Van Heerden v Hawkins - [2016] WASCA 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: VAN HEERDEN -v- HAWKINS [2016] WASCA 42

CORAM: BUSS JA
MURPHY JA
MAZZA JA

HEARD: 23 NOVEMBER 2015

DELIVERED : 10 MARCH 2016

FILE NO/S: CACR 137 of 2014

BETWEEN: VINCENT ADAM VAN HEERDEN
Appellant
AND
BRUCE MICHAEL HAWKINS
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :PRITCHARD J
Citation  :HAWKINS -v- VAN HEERDEN [2014] WASC 127
File No  :SJA 1131 of 2013

Catchwords:

Statutory construction - Tobacco Products Control Act 2006 (WA) - Prohibition in and offence created by s 106(a) of the Act - Whether electronic cigarettes were 'designed to resemble a tobacco product' within s 106(a) - Meaning of 'product', 'designed' and 'resemble' in s 106 - Objects clause

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 16, s 18
Interpretation Act 1984 (WA), s 6, s 17, s 18, s 19, s 29, s 31(1)
Tobacco Products Control Act 2006 (WA), s 3, s 106

Result:

Applications for leave to adduce additional evidence dismissed
Leave to appeal granted on ground 2
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr C P Shanahan SC & Mr M A Perrella
Respondent: Mr G T W Tannin SC & Ms M J Elliott

Solicitors:

Appellant: Perrella Legal Pty Ltd
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471
Birch v Allen [1942] HCA 17; (1942) 65 CLR 621
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
City of Kwinana v Lamont (2014) 201 LGERA 334; [2014] WASCA 112
Clunies‑Ross v Commonwealth [1984] HCA 65; (1984) 155 CLR 193
Director of Public Prosecutions v Mattiuzzo [2011] NTSC 60; (2011) 252 FLR 108
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Hawkins v Van Heerden [2014] WASC 127
Independent Commission Against Corruption v Cunneen [2015] HCA 14
IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v L (1999) 49 FCR 534
R v Regos [1947] HCA 19; (1947) 74 CLR 613
Re Beautiful Day Pty Ltd and Collector of Customs (1977) 1 ALN 8
Re Fibre Hulls Pty Ltd and Collector of Customs (1987) 12 ALD 75
Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643
S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318; (2013) 85 NSWLR 580
Taylor v The Owners ‑ Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Tickner v Bropho (1993) 40 FCR 183
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1

Table of Contents

Buss JA's reasons...................................................................................................................... 5
The relevant provisions of the Act
The evidence at the trial
The magistrate's reasons for decision
The respondent's grounds of appeal in the appeal from the magistrate to the primary judge
The appellant's contention in the appeal from the magistrate to the primary judge
The primary judge's reasons for decision: the appellant's contention
The primary judge's reasons for decision: ground 1 of the respondent's appeal
The primary judge's reasons for decision: ground 2 of the respondent's appeal
The primary judge's reasons for decision: ground 3 of the respondent's appeal
The outcome of the appeal from the magistrate to the primary judge
The appellant's grounds of appeal in the appeal from the primary judge to this court
The appellant's applications for leave to adduce additional evidence in the appeal
Ground 1 of the appeal: the appellant's submissions
Ground 2 of the appeal: the appellant's submissions
The grounds of appeal: the proper approach to construction
The references in the grounds of appeal to the electronic cigarettes being 'Tobacco Harm Reduction Products'
The grounds of appeal: their merits

Conclusion
Murphy JA's reasons.............................................................................................................. 46
Mazza JA's reasons................................................................................................................. 52

BUSS JA: On 22 October 2013, the appellant was acquitted, after a trial in the Magistrates Court before Magistrate Hawkins on 11 September 2013, of one charge in a prosecution notice.
The charge alleged that on dates unknown between 24 November 2011 and 2 December 2011, at Duncraig, the appellant sold products that were not a tobacco product but were designed to resemble a tobacco product, namely electronic cigarettes, contrary to s 106(a) of the Tobacco Products Control Act 2006 (WA) (the Act).
The respondent appealed to the Supreme Court, pursuant to a grant of leave on 9 December 2013, against the magistrate's decision to acquit. Pritchard J (the primary judge) allowed the appeal, set aside the magistrate's decision to acquit the appellant and substituted a judgment of conviction. See Hawkins v Van Heerden [2014] WASC 127.
The appellant has now appealed to this court, pursuant to a grant of leave on 30 November 2014, against the primary judge's decision.
I would dismiss the appeal. My reasons are as follows.

The relevant provisions of the Act

The long title of the Act states, relevantly, that it is an Act to:
•prohibit the supply of tobacco products and smoking implements to young persons;
•regulate the sale and promotion of tobacco products;
•prohibit the sale of products that resemble tobacco products;
•reduce the exposure of people to tobacco smoke from tobacco products that are smoked by other people,
and … for related purposes.
Section 3 sets out the purposes of the Act:
The purposes of this Act are ‑
(a)to reduce the incidence of illness and death related to the use of tobacco products ‑
(i)by prohibiting the supply of tobacco products and smoking implements to young persons;
(ii)by discouraging the use of tobacco products;
(iii)by restricting the promotion of tobacco products and smoking generally;
(iv)by reducing the exposure of people to tobacco smoke from tobacco products that are smoked by other people;
and
(b)to promote good health and activities which encourage healthy lifestyles.
Part 2 is headed 'Sale and supply' and comprises s 6 to s 30. Part 2, amongst other things, prohibits the sale, supply and delivery of tobacco products and smoking implements to people under the age of 18 years and regulates the sale of tobacco products.
By s 6:
A person must not sell, supply or deliver a tobacco product or smoking implement to a person who has not reached 18 years of age.
Penalty: see section 115.
By s 7:
A person must not purchase a tobacco product or smoking implement on behalf of a person who has not reached 18 years of age.
Penalty: see section 115.
By s 22:
(1)The holder of a retailer's licence must ensure that a tobacco product, package or smoking implement is not displayed in the premises specified in the licence.
Penalty: see section 115.
(2)If a person is charged with an offence under subsection (1) it is a defence to prove that the display was made to a specific customer at the customer's request.
Part 3 is headed 'Advertising and promotion' and comprises s 31 to s 35.
By s 31:
(1)A person must not display or broadcast a tobacco advertisement in a public place.
(2)A person must not display or broadcast a tobacco advertisement that can be seen or heard from a public place.
(3)A person must not distribute to the public any unsolicited object that constitutes or contains a tobacco advertisement.
(4)A person must not sell or hire an object that constitutes or contains a tobacco advertisement.
Penalty applicable to subsections (1), (2), (3) and (4): see section 115.
(5)In proceedings for an offence under this section it is to be presumed, unless the contrary is proved, that if the thing that is alleged to constitute a tobacco advertisement contains the trade mark in respect of, or registered design or brand name of, a tobacco product or smoking implement then it promotes the tobacco product or smoking implement.
Section 32 specifies a number of exceptions to s 31.
Part 4 is concerned with licensing. Part 5 establishes and provides for the administration of the Western Australian Health Promotion Foundation. Part 6 contains provisions with respect to the carrying out of investigations to seek evidence of suspected offences under the Act, to assess whether or not the provisions of the Act are being complied with and for any other purpose relevant to the administration of the Act.
Part 7 is headed 'Enforcement' and comprises s 98 to s 120.
Section 106 provides:
A person must not sell any food, toy or other product that is not a tobacco product but is ‑
(a)designed to resemble a tobacco product or a package; or
(b)in packaging that is designed to resemble a tobacco product or a package.
Penalty: see section 115.
Section 115 specifies the penalties applicable to offences under the Act.
The Glossary at the end of the Act defines or affects the meaning of some of the words and expressions used in the Act. The Glossary provides, relevantly, that in the Act:
cigar means a roll of cut tobacco for smoking, enclosed in tobacco leaf or the leaf of another plant;
cigarette means a roll of cut tobacco for smoking, enclosed in paper;
…
sell includes any of the following ‑
(a)barter or exchange;
(b)offer or expose for sale, barter or exchange;
(c)supply, or offer to supply, in circumstances in which the supplier derives, or would derive, a direct or indirect pecuniary benefit;
(d)supply, or offer to supply, gratuitously but with a view to gaining or maintaining custom or otherwise with a view to commercial gain;
(e)keep or have in possession for sale;
(f)agree to sell;
(g)send or deliver for sale;
smoke (when used as a verb) means smoke, hold, or otherwise have control over, an ignited tobacco product;
smoking implement means cigarette papers, a cigarette rolling machine, pipe, or other thing designed to be used in the process of smoking a tobacco product or preparing a tobacco product for smoking, but does not include matches or a cigarette lighter;
…
supply includes to provide, or offer to provide, whether or not gratuitously or with a view to commercial gain or maintaining custom;
tobacco advertisement means ‑
(a)any of the following that gives favourable publicity to, or otherwise promotes or is intended to promote, a tobacco product, a smoking implement or smoking generally ‑
(i)a word or set of words, still or moving picture, sign, symbol or other visual image (including a colour or scheme of colours) or other visual message; or
(ii)an audible message; or
(iii)any combination of those things;
or
(b)any of the following that is closely associated with a tobacco product or a smoking implement (whether or not also closely associated with another kind of product) ‑
(i)a word or set of words (for example a trade mark or brand name or part thereof); or
(ii)a design (including a colour or scheme of colours); or
(iii)any combination of those things;
…
tobacco product means any of the following ‑
(a)tobacco in a form prepared for human consumption or use; or
(b)a cigarette or cigar or any other product the main, or a substantial, ingredient of which is tobacco and which is designed for human consumption or use; or
(c)a product prepared for smoking that contains a herb or other plant matter, whether or not the product also contains tobacco,
but does not include ‑
(d)nicotine or a product containing nicotine insofar as the Poisons Act1964 applies to or in relation to nicotine or a product containing nicotine; or
(e)a prohibited plant or a prohibited drug as those terms are defined in the Misuse of Drugs Act 1981 section 3(1) or a product containing a prohibited plant or a prohibited drug.

