CATCHWORDS:
EVIDENCE – s138 of the Evidence Act 1995 (NSW) – improperly obtained evidence - whether prosecuting authority acted ‘improperly’ in procuring minors to purchase cigarettes as part of ‘compliance testing’ – extent to which common law principles of Ridgeway v the Queen survive the Evidence Act 1995 (NSW) – consideration of whether statements made in Second Reading Speech for the Public Health Act 1991 (NSW) that ‘prosecution is used by public health units and the department as a last resort’ informed the propriety of the conduct of the Department of Health for the purposes of s138 – whether finding that one of the minors could have been in her early twenties affected the propriety of the conduct of the Department of Health.
COSTS – whether the Suitors’ Fund Act applies in relation to appeals from convictions for summary offences or is limited to civil proceedings.

LEGISLATION CITED:
Crimes (Local Courts Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Liquor Act 1982 (NSW)
Public Health Act 1991 (NSW)
Suitors' Fund Act 1951 (NSW)

DECISION:
(1) Set aside the order of the Local Court made on 12 May 2005 dismissing the proceedings brought against the Defendant alleging an offence under s 59 of the Public Health Act 1991 (NSW)
(2) Remit the matter to the Local Court to be determined in accordance with the conclusions of this Court that
(a) the evidence relied on by the Defendant was not capable of establishing an impropriety for the purpose of s 138(1)(b) of the Evidence Act 1995 (NSW), nor was the evidence tendered by the prosecutor capable of being evidence improperly obtained for the purposes of par (a) or evidence obtained in consequence of an impropriety for the purposes of par (b) of s 138(1) of that Act, and
(b) the common law defence of honest and reasonable mistake of fact was not available to the Defendant.
(3) Grant a certificate under the Suitors' Fund Act 1951 (NSW) to the Defendant

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40505/05
LC 5979-05-86
BASTEN JA
BARR J
HALL J
14 December 2005

DR DENISE ROBINSON v QUN ZHANG

Judgment

BASTEN JA: On 31 August 2004 an officer of the Department of Health arranged for two girls, aged 15 and 16 years respectively, to enter a shop under the control of Ms Qun Zhang (“the Defendant”) at Blackwall Road, Woy Woy, in order to seek to purchase a packet of cigarettes. The purchase was effected…

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 Robinson v Zhang

Details

AGLC: Robinson v Zhang [2005] NSWCA 439
Case: [2005] NSWCA 439
Decision Date: 14 December 2005

CaseChat Overview and Summary

The case of *Robinson v Zhang* concerned proceedings brought by the prosecuting authority against the defendant for an alleged offence under s 59 of the *Public Health Act 1991* (NSW). The dispute arose from the use of minors to purchase cigarettes as part of a "compliance testing" strategy by the Department of Health. The defendant sought to exclude the evidence obtained through this testing, arguing it was improperly obtained, and also sought to rely on a common law defence. The matter came before the court on appeal from an order of the Local Court dismissing the proceedings.

The court was required to determine several legal issues. Firstly, it had to consider whether the prosecuting authority acted "improperly" in procuring minors to purchase cigarettes for the purposes of s 138 of the *Evidence Act 1995* (NSW). This involved examining the extent to which common law principles, such as those established in *Ridgeway v the Queen*, survived the enactment of the *Evidence Act 1995* (NSW). Secondly, the court considered whether statements made in the Second Reading Speech for the *Public Health Act 1991* (NSW), suggesting prosecution was a "last resort," informed the propriety of the Department of Health's conduct. Finally, the court had to determine if the possibility that one of the minors involved in the testing could have appeared to be in her early twenties affected the propriety of the Department's actions. The court also considered whether the *Suitors' Fund Act 1951* (NSW) applied to appeals from convictions for summary offences.

The court reasoned that the legislative history and the Second Reading Speech for the *Public Health Amendment (Tobacco) Bill* indicated a clear intention to remove the common law defence of honest and reasonable mistake of fact, replacing it with a more certain, objective requirement. The amendments, particularly the reference to the *Liquor Act 1982*, demonstrated an understanding of the existing regulatory regime and the intention to create a clear defence based on the age of the purchaser and documentary evidence. The court concluded that the evidence relied on by the defendant was not capable of establishing impropriety under s 138 of the *Evidence Act 1995* (NSW), nor was the evidence tendered by the prosecutor improperly obtained. Furthermore, the common law defence of honest and reasonable mistake of fact was not available.

Consequently, the court set aside the Local Court's order dismissing the proceedings and remitted the matter back to the Local Court to be determined in accordance with these conclusions. The court also granted a certificate under the *Suitors' Fund Act 1951* (NSW) to the defendant. The prosecutor did not seek costs against the defendant in the appeal, and any order for costs in the Local Court was also to be set aside to allow the magistrate to make a fresh determination.

