Sharp v The City of Stirling

[2023] WASC 301

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   SHARP -v- THE CITY OF STIRLING [2023] WASC 301

CORAM:   FIANNACA J

HEARD:   8 MARCH 2022

DELIVERED          :   10 AUGUST 2023

FILE NO/S:   SJA 1035 of 2021

BETWEEN:   NATHAN SHARP

Appellant

AND

THE CITY OF STIRLING

Respondent

ON APPEAL FROM:

For File No:   SJA 1035 of 2021

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE L DIAS

File Number            :   PE 32919-20 of 2019

Catchwords:

Criminal law - Single judge appeal - Appeal against conviction - Whether magistrate erred in holding that the excuse of honest and reasonable mistake of fact does not apply to s 18(2) of the Food Act 2008 (WA) - Statutory interpretation - Whether the operation of the rule in s 24 of the Criminal Code is excluded in relation to offences under Part III of the Food Act 2008 (WA) by implied provisions - Proper construction of s 18(2) and s 27 of the Food Act 2008 (WA) - Significance of due diligence defence to determining whether the operation of the rule in s 24 of the Criminal Code is excluded by implied provisions - Whether there is a need to consider extrinsic materials in determining the proper construction of s 18(2) and s 27 of the Food Act 2008 (WA)

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Code Act 1995 (Cth)
Defence (Visiting Forces) Act 1963 (Cth)
Dog Act 1976 (WA)
Fisheries Act 1905 - 1961 (WA)
Food Act 2008 (WA)
Food Regulations 2002 (WA)
Interpretation Act 1984 (WA)
Misuse of Drugs Act 1981 (WA)
Transport Commission Act 1966 - 1972 (WA)

Result:

Leave granted in respect of particulars 1.1, 1.2 and 1.3 of the ground of appeal

Leave refused in respect of particular 1.4 of the ground of appeal
Appeal dismissed
The appellant pay the respondent's costs fixed in the sum of $10,000 as agreed by the parties

Representation:

Counsel:

Appellant	:	Mr T F Percy KC & Mr S Nigam
Respondent	:	Mr D P Gillett

Solicitors:

Appellant	:	Nigams Legal
Respondent	:	McLeods Lawyers

Cases referred to in decision:

Aubertin v The State of Western Australia [2006] WASCA 229

Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8

Garrett v Nicholson (1999) 21 WAR 226

Geraldton Fisherman's Co-Operative Limited v Munro [1963] WAR 129

GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183

Lappan v Hughes [2003] WASCA 173

Lim Chin Aik v The Queen [1963] AC 160

Lloyd v Faraone [1989] WAR 154

McPherson v Cairn [1977] WAR 28

Namoa v The Queen [2021] HCA 13; (2021) 271 CLR 442

Ostrowski v Palmer [2004] HCA 30, (2004) 218 CLR 493

Pettitt v Dunkley [1971] 1 NSWLR 376

R v LK (2010) HCA 17; (2010) 241 CLR 177

Re Bolton; Ex parte Beane (1987) 162 CLR 514 [1987] HCA 12

Riley v The State of Western Australia [2005] WASCA 190

Samuels v The State of Western Australia (2005) 30 WAR 473

The State of Western Australia v R [2007] WASCA 42; (2007) WAR 483

Table of Contents

Introduction

Legislative provisions

Magistrate's factual findings that are not in dispute

First offence - 2 March 2019

Second offence - 3 March 2019

Appellant's explanation to the police

Appellant's evidence relevant to s 27 of the Act and s 24 of the Criminal Code

Reasons of the learned magistrate in respect of the 'defences'

Notice of Appeal

Appellant's submissions

Respondent's submissions

The elements of the offence under s 18(2) of the Act

Whether the operation of the rule in s 24 of the Criminal Code has been excluded

Applicable principles

Interpretation based on the ordinary meaning, context and purpose of the provisions

Interpretation supported by relevant authorities

Interpretation illustrated by circumstances of this case

No need to consider extrinsic materials

Reference to extrinsic materials

Whether the magistrate erred in her factual findings on the issue of honest and reasonable mistaken belief

Conclusion

Orders

FIANNACA J:

Introduction

1. On 19 May 2021, the appellant was convicted of two charges of selling food that was unsuitable, contrary to s 18(2) of the Food Act 2008 (WA) (the Act). The learned magistrate imposed a global fine of $15,000 and ordered the appellant to pay costs. Her Honour also made a spent conviction order.

2. The convictions followed a three-day trial in the Perth Magistrates Court in February 2021. The essence of the prosecution case was that, on two consecutive days in March 2019, the appellant sold chocolate brownies at his café which contained tetrahydrocannabinol (THC), the active ingredient of cannabis. It was food that was 'unsuitable', for the purposes of s 18(2) of the Act, because it 'contain[ed] a biological or chemical agent, or other matter or substance, that [was] foreign to the nature of the food'.[1] The brownies sold on the first day were consumed by three customers, an adult and her two children, all of whom became ill because of the THC. The learned magistrate rejected the defence raised by the appellant under s 27 of the Act that he had taken all reasonable precautions and exercised all due diligence to prevent the commission of the offence by him or by another person under his control. The appellant also raised the excuse of honest and reasonable mistaken belief, under s 24 of the Criminal Code (WA), to the effect that he honestly and reasonably believed the brownies that were on sale were not unsuitable as alleged. Her Honour held that s 24 did not apply to an offence under s 18(2) of the Act, but that, in any event, if it did apply as a matter of law, there was no evidentiary foundation for the excuse in this case.

   [1] The Act, s 13, read in conjunction with the reference to 'unsuitable' in s 8 ('Terms used').

3. The appellant has appealed to this court against the convictions, pursuant to s 7 of the Criminal Appeals Act 2004 (WA). By s 9(1) of the Criminal Appeals Act, the appellant requires leave to appeal. By s 10(2), an application for leave to appeal must set out the grounds of the appeal. The grounds on which a person may appeal against the decision of a court of summary jurisdiction are set out in s 8 of the Criminal Appeals Act and include the ground that the court of summary jurisdiction made an error of law.  That is what the appellant contends in this case.

4. By s 9(2) of the Criminal Appeals Act, the Court must not grant leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding, which is to say that it has a rational and logical prospect of succeeding.[2]

   [2] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia (2005) 30 WAR 473; [2005] WASCA 193 [55] - [64].

5. In his written submissions, the appellant contended that, if the appeal succeeded, the court should set aside the convictions and enter judgments of acquittal.  However, as will appear below, having regard to the ground of appeal, in the event that the appeal was to succeed, the appropriate order would be for the matter to be remitted to the Magistrates Court to be dealt with according to law.

6. The essence of the appeal, raised by the single ground of appeal, is that the magistrate erred in holding that the excuse of honest and reasonable mistake of fact, under s 24 of the Criminal Code, does not apply to the offence under s 18(2) of the Act, and further, that her Honour erred in finding that, if the excuse was available, the appellant had not discharged the evidentiary burden in respect of that excuse. However, her Honour had gone on to deal with a further alternative, namely whether the prosecution had excluded honest and reasonable mistaken belief of fact beyond reasonable doubt. Her Honour found that the prosecution had done so. The ground of appeal does not challenge that finding, although the appeal was argued on the basis that the finding could not stand, because the magistrate failed to give adequate reasons for the finding. Should it have been necessary, I would have granted leave to amend the grounds of appeal to raise that issue. However, having regard to the outcome in respect of the contentions raised by the single ground of appeal, it is not necessary to do so.

7. For the reasons that follow, while I would grant leave to appeal, the appeal should be dismissed.

Legislative provisions

1. To understand the context of the learned magistrate's factual findings and her rulings on the law, it is necessary to consider the relevant provisions of the Act and s 24 of the Criminal Code.

2. Section 18(2) of the Act provides, relevantly:

   18.Handling and sale of unsuitable food

   …

   (2)A person must not sell food that is unsuitable. 

   Penalty:

   (a)for an individual — a fine of $40,000;

   (b)for a body corporate — a fine of $200,000.

3. 'Sell' is defined in s 8 of the Act to include 'have in possession for sale' and 'display for sale'.

4. Section 13(1)(d) of the Act provides, relevantly:

   13.Unsuitable food

   (1)For the purposes of this Act, food is unsuitable if it is food that —

   …

   (d)contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food.

5. Section 27 of the Act, which is in the same Part of the Act as s 18, provides:

   27.Defence of due diligence

   (1) In any proceedings for an offence under this Part, it is a defence if it is proved that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence by the person or by another person under the person's control.

   (2) Without limiting the ways in which a person may satisfy the requirements of subsection (1), a person satisfies those requirements if it is proved —

   (a)that the commission of the offence was due to —

   (i) an act or default of another person; or

   (ii) reliance on information supplied by another person;

   and

   (b) that —

   (i) the person carried out all the checks of the food concerned that were reasonable in all the circumstances; or

   (ii) it was reasonable in all the circumstances to rely on checks carried out by the person who supplied the food concerned to the person;

   and

   (c) that the person did not import the food into this State from another country; and

   (d) in the case of an offence involving the sale of food, that —

   (i) the person sold the food in the same condition as when the person purchased it; or

   (ii) the person sold the food in a different condition to that in which the person purchased it, but that the difference did not result in any contravention of this Act.

   …

   (4)Without limiting the ways in which a person may satisfy the requirements of subsection (1) or (2)(b)(i), a person may satisfy those requirements by proving that —

   (a) in the case of an offence relating to a food business for which a food safety program is required to be prepared in accordance with the regulations — the person complied with a food safety program for the food business that complies with the requirements of the regulations; or

   (b) in any other case — the person complied with a scheme (for example, a quality assurance program or an industry code of practice) that was —

   (i) designed to manage food safety hazards and based on Australian national or international standards, codes or guidelines designed for that purpose; and

   (ii) documented in some manner.

6. Section 24 of the Criminal Code is within Chapter V, which is headed 'Criminal Responsibility'. Section 36, which is at the end of that chapter, states:

   The provisions of this Chapter apply to all persons charged with any offence against the statute law of Western Australia.

7. 'Offence' is defined in s 2 of the Criminal Code, which states:

   An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence. 

8. Section 24 states:

   24.Mistake of fact

   A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. 

   The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

Magistrate's factual findings that are not in dispute

1. At trial, the appellant put in issue whether the brownies sold at his café were unsuitable, as alleged.  That is, he put in issue whether the brownies contained THC, being a matter or substance that was foreign to the nature of the food.  That included putting in issue whether the symptoms suffered by the customers after they had been to his café were the result of consuming the brownies they had purchased.  The learned magistrate made findings resolving those issues against the appellant.  He did not challenge those findings in the appeal.

2. Consequently, the following facts found by the learned magistrate are not in dispute.[3]

First offence - 2 March 2019

[3] ts 6 - 14, 19/5/21.

1. The appellant is the owner of Bada Bing Café, which is located within the City of Stirling.

2. The first charge related to the sale of two chocolate brownies at the café on 2 March 2019.  Between 9.45 am and 10.00 am that day, Dr Maxwell, Ms Hoysted and their two children, aged five and three respectively, went to the Bada Bing Café.  At the café, Ms Hoysted ordered two chocolate brownies (referred to by her Honour as 'brownies A and B').  The brownies were displayed on top of the service counter on a wooden tray, covered by a glass dome.  The waitress removed brownies A and B from the tray and took them to the table where Dr Maxwell, Ms Hoysted and their two children were sitting.  Each of Ms Hoysted and the two children ate a third of brownie A.  Each of Ms Hoysted and the older child then ate half of brownie B.  Dr Maxwell did not eat any brownies.  The family left Bada Bing Café between 11.15 am and 11.20 am. 

