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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 301
Decision Date

CaseChat Overview and Summary

Nathan Sharp, 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 convictions followed a 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. 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. The appellant appealed to this court against the convictions, pursuant to s 7 of the Criminal Appeals Act 2004 (WA). The appeal was based on the single ground that the magistrate erred in holding that the excuse of honest and reasonable but mistaken belief, 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. For the reasons that follow, while I would grant leave to appeal, the appeal should be dismissed. The appeal was based on the single ground that the magistrate erred in holding that the excuse of honest and reasonable but mistaken belief, 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. It is a question of statutory construction of the penal section read in the context of the whole Act in which it stands. The provisions of the law relating to the subject include the express defence of due diligence under s 27, a separate and distinct defence to a person prosecuted for an offence under Part III of the Food Act. As a result, s 24 is impliedly excluded. The defence submits that it was Parliament's intention to not exclude the availability of s 24 referred to in defence closing submissions, paragraphs 39 to 45. 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 that's a reflection of section – what's contained in our section 19 of the Interpretation Act 1984. 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 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

Orders