Southgate Management Pty Ltd v Nitschke
[2018] VSC 236
•14 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03296
| Southgate Management Pty Ltd | Plaintiff |
| v | |
| Helen Nitschke (City of Melbourne) | First Defendant |
| and | |
| The Magistrates’ Court of Victoria | Second Defendant |
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JUDGE: | Priest JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 May 2018 |
DATE OF JUDGMENT: | 14 May 2018 |
CASE MAY BE CITED AS: | Southgate Management Pty Ltd v Nitschke |
MEDIUM NEUTRAL CITATION: | [2018] VSC 236 |
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CRIMINAL LAW — Regulatory offences — Judicial review — Offences of handling and selling unsafe food — Alleged failure to provide adequate particulars of charges — Application for relief in the nature of certiorari — Whether magistrate erred in finding that charges gave reasonable information as to the nature of each offence — Food Act 1984 ss 11, 16 — Criminal Procedure Act 2009 sch 1, cls 1–3 — Johnson v Miller (1937) 59 CLR 467; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 applied — DPP v Kypri (2011) 33 VR 157 discussed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D D Gurvich QC with Ms S J Keating | Wotton + Kearney |
| For the First Defendant | Dr S B McNicol QC with Mr S Reid | Maddocks |
HIS HONOUR:
Charges are laid with respect to unsafe food
In July 2015, the plaintiff, Southgate Management Pty Ltd (‘Southgate’), operated the Langham Hotel, Melbourne (‘the hotel’).
On 14 July 2015 and days following, the City of Melbourne Environmental Health Office received complaints that a significant number of people had fallen ill, having eaten at the hotel on 11 July 2015 and days following.
An investigation was conducted, and on 30 June 2016, the first defendant, Helen Nitschke, the Environmental Health Officer for the City of Melbourne (‘the informant’), filed 39 charges against Southgate in the Magistrates’ Court, alleging that between 8 and 28 July 2015 Southgate had contravened three provisions of the Food Act 1984 (‘the Act’). Thus, charges 1, 2 and 5 alleged contraventions of s 11(1) of the Act; charges 3, 4, 6 and 7 alleged contraventions of s 11(2) of the Act; and charges 8 to 39 alleged contraventions of s 16(1) of the Act (’the charges’).
Relevant provisions of the Food Act 1984
Before proceeding further, it is convenient to set out those provisions of the Act alleged to have been contravened.
Section 11 of the Act is in the following terms:
11 Handling and sale of unsafe food
(1)A person must not handle[[1]] food intended for sale in a manner that will render, or is likely to render, the food unsafe.
[1]Section 4(1) of the Act defines ‘handling’:
handling, in relation to food, includes the making, manufacturing, producing, collecting, extracting, processing, storing, transporting, delivering, preparing, treating, preserving, packing, cooking, thawing, serving or displaying of food; …
Penalty:$40 000 in the case of an individual and
$200 000 in the case of a corporation.
(2)A person must not sell food that is unsafe.
Penalty:$40 000 in the case of an individual and
$200 000 in the case of a corporation.
…
So far as relevant, s 4D of the Act defines ‘unsafe food’ in the following manner:
4D Meaning of unsafe food
(1)For the purposes of this Act, food is unsafe at a particular time if it would be likely to cause physical harm to a person who might later consume it, assuming—
(a)it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use; and
(b)nothing happened to it after that particular time and before being consumed by the person that would prevent it being used for its reasonable intended use; and
(c)it was consumed by the person according to its reasonable intended use.
And s 16(1) of the Act provides:
16 Compliance with Food Standards Code[2]
(1)A person must comply with any requirement imposed on the person by a provision of the Food Standards Code in relation to the conduct of a food business[[3]] or to food intended for sale or food for sale.
Penalty:$40 000 in the case of an individual and
$200 000 in the case of a corporation.
[2]By virtue of s 4(1) of the Act, the Food Standards Code (‘the Code’) is the Australia New Zealand Food Standards Code, as to which, see s 4(1) of the Food Standards Australia New Zealand Act 1991 (Cth).
[3]Section 4B of the Act defines food business.
A ruling by the Magistrates’ Court as to the validity of the charges
Prior to a mention scheduled to be held at the Melbourne Magistrates’ Court on 1 March 2017, Southgate’s solicitors, by a letter to the informant dated 28 February 2017, indicated that the charges should be withdrawn by the informant, or struck out by the Magistrates’ Court, on two bases: first, the charges lacked sufficient detail to comply with Schedule 1 of the Criminal Procedure Act 2009 (‘CPA’); and, secondly, the prosecution with respect to food obtained for analysis had not been instituted within the 90 day period prescribed by s 45(2) of the Act.[4] (As will become clear, it is only the first of those two contentions with which the current proceeding is concerned.)
[4]Subsections 45(2) and (3) provide:
(2) Subject to subsection (3), a prosecution for an offence against this Act in respect of any food obtained for analysis under this Act shall be instituted not later than 90 days after the day on which the food was so obtained.
(3) The Magistrates’ Court shall have power to make an order extending the time appointed by subsection (2) for instituting the prosecution where a person makes application for such an order not later than 90 days after the day on which the food was obtained.
On 20 June 2017, a magistrate heard argument from the parties as to the validity of the charges, Southgate submitting that each of the 39 charges is ‘invalid for want of reasonable information of the nature of the charge’. Southgate submitted that the charges ‘should therefore be struck out and any application to amend them should be refused’.
