Rockland v Queensland Police Service

[2013] QDC 61

DISTRICT COURT OF QUEENSLAND

CITATION:

Rockland & Ors v Queensland Police Service [2013] QDC 61

PARTIES:

ROCKLAND, Selina Frances

YARRAK, Rita Alison

AND

YARRACK, Sophia Joanne

(Appellants)

v

QUEENSLAND POLICE SERVICE

(Respondents)

FILE NO/S:

D29/2012

D30/2012

D31/2012

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mornington Island

DELIVERED ON:

20 March 2013 (ex-tempore)

DELIVERED AT:

Mt Isa

HEARING DATE:

20 March 2013

JUDGE:

Irwin DCJ

ORDER:

1.          Appeals against convictions allowed.

2.          Convictions of the appellants set aside.

3.          Verdicts of acquittal entered in each case.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERALLY – where the appellants were convicted of possessing “home-brew concentrate”, namely yeast, in a community area, namely the Shire of Mornington – whether “home-brew concentrate” as defined in s 27 of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld) should be interpreted as extending to a substance not including malt and hops – whether yeast was within the definition.

Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld), s 26, s 27, s 38.

Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Act 2008 (Qld)

Acts Interpretation Act 1954 (Qld), abbreviation for s 14B

Community Services (Aborigines) Act 1984 (Qld), s95

Community Services (Torres Strait) Act 1984 (Qld), s 93

Community Services and Other Legislation Amendment Act 2004 (Qld)

Justices Act 1886 (Qld), s 223(1), s 223(2), s 225(2), s225(3)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 260 ALR 1, applied

Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410, cited

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, applied

Davidson v Board of the Territory Insurance Office [1981] 1NTR1, considered

Dawson v Tanwan [1999] QDC 389, considered

Dayman v Newsome [1973] Qd.R.399, considered

Fox v Percey (2003) 214 CLR 118, applied

Marshall v Watson (1972) 124 CLR 648, applied

Mbuzi v Torcetti [2008] QCA 231, applied

N D P Namboodripad (Dead) by LRS v Union of India & Ors [2007] INCS 225, considered

R v Boyesen [1982] AC 768, considered

R v Kennedy (1998) 100A Crim R 377, considered

Rowe v Kemper [2008] QCA 175, applied

COUNSEL:

D Castor (Solicitor) for the appellants

D P Jones for the respondent

SOLICITORS:

Aboriginal & Torres Strait Islander Legal Service (Qld) for the appellants

Director of Public Prosecutions (Qld) for the respondent.

BACKGROUND

The appellants were each charged with possessing home brew - concentrate, namely yeast, in a community area, namely the Shire of Mornington. Contrary to section 38(2)(c) of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (QLD) (The Act).

On 23 October 2012, the appellants were convicted before the Mornington Island Magistrates Court.  The appellants Rockland and Sophia Yarrack were each fined $1,000, and a conviction was recorded.  The appellant Rita Yarrak was fined $500, and no conviction was recorded.

The appellants admitted the facts necessary to prove the charges.  In each case there was no dispute either that the appellant had yeast in her possession, or that she intended that yeast to be used on the island to make home brew alcohol. 

However, they contested the prosecution case on the basis that yeast did not fall under the definition of "home-brew concentrate" as defined by Section 27 of the Act in that it was not "a substance, that includes malt and hops, ordinarily used to brew beer.".

As the learned Magistrate said, the issue to be determined was whether yeast falls within the definition of "home-brew concentrate".  His Honour rejected the appellants' argument, and the appeals have been lodged with the District Court.
The grounds of appeal are that the learned Magistrate erred:
1. In concluding that yeast fell within the definition of "home-brew concentrate" as provided in Section 27 of the Act;

and

2. In taking judicial notice of the purported fact that yeast is ordinarily used on Mornington Island for the purpose of brewing beer. 

On this basis, it is submitted the conviction against each appellant should be quashed.

LEGAL APPROACH TO THIS APPEAL

This appeal proceeded under Section 223(1) of the Justices Act 1886 (QLD) (the JA) by way of re hearing on the evidence given in the proceeding before his Honour in each case on the basis of the agreed schedules of fact. Leave was not sought under Section 223(2) for fresh, additional or substituted (new) evidence to be adduced.

In hearing such an appeal, it is necessary for the Court to give respect to the decision of the Magistrate, but also to review the evidence, and to draw its own conclusions: Fox v Percy [2003] 214CLR 118 at 126-127; Rowe v Kemper [2008] QCA175 at [5]; Mbuzi v Torcetti [2008] QCA231 at [17]. In this case, the real question, the subject of the first ground of appeal is whether the decision appealed from is the result of some legal error. Although a factual issue may arise in relation to the second ground.

