Pearson v Rizos
[2008] SASC 98
•18 April 2008
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 98Magistrates Appeal
GRAY J
This is an appeal against the dismissal of a complaint laid by the complainant and appellant, Antony Pearson, against the defendant and respondent, Evangelos Rizos.
The prosecution proceeded to trial in relation to seven counts (counts 1, 2, 4, 5, 6, 7, and 9). The substance of the allegations was that on 19 July 2006 Mr Rizos:
-caused or allowed insanitary conditions to occur on premises (count 1);[1]
-owned a building used as a place of public assembly which was not kept clean (count 2);[2]
-owned premises at which a spa pool available for public use contained inadequate chlorine levels (count 4);[3]
-owned premises at which a spa pool available for public use was not under the control and management of a knowledgeable person (count 5);[4]
and that on 13 October 2006 Mr Rizos:
-caused or allowed insanitary conditions to occur (count 6);[5]
-owned a building used as a place of public assembly which was not kept clean (count 7);[6] and
-owned premises at which a spa pool available for public use contained inadequate chlorine levels (count 9).[7]
[1] Contrary to section 16(1) of the Public and Environmental Health Act, which provides:
“If premises are in an insanitary condition, any person who is responsible for causing the condition or allowing the condition to occur is guilty of an offence.”
[2] Contrary to section 20(4) of the Public and Environmental Health Act, which provides:
“The owner of a building that is used as a place of public assembly shall keep the building clean and properly ventilated.”
[3] Contrary to regulation 7 of the Public and Environmental Health Regulations 1991 (SA), which provides:
“(1)Where a spa pool is available for public use—
(a)the water must be disinfected by chlorine, or by an alternative method specified by the South Australian Health Commission Code "Standard for the Operation of Swimming Pools and Spa Pools in South Australia"; and
(b)where chlorine is used to disinfect the water—
(i)the water must contain residual free chlorine to at least the level of 4mg/litre; and
(ii)the total chlorine concentration in the water, other than residual free chlorine, must not exceed 1mg/litre; and
(iii)cyanuric acid must not be used to stabilise the chlorine; and
(iv)the pH of the water must be maintained between 7.2 and 7.6; and
(v)the alkalinity of the water (calculated as a measure of the total amount of dissolved alkaline compounds in the water) must be maintained at a concentration of between 60mg/litre and 200mg/litre; and
(c)the pool must incorporate a weir off-take or skimmer system that continuously takes away surface water while the pool is in use; and
(d)the pool must be fitted with—
(i)a filtration system that—
(A) provides a continuous circulation of water through the filter; and
(B)passes all water in the pool through the filter at least once in every 30 minutes; and
(C)maintains the water in a clean, clear condition so that a matt black disc, or a disc that contrasts with the colour of the bottom of the pool, 150 mm in diameter, is (or would be) clearly visible at the deepest part of the pool when there is no turbulence in the pool; and
(ii)automatic equipment that continuously analyses and controls the level of disinfectant in the water, and the pH level of the water (at least to the standards required by this regulation) while the pool is in use; and
(e)the water must be replaced—
(i)at the rate of at least 20 per cent per day; or
(ii)at least once in every week by completely draining the pool; and
(f)the pool must be completely cleaned at least once in every week.
…
(3)If a provision of this regulation is not observed, the owner of the premises where the pool is situated is guilty of an offence.
Penalty: $2 500.
[4] Contrary to regulation 8(1) of the Public and Environmental Health Regulations 1991 (SA), which provides:
(1)Where a swimming pool or spa pool is available for public use, the owner of the premises where the pool is situated must ensure—
(a)that the pool is under the control and management of a person who is knowledgeable in the operation of the pool and sufficiently competent to ensure that the pool complies with the requirements of these regulations; and
(b)that the pool is tested as often as is reasonably necessary to ensure that the pool complies with the requirements of these regulations; and
(c)that readings are obtained on a regular basis from any automatic analyser fitted to the pool.
Penalty: $2 000.