3. On arriving home, at about 11.30 am, Ms Hoysted and the children suffered symptoms that were later attributed to THC intoxication.  Ms Hoysted and the younger child were tired to the point of having to lie down.  The younger child fell asleep.  The older child became upset and complained of visual hallucinations. 

4. Concerned about the older child's complaints, Dr Maxwell drove her to Perth Children's Hospital, accompanied by Ms Hoysted and the younger child.  During the journey, the older child continued to demonstrate unusual behaviour, including screaming.  Her symptoms also included an abnormally high pulse rate, which was subsequently measured at the hospital, at 12.40 pm, to be 145 beats per minute.  The usual rate for children is between 90 and 120 beats per minute.  The child continued to complain of having hallucinations.  Her symptoms gradually resolved while she was in hospital, and her heart rate returned to normal at 3.20 pm.

5. The younger child was sleepy and pale, and appeared nauseated.  He slept for three hours while at the hospital. 

6. Ms Hoysted also felt unwell.  While at Perth Children's Hospital, she experienced hallucinations and confusion, and an elevated heart rate.  She presented at Sir Charles Gairdner Hospital at 1.45 pm.  Her heart rate settled over time and her other symptoms also gradually resolved.

7. Urine samples from both children and Ms Hoysted were subsequently analysed and returned positive results for THC in all three cases.  Medical evidence from Dr Hansen, from Perth Children's Hospital, established that the symptoms with which the children had presented, although different, were consistent with THC intoxication as a result of ingestion within one to three hours prior to presentation.  The symptoms had abated within the expected time frame.  Medical evidence from Dr Allely, from Sir Charles Gairdner Hospital, established that Ms Hoysted's symptoms were also consistent with the principal diagnosis of 'accidental THC intoxication'.[4]

   [4] ts 8, 19/5/21.

8. The only food that Ms Hoysted and the two children had consumed in common that morning were the two brownies.

9. Dr Maxwell also provided a urine sample, which tested negative for THC.

10. The evidence established that the appellant sold brownies A and B, in that he had them in his possession for sale as part of his business, and they were on display for sale in his business.  The only reasonable inference from all of the evidence, including the evidence in respect of the second offence, with which I deal below, was that Ms Hoysted and her children experienced THC intoxication as a result of consuming brownies A and B, which therefore contained THC.  THC is a substance that was foreign to the nature of food, namely the brownies.  Therefore, brownies A and B were food that was unsuitable, as defined in s 13 of the Act. 

Second offence - 3 March 2019

1. In light of what had occurred on 2 March 2019, the following day, 3 March 2019, around 1.45 pm, Dr Maxwell attended Bada Bing Café again and purchased one brownie (referred to by the magistrate as 'brownie C').  Brownie C was displayed on the service counter on a wooden tray covered by a glass dome.  After purchasing brownie C, Dr Maxwell placed it in a container.  He then travelled back to the family home and placed the container containing brownie C in the freezer. 

2. The matter was reported to the police. On 12 March 2019, Detective Knapgate, the officer investigating the matter, attended the home of Dr Maxwell and Ms Hoysted, where Dr Maxwell handed him brownie C. Detective Knapgate subsequently stored the brownie at the Drug Receival Unit in Midland until it was conveyed to the ChemCentre, an approved laboratory under s 82 of the Act, for testing. Upon testing, brownie C was found to contain THC and other cannabinoids in greater than trace amounts. For the same reasons that applied in respect of the first offence, it followed that brownie C was food that was unsuitable, and that the appellant had sold it, in that it was possessed by the appellant for sale and was on display for sale in his café.

Appellant's explanation to the police

1. The magistrate found that the appellant provided an explanation to Detective Knapgate for the presence of THC in brownie C.[5]

   [5] ts 9 - 12, 19/5/21.

2. Detective Knapgate gave evidence that he attended Bada Bing Café to speak with the appellant on the morning of 8 March 2019.[6]  He said he told the appellant at that stage that he was investigating 'the ingestion of some brownies with some children' and explained what had happened to the children.[7]  As the appellant was busy at that time, Detective Knapgate left and returned in the afternoon to ask the appellant to download CCTV footage from the café onto a USB drive.[8]  He requested footage from 2 March 2019.[9]  The footage was not downloaded at that time, and it appears Detective Knapgate left without further discussion.

   [6] ts 163, 9/2/21.

   [7] ts 163 - 164, 9/2/21.

   [8] ts 163 - 164, 9/2/21.

   [9] ts 164, 9/2/21.

3. Detective Knapgate gave evidence that the appellant phoned him at about 4.30 pm that day.[10]  The magistrate accepted Detective Knapgate's evidence that, while there were differences between his records of the telephone conversation, what the appellant actually said was the combination of the contents of the two records.[11]  What the appellant had said was that he had been given some cannabis butter (also referred to elsewhere as 'mull butter'[12]) by a friend, that he had made some brownies with it, and that one of them must have fallen off the tray in the fridge or freezer and got mixed up with the ones sold at Bada Bing Café.[13]

   [10] ts 9, 19/5/21; ts 164, 9/2/21.

   [11] ts 9, 19/5/21.

   [12] The appellant said in evidence that he used the description 'mull butter' when speaking with Detective Knapgate: ts 251, 10/2/21.

   [13] ts 9, 19/5/21; ts 165, 9/2/21.

4. As a result of the explanation, Detective Knapgate asked the appellant to attend WA Police the following Monday for a formal interview.  While the appellant took part in the interview, he made no admissions, answering 'no comment' to questions concerning the allegations.[14]  However, the appellant provided Detective Knapgate with the USB drive, onto which he had downloaded the relevant CCTV footage.

   [14] ts 165, 9/2/21.

1. The appellant gave evidence at the trial.  The magistrate noted that while the appellant accepted that he told Detective Knapgate that a friend gave him cannabis butter, he thereafter 'proceeded to provide lengthy and detailed evidence regarding the cannabis butter which differed significantly to the explanation Detective Knapgate allege[d] the [appellant] provided during the telephone conversation on 8 March 2019'.[15]  Her Honour summarised the appellant's evidence as follows:[16]

   In his evidence, the accused stated that a friend gave him the cannabis butter in August or September 2018, which he used to bake brownies at home for him to consume at a family holiday at Rottnest.  He stated that he stored the brownies in the Engel for the Rottnest trip, and that he did not take the brownies to Bada Bing.  He stated that he did not consume all of the brownies because his Engel batteries depleted and the juices from defrosted meat leaked onto the bag containing the brownies.  He denied informing Detective Knapgate that the cannabis brownies might have got mixed up with brownies the accused had for sale at Bada Bing.

   [15] ts 9, 19/5/21.

   [16] ts 9 - 10, 19/5/21.

2. The appellant claimed that he had told Detective Knapgate during the telephone conversation that he used the cannabis butter to make brownies at home which he took on holiday with him.[17]

   [17] ts 10, 19/5/21.

3. Her Honour said that having considered the evidence carefully, and for reasons she set out in detail, she accepted Detective Knapgate's account of what the appellant said to him during the telephone conversation on 8 March 2019.[18]  It is not necessary to refer to her Honour's reasons in detail, as the finding was not challenged in the appeal.  It is sufficient to note that her Honour concluded the appellant was not an honest or reliable witness.[19]  Her Honour considered the appellant's explanation in evidence concerning the use of the cannabis butter to make brownies to take on holiday was 'far-fetched and fanciful'.[20]  She found that the appellant's explanation to Detective Knapgate, as related by Detective Knapgate, as to how the THC came to be in the brownies sold at the café was 'the only credible and most likely explanation' of how it had occurred.[21]

   [18] ts 10, 19/5/21.

   [19] ts 11, 19/5/21.

   [20] ts 11, 19/5/21.

   [21] ts 12, 19/5/21.

Appellant's evidence relevant to s 27 of the Act and s 24 of the Criminal Code

1. As outlined above, the appellant's primary defence was that there was no circumstance of which he could have been aware by which the brownies sold on 2 and 3 March 2019 could have contained THC. While he admitted making brownies with cannabis butter, he claimed that those brownies were never taken to his café. The magistrate rejected that account. The appellant gave evidence more generally about the operation of his café and the manner in which brownies were made which has some relevance to the issues raised under s 27 of the Act and in relation to s 24 of the Criminal Code, if the latter provision applies to the offences charged.

2. The appellant gave evidence that he is a qualified chef.  He said the café was open seven days a week, including three nights of the week.  There would be five to six people working in the kitchen and five to eight people serving 'front of house'.[22]  He said that generally he would have Monday and Tuesday off, but would be at the café most days, in particular during most of the busy times.[23]  He described his role as an 'all-rounder', but said he would be working as the head chef during any busy times, and he had a sous chef.[24]

   [22] ts 213, 10/2/21.

   [23] ts 213, 10/2/21.

   [24] ts 213 - 214, 10/2/21.

3. The appellant said that he had been baking cakes and 'those sorts of things' for the last 15 years or so.[25]  He said that all the ingredients for the brownies came from the one supplier, European Foods, in Perth, although he later said that he purchased eggs from the Wanneroo Markets.[26]  He said the ingredients for Brownies were:[27]

   Basically, the sugar, the eggs, the flour, the chocolate, a little bit of baking power – baking powder, depending if you were using plain or self-raising, and flour and that's it.

   [25] ts 215, 10/2/21.

   [26] ts 215 - 216, 10/2/21.

   [27] ts 215, 10/2/21.

4. He said orders for products from European Foods would generally be placed on Wednesday and the goods would be delivered by truck on Thursday.[28]  He said he would sometimes be there when the goods arrived.[29]  When asked if he ever had any reason to query the quality of the produce delivered, he said:[30]

   To be honest, we – we are always reasonably busy so when they do bring the stock in we just guide them to put it away either in the cool room or behind the front counter for the dry store stuff.  And then we – we check through the list later when we find availability.

   [28] ts 216, 10/2/21.

   [29] ts 216, 10/2/21.

   [30] ts 216, 10/2/21.

5. When he was asked if he had ever had any issue with the stock delivered, he said:[31]

   Look, if there's – not – not any issue but if there is any problem they will come and pick it up and return.

   [31] ts 216, 10/2/21.

6. The appellant said he purchased butter from European Foods, and he had not any had any issue with the butter he had been supplied.[32]

   [32] ts 217, 10/2/21.

7. When asked what degree of diligence he took in respect of the produce received at his premises generally, the appellant said, 'I believe very high regard.'[33]

   [33] ts 217, 10/2/21.

8. The appellant said he had not had any instances of food poisoning brought to his attention in relation to his restaurant in 13 years.[34]

   [34] ts 217, 10/2/21.

9. The appellant said that, at the time of the incident in question, his sister, Ms Yvette Sharp, was responsible for making brownies at the café.[35]  He said she had worked at a canteen, and that he sought her assistance because he was not going to have time to make 'brownies and slices and some of the base cakes'.[36]  He said that baking is very complex and that he regarded his sister to be more methodical than him.[37]

   [35] ts 217, 10/2/21.

   [36] ts 218, 10/2/21.

   [37] ts 218, 10/2/21.

10. The appellant said that 32 brownies would be baked on the one tray, and that, after they were baked, they would be left to cool for about 30 minutes.[38]  He said they would be left to cool 'anywhere where we can actually find room inside that portion of the kitchen' and that they would then be transferred into the cool room.[39]

    [38] ts 218, 10/2/21.

    [39] ts 218 - 219, 10/2/21.

11. The appellant said that everyone who worked at the café and delivery people had access to the kitchen.[40]

    [40] ts 218, 10/2/21.

12. He was then asked about the method for handling and displaying brownies and answered as follows:[41]

    Now, the brownies for sale are placed under – on a stand, on a plate, under a glass dome, I think we've heard?...  Yes.