PROCEEDINGS BEFORE THE MAGISTRATE

The Magistrate made three separate decisions in the same terms.  Subject to the first two paragraphs which related to the specific agreed facts and charges concerning each appellant.  His Honour identified the issue to be determined as I have already indicated.  It is also the threshold issue which is to be determined in the appeals. 

The Legislative Scheme

The offences with which the appellants were charged, and the definition of "home-brew concentrate" are both in part 5 of the Act, which is headed "Control of possession and consumption of alcohol in community areas". The purpose of that part as stated in Section 26(1) is to prevent harm in community areas caused by alcohol abuse and misuse and associated violence.

Section 26(2) provides this purpose is to be achieved by, inter alia:
"(a) Prohibiting in certain community areas, the possession or supply of home made alcohol, and the possession of certain substances and things used to make home-made alcohol.".

Section 38(2)(c) provides that a person must not in the community area, or part community area, possession home-brew concentrate.

Section 27 defines "home-brew concentrate" to mean:
"(a) A substance, that includes malt and hops, ordinarily used for brewing beer; or
(b) wort; or
(c) grape concentrate ordinarily used for brewing beer.".

It is the punctuation of paragraph (a), that is the use of commas, which has been central to the issue of interpretation arising for consideration.

Expert Evidence

The unchallenged evidence before the Magistrate included an expert report from Professor Fleet of the Food Science and Technology Group of the School of Chemical Engineering, University of New South Wales.  He has specific and extensive expertise on the role of yeast, in the fermentation of alcoholic beverages, including wine and beer. 

His evidence was that yeasts are a group of micro organisms.  Within this group, some species of yeast ferment sugars such as glucose, fructose, sucrose and maltose into ethanol (alcohol).  Sugars such as these naturally occur in fruit juices, such as grape juice, extracts of malt barley, and sugar cane extracts.
Saccharomyces cerevisiae is a species of yeast that will ferment such sugars into ethanol.  This is the main yeast used for the fermentation of malt extract into beer, and grape juice into wine.  Some similar yeast species will also cause these fermentations.

This and similar yeast are produced commercially for the purpose of making alcoholic beverages such as beer or wine by the process of fermentation. In one form, the yeast is sold as a dried material packaged in small satchels.  The yeast in these satchels is added to the malt extract, or grape juice, to initiate fermentation into beer or wine respectively. 

Extracts of malted barley with or without added hops, hops and satchels of yeast are commercially available, including from supermarkets for the purpose of making home-brew beer.  Fruit juice extracts and satchels of yeast for making home wines are also commercially available in similar retail outlets.

He concludes that the fermentation of yeast such as saccharomyces cerevisiae is essential and vital to the production of alcoholic beverages.  Without the action of such yeast, no beer or wine or any other alcoholic beverage can be made, either commercially or as a home-brew.

THE MAGISTRATE'S DECISION

The learned Magistrate first dealt with a submission on behalf of the appellants that "home-brew concentrate" is a reference to a product known under that name and sold in supermarkets.  His Honour did not accept this contention, and found the term is not confined to commercially available home-brew concentrates.

In reaching this conclusion, reference was made to section 68 of the Act which creates a rebuttable presumption that a substance is a "home-brew concentrate" if a container is so labelled, a police officer believes the substance is "home-brew concentrate" and the Court accepts this belief as reasonable.

His Honour said: "The section contemplates the situation where there is a doubt as to whether a substance is "home-brew concentrate".  There would be no need for the section if "home-brew concentrate" was limited to substances contained within the commercially distributed containers.

Similarly it would be contrary to the stated aims of part 3 (sic) of the Act to eradicate the production of home-brew if prohibition was confined to commercially available home-brew products." 

He also rejected the submission on behalf of the appellants that the clause "that includes malt and hops" is a dependant clause within the definition so that any substance would need to include malt and hops before it could be regarded as "home-brew concentrate".  In his view, if this was the case, the clause would not be included in commas.  His Honour said: "The inclusion of the clause in commas indicates that the clause is non restrictive and as such the definition can be read and comprehended in the absence of the clause.  When that approach is adopted, that definition of "home-brew concentrate" reads 'a substance, ..., ordinarily used for brewing beer.'".

He concluded that upon consideration of the resulting construction, it is clear yeast is a substance ordinarily used for brewing beer, and this was the purpose for which the seized yeast was being put.

In addition to the legislative purpose, his Honour referred to the Explanatory Notes, and the second reading speech to the Community Services and Other Legislation Amendment Bill 2004 which inserted the definition of "home-brew concentrate" into the Act.