The evidence at the trial

The evidence at the trial included a statement of agreed facts.
The statement reads, relevantly:
1.An electronic cigarette is an electronic inhaler that vaporises a liquid solution into a mist for inhalation.
…
Heavenly Vapours
4.Between 24 November 2011 and 2 December 2011 the [appellant] with others operated a business named 'Heavenly Vapours'.
5.The [appellant] sold the electronic cigarettes via [a website] (the website).
6.On 25 November 2011 the website offered for online sale:
(a)electronic cigarettes; and
(b)nicotine-free 'e-Juice'.
7.The [appellant] kept stock for Heavenly Vapours at [his address].
8.On occasion the [appellant] filled orders placed on the website from the stock at his home and on occasion posted those orders to customers.
2 December 2011
9.On 2 December 2011 the [appellant] had in his possession:
(a)69 packages of electronic cigarettes;
(b)nine electronic cigarette atomisers;
(c)roles of stickers with the 'HV' logo;
(d)one document entitled 'shipping details'; and
(e)one business card for Heavenly Vapours bearing his name.
Nature of electronic cigarettes
10.The electronic cigarettes referred to in par 9(a) function in the following manner:
(a)each electronic cigarette is composed of three parts:
(i)a part housing the battery, a button to operate the electronic cigarette, and associated circuitry;
(ii)a part housing a heating element that vaporises the 'e-juice' so that it can be inhaled; and
(iii)a cartridge or mouthpiece, which houses the 'e-juice' to be inhaled.
(b)The cartridge is designed so that vaporised liquid can flow past the container housing the 'e-juice' to reach the user's mouth.
(c)The cartridge can be refilled or replaced once the liquid 'e-juice' is exhausted.
(d)To use an electronic cigarette:
(i)the user places the cartridge end of the electronic cigarette into his or her mouth and presses down the button;
(ii)pressing the button activates the heating element, which heats the liquid 'e-juice' to a vapour;
(iii)the user inhales the vapour from the end of the cartridge, removes the electronic cigarette away from his or her mouth, the vapour is then inhaled and exhaled.
At the trial, the prosecutor tendered:
(a)two models of electronic cigarettes, namely 510-T and eGo-T, which the parties agreed were the models that the appellant had in his possession on 2 December 2011;
(b)a roll of 'Heavenly Vapour' stickers; and
(c)a printout comprising six pages of text and photographs from the 'Heavenly Vapours' website.
The magistrate described the 510‑T model tendered in evidence as 'made up of two components one measuring 6 cm in length the other approximately 2 cm in length and when screwed together measured 8 cm. The 510‑T is metallic to the touch and at one end there is a grey plastic rounded end' (7). This model, as tendered, was in a package together with a user manual for the 510‑T.
Her Honour described the eGo‑T model tendered in evidence as black greyish in colour, with a silver end and a band in the middle. The eGo-T is metallic to touch and comprises three components (including a clear plastic end or mouth piece) which, when assembled, measure approximately 13 cm in length. This model, as tendered, was in a package together with a user manual for the eGo‑T.
On each page of the printout from the website there appears text referring to 'Hardware' including the eGo-T.
On page 1 of the printout there is a reference to 'Heavenly Vapours E‑Cigarettes' and text which states:
Get the satisfaction of smoking with no smell, no butts, no smoke, no tar. E-cigs are great value with e‑juice available in a range of flavours, with or without nicotine. It's time to make the switch!
Also on page 1 is a picture of a woman smoking what appears to be a white cigarette. Smoke appears to be emanating from the cigarette.
On page 3 of the printout there are references to the strength of the 'e‑juice' that a user would require if he or she was switching from tobacco cigarettes to electronic cigarettes.
The prosecutor called two witnesses, namely Bruce Hawkins and Jillian Murphy. At the material time, Mr Hawkins was a principal compliance officer with the Department of Health and Ms Murphy was a senior investigator with the Department.
Mr Hawkins said in evidence that he was familiar with electronic cigarettes. He gave this description of a person smoking an electronic cigarette:
[I]t looks exactly like someone who is smoking a normal cigarette, a cigarette that contains tobacco. There's almost no difference, I would suggest, between someone smoking a normal cigarette and someone smoking an electronic cigarette.
[T]he actual product is ‑ is quite similar in ‑ in shape and ‑ that a cigarette is. The actual hand and mouth actions are very similar. You put the electronic cigarette in your mouth. The way they are designed, you inhale and ‑ and when you exhale there's a vapour comes out of these things, reminiscent of the cigarette smoke that comes out when you exhale cigarettes, so there ‑ and some of these electronic cigarettes have an LED light at the end of them which may turn orange to also again simulate the burning of a cigarette. So ‑ so they their nature, it is very much the same as a ‑ as a normal cigarette (ts 20).
Mr Hawkins conceded in cross‑examination that he had not seen either the 510‑T model or the eGo‑T model being used (ts 26, 27).
Mr Hawkins gave evidence that some of the colours of electronic cigarettes resemble tobacco cigarettes or cigars. He accepted, however, that electronic cigarettes are manufactured in a range of colours, shapes and sizes (ts 26). They range in size from the size of a tobacco cigarette to the size of a fountain pen or large cigar (ts 31). Some electronic cigarettes have LED lights on the end and others do not (ts 26).
Ms Murphy said in evidence that she was familiar with electronic cigarettes and that 'most of them look very much like a [tobacco] cigarette … they are shaped like a cigarette, with the steam especially, it looks like smoke' (ts 33). She confirmed that some electronic cigarettes do not contain nicotine and are used with nicotine‑free 'e-juice' (ts 34). Like Mr Hawkins, Ms Murphy conceded in cross‑examination that she had not seen either the 510‑T model or the eGo‑T model being used (ts 38).
The appellant did not give evidence at the trial. However, defence counsel called Daniel Di Rado as a witness. Mr Di Rado said he had ceased smoking tobacco cigarettes by commencing to use electronic cigarettes containing nicotine. He had never used a nicotine‑free electronic cigarette. Mr Di Rado said he preferred electronic cigarettes to tobacco cigarettes because electronic cigarettes had 'a superior nicotine delivery system', tobacco cigarettes were 'really dirty, messy' and tobacco cigarettes imposed 'a cost on others' (ts 40 ‑ 41).