Later that day, the magistrate delivered a ruling striking out six charges — charges 17, 18, 28, 31, 32 and 39[5],[6] — all of which had been laid under s 16(1) of the Act, whilst upholding the validity of the remaining charges. Her Honour ruled as follows:[7]
… The question before the court is, ‘What are the essential ingredients of the charges which need to be particularised within the charge sheet?’ and it’s agreed that the answers in Schedule 1 of the Criminal Procedure Act which provides that a charge must contain the particulars which are ‘necessary to give reasonable information as to the nature of the charge’.
I think it’s agreed that if these particulars are not contained within the charge sheet, the charge will be void or invalid. But what is necessary will vary according to the charge and the legislation. Often what will be required is not much more than the elements of the events and who, what and where. The how is usually a matter for further particulars but if a provision creates a number of offences, then there must be sufficient particulars to identify which offences alleged. This was the case of the Director of Public Prosecutions v Kypri,[[8]] I think it is, which dealt with s.49(1)(e) of the Road Safety Act.
The offence under s 16 of the Food Act of failing to comply with the Food Standards Code is a similar provision. If a charge sheet cited an offence under s 16 but failed to specify which requirement had not been met then the charge would be invalid because the charge would not be sufficiently particularised for the accused to understand the nature of the charge; or any [scil, anybody?] else for that point. However, in my view, once the actual requirement under the Code is specified, it contains sufficient detail for the nature of the charge to be understood even though further particulars may be required to understand precisely how the Crown puts its case.
There’s some exceptions which I’ll come to in a moment. A single offence may be committed in a number of ways but the way in which it is said to be committed does not necessarily need to be particularised within a charge. The example has been given by [counsel for the informant] of a charge of recklessly causing injury, or it might have been serious injury. Whatever, the specific injury doesn’t need to be specified in the charge sheet nor does the specific act which caused the injury.
By analogy, though a charge under s 11(1) of the Food Act may be committed in a myriad of ways as indicated by the definition of ‘handling’ in s 4, the precise way in which it is committed is not an essential ingredient of the charge. Similarly, the offence contained in s 11(2) appears to be quite straightforward. Other than specifying where and what was sold, in my view, the charge does not require further particularisation, to be valid.
Some offences contain within them concepts which are complicated or generalised which require definition or particularisation for the accused to fully understand the nature of the charge with which he or she is faced. Such provisions are to be found in the Occupational Health and Safety Act (e.g a failure to take necessary steps or to do that which is reasonably practicable and so on). There’s abundant case law that deals with these provisions and to the effect that it is necessary to define what is necessary or reasonably practicable within the charge sheet.
On this basis, the prosecution in this case has virtually conceded that the charges asserting these generalised failures are not sufficiently particularised and I will strike them out. And they are, if I have them written correctly: 17, 18, 28, 31, 32 and 39. The rest of the charges, however, have sufficient detail or particularisation to understand the nature of the charge. In relation to these, a quote from Baiada[[9]] is apposite: ‘There can be little doubt that the present charges should not proceed to hearing unless full and proper particulars have been provided. That does not mean that without complete particulars, the charge sheet is invalid’.
[5]The transcript of hearing records the magistrate as saying that she had ‘struck out those six charges’, although the certified extracts relating to the six charges 17, 18, 28, 31, 32 and 39 in each case records: ‘CHARGES RULED TO BE INVALID’. It seems that the magistrate may also have intended to strike out charge 20, but failed to do so. Nothing, however, turns on this.
[6]Senior counsel for the informant in effect conceded that these charges (and charge 20) were ‘deficient’. Hence, counsel conceded ‘that insofar as those charges are concerned, where there is a lack of particularity about what should have been done, … it may well be that the court might find, in those cases, there is deficiency in terms of the offences as laid out because it’s not clear to the accused person what is said that should have been done to comply with such provisions’.
[7]Emphasis added.
[8]DPP v Kypri (2011) 33 VR 157 (‘Kypri’).
[9]Baiada Poultry Pty Ltd v Victorian WorkCover Authority (2015) 257 IR 204, 220 [52] (Ferguson and McLeish JJA) (‘Baiada’).
An originating motion is filed challenging the magistrate’s ruling
Southgate seeks to challenge the magistrate’s ruling. By an originating motion filed 16 August 2017, Southgate seeks orders, including an order in the nature of certiorari and a declaration, as follows:
1. An order in the nature of certiorari quashing the order made by her Honour Ms Wallington, Magistrate, in the Magistrates’ Court at Melbourne on 20 June 2017 whereby her Honour found that charges: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 33, 34, 35, 36, 37, 38 gave reasonable information as to the nature of the charge as required by Schedule 1 of the Criminal Procedure Act 2009 (Vic) and the common law.
2. An order declaring that the Second Defendant erred in finding that the charges complied with Schedule 1, clause 1(b) of the Criminal Procedure Act 2009 (Vic) and the common law in that the charges gave reasonable information as to the nature of each charge.
3. An order remitting the matter to the Magistrates’ Court of Victoria to be determined according to law.
…
A single ground is relied upon:
The Second Defendant erred in finding that each of the charges gave reasonable information as to the nature of the charge, in that each charge failed to provide sufficient particulars to comply with Schedule 1, clause 1(b) of the Criminal Procedure Act 2009 (Vic) and the common law.