He concluded the purpose of the Act will be best achieved by accepting this construction.  As a result, yeast fell within the definition.

His Honour also rejected the appellants' submission that such a construction produces an absurdity.  He said while it might be accepted as a general proposition that an item such as yeast should not be regarded as contraband, Mornington Island is not a general proposition, and home-brew is a major problem there.

The ordinary use to which yeast is put on Mornington Island, is the production of home-brew.  Therefore the interpretation did not produce an absurdity in the circumstances existing there. 

The learned Magistrate also decided there was no need to apply the contra preferentem doctrine because the purpose of the legislation and the relevant sections was clear.

As all other elements of the offences were conceded, his Honour was satisfied beyond reasonable doubt they were established and found each defendant guilty.

SUBMISSIONS ON APPEAL

The submissions on behalf of the appellants before me are conveniently summarised in the conclusions to the outline of argument.  This is as follows:

"It is respectfully submitted that when the relevant clause is viewed in context, it states that home-brew concentrate is any substance comprised of, but not limited to, malt and hops.  Such a reading is consistent with the colloquial understanding of 'home-brew'.  Moreover, such a reading is not only consistent with the way 'includes' is used in the relevant clause, as demonstrated by the Explanatory Notes, but is consistent with the purpose of the legislation, in that it prohibits certain substances used to make home-brew.

Most importantly,  in capturing only those substances that have no legitimate use outside of the production of home-brew, it avoids the inevitable absurdity that arises from a broader reading of the relevant clause than is justified.".

I will refer to the submissions on behalf of the appellants in more detail when I analyse the relevant legislative provisions. 

The argument on behalf of the respondent asserts the first step in interpreting legislation is the text itself. This is supported by reference to the decision of the majority of the High Court of Australia in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 260 ALR1 at [47]. It is submitted the meaning of the words in the context of the text itself are unambiguous. There is no need to turn to extrinsic material to determine the meaning of the provision.

It is further submitted, the word "includes" is an inclusive definition, not an exhaustive or exclusive definition.  The inclusion of the words "hops" and "malt" are examples of a substance which are ordinarily used in brewing beer, but are not the only substances used.

It is suggested if they were the only substances used, the legislation would have read something along the lines of "home-brew concentrate" means "(a) malt and hops.".  The submission includes a proposition that it was conceded by the appellants that the learned Magistrate was correct in finding the definition was capable of being understood omitting the words contained within the commas.  That is, if a substance is ordinarily used to brew beer, it would fall within the definition of "home-brew concentrate".  It is the respondent's submission that this is the appropriate interpretation of the provision.

However, as I have indicated, the appellants' submission is that when the relevant clause is viewed in context, it states that "home-brew concentrate" is any substance comprised of, but not limited to malt and hops.  In this regard, the full submission for the appellants as set at paragraph 24 of the 4 March 2013 outline of argument is:

"Having conceded that the learned primary Magistrate is correct in a limited sense in finding that the relevant clause can be understood in the absence of the sub clause, it is respectfully submitted that he erred in his application of this principle.  While it is correct to say that all substances that fall within the purview of the relevant clause will be substances that are ordinarily used to brew beer, this is fundamentally different from saying that all substances that are ordinarily used to brew beer, will fall within the purview of the relevant clause. That is to say, the fact that a substance is ordinarily used to brew beer, will meet a necessary condition, rather than a sufficient condition for falling under the scope of the definition.".

The submission then continues as follows:
"25. Furthermore, it is respectively submitted that if the relevant clause was intended to includes all substances that are ordinarily used to brew beer, then the presence of the sub clause would appear to be entirely redundant, as it could have been left out of the relevant clause altogether without changing the meaning of the relevant clause.

26. For this reason, it is all the more necessary that the presence of the subclause be explained, and it is respectfully submitted that the learned primary Magistrate has erred in failing to make any finding with respect to the meaning of the subclause and its relationship to the relevant clause as a whole.".

Returning to the respondent's submission, it is argued the definition does not focus on the ordinary use of a substance, but the ordinary substance used to brew beer.  It is submitted that the expert report demonstrates that alcoholic beverages cannot be made without yeast.  Therefore, yeast is ordinarily used to brew beer.

The respondent next refers to a submission for the appellants, that neither the relevant clause or the offence provision requires proof of an intention to use the substance to make home-brew alcohol, which leads to a result which is manifestly absurd; for example, if possession of yeast is an offence, it must follow the local bakery has engaged in criminal conduct contrary to Section 38(2)(c) of the Act.
The respondent emphasises the offence is possession of "home-brew concentrate". Reference is made to Section 14B(1)(b) of the Acts Interpretation Act 1954 (QLD)(the AIA) which provides that subject to subsection (2) consideration may be given to extrinsic material capable of assisting interpretation to provide an interpretation which avoids a result where the ordinary meaning of the provision leads to a result which is manifestly absurd or is unreasonable.