The magistrate's reasons for decision

The magistrate was satisfied beyond reasonable doubt that at the material time the appellant offered for sale on the Heavenly Vapours website the 510‑T model and the eGo‑T model (9).
Her Honour concluded that those electronic cigarettes were within the expression 'other product' in s 106 of the Act.
The magistrate said that, when assessing whether the 510‑T model or the eGo‑T model 'resemble[s] a tobacco product', within s 106(a), she should not have regard to 'the manner of use [or] any marketing material' (12). Her Honour was of the view that the information relevant to this assessment was 'limited to the physical appearance of the product' (12).
Her Honour observed that '[t]he issue is whether, on the evidence when objectively assessed', she was satisfied beyond reasonable doubt that the prosecution had proved that the 510‑T model and the eGo‑T model 'resemble a cigarette or cigar' (12). Her Honour was 'not so satisfied' (12). She explained:
Both products are sold in a black box lacking any reference to cigarettes or cigars. They are not white or brown in colour as might be expected with a cigarette or cigar. They are black and gold (510‑T) and black/grey and silver (eGo‑T) in colour. Further the products are metallic to the touch. They are not surrounded by paper or a material designed to look like a tobacco leaf or the leaf of another plant. Nor do either have an area designed to resemble the butt of a cigarette delineated by different colour. The products lack a smell similar to that of tobacco. They have no markings upon them designed to resemble that they contain tobacco. Before use they are required to be assembled by screwing different components together which again is unlike a cigar or cigarette. They have located on their exterior a button which is unlike a cigar or cigarette. There is no evidence that they require the use of the match or cigarette lighter to ignite them. When assembled they appear to resemble a fountain pen or metal writing pen because of their shape, size and metallic feel. Accordingly, I am not satisfied beyond reasonable doubt that when the physical appearance of the products are assessed that they resemble a cigarette or cigar (12 ‑ 13).
The magistrate then said:
However, even if I am wrong and I can have regard to not only the products physical appearance but also their manner of use I am still not satisfied beyond reasonable doubt the charge is proven. Although when used a vapour is emitted there was no evidence that when observed this vapour looks like tobacco smoke. I accept that to use the product the user places the products in their mouth, presses down on the button and inhales and exhales any vapour. There was no evidence that a cigar or cigarette requires the depression of a button. Further when such use is assessed in combination with the products' physical appearance, as referred to above, I do not consider the products resemble a tobacco product (13).
Accordingly, her Honour entered a judgment of acquittal.

The respondent's grounds of appeal in the appeal from the magistrate to the primary judge

The respondent's grounds of appeal in the appeal from the magistrate to the primary judge read:
1.The learned magistrate erred in law in determining the meaning of the phrase 'designed to resemble' in s 106 of [the Act] by:
(a)failing to construe the phrase as an entirety;
(b)confining resemblance to the products' 'physical appearance';
(c)failing to have regard to the appearance during use of the 510‑T and eGo‑T products;
(d)failing to have regard to marketing material in relation to the 510‑T and eGo‑T products, in particular material on the 'Heavenly Vapours' website; and
(e)failing to have regard to the overall character and intended purpose of the 510‑T and eGo-T products, rather than individual characteristics of the products.
2.The learned magistrate erred in fact and in law in excluding evidence of the appearance during use of the 510‑T and eGo‑T products.
3.The learned magistrate erred in fact and in law in concluding:
(a)that the 510-T and eGo-T products were not designed to resemble tobacco products; and
(b)that the 510-T and eGo-T products were not designed to resemble tobacco products even when evidence of use of the products was taken into account.

The appellant's contention in the appeal from the magistrate to the primary judge

At the hearing of the appeal from the magistrate to the primary judge, the appellant contended that the magistrate had erred in finding that the 510‑T model and the eGo‑T model were within the expression 'other product' in s 106 of the Act.

The primary judge's reasons for decision: the appellant's contention

Counsel for the appellant submitted to the primary judge that the expression 'other product' in s 106 of the Act took its meaning from the preceding words 'food' and 'toy' in s 106, and that the purpose of s 106 was to prevent the promotion of tobacco smoking to children.
The words 'food', 'toy' and 'product' are not defined in the Act.
Her Honour rejected the appellant's contention. Her reasoning was, in summary, as follows:
(a)The inclusion of the word 'other' in the phrase 'any food, toy or other product', in s 106, indicated that s 106 was directed to anything which constitutes a 'product' apart from food or toys. The ordinary and natural meaning of the words used suggested that s 106 was directed to any object which is created by a particular action or process or which results from work or effort, including food or toys, and which is designed to resemble a tobacco product [28].
(b)The context in which the words 'other product' appear in s 106 supported the conclusion that Parliament intended s 106 to have a broad operation. The references to any 'food' or 'toy' were included in s 106 as examples of the 'other products' which may be designed to resemble tobacco products [29].
(c)The appellant's argument that the use of the expression 'other product', in conjunction with the words 'food' and 'toy', signified an intention that only products similar to food and toys would be within the prohibition in s 106 was contrary to s 17 of the Interpretation Act 1984 (WA).
(d)The appellant's submission to the effect that s 106 should be construed having regard to the ejusdem generis rule of construction was flawed because it was not possible to identify some common and dominant feature of food and toys by reference to which the expression 'other product' might be limited [31].
(e)The purpose or object of the Act was not directed solely to preventing children from smoking, although that was clearly one of its purposes [32].
The primary judge said the words 'designed to resemble' in s 106(a) referred to 'a product which was intended to have a likeness or similarity to, or to have some feature in common with … a tobacco product' [39]. Her Honour then set out how a determination should be made about whether a product was intended to have a likeness or similarity to, or to have some feature in common with, a tobacco product:
Accordingly, determining if a product 'resemble[s]' another thing may require an examination from other perspectives of whether the products share common features or characteristics, such as by examining the way the two products operate or are used, or by looking at how they were made or produced, to determine whether the products share features or characteristics, or by looking at the essential character (Commissioner of Taxation v Thomson Australian Holdings Pty Ltd (1989) 25 FCR 481) of the products rather than at individual characteristics to determine if the products have a likeness or similarity having regard to their essential character [40].
Her Honour observed that '[t]he intention behind s 106 is expressly directed to products which are not tobacco products', and her Honour '[did] not see any reason why it should be confined in its operation so as to apply only to the sale of products which encourage the consumption of tobacco' [46].

The primary judge's reasons for decision: ground 1 of the respondent's appeal

The primary judge held that the magistrate was in error in two respects in the process by which she identified how a product was 'designed to resemble' a tobacco product [50].
First, the magistrate addressed herself to the question whether the electronic cigarettes in question resembled a tobacco product, rather than whether they were designed to resemble a tobacco product. That appeared to be the reason why the magistrate confined her analysis to the physical appearance of the items [51].
Secondly, the magistrate appeared to have placed reliance upon two cases, namely Re Beautiful Day Pty Ltd and Collector of Customs (1977) 1 ALN 8 and Re Fibre Hulls Pty Ltd and Collector of Customs (1987) 12 ALD 75, which in her view indicated that 'what a product was designed for was an objective test to be inferred from the appearance of the goods' [52]. The primary judge said:
(a)neither of the cases was directly applicable to the present case and neither of them was a binding authority in relation to the proper construction of s 106 of the Act;
(b)neither of them established a general principle that whether a product was 'designed to' meet some criterion should be ascertained solely by reference to the physical appearance of the product; and
(c)some caution was warranted in relying on conclusions reached about the construction of different legislation in a different factual context [52].
The primary judge said the magistrate was correct to conclude that whether a product is designed to resemble a tobacco product should be determined objectively rather than by reference to the subjective intention of the designer of the product [57].
The primary judge summarised her conclusion:
[A]scertaining whether a product is designed to resemble a tobacco product involves a comparison between the product and tobacco products, to ascertain whether the product was intended to have a likeness or similarity to, or to have some feature in common with, a tobacco product. That comparison will take into account all of the features and essential characteristics of the product, such as its physical appearance or the manner in which it is used (because that will permit an inference about what the product is designed to resemble) [58].
The primary judge therefore decided that ground 1 of the respondent's appeal had been made out.