[5] Contrary to section 16(1) of the Public and Environmental Health Act.
[6] Contrary to section 20(4) of the Public and Environmental Health Act.
[7] Contrary to regulation 7(7) of the Public and Environmental Health (General) Regulations 2006 (SA), which provides:
“If a requirement under this regulation is not met in respect of a public spa pool, the owner of the premises on which the pool is located and the person responsible for the care, control and management of the pool are each guilty of an offence.”
It is to be noted that the Public and Environmental Health (General) Regulations 2006 (SA), revoked the Public and Environmental Health Regulations 1991 (SA), with effect from 1 August 2006.
The Magistrate dismissed the complaint on the basis that it had not been proved that the complainant was authorised to lay the complaint. The circumstances in which this arose were unusual. No challenge to the complainant’s authority was raised by the defendant at trial, either during the course of the complainant’s evidence, in final submissions or at any other time. The Magistrate gave no notice that he had a concern about the complainant’s authority. The first that either party was aware of this issue and the Magistrate’s conclusion thereto, was on the publication of his reasons for judgment. As it happened, the complainant had given unchallenged evidence that he was an “authorised officer”,[8] and accordingly had the relevant status to lay the complaint. The Magistrate made a passing reference to the complainant’s evidence about his general status, however, he did not consider the evidence of authority when deciding that the complainant was not authorised to lay the complaint.
[8] Pursuant to section 45(2)(a) of Public and Environmental Health Act 1987 (SA).
I have reached the conclusion that the Magistrate erred in finding that the complainant had not established that he was an authorised officer and as such entitled to make the complaint. The complainant gave sworn, unchallenged evidence that he was an authorised officer under the Public and Environmental Health Act 1987 (SA). There was no basis for a finding that the authority to lay the complaint had not been established. The evidence was unchallenged. There was no contrary case. Mr Rizos did not raise any challenge to the authority to lay the complaint. It was not an issue.
It is difficult to understand why a judicial officer, following a lengthy trial, concerning matters affecting public health, would seek to determine the trial on an issue not raised in the proceedings. In the present case, the unfairness to the parties, and in particular the complainant, is self-evident. This course was compounded when the Magistrate overlooked the sworn, unchallenged evidence of authority to lay the complaint. These problems, of themselves, lead to the need for a retrial before a differently constituted Magistrates Court. Although the Magistrate went on to intimate his view about other issues arising on the complaint, the above error permeated the entire proceedings. The approach of the Magistrate was such as to undermine any confidence in his handling of the proceedings.
The complainant on appeal submitted that the Magistrate erred in dismissing count 1 on the basis that inadequate notice had been given. In the reasons that follow, I have concluded that the Magistrate was in error in this finding. Mr Rizos, on appeal, submitted that count 7 should have been dismissed on the same basis. I have rejected this submission, as I have found that the Magistrate erred in dismissing count 1 on this basis.
The complainant on appeal further submitted that the Magistrate erred in not admitting into evidence three exhibits which, the complainant submits, would have enabled the complainant to establish counts 2 and 7. In the reasons that follow, I have concluded that the Magistrate was in error in not admitting the three exhibits into evidence.
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 Appeal
Authorised 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.
In accordance with section 45(2) of the Public and Environmental HealthAct, proceedings for an offence cannot be commenced except upon the complaint of an authorised officer, or other persons not presently relevant. Section 45(2) provides:
Proceedings for an offence against this Act cannot be commenced except upon the complaint of—
(a) an authorised officer; or
(b) a member of the staff of the Department; or
(c) the chief executive officer of a local council; or
(d) a member of the police force; or
(e) a person acting on the written authority of the Minister.
An authorised officer is defined in section 3 of the Act as:
“authorised officer” means a person—
(a) holding an appointment as an authorised officer under Part 2; or
(b)authorised by the Minister to exercise the powers of an authorised officer under this Act;
It was submitted that the Magistrate overlooked that the complainant had given the following evidence during examination-in-chief concerning his status as an authorised officer under the Public and Environmental Health Act:
Q Do you hold any roles as an authorised officer or the like as part of your position.