It is submitted, as I accept, that "possession" needs to be read in the context of the intention of the Act in which the word appears. This is supported by reference to Dayman v Newsome [1973] Qd.R399 at 404; R v Kennedy (1998) 100A Crim R377 at 380; and Dawson v Tanwan [1999] QDC389 at 3.

Having accepted this, I also agree with the appellants' submission that "possession" denotes a physical control or custody of a thing, plus knowledge of such custody or control: R v Boyesen [1982] AC768 per Lord Scarman at 773-774 referred to with approval by McMurdo P and Jones J in R v Shew [1998] QCA333 at 6.

The respondent submits that the purpose of part 5 as set out in Section 26 of the Act necessarily imports into the definition of possession, the need for a finding that the possession of the substance was for the purpose of making home-made alcohol. Therefore, it is submitted if a person has yeast in their possession, and it is intended to use it to make home-made alcohol, or it is reasonably suspected it was to be used to make home-made alcohol, it would be an offence. This would mean, the Crown could not prove the element of possession unless it could prove an intention to use the substance to make home-brew alcohol. It would require a case by case determination of the facts surrounding the possession. Under this interpretation, it is said the Mornington Island Bakery's possession of yeast would be found to be lawful.

In relation to the second ground of appeal, it is submitted the Magistrate did not take judicial notice of the purported fact, yeast is ordinarily used for brewing beer in Mornington Island.  The material before the Court included a schedule of facts, and written submissions on behalf of both parties. 

It is submitted the learned Magistrate's conclusion that on Mornington Island, yeast is ordinarily used for brewing beer, was a conclusion based on the material before the Court.

CONCLUSIONS - GROUND 1

I agree with the respondent that the first step in interpreting legislation is consideration of the text of the legislation itself, as stated by the High Court of Australia in Alcan in the judgment of Hayne, Heydon, Crennan and Kiefel JJ at [47]:

"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself.  Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.  The language which has actually been employed in the text of legislation is the surest guide to legislative intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.".  [footnotes omitted]

This echoes the words of Gibbs CJ, relied on by the appellants in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147CLR 297 at 305 [6]. Although the appellants refer to only part of this paragraph, it is relevant to consider his Honour's statement as a whole. It is as follows:

"It is an elementary and fundamental principle that the object of the court, in interpreting a statute, 'is to see what is the intention expressed by the words used'.  It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention.  And it is not unduly pedantic to begin with the assumption that words mean what they say.  Of course, no part of a statute can be construed in isolation from its context - the whole must be considered.  If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking 'nothing remains but to give effect to the unqualified, words'. 

There are cases where the result of giving words their ordinary meaning may be so irrational that the Court is forced to the construction that the draftsman has made a mistake, and the cannons of construction are not so rigid as to prevent a realistic solution in such a case. Examples of that sort of case may be found in Maxwell on the Interpretation of Statutes, 12th ed., (1969), at p 228 et seq., and Craies on Statute Law, 7th ed., (1971) at p 520 et seq. However, if the language of a statutory provision is clear an unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions, is that "it may degrade into mere judicial criticism of the propriety of the acts of the legislature", as Lord Moulton said in Vacher & Sons Ltd v London Society of Compositors it may lead Judges to put their own ideas of justice or social policy in place of the words of the statute.

On the other hand, if two constructions are open, the Court will obviously prefer that which will avoid what it considers to be inconvenience or injustice.  Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied." [citations omitted]

The respondent submits in this case, the meaning of "home-brew concentrate" in the context of the text itself is unambiguous, and there is no need to turn to extrinsic material to determine the meaning of the provision. However, contrary to the respondent's submission, I conclude the unambiguous meaning of the definition in the context of the Act including the general purpose and policy of the provisions is that contended for by the appellants. Whether the definition is read with or without either or both of the commas, its clear meaning is that "home-brew concentrate" as defined in paragraph (a) of Section 27 is a substance ordinarily used for brewing beer that includes malt and hops.

That is, the substance must be comprised of or contain, but is not limited to, malt and hops which is ordinarily used for this purpose.  Put another way, any substance would need to include malt and hops before it could be regarded as "home-brew concentrate" within paragraph (a). 

Section 14(6) of the AIA provides punctuation in an Act is part of the Act. In Davidson v Board of the Territory Insurance Office [1981] 13 NTR 1 at 5, Toohey J cited the decision of Isaacs J in Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410 as expressing the Australian approach to the use of punctuation.