The primary judge's reasons for decision: ground 2 of the respondent's appeal

The primary judge held that the magistrate was in error for two reasons in concluding that the statement of agreed facts did not assist in ascertaining whether the electronic cigarettes in question were designed to resemble a tobacco product.
First, the focus underlying the magistrate's reasons was the appearance of the items. As I have mentioned, the primary judge was of the view that the appearance of a product ‑ either its physical appearance or its appearance when used ‑ was not the only means by which to ascertain whether the product was 'designed to resemble' a tobacco product within s 106 of the Act. The primary judge said the admissions in par 10 of the statement of agreed facts were 'clearly relevant to the question of whether the items were intended to have similar features or characteristics (including as to their use) as compared with a tobacco product' [65].
Secondly, par 10 of the statement of agreed facts was not merely a statement about how to use the items. It also constituted evidence about how the items appeared when they were being used [67].
The primary judge elaborated:
It was implicit in the [statement of agreed facts] that the items were placed in the user's mouth, and removed from their mouth, using their hand. It is not apparent why the extent of inhalation of the vapour into the lungs would be something which could be ascertained by an observer, given that that process takes place inside the user's body. Finally, the appearance of the vapour would be relevant to assessing the extent of the items' similarity to tobacco products, at least in their physical appearance while being used. But the description of the inhalation of vapour through the electronic cigarette into the user's mouth, and its exhalation out of the user's body, is nevertheless a description of the appearance of the items during use [67].
Next, the primary judge said the evidence of Mr Hawkins was relevant to the appearance of the items while they were being used because his evidence as to the manner in which electronic cigarettes were used was 'entirely consistent with' par 10(d) of the statement of agreed facts; that is, 'the conveyance of the electronic cigarette to the mouth by hand, the inhalation of the vapour through the cigarette and into the user's mouth, and the exhalation of that vapour out of the body' [69]. Her Honour added that, at par 1 of the statement of agreed facts, the appellant admitted that an electronic cigarette is an electronic inhaler that vaporises a liquid solution into a mist for inhalation [69].
The primary judge concluded:
Having regard to these admitted facts, the only inference which was open is that the items operated in the same way as other electronic cigarettes which Mr Hawkins had observed in use. Consequently, Mr Hawkins' description of the appearance of someone using an electronic cigarette could be taken into account as evidence of the appearance of one of the items during use [70].
The primary judge therefore decided that ground 2 of the respondent's appeal had been made out.

The primary judge's reasons for decision: ground 3 of the respondent's appeal

The primary judge reiterated that, in determining whether the 510‑T model and the eGo‑T model were designed to resemble a tobacco product, it was necessary to compare the electronic cigarettes with tobacco products (relevantly, cigarettes or cigars) to ascertain whether the electronic cigarettes were intended to have 'a likeness or similarity to, or to have some feature in common with, a tobacco product' [77]. Her Honour said the magistrate, in making that comparison, 'should have taken into account all of the features and the essential characteristics of the items, including (but not limited to) their physical appearance, and the manner in which they are used' [77].
The primary judge said the essential characteristics of a tobacco cigarette or cigar and the manner in which they are used are 'so notoriously well known that evidence is not required to be given of those facts'. Her Honour continued:
It is a notorious fact that a cigarette or cigar permits the inhalation of tobacco smoke into the user's body through his or her mouth. The cigarette or cigar is held in the user's hand. The cigarette or cigar is lit, the user places the cigarette or cigar into his or her mouth, and inhales through the cigarette or cigar so as to take the tobacco smoke into his or her body, and then exhales that smoke upon breathing out [78].
Next, the primary judge said that, given all other elements of the offence were admitted, and given the magistrate's conclusion that the electronic cigarettes in question were an 'other product' for the purposes of s 106 of the Act, the question for the magistrate was 'to compare the appearance, features, essential characteristics and manner of use of the items with those of cigarettes or cigars, to determine whether it had been proved, beyond reasonable doubt, that the items were designed to resemble a tobacco product' [79].
The primary judge concluded that the magistrate was in error because 'she did not take into account evidence which was relevant to that question' [80]. Her Honour explained:
The admissions in the [statement of agreed facts], and the evidence of Mr Hawkins, to which I have already referred, constituted evidence as to how the items were used, and evidence of the appearance of the items when they were used. That evidence supported the conclusion that the items were used for inhaling vapour (whether or not containing nicotine) through the mouth, which was exhaled in a manner reminiscent of the smoke from a cigarette [80].
The primary judge also concluded that the magistrate was in error because '[she] did not take into account other evidence, namely the User Manual for the 510‑T and the User Manual for the eGo‑T, and the website pages' [81]. Her Honour continued:
As I have observed, the 510-T User Manual and the eGo-T User Manual were contained in the packaging for the items which was in evidence, and it can be inferred that they were produced by the manufacturer of those items … The 510-T User Manual refers to the 510-T as an 'e-cigarette'. A number of other references in that document compare the 510-T with a cigarette: the document indicates that the battery of the 510-T 'enables over 800 puffs per day', and 'five times as many puffs as other normal e‑cigarettes'. The material indicates that 'the 510-T gives a realistic feel and provides lots of vapour'. Identical wording appears in the User Manual for the eGo-T.
The User Manuals for each of the items provide very strong evidence that the items were intended to be used in a manner very similar to that of cigarettes, save that vapour and not tobacco smoke would be inhaled by the user. It is clear that the vapour produced by each of the items was intended to be able to be 'puffed' in a manner similar to cigarette smoke. The description of the 510-T and the eGo-T as 'e-cigarettes' reflects that similar intended use.
…
The text set out on the website pages clearly describes the use which is able to be made of the electronic cigarettes sold by Heavenly Vapours, including the eGo-T, which is referred to on each page. That text makes clear that the items are able to be used for smoking in a manner similar to smoking cigarettes containing tobacco. The presence of the picture adjacent to the text confirms the information being conveyed by the text, namely that inhaling vapour through an electronic cigarette is similar in appearance and action to smoking a cigarette [81], [82], [84].
The primary judge therefore decided that ground 3 of the respondent's appeal had been made out.

The outcome of the appeal from the magistrate to the primary judge

The primary judge was of the view that the evidence supported the conclusion that the items in question 'were designed to resemble a tobacco product because they were intended to be used to inhale vapour in a manner very similar to the inhalation of tobacco smoke when using a cigarette' [87]. Her Honour added:
That the items were designed to resemble a cigarette in this way can be discerned from the description given to the products by the manufacturer (as electronic cigarettes), from the manner in which the items are used (both having regard to the manufacturer's user manual, to the admissions made by [the appellant] and having regard to the website pages) and from the appearance of electronic cigarettes, such as the items, during use (particularly the conveyance of the electronic cigarette to the user's mouth using their hand, the inhalation and exhalation of the vapour, and the fact that the vapour is reminiscent of the smoke from a cigarette) [87].
Her Honour held that, having regard to the proper construction of s 106 of the Act, on the evidence before the magistrate and in view of the admissions that had been made, the charge against the appellant had been proved beyond reasonable doubt [88].
Accordingly, the primary judge decided that the appeal should be allowed, the decision of the magistrate to acquit the appellant should be set aside, and a judgment of conviction should be entered.

The appellant's grounds of appeal in the appeal from the primary judge to this court

Initially, the appellant relied on four grounds of appeal in the appeal from the primary judge to this court. However, at the hearing, counsel for the appellant abandoned grounds 3 and 4 (appeal ts 25 ‑ 26). The remaining grounds read:
1.The learned Judge below erred in law when she failed to construe the prohibition in the first limb of s 106 of the Tobacco Products Act 2006 (WA) ('Act') as confined by the objects of the Act in that her Honour:
(a)having correctly found that the purpose (objects) of the Act included, (at [32]);
(i)'preventing children from smoking';
(ii)'regulating the sale and promotion of tobacco products';
(iii)'reducing the exposure of people to tobacco smoke from smoking by others'; and
(iv)'reducing the incidence of illness and death related to the use of tobacco products by discouraging the use of tobacco products and restricting the promotion of tobacco products and smoking generally';
(b)failed to construe the prohibition at s 106 as confined by those objects; and
(c)then erred when she found that the sale of electronic cigarettes found in the Appellant's possession was prohibited under s 106(a) of the Act because they were 'designed to resemble a tobacco product', despite the unchallenged evidence that electronic cigarettes are specifically designed for a purpose consistent with the Act's objects being to avoid the health risks of 'smoking' by employing a vaporisation system that allows the user to avoid tobacco smoke and cigarette tar ('Tobacco Harm Reduction Products').
2.The learned Judge below having correctly found that the phrase 'designed to resemble a tobacco product' at s 106(a) of the Act requires consideration of the 'intention' in a product's 'design' as well as its 'appearance', then erred in law when she applied the wrong test to determine whether the electronic cigarettes found in the Appellant's possession were caught by that phrase in that her Honour:
(a)relied upon evidence of the use of the electronic cigarettes post sale/supply for the purpose of applying the prohibition when such evidence was not permitted by the Act;
(b)failed to identify or apply the requirement that a consideration of the technical design of the electronic cigarettes was an essential step for the purposes of applying the prohibition in the first limb of s 106(a);
(c)rejected the argument that the prohibition at s 106 of the Act is not intended to proscribe the sale of products designed to assist those who wish to give up or minimize their 'smoking' (use of ignited or combustible tobacco products); and
(d)failed to have reference to the intention evident in the design of the electronic cigarettes as 'Tobacco Harm Reduction Products' for the purpose of determining whether the electronic cigarettes fell within the declared objects of the Act and therefore fell outside the prohibition at s 106(a) of the Act. (original emphasis)

This appeal is governed by div 3 of pt 2 of the Criminal Appeals Act 2004 (WA). Division 3 comprises s 16 ‑ s 19.
By s 16(2), a party to an appeal under div 2 of pt 2 of the Criminal Appeals Act who is aggrieved by a decision made in the appeal by a single judge that:
(a)refuses leave to appeal; or
(b)dismisses or decides an appeal,
may appeal to the Court of Appeal against the decision.
By s 18, read with s 9, of the Criminal Appeals Act:
(a)the leave of this court is required for each ground of appeal in an appeal under div 3 of pt 2;
(b)after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding; and
(c)unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
On 30 November 2014, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.