AYes, I am authorised under numerous Acts. The Local Government Act and the Public Environmental Health Act [are] two that are applicable to this case.
This evidence was not challenged.
The Magistrate, in his reasons, set out the terms of section 45(2) of the Public and Environmental Health Act and observed:
Although subsection (2a) provides to the effect that an apparently genuine document purporting to be under the hand of the Minister and to authorise the commencement of proceedings under this Act must be accepted in legal proceedings, in the absence of proof to the contrary, as proof of an authorisation under subsection (2)(e), no such document was tendered. The evidence does not support a conclusion that Mr Pearson was a member of the police force, the chief executive officer of a local council or a member of the staff of the Department (of the Minister to whom the administration of the Act is committed – per section 3(1) definition of ‘the Department’).
The remaining possibility is that Mr Pearson was, at the time the Complaint was sworn on 13 December 2006, an ‘authorised officer’. The latter expression is defined in Section 3(1) of the Act to mean a person holding an appointment as an authorised officer under Part 2 of the Act; or authorised by the Minister to exercise the powers of an authorised officer under the Act. Part 2 of the Act relates to ‘Administration’ and is between Sections 6 and 12 (both inclusive). Section 7, dealing with ‘Authorised officers’, provides to the effect that Authorised officers may be appointed by the Minister or a local council. There was no evidence of any such appointment in the case of Mr Pearson.
Subsection (3) deals with the appointment of a person as an authorised officer not able to comply with the qualifications criteria identified in subsection (2). There was no evidence before the court of the appointment of Mr Pearson pursuant to this subsection and, since Mr Pearson did not produce the certificate of authority identified in subsection (5), I am unable to conclude that he was at the relevant time an authorised officer. That being the case, I conclude that the entire Complaint must be dismissed.
The complainant submitted on appeal that if Mr Rizos had raised the complainant’s authorisation as an issue at the trial, the evidence that had been led from the complainant would have been drawn to the attention of the Magistrate and that if necessary, an application to lead further evidence would have been made. It was said that if the Magistrate had a concern about the complainant’s status, basic procedural fairness required that the parties be given notice of his concern and the opportunity to make submissions. Had he done so, the unchallenged evidence as to status could have been drawn to his attention. This, it may be surmised, would have disposed of the issue.
The Magistrate determined to dismiss the complaint without informing the parties that he was to do so on a ground not raised by Mr Rizos. The complainant was denied the opportunity to identify relevant unchallenged evidence or to seek to lead further evidence. This amounted to a breach of the natural justice hearing rule. In order to be given a fair opportunity to present one’s case, a party needs to be aware of the contested issues. Magistrates do not need to disclose all of their mental processes.[9] However, a magistrate should not reach an adverse conclusion on an issue without giving parties affected an opportunity to address comment on that issue. In the present case, the complainant was denied basic procedural fairness.
[9] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592.
In WAEJ,[10] the Refugee Review Tribunal reasoned that a particular document did not appear to be genuine. The Full Court of the Federal Court held that the Tribunal was required to express this concern to the applicant, and to give the applicant an opportunity to respond. It was observed:[11]
If, in truth, the [Tribunal] did not believe that the document was authentic, the [Tribunal] should have advised the appellant and his solicitor accordingly and allowed the appellant, through his solicitor, to make any inquiries that were necessary to enable the appellant to produce further material to the [Tribunal] to satisfy the [Tribunal] in respect of the document.
Similarly, in the present case, the Magistrate was required to put his concern to the complainant.
[10] WAEJ v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 188.
[11] WAEJ v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 188 at [54].
Mr Rizos submitted on appeal that it was an element of each of the offences charged that the complaint be made by an authorised officer. Accordingly, it was contended that the complainant had the onus to prove beyond reasonable doubt that he was an authorised officer. It may be inferred that the Magistrate considered that the status of the complainant should be proved beyond reasonable doubt. Although the Magistrate did not address the standard of proof at this point in his reasons, earlier when discussing a suggested requirement that a notice be issued within 12 months, he indicated that that matter had to be established beyond reasonable doubt.