In this Court, as is the usual practice, the second defendant entered a submitting appearance in accordance with Hardiman,[10] but took no active part in the proceeding.
[10]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6.
A threshold issue?
Notwithstanding an order of a Judicial Registrar made 31 August 2017 that the defendant file and serve written submissions by 4.00 pm on 23 February 2018, on Friday, 4 May 2018 — that is, the business day before the day fixed for the hearing in this Court — the first defendant served and filed Supplementary Submissions of the First Defendant dated the same date. The timing of the provision of these submissions was regrettable, particularly given that they sought to raise a supposed ‘threshold issue’ which, if made good, would deny the availability of certiorari to Southgate.
Initially, when advancing oral submissions on the purported threshold issue, senior counsel for the informant advanced the somewhat startling submission that s 10 of the Administrative Law Act 1978 prevented the Court from having regard to the transcript — which contained the magistrate’s oral reasons — in order to determine whether there was error of law on the face of the record. That submission was somewhat remarkable in that it was patently at odds with the clear terms of s 10,[11] and with a number of authorities which make plain that the effect of the section is that the record for the purposes of certiorari includes any statement by an inferior court, whether made orally or in writing, of its reasons for decision.[12] Later, however, senior counsel for the informant seemed to accept that she may have misunderstood the import of a passage from a case to which she had referred.[13]
[11]Section 10 provides:
10Reasons to be part of record
Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.
[12]Hansford v Judge Neesham (Unreported, Supreme Court of Victoria, J D Phillips J, 31 August 1994); Flynn v DPP [1998] 1 VR 322, 334–7 (McDonald J); Thompson v Judge Byrne [1998] 2 VR 274, 280 (Charles JA); Di Corrado v Judge Gebhardt [1999] VSC 35, [19] (Hedigan J); Perkins v County Court of Victoria (2000) 2 VR 246, 274 [68]; Sidebottom v County Court of Victoria (2001) 117 A Crim R 574, 579 [8] (Hedigan J); Flaherty v DPP [2003] VSC 234, [15]–[16] (Osborn J); Slater v DPP [2005] VSC 115, [12]–[17] (Bell J); Wilson v County Court of Victoria (2006) 14 VR 461, 469-70 [34]–[35] (Cavanough J); Harvey v County Court of Victoria (2006) 164 A Crim R 62, 66 [17] (Hollingworth J); Hoe v Vella [2009] VSC 600, [30]–[33] (Osborn J); Commissioner of Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [46] (J Forrest J).
[13]Returned & Services League of Australia (Vic Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203, 215 [29].
In developing the submission on the so-described threshold issue, senior counsel for the informant stressed the trite propositions — which had not been lost on the Court — that the Court’s task was not one of merits review or appellate review. Further, so it was submitted, errors within jurisdiction are not amenable to certiorari.[14]
[14]Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82, 141 [163].
Senior counsel for Southgate, on the other hand, submitted that the magistrate fell into jurisdictional error in that she held that the charges were validly laid when they were not. A valid charge founds the jurisdiction of the Magistrates’ Court to deal with an offence.[15] The charges are invalid, it was contended, because they do not comply with the CPA or common law requirements. Thus, the Magistrates’ Court was purporting to continue to act as if seized of jurisdiction in circumstances where an essential pre-condition to jurisdiction had not been established. Counsel relied on the following passage from Craig v South Australia:[16]
… Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.[17]
[15]Baiada, 220–1 [56] (Robson AJA); John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, 519 (‘John L’). See [63] below.
[16](1995) 184 CLR 163, 177–8 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[17]See, eg, R v Dunphy; Ex parte Maynes (1978) 139 CLR 482; R vGray; Ex parte Marsh (1985) 157 CLR 351 at 371; Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132.
Hence, so it seems to me, in order to determine the so-called threshold issue, it is necessary to determine whether the charges are, as Southgate submits, invalid, and thus whether the Magistrates’ Court will exceed its jurisdiction by continuing to entertain them. The raising of the ‘threshold issue’ was thus something of a distraction.
The submissions in this Court
Charges 1, 2 and 5
Charges 1, 2 and 5 are formulated as follows:
On or about [date] you, at [the hotel], handled food, namely [egg mayonnaise – charges 1 and 5; cocktail sauce – charge 2], intended for sale in a manner that rendered, or was likely to render, the food unsafe in contravention of [s 11(1) of the Act].
Southgate contends that essential factual elements required in order for it to distinguish between the allegations that are the subject of each charge were not included in the charges, particularly:
· whether the egg mayonnaise the subject of charge 1 was the same as, or distinct from, the egg mayonnaise the subject of charge 5; and
· the cocktail sauce the subject of charge 2 was insufficiently identified in circumstances where Southgate produces and stores many batches of cocktail sauce.
Southgate likens these charges to those in Johnson v Miller,[18] where the defendant was not initially specifically identified in the charge, from a possible 30 patrons at a hotel.
[18](1937) 59 CLR 467.
The informant submits that these charges are valid, because each of the essential factual elements are included in each charge, these being: the date; the location; the accused entity; the handled food (that is, egg mayonnaise or cocktail sauce); that the food was handled in a manner that rendered it, or was likely to render it, unsafe; and that the egg mayonnaise or cocktail sauce was intended for sale. It is submitted that the actual manner of handling the food, and how that led to the food being unsafe (or likely to be so), are not essential elements of the offence.