The appellant's applications for leave to adduce additional evidence in the appeal

By an application in the appeal filed 13 October 2014, the appellant applied for leave to rely on additional evidence in the appeal. The application was supported by an affidavit sworn 13 October 2014 by the appellant's solicitor, Michael Perrella.
The additional evidence sought to be relied on by the appellant comprised Mr Perrella's affidavit (and attachments). The attachments included an affidavit of Dr Attila Danko sworn 2 October 2014.
The respondent sought leave to rely on an affidavit of Professor Tarun Weeramanthri sworn 30 December 2014 in response to the appellant's application filed 13 October 2014.
On 25 October 2014, Mazza JA referred the appellant's application filed 13 October 2014 to the hearing of the appeal.
By another application in the appeal filed 9 June 2015, the appellant applied for leave to rely on further additional evidence in the appeal. The application was supported by an affidavit sworn 8 June 2015 by Mr Perrella.
The further additional evidence sought to be relied on by the appellant comprised an affidavit of Dr Konstantinos Farsalinos sworn 21 November 2014.
On 14 June 2015, Mazza JA referred the appellant's further application filed 9 June 2015 to the hearing of the appeal.
The additional evidence which the appellant sought to adduce related to ground 4. It was alleged in ground 4 that 'fresh evidence in the nature of expert opinion in respect of work published since the hearing of these matters confirms, as a matter of fact, that electronic cigarettes are designed as Tobacco Harm Reduction Products, and it would constitute a miscarriage of justice were the Appellant's conviction allowed to stand in circumstances where the sale of electronic cigarettes cannot offend against the prohibition at s 106(a) of the Act'. The appellant's abandonment of ground 4 at the hearing has rendered the proposed additional evidence otiose.
The appellant's applications should therefore be dismissed.

Ground 1 of the appeal: the appellant's submissions

Counsel for the appellant submitted that s 106(a) of the Act, properly construed, does not prohibit the sale of 'products' that are designed to give effect to the purposes of the Act; in particular, to the purpose of reducing 'the incidence of illness and death related to the use of tobacco products ... by discouraging the use of tobacco products [and] by restricting the promotion of tobacco products and smoking generally': s 3(a)(ii) and s 3(a)(iii) of the Act.
Counsel sought to rely on passages from the Second Reading Speech of the Minister for Health, Mr JA McGinty, on the Tobacco Products Control Bill 2005 (WA). The Bill, upon enactment, became the Act.
The Minister said:
This bill is a fundamental step forward in tobacco reform, demonstrating the government's ongoing commitment to reducing the health hazards posed by smoking. The bill is aimed at reducing the availability of tobacco products to minors and reducing the influences of tobacco promotion generally, thereby enhancing health protection for our children and the general community.
See Western Australia, Parliamentary Debates, Legislative Assembly, 29 June 2005, 3598 ‑ 3599.
The Minister noted that the Bill introduced 'more effective controls on the illegal sale and supply of tobacco products to anyone under 18 years of age' and that '[i]n part, the intent of the bill is to provide a clear message to retailers that if they sell tobacco products to children they will be caught, with appropriate penalties available to reflect the seriousness of the offence' (3599). The Minister elaborated:
One of the key purposes of the bill is ‑
to reduce the incidence of illness and death related to the use of tobacco products ‑
(i)by prohibiting the supply of tobacco products … to young persons;
(ii)by discouraging the use of tobacco products;
This will be achieved by provisions that ‑
require proof of age to be produced on request at the point-of-sale or the point of delivery for indirect sales;
require anyone who sells tobacco products to be licensed;
restrict the sale of cigarette papers, pipes and other smoking implements to persons over 18;
require strict supervision of vending machines in licensed premises or in a mines [sic] amenity area;
control the sale and promotion of herbal cigarettes similar to tobacco products because credible scientific evidence clearly shows that these products pose similar major health risks to tobacco;
prohibit the sale of confectionery, toys and other products that are designed to resemble tobacco products;
apply controls to Internet sales and other forms of indirect sales of tobacco products;
limit sales to one point-of-sale only in any retail premises;
restrict tobacco product displays to one square metre but provide conditional exemptions for some specialist retailers if they are carrying on a business that will meet certain requirements;
control information signs about the availability and price of tobacco products;
require health warnings and warning signs about offences for selling to minors at point-of-sale;
prohibit hawkers of tobacco products;
ban the advertising of price discounting;
require distribution of approved guides at retail outlets about the health effects of smoking and how to quit;
harmonise labelling requirements for tobacco products with commonwealth legislation; and
provide comprehensive powers of enforcement and investigation consistent with the Health Act 1911 and tobacco control legislation of other major states (3599 ‑ 3600). (emphasis added)
Counsel for the appellant also sought to rely on an exchange involving the Minister during debate on the Bill. The relevant passage from Hansard reads:
DR JM WOOLLARD (Alfred Cove): … The bill refers to tobacco products. I do not believe the federal government has restricted the sale of flavoured cigarettes. I am not sure whether this bill covers that area. The bill prohibits the sale and promotion of herbal cigarettes. It also prohibits the sale of confectionery, toys and other products that are designed to resemble tobacco products. While flavoured cigarettes are not another product, if flavoured cigarettes are introduced into Western Australia it will be just another way in which the tobacco companies are encouraging people to smoke.
Mr JA McGinty: I will explain the government’s position on this matter. Things like the chemical content of cigarettes and the packaging of cigarettes need to be dealt with at a national level, to be fair to everyone. It would be very difficult for us at a state level to take on that responsibility. We must take what is in the packet as a given. However, once we take that as a given, we can deal with the marketing and sale of those cigarettes, which is very much what this bill is about. The Australian Capital Territory announced recently that it would be taking steps to prohibit the sale of flavoured cigarettes ‑ I forget what the flavouring was -
Dr KD Hames: Cinnamon is the most common flavour.
Mr JA McGinty: It was not that; it was something else. In my view, we would wholeheartedly support, through the regular meetings of health ministers, that national action be taken, either at the state or federal level, so that one set of rules will apply throughout the whole of Australia to these sorts of things. We are looking more at what we can do on the marketing, sale and display side of things, because we need to take what is in the packet of cigarettes as a given.
Dr JM WOOLLARD: So the minister has stated that, although it may not be included in the bill, he will support the prohibition of those products.
Mr JA McGinty: There is absolutely no question about that.
See Western Australia, Parliamentary Debates, Legislative Assembly, 23 August 2005, 4387.
According to counsel for the appellant, the long title of the Act and the Minister's Second Reading Speech reveal 'a primary concern with the marketing and sale of cigarettes'. Counsel submitted that the prohibition in s 106(a) 'has to be understood in the context of a desire to prevent the proliferation, promotion and prevalence of smoking by prohibiting the sale of products which may encourage and promote smoking … [that is, the] use of ignited or combustible tobacco'.
Counsel asserted that there is a 'primary difference' between smoking a tobacco cigarette and inhaling vapour from an electronic cigarette. In particular, smoking a tobacco cigarette involves the inhalation of tobacco smoke, cigarette tar and tobacco‑related toxins while inhaling vapour from an electronic cigarette does not involve ignition, combustible tobacco or the generation of tobacco smoke, cigarette tar or tobacco‑related toxins.
It was submitted that:
(a)'the design object of electronic cigarettes around which all the marketing and sale of such products is based is the minimisation of harm caused by smoking by encouraging the abandonment of "tobacco products" such as cigarettes in favour of an entirely different product which avoids tobacco smoke and cigarette tar'; and
(b)electronic cigarettes compete directly with 'tobacco products' on the basis of the 'substantial and obvious differences' between them.