Orders

Orders of the court

(1) Set aside the order of the Local Court made on 12 May 2005 dismissing the proceedings brought against the Defendant alleging an offence under s 59 of the Public Health Act 1991 (NSW)

(2) Remit the matter to the Local Court to be determined in accordance with the conclusions of this Court that

(a) the evidence relied on by the Defendant was not capable of establishing an impropriety for the purpose of s 138(1)(b) of the Evidence Act 1995 (NSW), nor was the evidence tendered by the prosecutor capable of being evidence improperly obtained for the purposes of par (a) or evidence obtained in consequence of an impropriety for the purposes of par (b) of s 138(1) of that Act, and

(b) the common law defence of honest and reasonable mistake of fact was not available to the Defendant.

(3) Grant a certificate under the Suitors' Fund Act 1951 (NSW) to the Defendant

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

If there be doubt attending the intention of the 1996 amendments, that doubt is removed by the Second Reading Speech to the Public Health Amendment (Tobacco) Bill: Hansard, Legislative Assembly, 24 April 1996. Dr Refshauge, the Deputy Premier and Minister for Health, after noting the effect of s 59 of the Public Health Act stated:“The existing section also provides a defence to prosecution if sellers can established, to the satisfaction of the court, that they believed on reasonable grounds that the purchaser was at least 18 years of age. In recent years, the New South Wales Department of Health has implemented a number of strategies to improve compliance with the existing provisions of the Act to combat the illegal sale of tobacco to young people. … These strategies have been backed by an increase in the number of prosecutions. … However, the Government recognises that still more can be done to improve compliance with the legislation and to assist tobacco retailers to comply with the law. …… The amendment to s 59 of the Public Health Act proposed in the bill will remove the current wide and uncertain defence to prosecution that I have already outlined and replace it with a clear, objective requirement which can be implemented by all tobacco retailers. To establish the defence, the court must be satisfied that purchasers of tobacco were over the age of 14 and that they provided documentary evidence to the retailer showing they were at least 18 years of age. …… Honourable members should note that, in common with the provisions of the Liquor Act 1982, when the person is under the age of 14 years there is no defence to prosecution.”The history of amendment makes clear the intention to remove the defence (then in statutory form) of a belief on reasonable grounds that the purchaser was 18 years of age with the current defence. Further, the current defence was said to involve greater certainty. Both of these factors are inconsistent with the continued, or renewed, availability of a common law defence. Further, the express reference to the Liquor Act 1982 demonstrates an understanding of the relevance of the regime which existed under that law.Conclusions It follows from the reasoning in Woolworths Ltd and for the further reasons set out above that the magistrate erred and his decision should be set aside. The evidence tendered by the prosecutor should not have been excluded and, in accordance with the facts accepted by the Defendant, and in the absence of any relevant defence, the matter should be remitted to the Local Court for the purpose of determining the matter in accordance with this conclusion. The prosecutor indicated after the conclusion of the hearing that it did not seek costs against the Defendant in this Court. Accordingly, there should be no order in relation to the costs of this appeal. If an order for costs were made in the Local Court, it also should be set aside so that the magistrate who hears and determines the outstanding issues may make such order as seems fit in the circumstances.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Robinson v Zhang [2005] NSWCA 439

Most Recent Citation

Director of Public Prosecutions (NSW) v RDT (No 2) [2019] NSWCCA 66

Cases citing this decision · 10 of 10 shown

Commissioner of NSW Police v Murphy
[2024] NSWCA 311 Para 135

…costs orders): see New South Wales Land and Housing Corporation v Quinn (No 2) [2017] NSWCA 34 at [5]. Nevertheless, as was held in Robinson v Zhang [2005] NSWCA 439 (Basten JA, Barr and Hall JJ agreeing) at [38], and followed in Quinn , s 6(2)(b) envisages that part at least of the first respondent’s own costs ma…
Director of Public Prosecutions (NSW) v RDT (No 2)
[2019] NSWCCA 66 Para 9

…if these matters attracted the jurisdiction to issue a certificate, but an interlocutory appeal under s 5F(2) and (3A) did not. 6. Robinson v Zhang [2005] NSWCA 439; 158 A Crim R 575 at [37]. 7. Ex parte Neville [1966] 2 NSWR 481; (1966) 85 WN (Pt 1) 372 (Maguire J). The application was rejected on the somewhat cur…
Marathon Group Pty Ltd v Latrobe Valley Building Services Pty Ltd
[2018] NSWSC 194 Para 99