    And I think you accept it's not particularly secure?...  Well, after the incident, no, I wouldn't.

    Did you take any steps to change that after the incident?...  Yes, we were absolutely worried straight off the – straight off the bat so we started isolating the brownies to the fridge and sealing them in separate bags so we could monitor who was actually putting them in the bag as well.  But yes.  We – we had to make changes.

    [41] ts 219, 10/2/21.

13. The appellant said that occasionally customers would lift the glass dome of the display, but not very often.[42]

    [42] ts 219 - 220, 10/2/21.

14. He said that the local authority would inspect the premises every three to six months.[43]

    [43] ts 220, 10/2/21.

15. He said that after a batch had been baked, a brownie would definitely last a week if refrigerated, but only a matter of days if they were outside.[44]  He said that the brownies on sale on Saturday, 2 March 2019, would have been baked on the previous Tuesday or Thursday, and if they were refrigerated stock, then potentially on the Thursday of the previous week.[45]  He said his 'best view' was that they 'would have been done the Tuesday or Thursday of that week'.[46]

    [44] ts 220, 10/2/21.

    [45] ts 221, 10/2/21.

    [46] ts 221, 10/2/21.

16. The appellant said that his sister baked them, and he had nothing to do with the baking or with the supply of ingredients.[47]  Evidence in respect of the baking of brownies at the relevant time was also given by the appellant's sister, Ms Sharp, and by a waitress at the café, Ms Marina Dias.  The magistrate summarised the evidence as follows (trial transcript references omitted):[48]

    Both the accused and his sister, Ms Sharp, gave evidence-in-chief that the accused was not making brownies as Bada Bing at the time of the offences.  Ms Sharp gave evidence that from November 2018 she was the only person who made brownies at Bada Bing.  However, under cross-examination Ms Sharp conceded that the accused may have been making brownies at the time of the offence.  That evidence was clearly inconsistent with the evidence of the accused who categorically denied that he was still making brownies at the time of the offences. 

    Ms Marina Dias who was a Bada Bing waitress at the time gave evidence that the accused was still making brownies there in 2019.  And that the accused was making brownies at the time of the offences.  Ms Dias' oral testimony is consistent with the notes contained in exhibit 19 where at the bottom of the first page there's a record of a telephone conversation between Ms Dias and Detective Knapgate on 30 March 2019 which states: 

    Stated that Nathan makes the brownies most of the time.  Stop.  The other chef is on leave ATM.  Stop.  Nathan's sister (Yvette) also makes cakes (sic).

    [47] ts 222, 10/2/21.

    [48] ts 11, 19/5/21.

17. Those findings were not challenged in the appeal.

18. The appellant then gave evidence about the brownies he had made with cannabis butter, to which I have referred.  He denied that they could have become mixed up with brownies at the café.  He said there was no possibility of any contamination from the brownies he made with the cannabis butter, because he had disposed of them after the trip to Rottnest Island. 

19. In cross-examination, the appellant said that he had not seen how food was 'prepared' at European Foods,[49] but otherwise he was not asked about matters that went to the issue of due diligence or mistaken belief, other than by way of a challenge to his account denying he had said to Detective Knapgate that the brownies he made with cannabis butter could have got mixed up with other brownies at the café. 

    [49] ts 245, 10/2/21.  'Prepared' was the prosecutor's word.

20. It will be apparent from the above outline that, if the appellant's evidence provided an evidential basis for the possibility that he had a belief that the brownies sold at the café were not unsuitable, in that they were not contaminated with THC, it was predicated on acceptance of his account about what he had done with the brownies made with cannabis butter.  On that account, there was no occasion for contamination to occur, because the brownies were never taken to the café.  The appellant did not give evidence directly that he addressed his mind to whether the brownies on display for sale on 2 and 3 March 2019 might contain THC.  However, even if a belief that the food was not unsuitable could be inferred, it would have been on a factual basis rejected by the magistrate.  The magistrate found that the appellant had stored the brownies made with cannabis butter in the vicinity of other brownies made at the café, and that the only reasonable explanation for brownies A, B and C containing THC was that they had become mixed up with other brownies, in the way surmised by the appellant in his telephone conversation with Detective Knapgate.  Because of the manner in which the appellant conducted his case, he did not give evidence that he held a belief that the brownies did not contain THC in the circumstances found by the magistrate. 

Reasons of the learned magistrate in respect of the 'defences'

1. In dealing with the elements of the offences, the learned magistrate correctly identified what the prosecution needed to prove in respect of the appellant's knowledge, namely that he knew he was selling the brownies in question, not that he knew the brownies contained THC.[50]

   [50] ts 5, 19/5/21. 

2. Having identified the elements of the offences, and the evidence that established them, her Honour then addressed the defence that had been raised on the appellant's behalf under s 27 of the Act and the excuse that had been raised on his behalf under s 24 of the Criminal Code.  Her Honour expressed the following findings and conclusions:[51]

   [51] ts 14 - 17, 19/5/21.  The formatting has been amended to more easily identify the headings.

   (8)     Defences. 

   Section 27 of the Food Act.

   The defences relies on the evidence of the accused and Ms Sharp in respect of the high degree of care and attention paid to the preparation of food at Bada Bing for the purposes of satisfying the onus in relation to section 27. On the basis of my acceptance of Detective Knapgate's evidence regarding the accused's explanation as to how THC came to be in the brownies sold at Bada Bing, the accused's making or storing of cannabis brownies at Bada Bing in such a way that they could get mixed up with the brownies that were sold at the premises in itself represents a failure to take all reasonable precautions and exercise all due diligence to prevent the sale of brownies containing THC.

   The defence did not adduce evidence of any steps taken by the accused or the business generally which would constitute taking all reasonable precautions and exercising all due diligence to prevent the sale of brownies which were unsuitable.  There was no evidence of any procedures, practices or testing to prevent the sale of brownies containing THC.  And this would have – could have included placing the brownies in cellophane bags in a display cabinet which could only be accessed from behind the service counter, a system that was only introduced after the alleged offences. 

   Accordingly, I conclude that the accused has not established on the balance of probabilities a defence under section 27 of the Food Act to the charges. 

   Availability of section 24 Criminal Code defence.

   The defences under chapter 5 of the Criminal Code apply to all statutory offences in Western Australia. Reference section 36 of the Criminal Code, and Ostrowski v Palmer [2004] HCA 30, (2004) 218 CLR 493 and the cases referred to in footnote 53.

   The section 24 defence may be excluded by the express or implied provisions of the law relating to the subject. Reference Lappan v Hughes [2003] WASCA 173 … And the reference to McPherson v Cairn [1977] WAR 28, Geraldton Fisherman's Co-Operative Limited v Munro [1963] WAR 129, Brimblecombe v Duncan [1958] Qd R 8. See also Commissioner for Consumer Protection v Weinthal [2015] WASC 363 at 23.

   It is a question of statutory construction of the penal section read in the context of the whole Act in which it stands. In the present case, the provisions of the law relating to the subject include the express defence of due diligence under section 27, a separate and distinct defence to a person that prosecuted for an offence under part 3 of the Food Act. As a result, section 24 is impliedly excluded. The defence submits that it was Parliament's intention to not exclude the availability of section 24 referred to in defence closing submissions, paragraphs 39 to 45.

   And that's because the Food Act does not include an express provision excluding the application of any honest and reasonable but mistaken belief defence such as draft – section 23 of the Model Food Provisions as defined in the submissions.  The defence relies on the recent High Court authority of Namoa v The Queen [2021] HCA 13, which was a case involving the interpretation of an offence under the Commonwealth Criminal Code. 

   However, Gleeson J with whom Kiefel CJ and Gageler, Keane, Gordon, Edelman and Steward JJ agreed at paragraph 30 to 34 confirms that a court can have regard to extrinsic material when interpreting a statutory code which is ambiguous or obscure. And that's a reflection of section – what's contained in our section 19 of the Interpretation Act 1984.  

   However, I noted that at paragraph 6.50 in Report 14, 'Standing Committee on Uniform Legislation and Statutory Review Food Bill 2005' the committee expressly highlighted that despite health department advice at the time, there was a possible argument that the wording of clause 127, which became section 27, and in particular the provision of an express defence within the clause may impliedly exclude the operation of section 24 of the Criminal Code.  And there was a reference to McPherson v Cairn [1977] WAR 28 and Geraldton Fisherman's Co-Operative Limited v Munro [1963] WAR 129.

   Parliamentary debates reinforce that section 24 is excluded in relation to offences under the Act in respect of section 27 applies. And I refer to the Honourable Helen Morton in WA Parliamentary Debates, Legislative Council 384 2008 at page 1795, and I refer to the prosecutor's submissions in reply at paragraphs 15 to 19 where this is covered, and see also the comments of the Honourable Kim Chance, WA Parliamentary Debates Legislative Council, 13 May 2008 at page 9.

   I do not consider that the material on which the defence relies demonstrates that it was Parliament's intention to not exclude section 24. The parliamentary debates suggest otherwise. Accordingly, I conclude that as a matter of statutory construction, section 24 of the Criminal Code is excluded in relation to offences under part 3 of the Food Act and the present offences. If I am wrong on whether section 24 is excluded, I now address the section 24 defence.

   The mistake must be one of fact not law as to the 'real state of things'.  The real state of things is a reference to the state of things relating to the elements of the offence in question, not to the state of things as to whether the offence exists, or whether the conduct constituted by those elements is an offence.  Reference Ostrowski v Palmer at paragraphs 10 and 11. The belief must be both honest and reasonable. Reference GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183 at 187 to 188.

   In Aubertin v The State of Western Australia [2006] WASCA 229, then McLure JA considered the nature of the test to be applied under section 24. And I refer to paragraphs 42 to 44 and 46. And she stated relevantly:

   The wholly objective hypothetical ordinary or reasonable person test clearly has no application for section 24. For there to be an operative mistake under section 24, an accused must have acted under an actual belief in the existence of a state of things (subjective elements) and the accused's belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective. Reasonableness is not to be judged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects.

   In relation to a potential section 24 defence, the prosecution must negative the defence beyond reasonable doubt once the evidential onus has been discharged by the accused.

   In the context of the accused's explanation as to how THC came to be in brownies sold at Bada Bing based on him making or storing cannabis brownies at Bada Bing in such a way that they could get mixed up with the brownies that are sold at the premises, the accused does not satisfy the evidential onus (a) that he believed that brownies A, B and C did not contain THC or that any such belief was reasonable.  In any event, on all of the evidence, the prosecution, in my view, has negative (sic) the defence beyond reasonable doubt. 

   So in conclusion, for the reasons set out, which I've stated, the prosecutor has satisfied each of the elements of the charges beyond reasonable doubt, and the accused has failed to establish a defence to either charge under section 27 of the Act. And to the extent that section 24 of the Criminal Code applies, I find that the accused has not satisfied the evidential onus.  And in any event, the prosecution has negatived that defence beyond reasonable doubt.  I conclude that the prosecution has established the charges, and I find the accused guilty. 

1. In summary, her Honour concluded that, as a matter of statutory construction, the excuse of honest and reasonable but mistaken belief under s 24 of the Criminal Code is excluded in relation to offences under Pt III of the Act, which includes the offence under s 18(2), by the express or implied provisions of the Act, being the law relating to the subject, in particular by the existence of the defence under s 27 of the Act. However, if s 24 of the Criminal Code is not excluded as a matter of law, her Honour was also of the view that, in the context of the explanation that she found the appellant had given for the potential mix up of brownies (being the explanation he gave to Detective Knapgate on the telephone), the evidence in the defence case did not provide an evidential basis for the reasonable possibility that the appellant had an actual belief that the relevant brownies did not contain THC, or that such a belief was reasonable. 