In Collins, Isaacs J said at 421:
"A comma is one means of expressing intention in writing, and a court is entitled to have regard to it, though not to be controlled by it if the context nevertheless suggests otherwise.".

In that case, Isaacs J treated the position of a comma as "extremely important". 

In my view, the commas have been so placed to make it clear that the words "ordinarily used for brewing beer" are linked with "a substance".  As a result, I agree, the Magistrate is correct to the extent, the definition can be read and comprehended as a substance ordinarily used for brewing beer.  However, I agree with the appellants that the Magistrate has erred by excluding the words "that includes malt and hops" from consideration when interpreting the definition.  He has failed to have regard to those words which are relevant to interpreting the definition as a whole. 

The legislature cannot have intended "that includes malt and hops" is entirely redundant, and has no relationship to a substance ordinarily used for brewing beer when interpreting the definition.

As the appellant has argued, if the definition of "home-brew concentrate" was intended simply to be read as a substance ordinarily used for brewing beer, so as to include all substances ordinarily used for that purpose, the presence of the words "that includes malt and hops" would be entirely redundant, as they could have been omitted from the definition without changing its meaning.

It is important to appreciate there is no conjunctive word such as "or" between "includes malt and hops" and "ordinarily used for brewing beer", which would be logical to expect if it was intended for "home-brew concentrate" to include a substance ordinarily used for brewing beer, although it did not include malt and hops.

The words "that includes malt and hops" are not expressed as an example.  It is not correct to state, as the respondent argues, that if the legislature had intended malt and hops were the only substances used, it would have read something along the lines of, "home-brew concentrate" means "(a) malt and hops".  The definition is not limited to "malt and hops", but to a substance that includes malt and hops.

The appellants have referred to an Indian decision, Namboodripad (Dead) by LRS v Union of India [2007] INCS 225 in which Raveendren J said [at 15]:

"The word "includes" has different meaning in different contexts.  Standard dictionaries assign more than one meaning to the word "include".  Webster's Dictionary defines the word "include" as synonymous with "comprise" or "contain".  Illustrated Oxford Dictionary defines the word "include" as:
(i) comprise or reckon in as part of a whole; (ii) treat or regard as so included.  Collins Dictionary of English Language defines the word "includes" as: (i) to have as contents or part of the contents; be made up of or contain; (ii) to add as part of something else; put in as part of a set, group or a category; (iii) to contain as a secondary or minor ingredient or element.

It is no doubt true that generally when the word "include" is used in a definition clause, it is used as a word of enlargement, that is to make the definition extensive and not restrictive.  But the word "includes" is also used to connote a specific meaning, that is, as "means and includes" or "comprises" or "consists of"."

I have referred to this statement because it conveniently incorporates a number of dictionary definitions of the word "includes". In this case, I agree with the appellants' submission that in the context of the definition of "home-brew concentrate" in paragraph (a) of section 27, the words "that includes malt and hops" are used to mean "comprises or contains" malt and hops as part of a whole. That is a substance which comprises or contains, but is not limited to malt and hops, as I have previously said.

In my view, if the legislative intent had been as the respondent contends, the definition would have been in the following terms:
"(a) a substance that includes malt and hops; or
(b) a substance ordinarily used for brewing beer; or
(c) wort; or
(d) grape concentrate ordinarily used for making wine.".

Another approach would've been to incorporate paragraphs (a) and (b) as follows:
"(a) a substance that includes malt and hops or ordinarily used for brewing beer.".

Consistently with what I have previously said, yet another approach would have been to omit any reference to "a substance, that includes malt and hops", and simply have a paragraph in terms of (b), that is "a substance ordinarily used for brewing beer.". 

Where the legislation wishes to define "home-brew concentrate" in terms of separate ingredients, it has been able to do so by use of the word "or". This is not only evident from the definition in Section 27 itself, but by reference to section 38 (2) which is as follows:

"A person must not in the community area, or part community area -
(a) possess a home-brew kit or component of a home-brew kit; or
(b) possess equipment, or a component of equipment, that is being used, or has been used, to brew alcohol; or
(c) possess home-brew concentrate; or
(d) supply homemade alcohol to another person.".

This section creates separate basis for committing an offence, both within the individual paragraphs themselves and by the use of alternative paragraphs. 

The definition of "home-brew concentrate" to include "wort" as a separate ingredient, is achieved by the use of the separate paragraph (b), demonstrates that if "that includes malt and hops" was to be regarded as a separate ingredient unrelated to a substance ordinarily used for brewing beer, it would have been a simple matter to refer to it in a separate paragraph.