…Latrobe. The requirements of s 6 are here satisfied. The appeal has been upheld on a question of law. In Robinson v Zhang (2005) 158 A Crim R 575; [2005] NSWCA 439, Basten JA observed at [38] that, “[w]here the power is available, a certificate is usually granted as a matter of course, in the absence of particular…
New South Wales Land and Housing Corporation v Quinn (No 2)
[2017] NSWCA 34 Para 5

…ficate were to be granted no entitlement under s 6(2)(a) would arise. However, s 6(2)(b) would be applicable, as was recognised in Robinson v Zhang [2005] NSWCA 439 where Basten JA, with whom Barr and Hall JJ agreed, said (at [38]):…
B and B Enterprise (Aust) Pty Ltd v Sur Holding Pty Ltd (No 2)
[2016] NSWSC 758 Para 23

…In the decision of Robinson v Zhang [2005] NSWCA 439; (2005) 158 A Crim R 575 (which was relied on by counsel for Sur in his oral submissions) it was said at [38] that: Where the power is available, a certificate is usually granted as a matter of course, in the absence of particular considerations which would warra…
Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson (No 2)
[2016] NSWSC 190 Para 11

…The requirements of s 6 of the Suitor’s Fund Act have been discussed by the Court of Appeal in Robinson v Zhang [2005] NSWCA 439, which was an appeal from the Local Court in which a certificate was granted. In Robinson v Zhang , Basten JA (with whom Barr and Hall JJ agreed) stated at [38]:…
Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers (No 2)
[2013] NSWSC 288 Para 1

…order under the Suitors Fund Act , it is relevant to note that the requirements of s 6 are here satisfied. They are as discussed in Robinson v Zhang [2005] NSWCA 439 (2005) 158 A Crim R 575 at [37] - [38]. Here the appeal turned in part on a question of law resolved by the Court of Appeal after the decision appeal…
Evans v Powell (No 2)
[2012] NSWSC 1479 Para 1

…The Court has a discretion as to whether or not the certificate should be issued. In Robinson v Zhang [2005] NSWCA 439; (2005) 158 A Crim R 575, also an appeal on a question of law from a decision of a Local Court, Basten JA observed at [37] - [38]:…
RSPCA NSW (Inspector Milton) v Elliott (No 2)
[2012] NSWSC 1016 Para 1

…f the plaintiff's successful appeal form the decision of the Local Court, the appeal having been in respect of a question of law. In Robinson v Zhang [2005] NSWCA 439; (2005) 158 A Crim R 575, Basten JA observed that '[w]here the power is available, a certificate is usually granted as a matter of course, in the abs…
Steirn v Spanko Soulos Legal Services Pty Ltd
[2010] NSWSC 1095 Para 17

…fendant ordered to pay the plaintiff’s costs of the appeal, should have an order as to a certificate (see Robinson v Zhang (2005) 158 A Crim R 575; [2005] NSWCA 439 at [38]). The order should be on the basis that it have the certificate, if eligible (see Anderson Stuart v Treleaven [2000] NSWSC 536 at [13]). Variat…

View all 10 citing cases →

Cases cited in this decision · 4 of 4 shown

R v Cheng
[2015] SASCFC 189 Para 17

…n held not to be “an interlocutory judgment or order” for the purposes of s 5F(2) of the Criminal Appeal Act 1912: see R v Wang Kim Cheng (1999) 48 NSWLR 616.…
Ridgeway v the Queen
[1995] HCA 66 Para 10

…The conclusion reached was an express adoption of the view taken by Berman DCJ of the relevant principles to be derived from Ridgeway v The Queen (1994) 184 CLR 19, an adoption of his Honour’s conclusions with respect to what appears to have been the only relevant fact, namely that the selection of the Defendant for…
John v Federal Commissioner of Taxation
[1989] HCA 5 Para 2

…s in which the High Court will review and depart from its own previous decisions were considered in John v Federal Commissioner of Taxation (1988-89) 166 CLR 417 at 438-440. The joint judgment referred to four matters which might justify departure. Their Honours stated at 438: “The first was that the earlier d…
Proudman v Dayman
[1941] HCA 28 Para 7

…y decided and that the reasoning is directly applicable to s 59, with the result that a general law defence of a kind identified in Proudman v Dayman (1941) 67 CLR 536, is not available under s 59 of the Public Health Act .…

Legislation cited in this decision · 6

Liquor Act 1982 (NSW)
114 2 mentions (from Para 5)
Suitors’ Fund Act 1951 (NSW)
2 mentions (from Para 15)
Crimes (Local Courts Appeal and Review) Act 2001 (NSW)
1 mention (from Para 14)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 11)
Evidence Act 1995 (Cth)
1 mention (from Para 8)
Public Health Act 1991 (NSW)
1 mention (from Para 1)