Further, the informant contends that Johnson v Miller is distinguishable on three bases: first, in that case, particulars were sought but were not provided; secondly, the provision creating the offence expressly provided that a licensee was not guilty in three specific circumstances concerned with the reason for a person being on the premises (the defendant being prejudiced in the absence of specified information); and, thirdly, Johnson v Miller was decided before the CPA, so that the instant case must be decided on the common law as qualified by the CPA.
Charges 3, 4, 6 and 7
Charges 3, 4, 6 and 7 are laid under s 11(2) of the Act and are in the following form:
On or about [date] you, at [the hotel], sold food, namely egg mayonnaise, that was unsafe in contravention of [s 11(2) of the Act].
Southgate submits that these charges insufficiently identify:
· the subject of the charge — ‘egg mayonnaise’ — in circumstances where Southgate operates multiple kitchens that produce litres of mayonnaise daily, with any number of food items containing mayonnaise;
· whether the same mayonnaise was the subject of each charge; and
· what is alleged to have been unsafe about the mayonnaise.
The informant submits by way of response that the nature of each charge is amply conveyed; and that Southgate’s claim that the validity of a charge must be assessed with regard to the circumstances of the case — particularly, the nature of Southgate’s commercial operations — is at odds with an earlier assertion it made that ‘the validity of the charge is to be determined according to what appears on the face of the summons only’.
Charges 8 to 39: overview
Charges 8 to 39 are all laid under s 16(1) of the Act.[19]
[19]This includes charges 17, 18, 28, 31, 32 and 39, which were struck out by the magistrate.
With respect to most of charges 8 to 39, Southgate submits that they are ambiguous and do not assert the manner of the alleged contravention. It is also asserted that many of the charges are duplicitous or ‘potentially duplicitous’,[20] although senior counsel acknowledged in oral argument that counsel had ‘probably unnecessarily complicated’ consideration of the s 16 charges ‘with the duplicity issue’. He went on to say that although counsel ‘have argued duplicity’, they were ‘not particularly concerned with that’ in considering the charges under s 16.
[20]See charges 8, 9, 12, 14, 15, 22, 24, 25, 26, 27, 29, 34, 36, 37 and 38.
Senior counsel for Southgate submitted that the need for particularity was important given that the offences are ‘absolute liability’ offences, s 17F of the Act denying to a putative defendant any defence of ‘mistaken but reasonable belief as to the facts that constituted the offence’.[21] Moreover, absent adequate particulars, Southgate is incapable of exercising its right to bring a third person before the court pursuant to
s 46 of the Act.
[21]Counsel also drew attention to ss 17E and 17G, which respectively provide that it is a defence if it is proved that the defendant took all reasonable precautions and exercised all due diligence to prevent the commission of the offence; or if it is proved that the defendant caused the food to which the offence relates to be destroyed or otherwise disposed of immediately after the food was handled in the manner that was likely to render it unsafe or unsuitable.
The informant submits that the rule against duplicity operates so as to prevent the prosecution from alleging two or more offences in a single charge. In the present case, however, each charge alleging a breach of s 16(1) alleges only a single breach of the provision. Furthermore, the charges alleging breaches of s 16(1) can be seen to be ‘of a composite nature’, and therefore not duplex.[22]
[22]Citing Gardner v Caporn [2005] WASCA 153 (Steytler P, Wheeler and Roberts-Smith JJA); R v Heaney (2009) 22 VR 164 (Ashley, Redlich and Kellam JJA).
In the alternative, the informant contends that, were the charges held to be duplicitous, they would still be valid by virtue of one of the ‘recognised exceptions’ as established by Rixon,[23] where it was held that it will often be legitimate to bring a single charge for one activity involving multiple acts. It is submitted that the court should approach issues of duplicity in a practical manner: if alleged acts are similar in nature, and so connected in time and place that they could fairly be regarded as forming part of the same transaction, then an accused can be charged with a single summary offence. Moreover, the informant submits that an election may be made as to which allegation the prosecution seeks to prove. In those circumstances, a charge is not invalid.
[23]Rixon v Thompson (2009) 22 VR 323, 336–7 [70] (Maxwell P, Weinberg JA and Kyrou AJA).
In what follows, I will set out the terms of the relevant charges and, in a much abbreviated form, the principal submissions advanced by Southgate impugning them, and those of the informant supporting them.
Charge 8
On 16 July 2015 you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from a food premises, you did not maintain the food premises to a standard of cleanliness where there was no accumulation of food waste, dirt, grease or other visible matter in contravention of [Standard 3.2.2, cl 19(1)(c)(d)(e)(f)].
Southgate submits that the area of the premises (room, kitchen and so on) is not identified. Further, the charge is duplicitous, since it creates a single offence of non-compliance with a requirement of the Code whilst specifying contravention of multiple sub-clauses of cl 19(1).[24]
[24]Clause 19 of the Code provides:
19 Cleanliness
(1) A food business must maintain food premises to a standard of cleanliness where there is no accumulation of —
(a)garbage, except in garbage containers;
(b)recycled matter, except in containers;
(c)food waste;
(d)dirt;
(e)grease; or
(f)other visible matter.