Ground 2 of the appeal: the appellant's submissions

Counsel for the appellant submitted that:
(a)the present case concerns products 'whose design, whilst it may be referrable to "tobacco products" (such as the use of the word "cigarettes" in the title to describe them), are, consistently with the objects of the Act, intended to minimise or reduce smoking and thus, it is contended, are designed for a purpose diametrically opposed to that of a "tobacco product"';
(b)the words 'designed to' in s 106(a) narrow the prohibition by excluding products that 'merely physically resemble "tobacco products"', such as a short plastic drinking straw or an infant's bubble pipe;
(c)the words 'designed to' in s 106(a) require 'more than physical similarities';
(d)the words of s 106(a), if 'taken literally and given their ordinary meaning', might arguably prohibit the sale of a short plastic drinking straw and an infant's bubble pipe and that argument 'reveals an essential ambiguity in the words used in s 106' because the prohibition was not 'intended to catch [either] the straw or the bubble pipe';
(e)it is common ground that the electronic cigarettes found in the appellant's possession were not 'tobacco products': the critical question is whether they were 'designed to resemble tobacco products';
(f)the primary judge held, correctly, that the prohibition in s 106 is directed to a broader enquiry than merely physical similarities:
That more than a comparison of the physical appearance of the products is required can be discerned from the context. The Parliament did not confine the criterion for the operation of s 106 to whether a product 'resembled' a tobacco product, but instead adopted the criterion of a product 'designed to resemble' a tobacco product. That additional requirement confirms that more than a comparison of the physical appearance of the two products may be required [41].
(g)the word 'designed' in s 106(a) is a reference to the 'design' of a non‑tobacco product including, relevantly to the present case, the 'design' of electronic cigarettes;
(h)the word 'designed' in s 106(a) conveys elements of both purpose and intention;
(i)the 'established form of the product' should be taken into account 'by reference to its technical design';
(j)the relevant time at which a judgment is to be made as to whether the electronic cigarettes were 'designed to resemble a tobacco product' is when they were manufactured;
(k)the 'design' of a product is to be ascertained without reference to 'use'; that is, in the present case, whether the electronic cigarettes were 'designed to resemble a tobacco product' is to be determined without reference to their use after sale;
(l)in the present case, 'design falls to be determined by reference to the design at the point of manufacture because there was no suggestion that the electronic cigarettes were not as manufactured (in this case the material time is the point of time the electronic cigarettes were found in the Appellant's possession and yet to be sold or used)';
(m)the test to be applied under s 106(a) is objective in character, namely:
[W]hat a product is 'designed' for is to be objectively determined by: (i) inference from the appearance of the product at the material time (ie in this case as found in the Appellant's possession); (ii) whether the electronic cigarettes were 'designed to resemble a tobacco product' fell to be determined by an examination of both the product's physical appearance and layout, ie appearance and technical design, and (iii) included consideration of the purpose or intention for which the product was designed.
(n)a product may be designed to effect more than one purpose or intention;
(o)for the sale of a product to be prohibited under s 106(a), because it is 'designed to resemble a tobacco product', the purpose or intention that it 'resemble a tobacco product' must be the principal or dominant purpose or intention of its design;
(p)in the present case, 'the primary purpose for which the electronic cigarettes were designed was as a product to minimise the harm of smoking by weaning smokers away from "tobacco products" to use a new product which does not have the risks of tobacco smoke or cigarette tar';
(q)in the present case, although there may be physical features of the electronic cigarettes that are similar to 'tobacco products', 'the primary intention and purpose evident in [the design of the electronic cigarettes] is diametrically opposite, and antithetical, to "tobacco products"';
(r)evidence as to the use of the electronic cigarettes was irrelevant to the test to be applied under s 106(a); and
(s)the magistrate did not decide the case at first instance on the test now contended for by the appellant, but the magistrate 'was entitled to form the view, as she did, that the electronic cigarettes were not "designed to resemble a tobacco product"'.
See the appellant's written submissions at [26] ‑ [58].

The grounds of appeal: the proper approach to construction

In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
The purpose of a statute may, in a particular case, be defined from its long title. See Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471, 477 (Mason CJ, Brennan, Dawson, Gaudron & McHugh JJ). The long title may properly be referred to in case of ambiguity for guidance on the intended scope of the Act. It may not be used to contradict any clear and unambiguous language in the statute. However, if there is any uncertainty it may be resorted to for the purpose of resolving the uncertainty. See Birch v Allen [1942] HCA 17; (1942) 65 CLR 621, 625 ‑ 626 (Latham CJ, Rich, Starke, McTiernan & Williams JJ agreeing); Clunies‑Ross v Commonwealth [1984] HCA 65; (1984) 155 CLR 193, 199 (Gibbs CJ, Mason, Wilson, Brennan, Deane & Dawson JJ).
A section in a statute which specifically states the purposes or objects of the statute is relevant to the proper construction of the statute. See Tickner v Bropho (1993) 40 FCR 183, 191 ‑ 192 (Black CJ), 207 ‑ 209 (Lockhart J), 215 ‑ 216 (French J); Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 [5] (Gleeson CJ). It is necessary to consider the method by which Parliament has implemented the specified purposes or objects. See Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129, 152 (Evatt & Northrop JJ). The purposes or objects must be read and understood in the context of the statute as a whole. See IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12 (Brennan CJ & McHugh J).
By s 29 of the Interpretation Act, every section of an Act takes effect as a substantive enactment without introductory words. This provision was included in the Interpretation Act to avoid the repetition of enacting words before each section. See Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318; (2013) 85 NSWLR 580 [43] (Leeming JA, Meagher & Barrett JJA agreeing). A section in a statute which specifically states the purposes or objects of the statute therefore, of itself, takes effect as a substantive enactment.

Section 18 of the Interpretation Act provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects. See Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).
The view has been expressed that a section in a statute which specifically states the purposes or objects of the statute cannot cut down the meaning of another provision of the statute if that meaning is, in its textual and contextual surroundings, plain and unambiguous. See, for example, Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31, 78 (Cole JA); S v Australian Crime Commission [2005] FCA 1310; (2005) 144 FCR 431 [22] (Mansfield J); Director of Public Prosecutions v Mattiuzzo [2011] NTSC 60; (2011) 252 FLR 108 [14] (Riley CJ). This view has been based primarily on similar observations in Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 15 ‑ 16 (Gibbs CJ), 23 (Mason J) in relation to the proper construction of a preamble to a statute. See also s 31(1) of the Interpretation Act, which states that the preamble to a written law forms part of the written law 'and shall be construed as a part thereof intended to assist in explaining its purport and object'. It is unnecessary in the present case, with respect, to consider the correctness of the view expressed in such cases as Rosemount Estates, S and Matthiuzzo.
As Crennan J noted in Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, '[s]econdary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision (Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ), not least because such material may confuse what was "intended … with the effect of the language which in fact has been employed" (Hilder v Dexter [1902] AC 474 at 477 per Earl of Halsbury LC)' [99]. That statement of principle applies to extrinsic evidence admissible at common law and also to extrinsic evidence admissible under s 19 of the Interpretation Act. In other words, the statutory text, and not non‑statutory language seeking to explain the statutory text, is paramount. See Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22] (Gleeson CJ, Gummow, Hayne & Heydon JJ).
The function of a definition in a statute is not, except in rare cases, to enact substantive law. Rather, its function is to provide aid in construing the substantive enactment that contains the defined term. The meaning of the definition depends on the context, and the purpose or object, of the substantive enactment. See Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J); Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12] (McHugh J); s 6 of the Interpretation Act.