The fact that the definition extends in paragraph (c) to "grape concentrate ordinarily used for making wine" is a further indication that the intention in paragraph (a) was to define "home-brew concentrate" as a substance that includes malt and hops ordinarily used for brewing beer.

The reason commas have not been used in paragraph (c) of the definition, is that it was not necessary to use the term "a substance" in that paragraph, as apposed to "grape concentrate" to express the legislative intention.

Further, if the legislature had intended the definition to include "yeast" or a specific species of yeast unrelated to a substance including malt and hops, it could have added an extra paragraph to the definition referring to "yeast" or to "saccharomyces cerevisiae".  However it has chosen to do so. 

Professor Fleet's expert report states saccharomyces cerevisiae is a species of yeast that will ferment sugars into ethanol (alcohol).  It is clear from his report that this is not the case with every yeast.  For example, he says:

"Yeasts are a group of micro organisms.  Within this group, some species of yeasts ferment sugars...into ethanol (alcohol)...[saccharomyces cerevisiae] is the main yeast used for the fermentation of malt extract into beer, and grape juice into wine.".

Because not every species of yeast will ferment sugars into beer and wine, it is open to conclude the legislature did not focus on yeast for the purpose of defining "home-brew concentrate", but rather intended to focus on those substances, to which some species of yeast is added to achieve this; namely, a substance that includes malt and hops (paragraph (a)) and grape concentrate (paragraph (c)).

This is consistent with the purpose of the legislation to prevent harm in community areas caused by alcohol abuse and misuse and associated violence by prohibiting the possession of home-made alcohol, or of certain substances and things used to make home-made alcohol.

Substances including malt and hops ordinarily used for brewing beer are "certain substances" for this purpose, and the legislative language in its context should not be stretched beyond its unambiguous and clear meaning. The substances which are referred to in general terms in Section 26, are those specifically defined by Section 27.

Although I accept the meaning of possession depends on the context in which the word appears, I do not consider the terms of Section 26(2)(a) necessarily imports into the word "possess" as it used in section 38(2)(c) that the possession of the substance was for the purpose of making home-brew as argued by the respondent. This is because the terms of Section 38(2) make it clear that if the legislature intends possession to mean this, it is capable of expressly saying so by using words to this effect.

Therefore, by virtue of Section 38(2)(b), it is an offence for a person to possess equipment, or a component of equipment, that is being used, or has been used, to brew alcohol. By analogy, if the legislative intention was as submitted by the respondent, Section 38(2)(c) would make it an offence to possess home-brew concentrate "for the purpose of making home-brew" or, "that will be used for the purpose of making home-brew.".

As submitted by the appellants, the absence of such a requirement with respect to "home-brew concentrate" strongly suggests that proving such a purpose or intention is unnecessary in respect of it.

Consistently with the difference in terminology between
Section 38(2)(b) and Section 38(2)(c), I consider the use in Section 26 (2)(a) of the words "used to make homemade alcohol" relate only to the possession of "things" and not to "certain substances.".

These "things" are equipment or a component of equipment in Section 38(2)(b) where the words are qualified by "that is being used, or has been used, to brew alcohol.". The reference to "certain substances" is to "home-brew concentrate" which is not similarly qualified.

In my view, it not being the intention of the legislature to require possession of home-brew concentrate be for the purpose of making of home-brew, in the absence of express reference to yeast, the intention of the legislature was also to avoid the absurd result of criminalising the possession of such an every day food stuff. 

In these circumstances, I do not consider the ordinary meaning conveyed by the definition of "home-brew concentrate" read with the offence created by Section 38(2)(c) leads to a result which is manifestly absurd or is unreasonable.

As such, it is not necessary to consider extrinsic material to avoid such a result under Section 14(B)(1)(b) of the AIA because the provisions are ambiguous or obscure.  Rather it is a case where as stated in Section 14(B)(2)(a) it is desirable to interpret the provision as having its ordinary meaning.  Section 14(B)(1) is made subject to Section 14(B)(2).

To adopt the language of Gibbs CJ in Cooper Brookes as the provisions read as part of the whole instrument have a clear an unambiguous meaning, nothing remains but to give effect to the unqualified words, even if this may lead to an inconvenient result, so far as the respondent is concerned. That is, "home-brew concentrate" is concentrate as defined in paragraph (a) of Section 27 is a substance ordinarily used for brewing beer that includes malt and hops, or as it is put on behalf of the appellants, it is any substance comprised of, or containing, but not limited to malt and hops which is ordinarily used for this purpose. Therefore, any substance would need to include malt and hops before it could be regarded as "home-brew concentrate" within paragraph (a) of the definition.