(2) A food business must maintain all fixtures, fittings and equipment, having regard to its use, and those parts of vehicles that are used to transport food, and other items provided by the business to purchasers to transport food, to a standard of cleanliness where there is no accumulation of –
(a)food waste;
(b)dirt;
(c)grease; or
(d)other visible matter.
The informant submits, however, that that the essential factual elements of charge 8 are present, these being the date; the location; the defendant; that the contravention occurred whilst conducting a food business operating from food premises; that the defendant did not comply with a specified requirement of the Code; and that as a result of the contravention, there was an accumulation of food waste, dirt, grease or other visible matter upon the defendant’s food premises. Thus, proof that on the alleged date, Southgate operated ‘food premises’, and that within those premises, contrary to the Code, there was an accumulation of food waste, dirt, grease, or other visible matter, would enable conviction on charge 8. The other charges, it was submitted, should be viewed in much the same way.
Charges 9 and 12
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not maintain all fixtures, fittings and equipment having regard to its use, to a standard of cleanliness where there was no accumulation of food waste, dirt, grease or other visible matter, in contravention of [Standard 3.2.2, cl 19(2)].
Southgate submits that the actual fixture, fitting or equipment is not identified, and each charge suffers from duplicity.
The informant submits that use of the expression ‘fixtures, fittings and equipment’ does not create duplicity, given that cl 19(2) of Standard 3.2.2 of the Code creates a single standard.
Charges 10 and 13
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not ensure the food contact surfaces of equipment were in a clean and sanitary condition whenever food that will come into contact with the surface is likely to be contaminated, in contravention of [Standard 3.2.2, cl 20(1)(b)].
Southgate submits that, in circumstances where it operates a commercial food premises, these charges insufficiently identify particular food surfaces or equipment, or the manner in which they were not kept in the requisite condition.
Charge 11
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not maintain equipment in a good state of repair and working order having regard to its use, in contravention of [Standard 3.2.2, cl 21(1)].
This charge, Southgate argues, does not identify the equipment or the act or omission constituting the contravention.
Charge 14
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not have hand washing facilities that were located where they could be easily accessed by food handlers within areas where food handlers worked and their hands were likely to be a source of contamination of food, in contravention of [Standard 3.2.3, cl 14(1)].
Southgate submits that ‘hand washing facilities’ is vague and duplicitous.
Charge 15
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not, when storing food, store the food in such a way that it was protected from the likelihood of contamination, in contravention of [Standard 3.2.2, cl 6(1)(a)].
Given that it operates commercial food premises, so Southgate submits, ‘stored food’ is ambiguous and potentially duplicitous; and the manner in which the food was not stored in ‘such a way that it was protected’ is not identified.
Charge 16
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not, when storing potentially hazardous food, store it under temperature control, in contravention of [Standard 3.2.2, cl 6(2)(a)].
Southgate argues that charge 16 does not clearly identify the nature of the contravention.
Charge 19
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not, when displaying potentially hazardous food, display it under temperature control, in contravention of [Standard 3.2.2, cl 8(5)(a)].
Southgate contends that this charge does not identify the food the subject of the charge, or the manner of the contravention.
Charge 20
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you failed to provide floors that were able to be effectively cleaned, unable to absorb grease, food particles or water, laid so that there was no ponding of water and, to the extent that was practicable, unable to provide harbourage for pests, in contravention of [Standard 3.2.3, cl 10(2)].
Southgate submits that ‘floors’ is not sufficiently detailed; and what is ‘practicable’ is not identified.
Charge 21
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not, in respect to a ceiling provided where it was necessary to protect food from contamination, ensure such ceiling was sealed to prevent the entry of dirt, dust and pests, in contravention of [Standard 3.2.3, cl 11(3)(a)].
Southgate submits that the ceiling is not identified.
Charge 22
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not ensure fixtures, fittings and equipment were fit for their intended use, in contravention of [Standard 3.2.3, cl 12(1)(b)].
The category ‘fixtures, fittings and equipment’ is, Southgate submits, duplicitous and ambiguous, and the manner of its failure to ‘ensure’ they were fit for their intended use is not identified.
Charge 23
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not ensure the food contact surfaces of fixtures, fittings and equipment likely to cause food contamination were able to be easily and effectively cleaned and, if necessary, sanitised, in contravention of [Standard 3.2.3, cl 12(3)(a)].
Southgate argues that ‘food surfaces’ is ambiguous, and the nature of the failure to relevantly ‘ensure’ is not identified.
Charge 24
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not provide, at or near each hand washing facility, single use towels or other means of effectively drying hands that are not likely to transfer pathogenic microorganisms to the hands, in contravention of [Standard 3.2.2, cl 17(1)(d)(i)].
Southgate contends that ‘hand washing facilities’ is duplicitous, and that the foundation of the charge is not identified.
Charge 25
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not provide, at or near each hand washing facility, a supply of soap, in contravention of [Standard 3.2.2, cl 17(1)(b)(ii)].
Southgate advances similar arguments as with respect to charge 24.
Charge 26
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not maintain the food premises to a standard of cleanliness where there was no accumulation of food waste, dirt, grease or other visible matter, in contravention of [Standard 3.2.2, cl 19(1)(c)(d)(e)(f)].
Southgate contends that ‘food premises’ is vague and the manner of offending is not particularised. Moreover, resort to four subparagraphs of cl 19(1) of Standard 3.2.2 of the Code renders the charge duplicitous.