The references in the grounds of appeal to the electronic cigarettes being 'Tobacco Harm Reduction Products'

Grounds 1 and 2 of the appeal refer to the electronic cigarettes having been designed as 'Tobacco Harm Reduction Products'.
An assertion is made in ground 1(c) that there was 'unchallenged evidence [at the trial] that electronic cigarettes are specifically designed for a purpose consistent with the Act's objects being to avoid the health risks of "smoking"'.
The only evidence of relevance at the trial as to the design of the electronic cigarettes, in the context of the avoidance of the health risks of tobacco smoking, concerned the difference between electronic cigarettes, on the one hand, and tobacco cigarettes, on the other, in relation to the inhalation of tobacco smoke, cigarette tar and tobacco‑related toxins. In other words, a person who smokes a tobacco cigarette inhales tobacco smoke, cigarette tar and tobacco‑related toxins while a person who uses an electronic cigarette does not inhale those substances.

The grounds of appeal: their merits

Part 7 of the Act is headed 'Enforcement' and comprises s 98 to s 120. Division 2 of pt 7 is headed 'Offences' and comprises s 103 to s 110.
By s 106(a) of the Act, a person must not sell 'any food, toy or other product that is not a tobacco product but is … designed to resemble a tobacco product or a package'.
The term 'tobacco product' is defined in the Glossary to include, relevantly, 'a cigarette or cigar or any other product the main, or a substantial, ingredient of which is tobacco and which is designed for human consumption or use'.
The term 'cigar' is defined in the Glossary to mean 'a roll of cut tobacco for smoking, enclosed in tobacco leaf or the leaf of another plant' and 'cigarette' is defined to mean 'a roll of cut tobacco for smoking, enclosed in paper'.
The term 'smoke' (when used as a verb) is defined in the Glossary to mean 'smoke, hold, or otherwise have control over, an ignited tobacco product'.
The term 'package' is defined in the Glossary to mean 'a package containing, or designed to contain, a tobacco product and includes a box, packet, pouch, tin, carton, and a wrapping other than a transparent outer wrapping'.
Neither the words 'product', 'designed' and 'resemble' appearing in s 106 nor any cognate forms of those words are defined in the Act.
The word 'product', in the context of the phrase 'any food, toy or other product' in s 106, connotes a thing constructed, produced or manufactured by an action, operation or process. See Shorter Oxford English Dictionary (6^th ed, 2007) 2359. The prohibition is against the sale to any person of any food, toy or other product that is designed to resemble a tobacco product or a package. The prohibition is not limited to sales to children. Section 106 is to be distinguished from other provisions of the Act which contain prohibitions that relate solely to children. See, for example, s 6, s 7, s 8 and s 9. The word 'product', in s 106, is not confined to things which are similar to food or toys. The products specifically mentioned in the phrase, namely food and toys, are not within any particular category of products. No genus is apparent. Food and toys do not have a common or dominant characteristic by reference to which the words 'other product' should be confined. The ejusdem generis rule of construction is not applicable. Its application would involve the imposition of an unjustified limitation on the general words 'other product'. The references to 'food' and 'toy' in s 106 are merely examples of the products which may fall within the prohibition. See, generally, R v Regos [1947] HCA 19; (1947) 74 CLR 613, 623 ‑ 624 (Latham CJ).
The word 'resemble', in the context of the phrase 'designed to resemble a tobacco product or a package' in s 106(a), connotes that the product was designed to be 'like, [or] have a likeness or similarity to', a tobacco product or a package. See Shorter Oxford English Dictionary 2544. The sale of the product will not infringe the prohibition in s 106(a) unless it was designed to be like, or to have a likeness or similarity to, a tobacco product or a package.
The use of the word 'designed', in the context of the phrase 'designed to resemble a tobacco product or a package' in s 106(a), has the effect that the prohibition in s 106(a) will not be infringed merely because a person has sold a product that is not a tobacco product, but the product 'resembles' a tobacco product or a package. It is an integral aspect of the prohibition that the product was 'designed' to resemble a tobacco product or a package.
The word 'designed' has a variable meaning. It takes colour from the contextual relation in which it is used. For example, the word 'design' is sometimes synonymous with 'intent'. On other occasions, the word 'designed', in the sense of personal property having been 'designed', refers to the purpose for which the property was constructed, produced or manufactured. See Shorter Oxford English Dictionary 657 ‑ 658.
The word 'designed', in the context of the phrase 'designed to resemble a tobacco product or a package' in s 106(a), connotes that the product has been constructed, produced or manufactured with the intention that it should be like, or have a likeness or similarity to, a tobacco product or a package.
The prohibition in s 106(a) therefore refers, in effect, to whether the product was constructed, produced or manufactured with the intention that it should be like, or have a likeness or similarity to, a tobacco product or a package, as distinct from whether the product is in fact like, or does in fact have a likeness or similarity to, a tobacco product or a package. However, whether the product is in fact like, or does in fact have a likeness or similarity to, a tobacco product or a package will, with all other relevant facts and circumstances, inform the judgment that must be made as to whether the product was constructed, produced or manufactured with the intention that it should be like, or have a likeness or similarity to, a tobacco product or a package. The judgment is to be undertaken in relation to the product as constructed, produced or manufactured. The prohibition relates to the product when it was allegedly sold; that is, the product at that time as constructed, produced or manufactured.
The prohibition in s 106(a) will be infringed, and the offence created by the provision will have been committed, if the prosecution proves beyond reasonable doubt each of the elements of the offence. The prosecution must prove, first, that the accused sold the product; secondly, that the product is not a tobacco product; and, thirdly, that the product at the time of sale, as constructed, produced or manufactured, was designed to resemble a tobacco product or a package.
As to the third element with respect to design, it is unnecessary for the prosecution to prove that the product was designed with the intention of infringing against an express or implied purpose of the Act. It is sufficient if the prosecution proves that the product was designed to resemble a tobacco product or a package. The critical issue is whether the product was constructed, produced or manufactured with the intention that it should be like, or have a likeness or similarity to, a tobacco product or a package. It is not a defence to a charge of infringing the prohibition that the product may also have been constructed, produced or manufactured with the intention that it should be used for a purpose that will not expose the user to tobacco smoke or to the tar and toxins present in tobacco cigarettes. The prohibition does not exclude products that are, in their ordinary use, consistent with one or more of the express or implied purposes of the Act. It is not a defence to a charge of infringing the prohibition that the design of the product or a purpose (even the sole or main purpose) for which the product is ordinarily used is consistent with one or more of the express or implied purposes of the Act; for example, a product which is designed to assist people who wish to give up or minimise their smoking of tobacco products. Section 106(a) is not concerned with whether the product was designed to maintain, promote, reduce or eliminate tobacco smoking.
The apparent policy, as expressed in s 106(a), is that the sale of a product which is designed to resemble a tobacco product or a package is contrary to an object or objects sought to be achieved or advanced by the Act and that, consequently, the sale of those products should be prohibited and an infringement of the prohibition should be an offence. The apparent policy may be based on the belief that some people who use products which are designed to resemble a tobacco product or a package, and some people who observe those products in use, may be influenced to use tobacco products.
The appellant's submissions assert or assume, in essence, that s 106(a), properly construed, mandates or permits a distinction between products that are designed to reduce tobacco‑related harm, on the one hand, and products that are designed to resemble a tobacco product or a package, on the other. The language of s 106(a) does not create or recognise that distinction. There is no warrant for implying an additional requirement in s 106(a) that the product was constructed, produced or manufactured with the intention that the principal or dominant purpose for which the product is ordinarily used should resemble the principal or dominant purpose for which a tobacco product or a package is ordinarily used.
In my opinion, on a proper construction of s 106(a), after considering the context, in its widest sense, including s 3, s 106 and the Act as a whole, there is no reason why a product cannot be designed both to reduce tobacco‑related harm and to resemble a tobacco product or a package. If a product is designed to resemble a tobacco product or a package, and the other elements of the offence created by s 106(a) are proved, the prohibition will have been infringed and the offence committed even though the product was also designed to reduce tobacco‑related harm.
The text of s 106(a) is plain. There is no relevant ambiguity or obscurity. The ordinary meaning conveyed by the text, taking into account its context in the Act and the objects underlying the Act, does not lead to a result that is manifestly absurd or is unreasonable. Further, the Minister's Second Reading Speech, and the exchange involving the Minister during debate on the Bill, do not elucidate the meaning of s 106(a). The extrinsic evidence relied on by the appellant does not comprehensively review the Act. The extrinsic evidence is not capable of assisting in the ascertainment of the meaning of s 106(a). In any event, it cannot displace the clear meaning of the text of the prohibition.
It is a question of fact and degree, in each case involving s 106(a), whether the product as constructed, produced or manufactured was designed to resemble a tobacco product or a package. The question must be resolved objectively. The subjective intention of the person or entity responsible for the construction, production or manufacture of the product is irrelevant.
The question whether the product as constructed, produced or manufactured was, objectively, designed to resemble a tobacco product or a package must be answered by:
(a)an objective characterisation of the product in the context of all relevant facts and circumstances relating to the product;
(b)an objective characterisation of the tobacco product or the package, which the prosecution alleges the product was designed to resemble, in the context of all relevant facts and circumstances relating to the relevant tobacco product or package; and
(c)an objective comparison of the product, as objectively characterised, with the relevant tobacco product or package, as objectively characterised.
The relevant facts and circumstances relating to the product are not restricted to its physical appearance. They comprise all attributes and features of the product as constructed, produced or manufactured, including the use for which the product is designed; the manner in which the product is ordinarily used; and the appearance, and any changes in the appearance, of the product during ordinary use. All of those aspects will throw light upon the objective characterisation of the product and the objective comparison of the product with the relevant tobacco product or package; in particular, whether it should be concluded that the product was constructed, produced or manufactured with the intention that it should be like, or have a likeness or similarity to, the relevant tobacco product or package. A construction of s 106(a) that has the effect of prohibiting the sale of products which, in their ordinary use, resemble tobacco cigarettes when smoked, is consistent with the text of the provision and the purposes stated in s 3(a)(ii) and s 3(a)(iii) of the Act; namely, the reduction of the incidence of illness and death related to the use of tobacco products by discouraging the use of tobacco products and by restricting the promotion of tobacco products and smoking generally. The ordinary meaning conveyed by the text of s 106(a), taking into account its context in the Act and the objects underlying the Act, is not inconsistent with s 3.
The question whether the product as constructed, produced or manufactured was, objectively, designed to resemble the relevant tobacco product or package will, ultimately, be a matter of inference from the findings of fact made in relation to the admissible evidence.
It is convenient, in the balance of these reasons, to refer collectively to the 510‑T model and the eGo‑T model of electronic cigarettes, the subject of the alleged offence, as 'the Items'.
In the present case, the elements of the offence against s 106(a) which the prosecution was required to prove beyond reasonable doubt were these. First, the appellant sold a product, namely the Items. Secondly, the Items were not a tobacco product. Thirdly, the Items at the time of sale, as constructed, produced or manufactured, were designed to resemble a tobacco product, namely a tobacco cigarette or cigar.
It was common cause at the trial that the appellant had 'sold' the Items, within par (e) of the definition of 'sell' in the Glossary to the Act, by having in his possession, for the purposes of sale, 58 packages of electronic cigarettes being the Items. It was also common cause at the trial that the Items were not a tobacco product. The point in dispute was whether the Items were designed to resemble a tobacco cigarette or cigar.
The relevant evidence included the following:
(a)An electronic cigarette is an electronic inhaler that vaporises a liquid solution into a mist for inhalation. See par 1 of the statement of agreed facts.
(b)At all material times, the appellant and others operated a business under the name 'Heavenly Vapours'. See par 4 of the statement of agreed facts.
(c)The appellant sold the Items via a website on the internet. See par 5 of the statement of agreed facts.
(d)On 25 November 2011, the 'Heavenly Vapours' website offered the Items for sale online. See par 6(a) of the statement of agreed facts.
(e)Each of the Items comprises three parts, namely:
(i)a part housing a battery, a button to operate the electronic cigarette, and associated circuitry;
(ii)a part housing a heating element that vaporises the liquid, so that it can be inhaled; and
(iii)a cartridge or mouthpiece, which houses the liquid to be inhaled.
See par 10 of the statement of agreed facts.
(f)Each of the Items is designed so that vaporised liquid can flow past the container housing the liquid to reach the user's mouth. See par 10 of the statement of agreed facts.
(g)The cartridge can be refilled or replaced once the liquid is exhausted. See par 10 of the statement of agreed facts.
(h)To use each of the Items:
(i)the user places the cartridge end of the electronic cigarette into his or her mouth, and presses the button;
(ii)pressing the button activates the heating element, which in turn heats the liquid to a vapour; and
(iii)the user inhales the vapour from the end of the cartridge, removes the electronic cigarette from his or her mouth, and the vapour is then inhaled and exhaled.
See par 10 of the statement of agreed facts.
(i)The printout comprising six pages of text and photographs from the 'Heavenly Vapours' website, which was tendered in evidence at the trial, reveals:
(i)the cartridge in each of the Items may be filled with liquid containing nicotine or liquid not containing nicotine;
(ii)a user of each of the Items will 'get the satisfaction of smoking' with 'no smell', 'no butts', 'no smoke' and 'no tar'; and
(iii)'Heavenly Vapours' offers 'a huge variety of flavours in several different strengths': the term 'strength' refers to 'the amount of nicotine in the mix' and the strength a user requires 'is largely dependent on the type and quantity of tobacco [the user] currently smoke[s]'.
(j)The 510‑T User Manual and the eGo‑T User Manual were contained in the packaging for the Items that were tendered in evidence. The 510‑T User Manual referred to the 510‑T model as an 'e‑cigarette'. The document compared the 510‑T model with a cigarette. For example, the document stated that the battery of the 510‑T model 'enables over 800 puffs per day' and 'five times as many puffs as other normal e‑cigarette[s]'. Also, the document stated that '[t]he 510‑T gives a realistic feel and provides lots of vapour'. Similar statements were made in the eGo‑T User Manual.
(k)Mr Hawkins and Ms Murphy gave evidence in relation to electronic cigarettes as a general class. Mr Hawkins said an electronic cigarette 'looks exactly like someone who is smoking a normal cigarette, a cigarette that contains tobacco' (ts 20). He said that '[t]he actual hand and mouth actions are very similar' (ts 20). Ms Murphy gave evidence that an electronic cigarette, when used, 'look[s] very much like a cigarette … [it is] shaped like a cigarette, with the steam especially, it looks like smoke' (ts 33).