Notice of Appeal

1. The appellant filed his notice of appeal on 15 June 2021, which was within time.[52]

   [52] Criminal Appeals Act 2004 (WA), s 10(3).

2. On 4 August 2021, a registrar of this Court ordered that the application for leave to appeal be heard together with the appeal.  A further order was made on 12 January 2022 that the appellant have leave to amend the original grounds of appeal in the terms of a minute of amended grounds of appeal dated 14 December 2021, filed 15 December 2021 which substituted a single ground of appeal with four particulars, as follows:

   1.The Trial Magistrate erred in finding that the defence of honest and reasonable but mistaken belief was not available to the Appellant and that the Appellant did not discharge the evidentiary burden to raise that defence.

   1.1The learned Trial Magistrate, as a matter of law, was required to assess the extraneous Parliamentary materials in line with the principles espoused in The State of Western Australia v R 33 WAR 483 at [25] and Namoa v The Queen [2021] HCA 13.

   1.2The learned Trial Magistrate erred in finding that the said defence was impliedly excluded by Parliament, which was not supported by reference to a body of extrinsic materials which indicated to the contrary.

   1.3The learned Trial Magistrate erred in placing too much weight on words expressed in the course of Parliamentary debate, which were relied upon by her Honour to contradict the words of the more reliable extrinsic materials, including, the contents of a Model Food Code contained within the Food Regulations 2002 (WA), and a Report tabled in Parliament.

   1.4The learned Trial Magistrate failed to give adequate reasons for the conclusion that the Appellant had not discharged the said evidentiary burden to raise the said defence.

3. The ground of appeal conflates a number of alleged errors, each of which could be regarded as a separate ground.  In essence, however, there are two primary errors identified:

   (1)The learned magistrate erred law in deciding that the excuse of honest and reasonable but mistaken belief, under s 24 of the Criminal Code, was not available to the appellant, because the operation of the rule in s 24 is impliedly excluded in respect of an offence under s 18(2) of the Act by the provisions of the Act;

   (2)In the alternative, the learned magistrate erred in law and fact in concluding that the evidence did not raise as a reasonable possibility that the appellant had an honest and reasonable mistaken belief that the relevant brownies were not food that was unsuitable (that is, that they did not contain THC).

4. The first particular of the ground of appeal purports to identify a premise underpinning the next two particulars, which purport to identify two specific errors going to the first alleged primary error concerning the operation of s 24 of the Criminal Code as a matter of law.  They raise the following issues:

   (1)In determining whether, as a matter of statutory construction, the operation of the rule in s 24 of the Criminal Code has been impliedly excluded by the provisions of the Act, is it necessary to have regard to 'extraneous Parliamentary materials'?

   (2)If so, do relevant 'extrinsic materials' show that Parliament did not intend to exclude the operation of the rule in s 24 of the Criminal Code in respect of an offence under s 18(2) of the Act?

   (3)What weight should be given to the parliamentary debates, relative to other extrinsic materials, in determining, as a matter of statutory construction, whether the operation of the rule in s 24 of the Criminal Code has been excluded in respect of an offence under s 18(2) of the Act?

5. The last particular of the ground of appeal, which concerns the adequacy of the reasons given by the learned magistrate, goes to the second alleged primary error, in respect of whether there was an evidentiary foundation for the operation of the rule in s 24 of the Criminal Code. 

Appellant's submissions

1. The appellant's written submissions appeared to contend that the offence under s 18(2) of the Act requires proof that the appellant knowingly or intentionally served 'THC laced brownies' at his café.[53] Although that contention arose indirectly in the context of a submission setting out evidence which was said to support the proposition that the appellant had an honest and reasonable but mistaken belief that the food sold at his café did not contain THC and was suitable for sale, the contention appeared to be perpetuated in the submission by senior counsel for the appellant at the hearing, that the offence under s 18(2) of the Act is not a strict liability offence. As I will explain later in these reasons, the offence is properly to be regarded as a strict liability offence, because knowledge that the food is unsuitable is not an element of the offence. That does not mean that the operation of s 24 of the Criminal Code is excluded.  That issue requires consideration of other provisions of the Act, as well as the purpose of the legislative scheme.

   [53] Appellant's Submissions dated 14 December 2021 (Appellant's Submissions) [10(d) and (e)].

2. In any event, the appellant's ground of appeal does not contend that the magistrate erred in finding that what the prosecution needed to prove in respect of the appellant's knowledge was that he knew he was selling the brownies in question, not that he knew the brownies contained THC. Further, it was not submitted on the appellant's behalf at the hearing that the magistrate had erred in that regard. Senior counsel's submission in respect of strict liability is properly to be regarded as a submission that a mental element becomes relevant to an offence under s 18(2) of the Act by virtue of s 24 of the Criminal Code. 

3. The appellant's written submissions contended that 'a review of the applicable legislative framework in relation to the enactment of the Act' compelled the conclusion that Parliament did not intend to exclude the operation of the rule in s 24 of the Criminal Code in respect of an offence under the Act.[54] In the balance of the written submissions, and at the hearing, it was clarified that, in referring to 'the legislative framework', the appellant was not referring to the text of s 18(2) and s 27 of the Act, read in context and having regard to the purpose of the legislative provisions. Rather, the appellant submitted that:

   (1)the operation of the rule in s 24 of the Criminal Code has not been expressly excluded by the provisions of the Act;

   (2)when s 18(2) is read with s 27, and in the context of the overall scheme of the Act), there is ambiguity (or significant doubt) as to whether the operation of the rule in s 24 of the Criminal Code is impliedly excluded;[55] and

   (3)therefore, it is necessary to have regard to extrinsic parliamentary materials at the outset to determine, as a matter of statutory construction, whether the rule in s 24 of the Criminal Code is impliedly excluded.

   [54] Appellant's Submissions [13].

   [55] Appeal ts 18 - 19.

4. There were three items of extrinsic material referred to in the proceedings before the magistrate and reproduced on appeal, being:

   (1)Report 14, Standing Committee on Uniform Legislation and Statutes Review, Food Bill 2005, dated 27 September 2006 (Report 14), being the report produced by the Standing Committee to the Legislative Council after the Food Bill 2005 (the Bill) was referred to it because it contained uniform legislation pursuant to a national legislative scheme designed to promote consistency or uniformity of laws;[56]

   (2)an extract from Hansard of the Second Reading debate in respect of the Bill in the Legislative Council on 3 April 2008; and

   (3)an extract from Hansard of proceedings before a Committee of the Legislative Council on 13 May 2008, during which various amendments to the Bill were debated and voted upon.

   [56] Report 14 [1.1], [1.2], [2.1] and [2.2].

5. There was no reference, either at the trial hearing or in the appeal, to the Second Reading speech or the explanatory memorandum.  The Second Reading speech was delivered in the Legislative Assembly on 23 November 2005[57] and in the Legislative Council on 22 June 2006.[58]  Neither of the speeches dealt with the issue that requires determination in this appeal.  However, to put in context the contents of Report 14 and the subsequent parliamentary debates, it is apt to note that, after introducing the Food Bill, the Minister for Health made the following points in his Second Reading speech:[59]

   The Food Bill repeals existing provisions in the Health Act that deal with food and replaces them with an updated regime designed to improve protections for consumers at the same time as providing the food industry with greater flexibility to determine how safe outcomes are to be achieved.  The bill incorporates the core model food provisions, which will ensure that industry and consumers in Western Australia have the same certainty and protections as industry and consumers in other States and territories.

   …

   The objects of the bill, which are set out in clause 3, are to ensure the safety of food for human consumption; to prevent misleading conduct in relation to the sale of food; and to provide for the application of the Australia New Zealand Food Standards Code in Western Australia.

   …

   Part 3 of the bill provides for a wider range of offences than are currently in the Health Act, as well as more substantial penalties for contravention of the proposed act.  Currently the maximum penalties for offences in the Health Act relating to the sale, preparation and packing of food that is unfit for human consumption, adulterated or damaged, deteriorated or perished range from $2 500 to $5 000.  The maximum penalties proposed in the bill for serious offences where the offender has engaged in conduct that is known to be unsafe - for example, selling food that a person knows is unsafe - range from $75 000 to $100 000 for an individual and $275 000 to $500 000 for a corporation.

   [57] Western Australia, Parliamentary Debates, Legislative Assembly, 23 November 2005, 7657 - 7658 (Mr JA McGinty, Minister for Health).

   [58] Western Australia, Parliamentary Debates, Legislative Council, 22 June 2006, 4178 (Ms Sue Ellery, Parliamentary Secretary).

   [59] Western Australia, Parliamentary Debates, Legislative Assembly, 23 November 2005, 7657 (Mr JA McGinty, Minister for Health).

6. The explanatory memorandum outlined the provisions of clauses 18 and 27, which were to become s 18 and s 27 of the Act, without any commentary concerning whether the operation of the rule in s 24 of the Criminal Code was or was not taken to be excluded.  However, the commentary in respect of cl 17, which, like cl 18, was in Division 2 of the Bill, headed 'Other offences relating to food', included the following:[60]

   The offences created by this clause and the other clauses in this Division are of a strict liability nature and have lower penalties than those contained in Division 1.

   [60] Explanatory Memorandum, Food Bill 2005 (WA), 5.

7. The appellant submitted that Report 14 should be regarded as the principal item of extrinsic material informing the construction of s 18(2) and s 27 of the Act, and that the debates should be given less weight. I note that the Food Bill was referred to the Standing Committee on Uniform Legislation and Statutes Review by the Legislative Council after the Second Reading speech in that house on 22 June 2006.[61]

   [61] Western Australia, Parliamentary Debates, Legislative Council, 22 June 2006, 4178.

8. Report 14 reproduced the Food Regulations Agreement 2002 as Appendix 4. That agreement between the Commonwealth and all of the States and Territories of Australia recognised, in the preamble, a need to implement a co-operative national system of food regulation with objectives that included: '(a) providing safe food controls for the purpose of protecting public health and safety'; and '(e) providing a consistent regulatory approach across Australia through nationally agreed policy, standards and enforcement procedures'.[62]  The preamble also noted:[63]

   B.  The Commonwealth and the States and Territories agree that there is a need to ensure that all sectors in the food supply chain manage their food safety risks but recognise that the mechanisms for ensuring that this happens will vary from sector to sector.

   [62] Report 14, 49 - Appendix 4.

   [63] Report 14, 49 - Appendix 4.

9. It is sufficient for present purposes to note that the agreement required the States and Territories to use their best endeavours to submit to their respective Parliaments legislation which would give effect to provisions listed in Annex A and Annex B of the agreement, which would 'provide for the effective and consistent administration and enforcement of the Food Standards Code (including the Food Safety Standards)'.[64]  Both Annex A and Annex B consisted of 'Model Food Provisions', but the provisions of Annex B were described as being administrative in nature.[65]  The agreement required the legislation submitted by each State and Territory to its respective Parliament to contain provisions that were either:[66]

   (i)in the same terms as all of those contained in Annex A of this Agreement, noting that the words in square brackets are optional; or

   (ii)if the State or Territory has separate legislation governing safe primary food production, consistent with all of those contained in Annex A of this Agreement noting that the words in square brackets are optional.

   [64] Report 14, 56 - Appendix 4 [13].

   [65] Report 14, 56 - Appendix 4 [14(b)], 64 (Annex A), 84 (Annex B).

   [66] Report 14, 56 - Appendix 4 [14(a)].

10. The agreement provided that the legislation submitted could contain whatever provisions the State or territory chose from Annex B.