Charge 27
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not maintain the food premises, fixtures, fittings and equipment in a good state of repair and working order having regard to their use, in contravention of [Standard 3.2.2, cl 21(1)].
Southgate submits that ‘food premises, fixtures, fittings and equipment’ is duplicitous and ambiguous, and the manner in which it ‘did not maintain’ those items is unidentified.
Charge 29
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not, when storing food, store the food in such a way that it was protected from the likelihood of contamination, in contravention of [Standard 3.2.2, cl 6(1)(a)].
Southgate contends that ‘storing food’ is ambiguous and potentially duplicitous; and ‘in such a way’ does not provide reasonable identification of the nature of the alleged offending.
Charge 30
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not, when storing potentially hazardous food, store it under temperature control, in contravention of [Standard 3.2.2, cl 6(2)(a)].
Southgate advances similar arguments as with respect to charge 29.
Charge 33
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not, in respect to a ceiling provided where it was necessary to protect food from contamination, ensure such ceiling was sealed to prevent the entry of dirt, dust and pests, in contravention of [Standard 3.2.3, cl 11(3)(a)].
The ceiling, Southgate submits, is not identified.
Charge 34
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not ensure fixtures, fittings and equipment were fit for their intended use, in contravention of [Standard 3.2.3, cl 12(1)(b)].
Southgate contends that ‘fixtures, fittings and equipment’ is vague and prima facie duplicitous, and that the nature of the alleged offending is not made clear.
Charge 35
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not ensure the food contact surfaces of fixtures, fittings and equipment likely to cause food contamination were able to be easily and effectively cleaned and, if necessary, sanitised, in contravention of [Standard 3.2.3, cl 12(3)(a)].
Southgate submits that ‘food contact surfaces’ is ambiguous, and no reasonable information is provided as to how Southgate failed to ensure that its food contact surfaces were able to be ‘easily and effectively cleaned’.
Charge 36
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not provide, at or near each hand washing facility, a supply of soap, in contravention of [Standard 3.2.2, cl 17(1)(b)(ii)].
Southgate advances similar arguments as with respect to charges 14, 24 and 25.
Charge 37
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not maintain the food premises to a standard of cleanliness where there was no accumulation of food waste, dirt, grease or other visible matter, in contravention of [Standard 3.2.2, cl 19(1)(c)(d)(e)(f)].
Southgate argues that ‘food premises’ is ambiguous, and that resort to four subparagraphs of cl 19(1) of Standard 3.2.2 of the Code renders the charge duplicitous.
Charge 38
On [date] you, at [the hotel], did not comply with a requirement imposed by a provision of the [Code], in that, being a food business operating from food premises, you did not maintain the food premises, fixtures, fittings and equipment in a good state of repair and working order having regard to their use, in contravention of [Standard 3.2.2, cl 21(1)].
Southgate submits that ‘food premises, fixtures, fittings and equipment’ is ambiguous and duplicitous; and ‘did not maintain’ does not disclose the manner of commission of the alleged offence.
Analysis
Decided some eight decades ago, and applied very many times since, the judgment of Dixon J in Johnson v Miller[25] is generally regarded as the seminal statement on the adequacy of the particulars of a charge.
[25](1937) 59 CLR 467.
Johnson v Miller involved a complaint under s 209 of Licensing Act 1932 (SA), which provided that any licensee out of whose premises any person was seen coming during any Sunday except between certain specified hours was guilty of an offence unless he was able to prove to the satisfaction of the court hearing the case that the person: (a) was not on the premises for any purpose (whether the sole purpose or not) contrary to the provisions of the Act; or (b) was on the premises contrary to the will of the licensee or the person in charge at the time and that the licensee or such person took all reasonable steps to prevent him from entering the premises and to remove him therefrom; or (c) was on the premises without the knowledge of the licensee or of the person in charge thereof and that the licensee or such person exercised all practicable diligence to prevent him from entering or being on the premises.
A police prosecutor observed some thirty men emerge from relevant licensed premises between the proscribed hours. Despite having the names of several of the men, at the hearing the prosecution relied on a complaint referring only to ‘a certain person’ rather than persons. The defendant contended that the prosecutor should supply further particulars to show which of the thirty men was the man whose emergence from the hotel was the subject of the complaint, but the prosecutor refused to do so. A special magistrate held that the complaint was defective in substance and that the defendant was prejudiced by the defect, and made an order of dismissal accordingly.
Upholding the decision of the special magistrate, Dixon J observed:[26]
… Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, as was the case in Johnson v Needham,[27] the proper course is to put the complainant to his election. In such a case, to wait to the end of his evidence before doing so may be convenient and may cause no injustice. But it is the converse of the present case, where the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence. For example, if the court in the present case had proceeded with the hearing of the complaint and, after ascertaining what the defence was, had decided that evidence of similar acts ought not to be admitted, how could it have discovered which was the offence charged and which the similar acts? Moreover, there is an added reason why, in a charge under sec. 209 of the Licensing Act, the instance or person should be unmistakably identified. For the defences open to the licensee depend upon the purpose of the individual concerned or the manner and circumstances of his obtaining entrance to the premises.
[26]Ibid, 489–90.
[27](1920) 28 CLR, at p 288.