The submission that the complainant’s status as an authorised officer was a matter to be proved beyond reasonable doubt is misconceived. The establishment of relevant authority to lay a complaint is a separate and distinct issue from the proof of the elements of the charged offence. In Thompson,[12] the High Court considered the standard of proof required for the Court’s jurisdiction to hear a case. Section 25 of the Crimes Act 1900 (NSW) provided that the Supreme Court of the Australian Capital Territory had jurisdiction to hear murder trials where either the cause of death, or the death itself, occurred in the Australian Capital Territory. The trial Judge directed the jury that they could not convict the accused unless they were satisfied beyond reasonable doubt that the deaths of the deceased took place in the Australian Capital Territory. The High Court held that the issue of whether the Court had jurisdiction to hear the case was separate from the issues directly relating to the accused’s guilt or innocence, and so the prosecution need only prove the former on the balance of probabilities rather than beyond reasonable doubt. Mason CJ and Dawson J, with whom Gaudron J agreed, observed:[13]
The issue of guilt is necessarily determined within a particular jurisdiction. But the issue cannot be determined unless the prosecution establishes the authority of the jurisdiction to enter judgment. This issue, namely, whether the offence was committed within the jurisdiction, is distinct from that of guilt, namely, whether the elements of the offence are made out. Proof of jurisdiction is a prerequisite of guilt but otherwise it is not an element in proof of the commission of the offence except in those cases in which the offence is so defined that commission of it in a place or locality is made an element of the offence charged. Proof of the commission of the offence must be demonstrated beyond reasonable doubt. But this does not mean that proof of the existence of jurisdiction must first be established beyond reasonable doubt.
The fundamental principle of our criminal law is that the accused's guilt must be established beyond reasonable doubt. The law requires that standard of proof of the commission of a criminal offence in order to eliminate or minimize the chance that an innocent person might be found guilty with all the grave consequences that such an erroneous condemnation would have for the accused, for our system of justice and for the community generally: Brown v The King. The fundamental principle is not offended if the facts essential to the existence of jurisdiction in the court to enter judgment are required to be established according to the civil standard of proof. That is a discrete question which may be left to a jury upon the lesser standard of proof without diverting them from the standard which they are otherwise required to apply in determining guilt or innocence. Cf. Ahern v The Queen. The policy or purpose which underlies the fundamental principle is sufficiently served and the protection of the accused adequately assured if the criminal standard of proof is applied to all the facts relied upon to make out the elements of the offence. To apply that standard to the proof of facts establishing the jurisdiction of the trial court would extend the protection of an accused person to the point of entitling him to an acquittal on the ground that the prosecution could not prove beyond reasonable doubt that the offence was committed in one State or Territory rather than another, even though, if jurisdiction were assumed, the circumstances would be such as to show beyond reasonable doubt that the accused committed the offence charged. To extend the protection in this way would travel beyond the interests which the law seeks to safeguard in imposing the criminal standard of proof and at the same time adversely affect the public interest in the administration of justice by allowing a wrongdoer to escape conviction, notwithstanding that the balance of probabilities suggests that the wrongdoer is subject to the jurisdiction from which he seeks to escape. A wrongdoer clearly subject to the laws of one of two jurisdictions would escape the laws of both, even where such laws were identical, simply because the prosecution could not prove the place of the commission of the offence beyond reasonable doubt. The prospect of this outcome would be lessened if the civil standard of proof were to be applied.
These observations are apposite to the present case.
[12] Thompson v The Queen (1988) 169 CLR 1.
[13] Thompson v The Queen (1988) 169 CLR 1 at 12-13 (footnotes omitted).