If the draftsmen has made a mistake, it is by inserting either the first or both commas in the definition of "home-brew concentrate". This possibility is open in the present case if regard is had to Section 38(4) which in defining "component of a home-brew kit" for the purposes of the section provides:

"Component, of a home-brew kit, means a device that is apparently intended to be part of a home-brew kit.".

As the appellants suggest, the first comma between "component" and "of a home-brew kit" appears superfluous.  It is therefore reasonable to suggest, at least the first comma, of the definition of "home-brew concentrate" is also superfluous.  If so, it maybe disregarded.  As Toohey J also said in Davidson at 5:

"The authorities justify disregarding a comma if the context appears to require it.". 
If this is done in the present case, paragraph (a) of the definition in Section 27 of the Act of "home-brew concentrate" would read:

"A substance that includes malt and hops, ordinarily used for brewing beer.".

As the appellants submit, this would be consistent with my construction of the provision including both commas.  As the appellants say in their outline, if the first comma was to be removed:

"Its meaning would be self evident, in that it would be clear that malt and hops are not examples of a substance ordinarily used to brew beer, but are ingredients of that particular substance.".

Even if extrinsic evidence is considered, it confirms the interpretation conveyed by the ordinary meaning of the provisions. 

The definition of "home-brew concentrate" was inserted under what was then Section 95 of the Community Services (Aborigines) Act 1984, and Section 93 of the Community Services (Torres Strait) Act 1984 by the Community Services and Other Legislation Amendment Act 2004 (the 2004 Amendment Act)".

These sections have been renumbered as Section 27 of the Act. The Explanatory Notes to both of these definitions for the purposes of what now is Section 38(2)(c) of the Act, state:
""Home-brew concentrate" defines possible ingredients of a substance used to make home-brewed alcohol.".

The reference to possible ingredients must be to a substance that includes malt and hops. No form of yeast is defined as a possible ingredient. Although the objectives of the Act are said to be to regulate home-brew alcohol by banning, inter alia "possession of home-brew kits or home-brew concentrate used to produce liquor", as I have said, the purpose of the Act as stated in Section 26(2)(a) is to be interpreted that the words "used to make homemade alcohol" which are equivalent to "used to produce liquor" in the Explanatory Note relate only to the possession of home-brew equipment, or a component of equipment and not to substances that are "home-brew concentrate".

This fact is confirmed by reference to the explanatory notes to the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) and Other Acts Amendment Act 2008 (the 2008 Amendment Act). This legislation inserted new Sections 38(1) and (2). It is Section 38(2)(c) which makes possession of "home-brew concentrate" an offence. The explanatory notes say in relation to Section 38(2):

"This means that a person commits an offence if the person has a kit, or part of a kit intended to make home-brew; is using or has used anything else to make home-brew; has any home-brew concentrate or alcohol; or is supplying home-brew to others.  This is to give full effect to the policy intention of a zero carriage limit that alcohol not be available in the home.".

This also connects the intention to make home-brew with having a kit, or part of a kit intended to make home-brew. The words "using, or has used" to make home-brew are connected to the words "anything else". It does not connect either of these qualifications to having any "home-brew concentrate", which is the equivalent to the definition of "home-brew concentrate" for the purposes of the offence created by Section 38(2)(c). It similarly does not connect either of these qualifications to possession of home-made alcohol for the purpose of the offence created by section 38(3)(d) of the Act.

There is nothing in the second reading speech to the 2004 Amendment Act provided as part of the appellant's submissions which assist in the interpretation of the relevant provisions.  It has not been suggested to me by either party that there is anything of relevance in the second reading speech for the 2008 Amendment Act.

However, it is relevant that the Explanatory Notes to the 2008 Amendment Act state that a main objective of this Amendment Act was to amend the relevant legislation to: "ensure that the full policy intent of the alcohol restrictions in discreet Indigenous communities, namely the reduction of alcohol related harms, can be more effectively and consistently realised.".

It is stated that in early 2007 there was a whole of Government review of alcohol and other substances policy programs and service settings in the communities.  Under the heading "Policy rationale" it is stated "...the review found that there are currently gaps in the legislative response which means that the policy intent of the restrictions, namely limiting access to, or availability of, alcohol, in order to reduce alcohol-related harms, cannot be fully realised.  For example, the restrictions currently only apply to public places in the communities.  The result is that, if people are able to get illicit alcohol through the community and into a house, the ability of the police to act is limited.".
Another gap in the legislative response which results in the policy intent of the restrictions not being fully realised maybe that "home-brew concentrate" as defined in paragraph (a) of Section 27 is limited to a substance ordinarily used for brewing, that includes malt and hops, and therefore does not extend to any form of yeast. However, as Barwick CJ said in Marshall v Watson (1972) 124CLR 648 at 649 [10]:

"Granted there may seem to be lacking in the legislation powers which it might be thought the legislature would have done well to include, it is no power of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St Mellons R.D.C. v Newport Corporation [1952] AC 189 at P 191, "If a gap is disclosed, the remedy is an amending Act and not in a "usurpation of the legislative function under the thing guise of interpretation".".