11. Annex A contained provisions that were equivalent to:

    (1)the definition of 'unsuitable food' in the Act;[67]

    (2)the definition of 'sell' in the Act;[68]

    (3)the offence in s 18(2) of the Act;[69] and

    (4)the defence in s 27 of the Act.[70]

    [67] Report 14, 69 - Appendix 4, Annex A, s 7.

    [68] Report 14, 66 - Appendix 4, Annex A, s 2(1).

    [69] Report 14, 72 - Appendix 4, Annex A, s 13(2).

    [70] Report 14, 76 - Appendix 4, Annex A, s 22.

12. Annex A also contained a provision in square brackets as follows:[71]

    23Defence of mistaken and reasonable belief not available

    In any proceedings for an offence under Division 2, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence.

    [71] Report 14, 77 - Appendix4, Annex A, s 23.

13. The model provision in Annex A (being s 13(2)) that created the offence now contained in s 18(2) of the Act was in Division 2 of Annex A. Therefore, if adopted, s 23 of Annex A would have applied to the current offence in s 18(2). However, as noted above, by virtue of paragraph 14(a)(i) of Annex A, a provision that was in square brackets (such as s 23) was optional.

14. It was common ground on the appeal that s 23 of Annex A was adopted in the eventual legislation in four States and the Northern Territory, but not in the Australian Capital Territory, South Australia or Western Australia.

15. The appellant submitted that the non-adoption of s 23 of Annex A in the Act signified that the intention of the Parliament of Western Australia was not to exclude the availability of honest and reasonable mistaken belief as an excuse in respect of the offence in s 18(2) of the Act.

16. In the appellant's submission, that conclusion is supported by the contents of Report 14. He submitted that Report 14 should be relied upon to resolve any question as to whether Parliament intended to exclude the operation of the rule in s 24 of the Criminal Code in respect of the offence under s 18(2) of the Act. The appellant relied on the decision of the High Court in Namoa v The Queen [2021] HCA 13; (2021) 271 CLR 442 (Namoa) in support of that submission.  The appellant also submitted that, as there were no amendments to the relevant provisions of the bill when the Act was passed, the debates can be put to one side, as it can be assumed Parliament proceeded on the basis of Report 14.

17. Before turning to the authorities, it is apt to note that the use of extrinsic materials in the interpretation of legislation in this State is governed by s 19 of the Interpretation Act 1984 (WA), which provides:

    19.Extrinsic material, use of in interpretation

    (1) Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material —

    (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or

    (b) to determine the meaning of the provision when —

    (i) the provision is ambiguous or obscure; or

    (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.

    (2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law includes —

    (a) all matters not forming part of the written law that are set out in an official version of the law under the Legislation Act 2021; and

    (b) …

    (c) any relevant report of a committee of Parliament or of either House of Parliament that was made to Parliament or that House of Parliament before the time when the provision was enacted; and

    (d)…

    (e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister before the time when the provision was enacted; and

    (f) the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House; and

    (g) …

    (h)any relevant material in any official record of proceedings in either House of Parliament.

    (3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to —

    (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and

    (b) the need to avoid prolonging legal or other proceedings without compensating advantage.

1. The interpretation task in this case is not concerned with the express meaning of s 18(2) or s 27 of the Act, but with whether the effect of s 27, in the context of the whole of the Act, and having regard to the purpose of the legislation, is to exclude the operation of the rule in s 24 of the Criminal Code in respect of the offence under s 18(2) of the Act. Nevertheless, the task requires the court to ascertain the meaning of s 27 of the Act in that regard, and s 19 of the Interpretation Act applies to permit the use of extrinsic material for the purposes prescribed in that section.  The starting point, however, is the statutory text.

2. The appellant's argument concerning the non-adoption by the legislature of s 23 of the Model Food Provisions in Annex A of Report 14 involves resorting to extrinsic material, namely Report 14, prior to endeavouring to ascertain the meaning of the provisions of the Act by reference to the text of the provisions, taking into account their context in the Act and the purpose or object underlying the Act.  In my respectful opinion, the appellant's apparent reliance on Namoa in support of that approach is misplaced.

3. Namoa was a case concerning the interpretation of s 11.5(1) of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code). The appellant was convicted of conspiring with her husband to do acts in preparation for a terrorist act contrary to s 11.5(1) and s 101.6(1) of the Commonwealth Criminal Code. The appellant contended that there is a common law rule that spouses who agree between themselves, and no other person, to commit an offence cannot be guilty of conspiracy, and that this rule affects the meaning of 'conspires' and 'conspiracy' in s 11.5 of the Commonwealth Criminal Code.[72]  The statute did not expressly exclude spouses from the application of s 11.5.  The question to be resolved by the High Court was whether, as a matter of statutory construction, the provisions of s 11.5 apply if the only two parties to the agreement are spouses. 

   [72] Namoa [8], [34].

4. The appellant submitted that the High Court referred to the Draft Model Criminal Code and a Parliamentary report addressing that Model Code to resolve that question.  That is not correct. 

5. It is evident from the judgment of Gleeson J (with whom the other judges of the court agreed) that her Honour resolved the question by having regard to the meaning of the text of the offence-creating provision.  Her Honour said (citations omitted):[73]

   The principles for interpreting a statutory code are well established.  A code is to be construed according to its natural meaning and without any presumption that its language was intended to do no more than restate the common law.  The common law cannot be used to supply the meaning of a word used in a code except where the word has a well-established technical meaning under the pre-existing law and the code uses that word without definition, or it appears that the relevant provision in a code is ambiguous.  The common law cannot be invoked in the interpretation of a code for the purpose of creating an ambiguity.

   [73] Namoa [11].

6. Her Honour then referred to R v LK (2010) HCA 17; (2010) 241 CLR 177, which held that, subject to express statutory modification, the words 'conspires' and 'conspiracy' in s 11.5 bear their common law meaning.[74]  Her Honour set out the passages of R v LK in which the meaning of those words was explained.[75]  Her Honour then said (citations omitted):[76]

   These passages say nothing about any common law rule relating to spouses as an aspect of the common law meaning of 'conspiracy'.  R v LK did not address that issue and cannot be authority that the meaning of 'conspires' and 'conspiracy' incorporates such a rule.  The passages reveal that the common law meaning of 'conspires' comprises entering into an agreement to perform the actus reus of an offence with knowledge of facts that make the proposed acts unlawful.  In context (including the relevant footnote), the observation that the drafters of the Code chose to address 'the parties to the conspiracy and the sufficiency of their dealings to constitute the agreement' by adoption of the word 'conspires' is not directed to the capacity of particular types of persons to commit the offence.

   [74] Namoa [12].

   [75] Namoa [16].

   [76] Namoa [17].

7. Having examined overseas case law, her Honour concluded:[77]

   While the explanations for the special position of spouses in relation to the crime of conspiracy varied, in none of these cases was the court concerned with the meaning of 'conspiracy'.  It follows that, whether there is or was a rule of Australian common law that there can be no criminal conspiracy if the only two parties to the agreement are spouses, that rule is not incorporated into the offence contained in s 11.5 of the Code by the words 'conspires' and 'conspiracy'.

   [77] Namoa [28].

8. It was after reaching that conclusion on the basis of the established meaning of the text of s 11.5 that her Honour examined the extrinsic materials in dealing with a contextual argument raised by the appellant.  It is sufficient to note that her Honour concluded:[78]

   These extrinsic materials further support the conclusion that the statutory offence of conspiracy in s 11.5(1) applies to spouses who agree between themselves, and no other person, to commit an offence against a law of the Commonwealth. It is unnecessary to consider whether the common law includes or included at any relevant time a rule by virtue of which the common law of conspiracy does not apply to spouses.

   [78] Namoa [34].

9. It is evident that the extrinsic material was not relied on by her Honour to resolve the question of statutory construction raised in the appeal in Namoa.  Rather, it was considered for context and was found to support the construction of s 11.5 that had been resolved by reference to the natural meaning of the language of the provision.  Nor could it be said that, in terms of relevant extrinsic materials, where there is a need to refer to such material in aid of statutory interpretation, that Namoa stands for the proposition that draft model legislation or a parliamentary report in respect of such draft legislation is to be given greater weight than other extrinsic materials, including parliamentary debates.

10. In respect of the latter issue, the appellant sought to rely on The State of Western Australia v R [2007] WASCA 42; (2007) WAR 483 (WA v R) and Re Bolton; Ex parte Beane (1987) 162 CLR 514 [1987] HCA 12; (Re Bolton).  In each of those cases the court referred to what was said in the parliamentary debates concerning the statutory provisions under consideration.  The appellant submitted that the approach taken by the court to the parliamentary debates in each of those cases supports the conclusion that the magistrate in the present case 'placed too much emphasis on the Parliamentary Debates excerpts in circumstances where they ought not to have been relied upon to contradict the more reliable extrinsic materials, namely, [Report 14] and the Model Food Code'.[79]  Putting to one side, for the moment, the question of whether Report 14, including Annex A (the Model Food Provisions), could properly be regarded as 'the more reliable extrinsic materials' in this case, the authorities on which the appellant relied do not support the conclusion that a parliamentary report should be given greater weight than parliamentary debates.

    [79] Appellant's Submissions [26].

11. WA v R was an Attorney-General's reference to the Court of Appeal of a question of law as to the degree of knowledge required to establish 'possession' on a charge of possession of a prohibited drug contrary to the Misuse of Drugs Act 1981 (WA). The question was resolved by reference to what was understood at common law to be the ordinary meaning of 'possession'. The appellant relied on the following passage from the reasons of Steytler P:[80]

    There is nothing in the Second Reading Speech in respect of the WA Act, as I read it, that sheds any light on this question.  While there is some reference to this issue in the Parliamentary Debates (the relevant extracts are referred to in the judgment of Wheeler JA), and while reference to these debates might be made pursuant to s 19(2)(h) of the Interpretation Act, I would be reluctant to place too much reliance on what was there said.  As Mason CJ, Wilson and Dawson JJ said in [Re Bolton] at 518, the words of a Minister must not be substituted for the text of the law, 'especially when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual'.  I would suggest that this is particularly so when the words relied upon were expressed in the course of debate rather than in a more considered Second Reading Speech.

    [80] WA v R [25].

12. The reference to the issue in the parliamentary debates, extracted by Wheeler JA in her reasons, was summarised by her Honour as follows:[81]

    It seems that the view shared by the Minister and Mr Olney was that, in the absence of the insertion of a word such as 'knowingly', it would not be necessary for the prosecution to prove any particular mental element or state of mind, such as a knowledge of the nature of the drug possessed or used. The only differences of opinion were about whether it was conceivable that the Act, when passed, might be understood to exclude, as to one or more sections of it, the operation of s 24 of the Code. That section was seen as the provision which would deal with any possible mistake which might be made as to, for example, the nature of the substance which the accused person possessed. No other contributions to the debate questioned those assumptions.

    [81] WA v R [113].

13. The distinction drawn by Steytler P in WA v R between words expressed in the course of a debate and those expressed in 'a more considered second reading speech' is, with respect, not apt in this case, because the second reading speech did not address the issue of statutory construction raised in this case, and, as I will discuss below, the parliamentary record indicates that the issue was given careful consideration in the course of the debate that followed the issue of Report 14. 

