantly submitted was the erroneous and false nature of the evidence given against him by these particular officers. He denied that there were discrepancies in the drug register. He denied that the safe was left open, or that the key was in it, and he maintained that the drug register was current and in compliance with the regulations.
When it came to determining the facts of the case, the learned magistrate accepted as established beyond reasonable doubt the facts alleged by the witnesses for the prosecution, and he concluded that the denials and assertions to the contrary by the applicant were entirely unreliable. Accordingly, he convicted the applicant of all the charges. For the first four charges he imposed a fine of $2,000 on each charge, and for the fifth and sixth charges he imposed a fine of $3,000 each, making a total of six fines totalling $14,000.
Each offence carried a maximum penalty of $5,000 under s 62 of the Poisons Act. There is no minimum or mandatory penalty.
In order to secure the grant of leave to appeal in a case such as this it is necessary for the applicant to satisfy the court that leave to appeal should be granted in relation to each particular proposed ground of appeal to which leave is sought. The grounds of appeal proposed in this case are set out in the amended notice of appeal, dated 23 January this year, and they are:
1(a)that the court of summary jurisdiction –
(i)made an error of both law and fact that hearsay material and evidence used to procure conviction for charges 1 to 6 by prosecution and primary witnesses was fabricated;
(ii)photographs for charges 5 and 6 supplied by investigators to procure conviction were unrelated to the allegation and made up to procure prosecution and conviction;
(iii)the alleged investigators were the only witnesses used by the prosecution to procure conviction;
(iv)on material in front of the court below the court did not have jurisdiction to deal with the appellant on the charges;
(v)the offences charged are not offences under the provisions referred to in the Criminal Code Act 1913 s 4 and the court erred in law by failing to recognise that fact;
(vi)the appellant has a defence to the charges under the Criminal Code s 17 and the court erred in law;
(b)the court imposed a fine that was excessive and unfounded; and
…
(d)that there has been a miscarriage of justice based on all the above.
It has been established by a series of cases binding on me, including Samuels v The State of Western Australia [2005] WASCA 193, that before leave to appeal may be granted in respect of any ground of appeal the court must be satisfied that it has a rational and logical prospect of succeeding or that it has a real prospect of success.
Without going into a detailed review of the evidence or the proposed grounds of appeal relating to the convictions, I can say there is nothing whatever to suggest that any of the proposed grounds of appeal against conviction has any prospect of success. This was a case where the only issues for determination by the learned magistrate were issues of fact based on a choice of credibility between the witnesses for the prosecution, the two inspectors, and the present applicant as a respondent. Of course, it is not merely a choice as to whether one witness is more credible than another which counts in a prosecution like this. For a prosecution to succeed and a conviction to stand it must be the case that the judicial officer is satisfied beyond reasonable doubt by all the evidence that the prosecution has established the offence or offences charged, not merely that the matter depends on a balance of probabilities with respect to credibility. But the learned magistrate was obviously alive to that distinction and expressed himself to be satisfied that the charges had been proved and proved to the requisite degree.
As for the contentions that the safe was closed and locked, that the photographs were taken on some other day, that the registers as shown in the photographs were not accurate and had been interfered with in some way, and that the evidence of the prosecution witnesses was false, there was simply no evidence at all to support any such finding and these contentions were rejected by the learned magistrate. I have no doubt that his Honour was correct in that disposition and, in any event, I am satisfied that this is not a case which would justify any modification of those findings of fact if one applies the principles established by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. For those reasons the application for leave to appeal against conviction will be refused.
As for the application for leave to appeal against sentence, different considerations apply. In the submissions put before the court Mr Nyoni has essentially maintained all the same assertions in relation to the sentence as he does with respect to the convictions. In other words, he contends that he should never have been convicted and therefore there should be no sentence and, without appreciating the logical incongruity, contends that in any event the sentences were excessive.
In his written submissions in relation to the application for leave to appeal against sentence Mr Nyoni refers to the tests to be applied when reviewing a discretionary decision such as the choice of a particular sentence as set out in Carroll v The Queen [2009] HCA 13 and House v The King (1936) HCA 40. He then goes on to contend that he does not challenge any individual sentence imposed by the learned magistrate because they are flawed fundamentally. He submits that the sentence offends the one transaction rule of the totality principle.
Were that the only point bearing on the application for leave to appeal against sentence, I would be satisfied that there was no reason to grant leave but, quite properly, counsel for the respondent has acknowledged that the two fines of $3,000 imposed in respect of charges 5 and 6, each relating to leaving the safe open, one meaning that the safe was not locked and the other being that the key for the safe was left in the safe rather than being in the possession of the pharmacist, are really part and parcel of the one transaction and should not, for that reason, attract separate and cumulative punishments.
The prosecution concedes that there has been an error by the learned magistrate in that respect and that this court should grant leave and re‑sentence. I agree, with respect, that there has been oversight of the one transaction rule and that, in all the circumstances, separate finds for charges 5 and 6 ought not to have been imposed. There does not seem to be any reason why larger fines for these offences were imposed than for the other offences and, for that reason, I would set aside the two fines of $3,000 each on charges 5 and 6 and substitute a fine of $2,000 on charge 5 alone and no penalty on charge 6.
That will mean that the aggregate fine of $14,000 is reduced to $10,000. I would grant leave to appeal and allow the appeal with respect to sentence for those reasons.