It is relevant that the 2008 Amendment Act did not amend the definition of "home-brew concentrate" inserted in the legislation four years earlier.  Further, while inserting a new section, 38(2), it did not recast the words of the offence of possession of home-brew concentrate in paragraph (c) by adding words to the effect of "for the purpose of making home-brew", or "that will be used for the purpose of making home-brew.".

For completeness, I refer to the extrinsic material in the from of the Department of Aboriginal and Torres Strait Islander and Multicultural Affairs document titled "Home-brew bans".  This document, which was referred to in the appellant's outline of argument, is said to have been last reviewed on 29 April 2011, and last modified on 3 September 2012.  This document includes a paragraph in the following terms:

"The law covers things that are not mainly used for making home-brew, but are being used for that purpose.  Everyday household items, such as buckets, that aren't mainly used for making home-brew, but are being used to do that, can be kept and used for their primary purpose.  However, it can be an offence to have items that can be shown to have been used for home-brew. 

Every day food stuffs, such as yeasts or cooking essences, aren't a problem, unless it can be shown these items are being used to brew alcohol.".

However, for the reasons I have given, it is simply a departmental misinterpretation of the offence of possession of "home-brew concentrate" read with the definition of that term in paragraph (a) of Section 27, and as such does not control the meaning of the section.

Accordingly, I find as a matter of law, that for the purpose of the definition in paragraph (a) of Section 27 of the Act, "home-brew concentrate" is a substance ordinarily used for brewing beer that includes malt and hops. In other words, it is a substance comprised of or containing, but not limited to malt and hops which is ordinarily used for this purpose.

Put another way, as I have said, any substance would need to include malt and hops before it could be regarded as "home-brew concentrate" within paragraph (a).  Therefore, the learned Magistrate was in error in concluding that yeast fell within that definition.

Accordingly, his Honour's decision, which resulted in his finding each of the appellant's guilty, arose from a legal error. Rehearing the charges by applying the law as I have found it to be, to the evidence given in the proceeding, which was not in dispute, it follows from the fact that the substance each of the appellants possessed was yeast, there being no evidence it included malt and hops, the element of possession of home-brew concentrate in reliance on paragraph (a) of the definition in Section 27 has not been established beyond reasonable doubt for the purpose of the offence under Section 38(2)(c) of the Act with which they were charged.

Accordingly, in each case, I set aside the verdict of guilty pursuant to section 225(2) of the JA and enter verdicts of not guilty pursuant to section 225(3) of the JA.

CONCLUSIONS - GROUND 2

In these circumstances, it is unnecessary for me to decide the issue raised by the second ground of appeal.  If it had been necessary for me to do so, I would have rejected this ground.  This is because I agree with the respondent that the learned Magistrate did not take judicial notice of the purported fact that yeast is ordinarily used on Mornington Island for the purpose of brewing beer, but came to this conclusion on the material before the Court. 

The evidence before his Honour included admitted facts that each of the appellants had the yeast in possession for the purpose of making home-brew.  The appellants Sophia Yarrack and Rita Yarrak admitted purchasing it for someone on the island so home-brew could be made.  The appellant, Selina Rockland, admitted she intended to use yeast for this purpose, and to sell to other people wishing to use it for this purpose.

The evidence also included Professor Fleets' unchallenged expert report that some species of yeast ferment sugars into ethanol (alcohol), and without the action of such yeasts, no beer or wine, or any other alcoholic beverage can be made, either commercially or as a home-brew.

In these circumstances, his Honour was entitled to find that yeast is a substance ordinarily used on Mornington Island for the purpose of brewing beer.  Re hearing the matter on the evidence before his Honour, this is also my conclusion.

Accordingly, if I had not upheld the appeal on the first ground, and instead interpreted the definition in the manner it was interpreted by the learned Magistrate, I would also have been satisfied on the evidence, the appellants were guilty of the offences with which they were charged.

ORDERS

However, applying my interpretation to the facts of this case, in relation to the appeals, I set aside the convictions of Selina Frances Rockland, Rita Alison Yarrak and Sophia Joanne Yarrack and order that verdicts of acquittal be entered in each case.

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