14. Re Bolton concerned the interpretation of s 19(1) of the Defence (Visiting Forces) Act 1963 (Cth), which provided for the issue of a warrant by an authorised officer, at the request of a designated authority of a country in relation to which the section applied, for the apprehension of a member of the forces of that country who was a deserter or an absentee without leave from those forces. The issue was whether, on its proper construction, the section authorised the arrest in Australia of a deserter or absentee without leave from the forces of a country to which the section applied notwithstanding that the desertion or absenting occurred outside Australia. Ultimately, the issue was resolved contextually by reference to s 8(2) of the Defence (Visiting Forces) Act, being the provision that conferred jurisdiction on the service tribunals and service authorities of a country to which s 19 applied. Relevantly, that provision conferred jurisdiction over 'members of any visiting force of that country'. A majority of the High Court held that s 19 did not provide a power for the authority of the country to which a deserter belonged to deal with him when handed over in Australia unless he had deserted from a 'visiting force' as defined by the Act, and therefore did not authorise the issue of a warrant for a person who had not deserted from a visiting force.

15. The plurality (Mason CJ, Wilson J and Dawson J) recognised that the process of construction in that case was difficult and that there were powerful arguments, as set out in the reasons of the dissenting judge, Toohey J, including textual matters, that supported the contrary interpretation, for which the respondent had contended.[82] Their Honours acknowledged that s 19 was ambiguous, and that, therefore, in ascertaining the meaning of the provision, consideration could be given to the second reading speech of the Minister when introducing the respective Bill into the House of Representatives.[83]  It was in that context that their Honours observed the limitations of the assistance that might be derived from such a speech, which was referred to by Steytler P in WA v R.  Their Honours said:[84]

    That speech quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force.  But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation.  The words of a Minister must not be substituted for the text of the law.  Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual.  It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law.  However unfortunate it may be when that happens, the task of the Court remains clear.  The function of the Court is to give effect to the will of Parliament as expressed in the law. 

    [82] Re Bolton, 517. 

    [83] Re Bolton 517 - 518.

    [84] Re Bolton, 518.

16. It may be noted that the observations of the plurality in Re Bolton were not concerned with the relative weight to be given to different forms of extrinsic materials.  Rather they stand for the proposition that primacy must be given to the text of the provision under consideration, and the words of a Minister in a second reading speech must not be substituted for the text of the provision, particularly when the intention expressed by the Minister is restrictive of the liberty of the individual.  The observations of Steytler P in WA v R were to the same effect in respect of what a Minister or other members of Parliament might say during a debate on a proposed bill. Neither authority supports the appellant's proposition that Report 14 and the Model Food Provisions in this case were 'the more reliable extrinsic materials', relative to the contents of the parliamentary debates, if indeed it is appropriate to have regard to extrinsic materials in the interpretation of s 18(2) and s 27 of the Act in this case. As I discuss later in these reasons, to the extent that Report 14 may have been relevant to an understanding of the effect of s 18(2) and s 27 of the Act, the parliamentary debates reveal that the report was no longer determinative of Parliament's understanding and intention in respect of whether the operation of s 24 of the Criminal Code was to be excluded in relation to offences such as that under s 18(2) of the Act.

17. Nevertheless, the appellant relied on passages from Report 14 which dealt with the availability of defences to offences under div 2 of the Bill, including cl 18, which became s 18 of the Act.  I will deal with the appellant's submissions in that regard in the section concerning extrinsic materials below. 

18. In essence, the appellant submitted that, having regard to the extrinsic materials in Report 14, the learned magistrate erred in concluding that the due diligence defence under s 27 of the Act impliedly excludes the operation of the rule in s 24 of the Criminal Code.[85]

    [85] Appellant's Submissions [30].

19. Further, pursuant to particular 1.4 of the ground of appeal, the appellant submitted that her Honour erred in failing to give adequate reasons for the conclusion that the appellant had not discharged the evidentiary burden to raise the 'defence' of honest and reasonable but mistaken belief.  The appellant submitted that the intellectual processes by which her Honour reached her conclusion were not adequately disclosed by her Honour referring to 'the context of the accused's explanation as to how THC came to be in brownies sold at Bada Bing based on him making or storing cannabis brownies at Bada Bing in such a way that they could get mixed up with the brownies that are sold at the premises'.[86] He submitted that it was necessary for her Honour to clarify the 'context' and what it was about the appellant's explanation that led to her conclusion,[87] and to explain why other evidence concerning work practices at Bada Bing, the history of the business and the appellant's character did not satisfy the evidentiary burden for the purposes of s 24 of the Criminal Code.[88]  The appellant submitted that the existence of a relevant belief could be inferred.[89]  He relied on:

    (1)the evidence of his long history in the trade, and what he claimed to be an 'exemplary record over the years' of maintaining good business practices and not having any customer becoming sick previously, despite the high volumes of food sold;[90]

    (2)the inference that it was highly unlikely that the appellant would offer for sale to the general public, including children, brownies containing THC, given the potential adverse impact on his business of selling contaminated food;[91]

    (3)the fact that the brownies that contained THC were sold at the regular price for brownies;[92] and

    (4)the evidence of the appellant's general good character.[93]

    [86] Appeal ts 36 - 42, referring to Riley v The State of Western Australia [2005] WASCA 190 (Riley) [32] (Steytler P); Pettitt v Dunkley [1971] 1 NSWLR 376; Lloyd v Faraone [1989] WAR 154; Garrett v Nicholson (1999) 21 WAR 226. See [58] above for the magistrate's reasons.

    [87] Appeal ts 37.

    [88] Appeal ts 34, 36, 38 - 39, 41.

    [89] Appeal ts 35, 36.

    [90] Appeal ts 36, 38, 39.

    [91] Appeal ts 38.

    [92] Appeal ts 38.

    [93] Appeal ts 41.

20. Similarly, the appellant submitted that it was inadequate for her Honour to state that the prosecution had negatived the 'defence' under s 24 of the Criminal Code 'on all the evidence', as that did not reveal her Honour's reasoning relating relevant aspects of the evidence to the issues arising under s 24.[94]  The appellant relied on the same matters outlined in respect of particular 4.1 of the ground of appeal as matters that militated against the prosecution having negatived honest and reasonable mistaken belief beyond reasonable doubt.  As I noted earlier in these reasons, while there is no ground of appeal challenging her Honour's substantive finding in respect of that issue, I would have been prepared to allow the appellant to amend his grounds of appeal to pursue his contention in this regard if he was successful on the current amended ground.

    [94] Appeal ts 31 - 32, 36, 39, 40, 41 - 42.

21. I note that the appellant's argument in respect of business practices and character relied, at least in part, on the standards he had set in food preparation. In my opinion, that was not relevant to the belief that was in issue in the circumstances of this case, which related to the risk of storing brownies containing THC on the same premises as brownies that would be regularly sold to the public, let alone in close proximity to each other. It may also be seen that the second and third matters particularised at [100] above go more specifically to the question of whether the appellant intended to sell brownies containing THC or actually knew that brownies containing THC were on display for sale to the public, neither of which matters had to be proved by the prosecution. Nor would the absence of such an intention or knowledge mean that the appellant positively believed the brownies did not contain THC. He may not have addressed his mind to the issue, for instance, because he forgot he had placed the brownies containing THC in the same storage as the regular brownies.

22. Nevertheless, the appellant contended that it was open to infer from those aspects of the evidence that the appellant believed the brownies on display were not unsuitable as alleged.

Respondent's submissions

1. The respondent submitted that the learned magistrate's reasoning and conclusion in respect of the exclusion of the operation of the rule in s 24 of the Criminal Code was correct, having regard to relevant authorities, in particular McPherson v Cairn [1977] WAR 28, Geraldton Fisherman's Co-operative Ltd v Munro [1963] WAR 129 (Geraldton Fisherman's Co-operative) and Lappan v Hughes [2003] WASCA 173. In essence, the respondent submitted that the offence under s 18(2) of the Act is one of strict liability, and the availability of a due diligence defence under s 27 of the Act implies that the operation of the rule in s 24 of the Criminal Code is excluded.[95]  It was submitted that, by providing a due diligence defence, it can be implied that Parliament has 'addressed its mind to the question of mistake'[96] and created a discrete defence available to persons who contravene the provisions of the Act to which it applies. The respondent submitted that s 27 of the Act would have limited or no application if s 24 of the Criminal Code applied to an offence under s 18(2), in that, rather than being required to establish that they had taken positive steps to prevent the commission of the offence, an accused would only have to meet an evidential burden in respect of having an honest and reasonable mistaken belief, and the prosecution would have to negative such a belief beyond reasonable doubt.[97]

   [95] Respondent's Outline of Submissions dated 31 January 2022 (Respondent's Submissions) [8].

   [96] Lappan v Hughes [19] - [20] (Miller J), citing McPherson v Cairn, 31.

   [97] Respondent's Submissions [14].

1. The Privy Council went on to prefer the approach that considered whether the class of persons affected by the penal provision was one whose conduct could 'affect the observance of the law', over an approach in which strict liability followed simply from the nature of the subject matter of the statutory provisions.[120]  The references in that case to 'strict liability', as denoting the absence of mens rea, are not apposite in the context of s 24 of the Criminal Code, for reasons I have already given. The operation of the rule in s 24 is not excluded simply because the offence is formulated so as to impose strict liability. Nevertheless, in my opinion, there is a correlation between the rationale for the imposition of strict liability at common law and the rationale for the implied exclusion of the operation of s 24 of the Criminal Code, when considering whether the result is manifestly absurd or unreasonable.

   [120] Lim Chin Aik v The Queen, 174.

2. It can be seen from the judgment in Lim Chin Aik v The Queen that, from early times, legislation concerning activities that affect public welfare has been construed as imposing conditions of strict liability on those who would benefit from the activities, provided there are things that can be done by such persons to promote the observance of the obligations.  In Geraldton Fisherman's Co-operative, Hale J observed that, if he was wrong about the proper approach to determining whether the operation of the rule in s 24 of the Criminal Code has been excluded, as set out at [117], [120] and [122] above, and if the court was bound to apply 'the criteria which have been developed by the courts (not without some inconsistencies) for determining whether a statute impliedly excludes the common law requirement of mens rea', he would have arrived at the same conclusion.[121]  His Honour referred to the second paragraph quoted above from Lim Chin Aik v The Queen, and observed that it was 'apparent that many people could be guilty of a breach of [s 24A of the Fisheries Act] not only with no intention of breaking the law, but with no chance of knowing that they were doing so'.[122] In such circumstances, a legislative intention to exclude the operation of s 24 could not be implied. As I said earlier, there was no provision in that case that created a due diligence defence of the kind found in s 27 of the Act.

   [121] Geraldton Fisherman's Co-operative, 133.

   [122] Geraldton Fisherman's Co-operative, 134.

3. In relation to the obligation under the Act that a person must not sell food that is unsuitable, the due diligence provisions of s 27 provide a non-exclusive list of things that can be done by a seller of food to ensure compliance, encapsulated in the concept of taking 'all reasonable precautions' and exercising 'all due diligence to prevent the commission of the offence'. In my opinion, it is not an absurd or unreasonable result if the effect of the ordinary meaning of the provisions of the Act, read in context and having regard to the legislative purpose of the Act, is to impliedly exclude the operation of the rule in s 24 of the Criminal Code, and to limit the defences available to a seller of food that is unsuitable to the due diligence defence in s 27 of the Act. Therefore, it is not necessary to resort to extrinsic materials to determine the meaning of the provisions of the Act on that basis.

Reference to extrinsic materials

1. For the reasons I have given, I am of the opinion that, in context, and having regard to the purpose and objects of the Act, the effect of s 18(2) and s 27 is not ambiguous or obscure in excluding the operation of s 24 of the Criminal Code, and nor does an interpretation of those provisions that excludes the operation of s 24 lead to a result that is manifestly absurd or is unreasonable. Therefore, it is not necessary to have regard to extrinsic materials in the interpretation of the Act on either of those bases under s 19 of the Interpretation Act.  However, I have considered the appellant's arguments in respect of the extrinsic materials to determine whether or not they confirm the ordinary meaning conveyed by the text of the provisions, as I have found it to be.