The status of the complainant as an authorised officer was a matter that was separate and distinct from the guilt or innocence of Mr Rizos to the charges. It was a prerequisite to the charging of Mr Rizos, but was not an element in proof of the commission of any offence. Although the commission of each offence needed to be proved beyond reasonable doubt, proof of the complainant’s right to charge Mr Rizos with the offences need only be proved on the balance of probabilities. This circumstance does not offend the fundamental principle that an accused’s guilt must be proved beyond reasonable doubt. The right to lay a charge is a discrete question that is separate from an accused’s guilt. The criminal standard of proof is still applied to the establishment of each of the elements of the charged offences.
In summary, the Magistrate’s dismissal of the charges should be set aside. He denied the complainant basic procedural fairness. He overlooked the express evidence of authorisation, and in all probability applied too high a standard of proof. As earlier observed, it is difficult to understand why a judicial officer, without notice, should determine a complaint after a long trial on such a basis, without notice to the parties. I would set aside the order of dismissal of the complaint, and order a retrial of all charges before a differently constituted court. However, as other issues have been raised on the appeal, it is convenient to briefly express my views about those matters.
Service of Notice
The complainant submitted on appeal that the Magistrate erred in intimating that count 1, relating to a breach of section 16(1) of the Public and Environmental Health Act (regarding insanitary conditions), would have been dismissed on the basis that a notice issued pursuant to section 15(1) of the Public and Environmental Health Act, relating to the premises the subject of the complaint, had not been validly effected.
Section 15 of the Act provides:
(1)If premises are in an insanitary condition, the authority may, by notice in writing, require an owner of the premises or any other person who is apparently responsible for causing the insanitary condition or allowing the insanitary condition to occur—
(a) to take specified action to improve the condition of the premises; or
(b) to desist from a specified activity to which the condition of the premises is apparently attributable.
(2)If residential premises are, by reason of their insanitary condition, unfit for human habitation, the authority may include in a notice under subsection (1), a direction that, after a date specified in the notice, the premises must not be occupied until—
(a) specified action to render the premises fit for human habitation has been taken; and
(b) the authority is satisfied that the premises are fit for human habitation.
(3)A person to whom a notice under subsection (1) is addressed shall not, without reasonable excuse, fail to comply with the notice.
Penalty: Division 5 fine.
Expiation fee: Division 6 fee.
(4)Where a notice under subsection (1) includes a direction under subsection (2), the authority must have a copy of the notice affixed to a conspicuous part of the premises to which it relates.
(5)A person shall not, knowing that a direction exists under subsection (2), occupy premises in contravention of that direction.
Penalty: Division 6 fine.
Expiation fee: Division 7 fee.
(6)The authority may, by further notice in writing, vary or revoke a notice given under this section.
Section 16 provides:
(1)If premises are in an insanitary condition, any person who is responsible for causing the condition or allowing the condition to occur is guilty of an offence.
Penalty: Division 5 fine.
Expiation fee: Division 6 fee.
(2)It is a defence to a charge for an offence against subsection (1) to prove that there is a reasonable excuse for the condition of the premises.
The Magistrate, in his reasons, observed:
By reason of the conclusion earlier reached that valid service of the notice did not take place, I conclude that there has been a failure on the part of the City of Onkaparinga properly to notify the defendant of its determination and requirements and for that reason, again, I would have dismissed count 1.
…
… Count 1 asserts that on 19 July 2006 the defendant committed the offence under Section 16(1) of the Act. The defendant successfully contended that he was unaware of the terms of [the section 15 notice]. In those circumstances, at 19 July 2006, being unaware of the requirements of the notice he was unable to comply with its terms within the time limited. In my view, to that extent, the defendant had a reasonable excuse for the condition of the premises on 19 July 2006. Again, I would have dismissed count 1.
The complainant submitted that sections 15 and 16 of the Public and Environmental Health Act were separate, discrete sections. It was said not to be necessary for a person to be served with a valid notice under section 15 in order to be convicted of an offence under section 16.
Section 15 provides a local authority with power to issue a notice to an owner of premises where the authority believes that the premises are in an insanitary condition or to be unfit for human habitation. The notice can require the owner to take certain action or desist from certain action. It is an offence not to comply with the notice.
