Pearson v Rizos - [2008] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PEARSON v RIZOS
[2008] SASC 98
Judgment of The Honourable Justice Gray
18 April 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - MATTERS OF PROCEDURAL FAIRNESS AND PROPRIETY
Appeal against the dismissal of a complaint - complainant charged defendant with multiple counts under the Public and Environmental Health Act 1987 (SA) - complainant gave unchallenged evidence that he authorised to lay the complaint - no challenge to the complainant’s authority was raised by the defendant at trial - Magistrate gave no notice that he had a concern about the complainant’s authority - Magistrate dismissed the complaint on the basis that it had not been proved that the complainant was authorised to lay the complaint - whether Magistrate erred in dismissing the complaint on this basis - whether defendant was denied procedural fairness - whether the complainant's authority to lay the complaint needed to be proven beyond reasonable doubt or on the balance of probabilities.
Held: Magistrate erred in finding that the complainant had not established that he was an authorised officer and as such entitled to make the complaint - defendant denied procedural fairness - civil standard of proof applied to the complainant's authority to lay the complaint - Magistrate's dismissal of the charges set aside - retrial ordered before a differently constituted court.

HEALTH LAW - HEALTH REGULATION RELATING TO BUILDINGS AND HOUSING - UNSANITARY AND UNCLEAN PREMISES - NOTICES
EVIDENCE - GENERAL - JUDICIAL NOTICE - MATTERS NOT REQUIRING PROOF
Also considered: whether a notice must be served under section 15 of the Public and Environmental Health Act 1987 (SA) before an offence can be committed under section 16 of the Act - whether the Magistrate erred in excluding from evidence standards and codes adopted by the Public and Environmental Health Regulations 1991 (SA).
Held: section 16 of the Act is a separate offence, does not require a notice to be served under section 15 of the Act - Magistrate erred in excluding the standards and codes, as the Magistrate was required to take judicial notice of them pursuant to section 35 of the Evidence Act 1929 (SA).
Public and Environmental Health Act 1987 (SA) s 3, s 15, s 16, s 20, s 45 and s 47; Public and Environmental Health Regulations 1991 (SA) reg 3, reg 5, reg 6, reg 7, reg 8 and reg 10; Public and Environmental Health (General) Regulations 2006 (SA) reg 5 and reg 7; Crimes Act 1900 (NSW) s 25; Evidence Act 1929 (SA) s 35, referred to.
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; WAEJ v Minister of Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 188; Thompson v The Queen (1988) 169 CLR 1, considered.

PEARSON v RIZOS
[2008] SASC 98
Magistrates Appeal
GRAY J

This is an appeal against the dismissal of a complaint laid by the complainant and appellant, Antony Pearson, against…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pearson v Rizos

Details

AGLC: Pearson v Rizos [2008] SASC 98
Case: [2008] SASC 98
Decision Date: 18 April 2008

CaseChat Overview and Summary

The appeal was brought by Mr Rizos against the dismissal of a complaint brought by the complainant, who was employed by the City of Onkaparinga. The complaint was made under the Public and Environmental Health Act 1987 (SA) and related to alleged breaches of the Act by Mr Rizos in relation to his operation of a gymnasium. The Magistrate dismissed the complaint on the basis that the complainant had not proved he was authorised to lay the complaint. The central issues before the court were whether the Magistrate erred in dismissing the complaint on the basis that the complainant had not proved he was authorised to lay the complaint, whether Mr Rizos was denied procedural fairness, and the standard of proof required for the complainant’s authority to lay the complaint.

The court found that the Magistrate had erred in dismissing the complaint on the basis that the complainant had not proved he was authorised to lay the complaint. The court held that the civil standard of proof applied to the complainant's authority to lay the complaint and that the complainant’s evidence of his authority was unchallenged by Mr Rizos. The court further held that Mr Rizos was denied procedural fairness by the Magistrate’s failure to address the issue of the complainant's authority to lay the complaint when it was apparent that it was a matter of significance to the case. The court concluded that the dismissal of the complaint should be set aside and that the matter should be remitted for rehearing before a differently constituted Magistrates Court.

The orders of the Court were as follows: the appeal was allowed, the dismissal of the complaint was set aside, all further orders of the Magistrate were set aside, and the complaint was remitted for rehearing on all counts before a differently constituted Magistrates Court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I propose ordering a retrial on all counts.Background The complainant was employed by the City of Onkaparinga as an officer whose duties included overseeing the inspection of premises for compliance with the Public and Environmental Health Act. Mr Rizos owned and operated a gymnasium at 257 Old South Road Reynella, known as Body Workshop. There had been considerable dealings between the City of Onkaparinga and Mr Rizos over the Reynella premises. There had been a number of notices in relation to what was said to be inappropriate levels of chlorine in a spa pool at the premises, and matters allegedly requiring attention to ensure sanitary conditions for the public. As a result of two inspections on 19 July and 13 October 2006, charges were laid against Mr Rizos in relation to alleged breaches of the Public and Environmental Health Act regarding conditions generally, as well as the levels of chlorine in the spa pool at the centre. Mr Rizos was initially unrepresented at the trial but after two days he appeared with legal representation. The complainant gave evidence and called two additional witnesses: Anthony Douglas Ince, a manager of an aquatic centre, and Nicole Kathryn Moore, an environmental health officer for the City of Onkaparinga. Mr Rizos gave evidence and called three witnesses from the Reynella Body Workshop: Joan Davis, a receptionist and membership consultant, Robert William Wilkey, an after-hours cleaner, and John Francis Wilkey, a welder who had undertaken repair duties at the workshop. At the conclusion of the trial the Magistrate, as earlier observed, dismissed all seven counts on the basis that the complainant had failed to prove that he was authorised to lay the complaint. The Magistrate then provided an alternative consideration of the charges, indicating what he would have done had he not dismissed the charges on the above basis. The Magistrate indicated that he would have dismissed count 1 on the basis that the complainant did not serve adequate notice on Mr Rizos. He would have dismissed count 2 on the basis that the elements of the offence had not been proven by the complainant. He would have dismissed counts 4, 5, 6 and 9 on the basis that the complainant failed to prove that the spa pool was a spa pool within the definition under regulation 3(1) of the Public and Environmental Health Regulations 1991 (SA) and regulation 5(1) of the Public and Environmental Health (General) Regulations 2006 (SA). He would have accepted the evidence advanced in support of count 7, and found the elements of the offence proved beyond reasonable doubt. The AppealAuthorised Officer On appeal it was submitted that the Magistrate was in error in dismissing all counts on the basis that there was no evidence of the complainant’s appointment as an authorised officer under the Public and Environmental Health Act. Counsel for Mr Rizos accepted that no point had been taken by Mr Rizos at trial about the status of the complainant to lay the complaint.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Magistrate erred in not admitting the documents into evidence. Conclusion As earlier observed, the Magistrate erred in his conclusion that the complainant was not authorised to lay the complaint. This was his reason for dismissing the complaint. Accordingly, for the reasons mentioned above, the dismissal of the complaint should be set aside, and an order made that the matter be remitted for rehearing before a differently constituted Magistrates Court. In any event, the Magistrate’s reasoning to support his conclusion that he would have dismissed the complaint on other grounds is also permeated with error. Given the areas of factual dispute, and the need for the credibility and reliability of witnesses to be assessed, it is not possible for this Court to reach a conclusion as to whether any of the charges have been proved beyond reasonable doubt. The orders of the Court are as follows:-Appeal allowed.-The dismissal of the complaint is set aside.-All further orders of the Magistrate are set aside.-The complaint is remitted for rehearing on all counts before a differently constituted Magistrates Court.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.