2. As I noted earlier, the appellant relied on passages from Report 14 which dealt with the availability of defences to offences under div 2 of the Bill, including cl 18, which became s 18 of the Act. While the appellant focused on paragraph 6.49, concerning s 24 of the Criminal Code, it is necessary to set out other parts of the report that provide context. 

3. Under the heading 'Strict liability offences', Report 14 stated:[123]

   6.34Part 3 Division 2 of the Bill creates 'Other offences relating to food'. The Explanatory Memorandum advises that cl 17 and other clauses in the division [footnote referring, inter alia, to cl 18] create 'strict liability' offences.

   [123] Report 14, 12.

4. The report went on to refer to ch 5 of the Criminal Code, specifically to s 36 and s 24, which was reproduced. The report continued (footnotes omitted):[124]

   6.42The Committee notes that the imposition of strict liability for an offence has been considered by previous Legislative Council Committees and Parliamentary Committees in other jurisdictions. 

   6.43The Committee considered the strict liability provisions of the Bill.

   [124] Report 14, 13.

5. Under the sub-heading 'Availability of defences', Report 14 said (footnotes omitted unless otherwise indicated):[125]

   [125] Italics in the original.  Report 14, 13 - 15.

   6.44Part 3 Division 3 contains defences and includes the defence of due diligence which applies in any proceedings for an offence. The defence of due diligence succeeds if:

   the person concerned proves that they took all reasonable precautions and exercised due diligence in order to prevent the offence.

   6.45Part 11 s 127 provides that an employer will have a defence where they had no knowledge of the employee's contravention; and could not, by the exercise of due diligence, have prevented the contravention.

   6.46The Committee was advised that:[126]

   The Health Act provisions provide a similar liability of employers in relation to the actions of employees.  The inclusion of a due diligence defence will meet the objective of protecting human health by requiring food businesses to accept primary responsibility for compliance with food legislation by taking all reasonable precautions and all due diligence.

   An employer will have a defence if the employer had no knowledge of the contravention, and could not, by the exercise of due diligence, have prevented the contravention.

   6.47Section 24 expressly provides that its operation may be excluded expressly or impliedly. The Bill does not expressly exclude s 24 of the Criminal Code.

   6.48The Committee considered whether s 24 of the Criminal Code may have been impliedly excluded in the Bill. In order for s 24 of the Criminal Code to be impliedly excluded it is necessary to look at the penal section of the relevant Act to determine whether that section 'is inconsistent with the co-existence of s 24 so that effect cannot be given to both at the same time'.[127]

   6.49The Committee noted that there may be a question as to whether the inclusion of due diligence as a defence in Division 3 and cl 127 impliedly excludes the operation of s 24 of the Criminal Code.  The advice received by the Committee from the Health Department was that:

   because the defence of 'mistaken and reasonable belief' is not specifically excluded by the Bill, it is therefore available to a person defending strict liability offences.[128]

   6.50The Committee notes the Health Department's advice but also brings to the attention of the House the possible argument that the wording of cl 127, and in particular the provision of an express defence within the clause, may impliedly exclude the operation of s 24 of the Criminal Code.[129]

   [126] Footnote 48 read: 'Letter from A/Principal Food Scientist Department of Health, 22 August 2006, p 7 as amended by Letter from A/Principal Food Scientist Department of Health, 7 September 2006, p 4.'

   [127] Footnote 49 referred to Geraldton Fisherman's Co-Operative Limited v Munro [1963] WAR 129.

   [128] Footnote 50 read: 'Letter from A/Principal Food Scientist, Department of Health, 7 September 2006, p 4.'

   [129] Footnote 51 referred to McPherson v Cairn [1977] WAR 28 and Geraldton Fisherman's Co-operative Ltd v Munro [1963] WAR 129.

6. I note that cl 127, referred to in Report 14, became s 127 of the Act. It deals with the liability of employers for contraventions of the Act by employees, and provides a defence in terms set out in paragraph 6.45 of Report 14, as reproduced above. The reference in paragraph 6.49 to 'due diligence as a defence in Division 3' is evidently a reference to cl 27, which became s 27 of the Act and is in div 3.

7. It appears from the footnotes to paragraphs 6.46 and 6.49 of Report 14, set out above, that the advice referred to in those paragraphs on the liability of employers and the applicability of s 24 of the Criminal Code was from the Acting Principal Food Scientist at the Department of Health. It did not purport to be legal advice, even if it were to be assumed that the Acting Principal Food Scientist had received legal advice. There is no indication that the Standing Committee sought independent legal advice on the issue concerning s 24 of the Criminal Code. However, paragraph 6.48 indicated that the Standing Committee was aware of the relevant legal analysis required to determine whether the operation of s 24 has been excluded, and paragraph 6.50 indicated that it was aware of authority to the effect that the provision of an express defence to an offence created by legislation may impliedly exclude the operation of s 24 in respect of that offence.

8. It might be thought that, in stating that 'there may be a question as to whether the inclusion of due diligence as a defence' excluded the operation of s 24 of the Criminal Code, the Standing Committee was indicating that such exclusion was intended when the legislation was drafted, but was being brought into question. That appears to have been the understanding of the Honourable Helen Morton, as disclosed during subsequent debate in the Legislative Council, which is set out below. However, in my opinion, on a fair reading, the discussion in Report 14 in respect of s 24 of the Criminal Code does not indicate a preference on the part of the Standing Committee (or Parliament in referring the matter to the Standing Committee) for either the continued operation of s 24 or the exclusion of its operation in respect of any of the 'strict liability' offences in the Act to which the discussion related (having regard to the headings and sub-headings of the relevant section of the report). The most that one can discern from Report 14 is that the Standing Committee wished to put before Parliament the competing possibilities in respect of the operation of s 24 of the Criminal Code.

9. With respect, the appellant's argument based on Report 14 involved the selective extraction of a reference to advice from the Acting Principal Food Scientist that, in the absence of express exclusion, s 24 of the Criminal Code would be available to a person charged with strict liability offences under the Act. As the above analysis demonstrates, the discussion of the issue as a whole in Report 14 does not support the conclusion that the Standing Committee reported to Parliament that such advice was correct, or that the Bill should be considered on that basis. Further, the appellant's reliance on one form of extrinsic materials is selective and inapt, when it is to the exclusion of information that emerged in the parliamentary debates that cast doubt on the accuracy of the advice that had been received by the Standing Committee and gave insight into Parliament's consideration of the issue whether the operation of the rule in s 24 of the Criminal Code was intended to be excluded.  Moreover, this court is not bound by any legal advice that was provided to the Committee or to the Minister.  Rather, it is for the court to determine the effect of the provisions of the Act as enacted. 

10. Nevertheless, it is appropriate to have regard to the discussion in Parliament that provides the insight to which I have just referred.

11. In the course of debate in the Legislative Council on 2 April 2008, the Honourable Helen Morton outlined her understanding of the effect of the offences that subsequently became s 17 and s 18 of the Act, and the defence available to those offences, as follows:[130]

    The second group of offences are outlined in clauses 17 and 18, and they pertain to the handling and sale of food.  Under these provisions one commits a criminal offence even if one does not know or does not have a reasonable basis for knowing that one's actions are contrary to the legislation.

    …

    Due diligence is a defence if coupled with a lack of knowledge.  Significantly, however, the offence of mistake of fact is not available.  The definition of satisfactory due diligence is actually spelled out, but my understanding is that it is not an offence to say, 'So-and-so told me that the fridges were working', or if the process chain has been complied with.  However, if an offender has not exercised due diligence - fridges have not been checked or safety processes have not been observed - it is no longer a defence for him to assume that because someone signed off on his behalf, or told him that everything was okay, he is absolved of responsibility.  There was some differing advice, and I will come to that later.  The explanatory memoranda point out that clauses 17 to 22 deal with the handling and sale of food and involve strict liability offences.  This means that owners and supervisors are strictly liable for offences committed by their employees, even if the employee acted contrary to the owner's or supervisor's orders or instructions.  The only defence by the owner or supervisor is that they had no knowledge of the violation and could not, with due diligence, have prevented the violation.

    [130] Western Australia, Parliamentary Debates, Legislative Council, 2 April 2008 (Hansard, 2 April 2008), 1793 - 1794 (Hon H Morton, Shadow Minister for Women's Interests; Public Sector Management; Mental Health; Hon KM Chance, Leader of the House in the Legislative Council, Minister for the Midwest and Wheatbelt, Agriculture and Food; Forestry, and Great Southern).

12. Ms Morton returned to the subject later in the same sitting, during the course of which the following exchange occurred:[131]

    Hon HELEN MORTON: The next area relates to clauses 17 to 22 in division 2 of the bill.  This division sets out defences relating to strict liability.  The explanatory memorandum specifies that the offences provided for in clauses 14 to 22 are of a strict liability nature.  I understand that the principle of strict liability means that no intent is necessary in the commission of the offence for a person to be held liable for violation of a provision.  For example, clause 127 provides that if an employee violates a provision of the legislation, the employer is also assumed to have violated the same provision whether or not the employee had the employer's authority or acted contrary to the employer's orders or instructions.  The employer has a defence to such a claim in that he can state that he had no knowledge of the violation and that he could not, even with the exercise of due diligence, have prevented the violation.

    The committee was concerned about the application of section 36 of the Criminal Code, which provides that a mistake of fact ­- which is dealt with in section 24, chapter V of the Criminal Code - is available to all persons charged with any offence against the laws of Western Australia. Section 24 reads -

    A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

    The committee was assured by the Department of Health that mistake of fact was included as a defence even though it was not specifically mentioned.  However, I have been told that under statutory briefing principles, in the event of strict liability all defences must be expressly mentioned, otherwise they are not available.  I sought an additional briefing from the Department of Health and I was told that mistake of fact is not a defence if a person violates a provision in this bill.  It is important that we get that 100 percent clear.  I can see why the defence of mistake of fact, which is available for other criminal charges, should not be made available to charges under this legislation.  I am comfortable with that.  However, we have to be absolutely clear about this, because the committee was told one thing, the advice I received indicated another thing and the Department of Health's advisers have indicated that they have moved their advice from one way of thinking to another. 

    Hon Kim Chance: Let me be clear about this.  Is the Department of Health's latest advice that mistake of fact defence is not available to those clauses?

    Hon HELEN MORTON: That is correct.  I think that is how the bill was meant to be drafted.  That is how it should be.  However, I am concerned that the committee was told otherwise.

    The committee noted that under this bill strict liability offences carry the sentencing of imprisonment.  The committee noted that the New South Wales legislation review committee proposed that strict liability offences should apply only when a penalty does not include imprisonment.  As members are aware, clauses in this bill include imprisonment.  That is something we should acknowledge and discuss.  It is a concern that a person can be imprisoned for up two years for something that someone else did, even if that person did not intend to break the law.  There is justification for taking a person away from his friends and removing his freedom and livelihood even if he had no intention of breaking the law.  If a person is careless or lazy or too miserly to put in place the correct due diligence to protect the health and welfare of others, he should be held responsible.

    [131] Hansard, 2 April 2008, 1795 (Hon H Morton, Shadow Minister for Women's Interests; Public Sector Management; Mental Health; Hon KM Chance, Leader of the House in the Legislative Council, Minister for the Midwest and Wheatbelt, Agriculture and Food; Forestry, and Great Southern).

13. Ms Morton then went on to submit that, nevertheless, there was a need to consider an amendment to cl 19(3) of the Bill, which created an offence where a person, in the course of running a food business, sells food that is packaged or labelled in a way that falsely describes the food.  Ms Morton submitted that cl 19(3) was 'one clause in which the word "knowingly" should be inserted'.[132] It is not necessary to consider the debate in respect of that proposed amendment, but it was proposed against the background of the earlier discussion concerning the strict liability nature of some of the offences in the Act and the exclusion of the operation of s 24 of the Criminal Code. 