The common law requires that the defendant must be provided with the substance of the charge which he or she is called upon to meet,[28] and the court be informed of the identity of the offence with which it is required to deal. Indeed, a defendant is not able to plead to a charge unless he knows the precise case which is the basis for the preferred charge.[29] But as the cases make plain, the necessity to be able to identify the particular occurrences or transactions which are the subject of the charge — particularly those tried on indictment — is not concerned solely with forensic prejudice to the defendant.[30]
[28]Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, 557–8 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[29]R v Saffron (No 1) (1988) 17 NSWLR 395, 447; R v Buckett (1985) 132 ALR 669, 673–4.
[30]See Hamra v The Queen (2017) 347 ALR 586, 592 [20]; PPP v The Queen (2010) 27 VR 68, 80–1 [42].
In John L, Mason CJ, Deane and Dawson JJ observed:[31]
The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: ‘an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence’: Ex parte Lovell ; Re Buckley.[32] The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection … in particular, Justices Act 1902 (NSW) ss 65 and 145A. One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence: see, e.g., Smith v Moody;[33] Johnson v Miller;[34] Ex parte Graham ; Re Dowling.[35] ... That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.
In De Romanis v Sibraa,[36] Mahoney JA correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. As his Honour commented:[37]
In Johnson v Miller[38] Dixon J saw the decision in Smith v Moody[39] as requiring the information to specify ‘the time, place, and manner of the defendant’s acts or omissions’; McTiernan J[40] referred to ‘fair information and reasonable particularity as to the nature of the offence charged’. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N. Ormsby & Sons Pty Ltd; Re Mason[41]. …
These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars. But, ... they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it.
[31]John L, 519–20.
[32](1938) 38 SR (NSW) 153 at 166.
[33][1903] 1 KB 56 at 60.
[34](1937) 59 CLR 467 at 486–7, 501.
[35](1968) 88 WN (Pt 1) (NSW) 270 at 280.
[36][1977] 2 NSWLR 264, at p. 291.
[37][1977] 2 NSWLR 264, at p. 291–292.
[38](l937) 59 CLR, at p. 486.
[39][1903] 1 KB, at pp. 61, 63.
[40](1937) 59 CLR, at p. 501.
[41](1964) 81 WN (Pt I) (NSW) 286, at pp. 290, 291.
As was pointed out in John L, although legislation has to some extent modified the common law, the applicable legislation did not go so far as to abrogate the essential common law requirement that a charge must condescend to identifying the essential factual ingredients of the actual offence.[42] The facts need not be as extensive, however, as those that a defendant might obtain on an application for particulars.[43]
[42]See also Kirk v Industrial Court of NSW (2010) 239 CLR 531, 557–8 [26].
[43]Ibid.
In this State, the CPA spells out the statutory requirements for a charge. Thus, by virtue of s 6(3), a charge sheet must be in writing, signed by the informant personally and comply with Schedule 1.
So far as presently relevant, Schedule 1 provides:
1 Statement of offence
A charge must—
(a) state the offence that the accused is alleged to have committed; and
(b) contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.[[44]]
2 Statement of particulars
(1) Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.
(2)If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.
[44]Emphasis added.
3 Statutory offence
(1) In this clause—
statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.
(2) For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it—
(a) identifies the provision creating the offence; and
(b) describes the offence in the words of the provision creating it, or in similar words.
(3) If a statutory offence states—
(a) the offence to be committed in alternative ways; or
(b) any element or part of the offence in the alternative—
a charge may state the commission of the offence or the element or part of the offence in the alternative.
Recently, in Baiada — a case involving an unsuccessful challenge to the validity of a charge under s 26 of the Occupational Health and Safety Act 2004 — the Court made clear that the requirements of the CPA do not supplant common law requirements. Rather, the common law elucidates what constitutes ‘reasonable information’. Hence, for a charge to be valid, the essential factual elements of the offence, in addition to its legal nature, must be identified in the charge.[45]
[45]Baiada, 208 [5] (Ferguson and McLeish JJA). See John L, 519; Kirk v Industrial Court of NSW (2010) 239 CLR 531, 557–8 [26].
Counsel for Southgate, it should be noted, placed significant reliance on Kypri, in contending that the impugned charges were bad on their face. In that case, the defendant driver of a motor vehicle, who had been required to furnish a sample of breath for analysis, was charged with refusing to comply with a requirement to accompany a member of the police force to a police station contrary to s 49(1)(e) of the Road Safety Act 1986. There were several different requirements that could be made under s 55, so that s 49(1)(e) created as many different offences (of failing to comply with a requirement under s 55) as there were different kinds of requirements under s 55. It followed, so Nettle JA held,[46] that in order to identify the act which comprised the offence, it was necessary to identify the particular kind of requirement under s 55 with which it was alleged that there was non-compliance, that being an essential element of the offence. But his Honour went on to say:[47]
To say so does not mean that every charge which alleges an offence under s 49(1)(e) is fatally flawed unless it refers by name to the subsection of s 55 under which the requirement is alleged to have been made. A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid. Failure to name the subsection would be a breach of s 27 of the Magistrates’ Court Act. But that would be the sort of breach which could be rectified by amendment. It would not affect the essential validity of the charge or, necessarily, the validity of any conviction obtained on it. Where, however, as here, the charge and summons do not allege sufficient facts to enable a reasonable defendant to determine ex facie the subsection of s 55 under which the requirement is alleged to have been uttered, the charge is defective because it fails to convey the nature of the offence alleged.