Section 16 provides for a separate and discrete offence – the offence of being responsible for causing or allowing premises to be in an unsatisfactory condition. Section 16 does not require the authority to issue a notice. Section 16 is silent on the topic.
Section 15 does not impose any duty on a local authority to issue a notice. It gives local authorities power to issue notices, and it creates an offence under section 15(2) of failing to comply with the notice. A section 15 offence is not an offence of causing or allowing premises to be in an insanitary condition – it is the offence of not complying with a notice. There is no reason to interpret section 15 as imposing any limitation on section 16.
Mr Rizos submitted that the second reading speech, introducing section 15, specified that the section “will allow”[14] councils to take action against owners of premises. Mr Rizos submitted that it should be inferred from these words that local authorities are not permitted to take action under section 16 without first having issued a notice under section 15. There is no basis for such an inference. The fact that the second reading speech indicated that Parliament intended section 15 to allow councils to take action does not lead to the inference that Parliament intended section 15 to be the only way that a council could take action. It is but one course open to a local authority. The section does not impose a duty on a local authority to give a notice prior to the issue of a section 16 complaint. There is nothing in the words of either section, or in any extrinsic materials, to support the construction advanced by Mr Rizos.
[14] South Australia, Parliamentary Debates, House of Assembly, 7 April 1987, 3913 (The Hon G.J. Crafter, Minister of Education).
The Magistrate erred in reasoning that he would have dismissed count 1 on the basis that inadequate notice was given.
A related submission advanced by the complainant was that on the evidence adduced at trial, it was not open to the Magistrate to reason that the failure to receive a notice under section 15 constituted a “reasonable excuse” for the conduct comprising a breach of section 16. [15] It is unclear from the Magistrate’s reasons whether he did in fact express this view. However, his giving “the benefit of the doubt” to the defendant may be indicative of his disagreement with the above submission.
[15] Section 16(2) provides that it is a defence to a charge for an offence against subsection (1) that there is a “reasonable excuse” for the condition of the premises.
Ultimately, it is a question of fact as to whether or not a reasonable excuse existed. It is difficult to conceive that the failure to receive a notice could constitute a reasonable excuse. The reasonable excuse appears to be related to a condition of the premises. That condition is a matter of fact. Whether or not a notice has been received is unlikely to provide an excuse for the condition of the premises.
Mr Rizos filed a Notice of Contention, during the hearing of the appeal, contending that the Magistrate ought to have also dismissed Count 7 on the basis that a notice pursuant to section 20(1) had not been given. Count 7 was an offence against section 20(4) of the Act. Section 20 provides:
(1)Where the authority is of the opinion that premises have inadequate facilities for sanitation or personal hygiene, the authority may, by notice in writing, require an owner of the premises to take such action as the authority thinks necessary, and specifies in the notice, to provide adequate facilities within such time, and in such manner, as is specified in the notice.
(2)A person to whom a notice under subsection (1) is addressed shall not, without reasonable excuse, fail to comply with the notice.
Penalty: Division 6 fine.
Expiation fee: Division 7 fee.
(3)The authority may, by further notice in writing, vary or revoke a notice given under this section.
(4)The owner of a building that is used as a place of public assembly shall keep the building clean and properly ventilated.
Penalty: Division 6 fine.
Expiation fee: Division 7 fee.
There is a clear pattern to the legislation under consideration. A local authority has power to issue a notice, requiring an owner of premises to take action or desist from conduct. It is an offence not to comply with such a notice. But it is also a separate offence to own premises, or be responsible for premises, which are in an insanitary condition, unfit for human habitation, and not clean and properly ventilated. These are offences that do not depend on the prior service of a notice. It is the duty of owners of premises to keep their premises in a clean and sanitary condition, regardless of whether a notice is served by their local authority.
It is to be noted that in contrast to sections 15 and 16, the legislature has incorporated the two offences within the one section. However, in my view this does not affect the construction that section 20(2) creates a separate and distinct offence from section 20(4). The earlier reasoning with respect to sections 15 and 16 has application.
