Robinson v Zhang

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.