[46]Kypri, 162 [12] (Nettle JA); See also 175 [66] (Ashley JA); 175 [67] (Tate JA).
[47]Ibid, 163 [16] (footnotes omitted).
In order to determine therefore whether the particulars of the charge in this case are adequate to apprise Southgate of the essential factual elements of the charged offences, in addition to their legal nature — Southgate reading them as a ‘reasonable defendant’ should — it is necessary to determine what, in context, the prosecution needs to prove in order to establish the offences under ss 11(1) and (2), and s 16(1) of the Act.
As I have said, charges 1, 2 and 5 are laid under s 11(1) of the Act. The elements of an offence under s 11(1) are that:
· the defendant;
· handled[48] food;[49]
· the food was intended for sale;[50] and
· the food was handled in a manner that rendered (or was likely to render) the food unsafe.[51]
[48]See footnote 1 above.
[49]Section 4A of the Act defines food.
[50]See s 4(1) of the Act for the definition of sell.
[51]See [6] above.
In my view, as formulated, charges 1, 2 and 5 are sufficient to inform Southgate of the legal nature of the relevant offences, together with their essential factual elements. Thus, Southgate knows that the allegation is in each case that it breached s 11(1) of the Act by handling egg mayonnaise or cocktail sauce that was intended for sale in a manner that rendered it, or was likely to render it, unsafe (as that term is defined in the Act). That said, upon request, it is clear that Southgate would be entitled to further particulars of how it is alleged to have handled the relevant food — food being capable of being handled for the purposes of the Act in a wide variety of ways — and of the manner in which the handling rendered (or was likely to render) the food unsafe. Furthermore, given the nature of the hotel’s operations, Southgate would be entitled to identification of the particular food which is the subject of the charge (beyond its description in the charge as ‘egg mayonnaise’ or ‘cocktail sauce’). The fact that further particulars would need to be provided should a request for them be made does not, however, render the charges invalid.[52]
[52]Baiada, 220 [52]; John L, 519–20; John Holland Pty Ltd v Industrial Court of New South Wales (2010) 202 IR 82, 105 [141] (Giles JA).
So, too, in my view, charges 3, 4, 6 and 7 are sufficient to inform Southgate of the legal nature of the relevant offences, together with their essential factual elements.
The elements of a charge under s 11(2) require that:
· the defendant;
· sold food; and
· the food was unsafe.
As previously mentioned, charges 3, 4, 6 and 7 particularise the unsafe food that was sold as being ‘egg mayonnaise’. Although I consider that Southgate would be entitled in the case of each charge to further particulars of the particular egg mayonnaise that was sold, and how it is said to be unsafe, the absence of more specific particulars does not render the charges invalid.
Charges 8 to 39 — including charges 17, 18, 28, 31, 32 and 39 which have already been struck out (and charge 20 which the informant conceded should have been struck out) — all are laid under s 16(1) of the Act.
In order to establish a breach of s 16(1) of the Act, it must be proved that:
· the defendant;
· failed to comply with a requirement imposed by the Code;
· the requirement related to the conduct of a food business or to food intended for sale or food for sale.
Southgate’s submissions, which I have endeavoured to summarise above,[53] suggest in one way or another that, the particulars of the charges relating to food premises or part thereof (charge 8, 26, 27 and 37); to equipment or fixtures, fittings and equipment (charges 9, 11, 12, 22 and 34); to food contact surfaces of equipment and similar (charges 10, 13, 23 and 35); to handwashing facilities (charges 14, 24, 25 and 36); to stored food or storing food and similar (charges 15, 16, 19, 29 and 30); and to floors (charge 20) or ceilings (charges 21 and 33); are deficient in some manner, whether because of vagueness, ambiguity or other lack of particularity, or because of patent or latent duplicity.
[53]At [26]–[56].
In my view, however, each of the impugned charges is valid, in that it identifies the provision (or provisions) of the Code said to have been breached, and a brief description of the manner in which the relevant provisions have been breached. And although it might be accepted that it would be necessary upon request to provide Southgate with more precise particulars of the relevant part of its food premises (including ceilings, floors and handwashing facilities); its fixtures, fittings and equipment; and the relevant stored food (and similar); embraced by the charges, in my opinion the charges as framed sufficiently comply with statutory and common law requirements. In that regard, I note that senior counsel for the informant conceded that the informant ‘would be obliged’ under s 32(2) of the CPA to furnish information as to ‘how’ various charges were said to have been committed should Southgate seek such further particulars. I also note that the decision not to ask for further and better particulars was a deliberate choice, senior counsel for Southgate describing this as an ‘ex facie decision’ based on the approach in Kypri, ‘and for the reasons outlined in John L’.[54]
[54]By virtue of s 8(4) of the CPA, a charge may only be amended after the limitation period has expired if the charge-sheet before the amendment sufficiently disclosed the nature of the offence; the amendment does not amount to the commencement of a proceeding for a new offence; and the amendment will not cause injustice to the accused.
Conclusion
For these reasons, Southgate has not made out any entitlement for relief by way of certiorari or declaration. Its proceeding must be dismissed.
I will hear the parties on costs and any necessary ancillary orders.
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