The Magistrate erred in intimating that he would have dismissed count 1 on the basis that inadequate notice had been given. The Notice of Contention should also be rejected for the same reasons.
Certification
The complainant submitted that the Magistrate further erred in excluding three documents from the evidence in the trial.
The proposed exhibits were standards and codes that were contained in the South Australian Health Commission Code, and which by operation of the Public and Environmental Health Regulations were prescribed standards and codes for the purposes of the Public and Environmental Health Act - the Standard for the Inspection and Maintenance of Swimming Pools and Spa Pools in South Australia (adopted by regulation 10 of the Public and Environmental Health Regulations); the Standard for the Operation of Swimming Pools and Spa Pools in South Australia (adopted by regulations 6(1)(a) and 7(1)(a) of the Public and Environmental Health Regulations); and the Code of Practice for the Provision of Facilities for Sanitation and Personal Hygiene (adopted by regulation 5 of the Public and Environmental Health Regulations). The Magistrate rejected the tender of these documents on the ground that they had not been certified by the relevant Minister.
At trial the complainant sought to rely on these standards and codes to demonstrate that, in relation to counts 2 and 7, the premises were not kept clean according to accepted standards. The Magistrate reasoned that he would have dismissed count 2 on the basis that relevant standards had not been established. The complainant submitted that the wrongful exclusion of the three documents denied the complainant the opportunity of proving this count. The Magistrate accepted evidence given by Ms Moore as proving the “unclean” element of count 7 and stated that he would have found the charge to be proved on that count.
The exhibits were standards and codes adopted by the Public and Environmental Health Regulations, within the meaning of the Public and Environmental Health Act. Section 47(8) provides:
Where—
(a) a code or standard is adopted by the regulations; or
(b)the regulations, or a code or standard adopted by the regulations, refers to a standard or other document prepared or published by a prescribed body,
then—
(c)a copy of the code, standard or other document must be kept available for inspection by members of the public, without charge and during normal office hours, at an office or offices specified in the regulations; and
(d)in any legal proceedings, evidence of the contents of the code, standard or other document may be given by production of a document purporting to be certified by or on behalf of the Minister as a true copy of the code, standard or other document; and
(e)the code, standard or other document has effect as if it were a regulation made under this Act.
As the standards and codes were adopted by the Public and Environmental Health Regulations by the operation of section 47(8)(e), they took effect as if they were regulations made under the Public and Environmental Health Act. Accordingly, section 35 of the Evidence Act 1929 (SA) applied to their reception into evidence:
(1) A court must take judicial notice of a legislative instrument.
(2) In this section—
“legislative instrument” means—
…
(c)a regulation, rule, by-law or other form of subordinate legislation made under the law of this State or of any other State or a Territory of the Commonwealth
It follows that the Magistrate was required to take judicial notice of the standards and codes, the subject of the three exhibits.
Mr Rizos submitted that although the Magistrate was required to take judicial notice of the regulations made under the Act, where the regulations incorporated a code or standard it was necessary for the complainant to prove the content of that code or standard by, for example, providing certification from the Minister. This submission should be rejected. Section 47(8)(e) of the Act provides that the standards are to have the same effect as if they were regulations. This results in section 35 of the Evidence Act operating equally on regulations and standards incorporated by regulations. It is not for the complainant to be required to prove the content of the code or standard – it is a matter for the Court, under section 35 of the Evidence Act, to take judicial notice of the standards and code.
Requiring a court to take judicial notice of a fact is the opposite of requiring a party to prove it. As observed by Stone and Wells:[16]
Judicial notice constitutes the great exception to the general rule that a party must prove all facts necessary to support his case. Conversely, it constitutes the great exception to the general rule that the tribunal, whether judge or jury, may not act on any facts other than those formally proved before it.
[16] Julius Stone and W.A.N. Wells, Evidence: Its Histories and Policies (1991) at 153.
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.
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