    [132] Hansard, 2 April 2008, 1795.

14. It is clear from the extracts from the parliamentary debates to which I have referred that the initial advice provided to the Standing Committee by the Department of Health, and referred to in Report 14, was not maintained when clarification was sought.  Importantly, the issue was clarified during the course of debate in Parliament before the Act was passed.  This was not a case of oversight or inadvertence, of the kind mentioned in Re Bolton, referred to at [96] above, which might result in the intentions of Parliament not being translated into the enacted legislation. It is evident that Parliament gave the issue, and the contents of Report 14, careful consideration and proceeded on the basis that the effect of the Act was to exclude the operation of s 24 of the Criminal Code in respect of an offence under s 18 of the Act.  Indeed, matters concerning various offences under the Act, available defences, the reversal of the onus of proof on some matters, and the fundamental principles of criminal justice were the subject of close scrutiny and detailed debate both on 2 April 2008 and 13 May 2008.[133]

    [133] See Hansard, 2 April 2008, 1795 - 1797; Western Australia, Parliamentary Debates, Legislative Council, 13 May 2008 (Hansard, 13 May 2008), 2808 - 2813. 

1. The issue of the operation of s 24 of the Criminal Code was again raised by Ms Morton on 13 May 2008 in the context of offences relating to misleading statements or deception in advertising or packaging of food:[134]

   Hon Helen Morton: Is it not so that there is no defence of mistake of fact in this area?

   Hon KIM CHANCE: It does not say that, but I do not know whether there is —

   Hon Helen Morton: The offences relating to misleading statements or deception in advertising or packaging fit under the area for which the defence of mistake of fact is not available. 

   Hon KIM CHANCE: The defence of mistake of fact is not available in the event that a mistake is made in the packing plant and a product is placed into the wrong container. 

   Hon Helen Morton: What if the person believed that what he had written on the package was correct but after further analysis it was found to be not correct?

   Hon KIM CHANCE: I think the honourable member will find that although the mistake of fact defence might not be available, the issue of due diligence in clause 27 will cover that situation. 

   Hon Helen Morton: I know that clause 27 is the due diligence clause. 

   [134] Hansard, 13 May 2008, 2812.

2. That exchange again reveals the understanding of the Honourable Kim Chance, the Minister speaking to the Bill in the Legislative Council, where the details of the Bill and proposed amendments were debated, that the due diligence defence in cl 27 would operate in lieu of s 24 of the Criminal Code.  The non-adoption by the legislature of s 23 of the Model Food Provisions, being the optional provision expressly excluding the operation of the excuse of honest and reasonable mistaken belief, does not evince an intention by the legislature that the excuse should continue to be available in relation to the strict liability offences.  The indications during the debates were to the contrary.

3. The appellant noted that the Minister who expressed the views set out above in the Legislative Council in respect of s 24 of the Criminal Code was not the Minister who had introduced the Bill in the House of Representatives. With respect, that is irrelevant. By s 19(2)(h) of the Interpretation Act, the court can have regard to 'any relevant material in any official record of proceedings in either House of Parliament' (emphasis added), which includes a record of the parliamentary debates.[135]  It is evident that the Bill was referred to the Standing Committee, for a report, by the Legislative Council.  It was in that chamber that detailed consideration of the provisions occurred, as outlined above.  The Bill was passed after that detailed consideration and the clarification to which I have referred.

   [135] WA v R [25] (Steytler P), [110] - [114] (Wheeler JA).

4. Contrary to the appellant's submission, the fact that there were no amendments to s 18(2) or s 27 of the Act after the debates does not mean that what was said during the debates about those provisions should be ignored, and that the contents of Report 14 should be given primacy among the extrinsic materials. The absence of amendments to those provisions is consistent with the understanding during the debates that the operation of the rule in s 24 of the Criminal Code was impliedly excluded.  In any event, as I have indicated, the conclusions the appellant has sought to draw from the contents of Report 14 are not supported upon a fair reading of those contents.

5. In my opinion, consideration of the extrinsic materials in this case tends to confirm that the ordinary meaning conveyed by the text of the provisions of the Act, when considered in context and having regard to the objects of the Act, results in the implied exclusion of the operation of s 24 of the Criminal Code in relation to the offence under s 18(2) of the Act. The learned magistrate was correct to regard the extrinsic materials in that way.

Whether the magistrate erred in her factual findings on the issue of honest and reasonable mistaken belief

1. Given my conclusions in respect of the exclusion of the operation of the rule in s 24 of the Criminal Code by the implied provisions of the Act relating to the subject, it is not necessary to determine particular 1.4 of the ground of appeal, which contends that the magistrate failed to give adequate reasons for the conclusion that the appellant had not discharged the evidentiary burden in respect of s 24. Nor is it necessary to determine the contention raised at the hearing, although not particularised in the ground of appeal, that the magistrate erred in the same manner in concluding that the prosecution had negatived the excuse in s 24 beyond reasonable doubt. However, if I am wrong about the application of the rule in s 24, I am of the opinion that the appellant's contentions in respect of the magistrate's factual findings have not been made out.

2. The principles in respect of a failure to give adequate reasons were satisfactorily identified by the appellant by reference to the reasons of Steytler P in Riley [32], and may be summarised as follows:

   (1)It is essential that the reasons of the court adequately disclose the intellectual processes which have resulted in the decision.

   (2)Where there is a right of appeal, the reasons must be sufficient to give effect to that right.

   (3)If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or fact.

3. The determination of whether an accused has discharged the evidentiary burden in relation to the issue of honest and reasonable mistaken belief under s 24 of the Criminal Code involves a mixed question of law and fact.  In order to discharge that burden, there must be evidence of a positive (that is, an actual) belief by the accused in the existence of a state of things, such that if the real state of things had been as the accused believed, he would not be criminally responsible for the offence.[136]  I accept the appellant's submission that this does not necessarily require the accused to give evidence of the positive belief, as there may be cases in which the positive belief can be inferred from other evidence.

   [136] GJ Coles and Co Ltd v Goldsworthy [1985] WAR 183 at 188 (Burt CJ, with whom Smith J was relevantly in agreement). See WA v R [23] (Steytler P).

4. No issue is taken by the appellant with the learned magistrate's outline of the relevant principles concerning what constitutes an honest and reasonable mistaken belief, referring to Ostrowski v Palmer [2004] HCA 30, (2004) 218 CLR 493, GJ Coles and Co Ltd v Goldsworthy[137] and Aubertin v The State of Western Australia [2006] WASCA 229.

   [137] See [58] above.

5. As I noted earlier in these reasons, in the context of this case, 'the real state of things' for the purposes of s 24 related to whether the food was unsuitable, in the sense that the relevant brownies contained THC. To engage the excuse in s 24, it was necessary for there to be evidence that the appellant had an actual belief that the brownies did not contain THC.

6. It is convenient to reproduce again the learned magistrate's finding that:[138]

   In the context of the accused's explanation as to how THC came to be in brownies sold at Bada Bing based on him making or storing cannabis brownies at Bada Bing in such a way that they could get mixed up with the brownies that are sold at the premises, the accused does not satisfy the evidential onus (a) that he believed that brownies A, B and C did not contain THC or that any such belief was reasonable.

   [138] See [58] above.

7. That conclusion must be considered in the context of the whole of the learned magistrate's findings, including her acceptance of the evidence of Detective Knapgate as to the explanation given by the appellant to him on the telephone[139] and her Honour's outline of the evidence given by the appellant at trial, which she rejected in the respects I identified above. Her Honour's reference to the 'context of the accused's explanation' adequately identified that the question of whether the appellant had an actual belief in the existence of a state of things (namely that the brownies did not contain THC, being a substance that was foreign to the nature of the food) had to be determined in the context of her Honour's findings that the appellant had made or stored brownies containing THC at the café, and that he did so in a way that they could get mixed up with brownies that were sold at the café. In my opinion, her Honour's reference to the context made it clear that she was not taking into account any evidence given by the appellant about his usual practices in relation to the preparation or handling of food, which did not occur in the context of his having made or stored 'cannabis brownies' at the café, with the potential for a mix-up. As I noted above at [102], [142] and [143], that evidence could provide no foundation for a belief that the brownies sold on the day in question did not contain THC, or that any such belief was reasonable. Further, the context for the learned magistrate's conclusion also included her findings in respect of the s 27 defence, in which her Honour identified the ways in which the appellant had failed to exercise due diligence or take reasonable precautions, all of which is relevant to the question of whether the appellant had an honest and reasonable mistaken belief, as I have indicated at [142] and [143] above.

   [139] See [32] above.

8. In my opinion, while her Honour's reasons for concluding that the appellant had not satisfied the evidential onus for the purposes of s 24 were brief, they adequately disclosed the intellectual processes which resulted in her decision, when considered in the context of the whole of her reasons, and the basis for her decision is apparent.

9. For those reasons, particular 1.4 is without merit.  

10. Had I come to a different view about that, on the basis that her Honour's reasons were inadequate, I would nevertheless have dismissed the appeal on the basis that no substantial miscarriage of justice has occurred, because, in my opinion, having regard to the evidence at trial, her Honour's decision was undoubtedly correct, for reasons I have set out at [142] and [143] above.[140] In my opinion, the appellant's arguments set out at [100] above do not provide a foundation for inferring the existence of an actual belief by the appellant at the relevant time that the brownies supplied to Ms Hoysted and her children did not contain THC, having regard to the fact that he had stored those brownies at the café where there was a risk they could be mixed up with other brownies. Moreover, they do not provide any foundation to consider such a belief to be reasonable.

    [140] Criminal Appeals Act, s 14(2).

11. As to the appellant's contention (although it is not in the ground of appeal) that her Honour's reasons for concluding that the prosecution had negatived the excuse under s 24 beyond reasonable doubt were also inadequate, it may be accepted that, in simply stating that she was satisfied 'on all of the evidence', her Honour did not disclose the intellectual processes by which she reached her decision. In my opinion, her Honour's reasons for concluding the appellant had not satisfied the evidential burden for the purposes of s 24 were also relevant to the issue of whether the prosecution had negatived honest and reasonable mistaken belief, if there was some basis for inferring the existence of such a belief at a threshold level. Having regard to her Honour's factual findings, it was open to her to be satisfied beyond reasonable doubt that the appellant did not have an actual belief that the brownies did not contain THC, and that, in any event, any such belief was not reasonable.

12. However, as the appeal will fail on the primary ground concerning the operation of s 24 of the Criminal Code and the particular concerning the evidentiary onus, it is not necessary to reach a concluded view about the non-particularised contention, and it is not appropriate to grant leave to amend the ground of appeal to raise the contention.

Conclusion

1. For the reasons stated above, I would grant leave to appeal on the ground of appeal in respect of particulars 1.1, 1.2 and 1.3, but I would dismiss the appeal.  I would not grant leave in respect of particular 1.4, as I do not consider the particular had a reasonable prospect of succeeding.

Orders

1. I make the following orders:

   (1)Leave granted in respect of particulars 1.1, 1.2 and 1.3 of the ground of appeal in the Minute of Amended Grounds of Appeal dated 14 December 2021.

   (2)Leave refused in respect of particular 1.4 of the ground of appeal in the Minute of Amended Grounds of Appeal dated 14  December 2021.

   (3)Appeal dismissed.

   (4)The appellant pay the respondent's costs fixed in the sum of $10,000 as agreed by the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AJ

Associate to the Honourable Justice Fiannaca

10 AUGUST 2023