Counsel for the respondent acknowledged, at the hearing of the appeal, that the respondent did not challenge any of the magistrate's findings of fact to the effect that the Items did not resemble tobacco products in their physical appearance (appeal ts 29). The Items, which were exhibits 1 and 2 at the trial, were lost after the trial. The parties, by agreement, provided this court with other electronic cigarettes. Counsel for the appellant informed the court, without objection from counsel for the respondent, that the substituted electronic cigarettes were 'not identical' to exhibits 1 and 2 (appeal ts 27). However, counsel for the appellant said, with the concurrence of counsel for the respondent, that if this court, in deciding the appeal, was of the view that it was entitled to examine the Items in order to determine for itself whether the electronic cigarettes, the subject of the charge, were 'designed to resemble a tobacco product or a package', within s 106(a), the court could have regard to the substituted electronic cigarettes (appeal ts 29).
In my opinion, it is unnecessary (and, in view of the failure of the respondent to challenge any of the magistrate's findings of fact to the effect that the Items did not resemble tobacco products in their physical appearance, inappropriate) for this court, in deciding the appeal, to examine the Items in order to determine for itself whether the electronic cigarettes, the subject of the charge, were 'designed to resemble a tobacco product or a package'.
I am satisfied that the primary judge did not err, as alleged in ground 1, 'when she failed to construe the prohibition' in s 106(a) 'as confined by the objects of the Act'. Her Honour did not make any material error in her construction of the prohibition.
I have already explained the proper construction of s 106(a), including the elements of the offence it creates and the correct approach to answering the question whether a product as constructed, produced or manufactured is, objectively, designed to resemble a tobacco product or a package. I have also explained that the prohibition does not exclude products that are, in their ordinary use, consistent with one or more of the express or implied purposes of the Act. Further, as I have explained, it is not a defence to a charge of infringing the prohibition that the design of the product or a purpose (even the sole or main purpose) for which the product is ordinarily used is consistent with one or more of the express or implied purposes of the Act; for example, a product which is designed to assist people who wish to give up or minimise their smoking of tobacco products. I have noted that s 106(a) is not concerned with whether the product was designed to maintain, promote, reduce or eliminate tobacco smoking.
The purposes of the Act, as set out in s 3, inform the proper construction of s 106(a). However, the language of the prohibition, after considering the context, in its widest sense, including s 3, s 106 and the Act as a whole, does not bear the meaning which the appellant has sought to ascribe to it.
The appellant's case on s 106(a) involves, in substance, the insertion of additional words into the provision. There is no justification for construing s 106(a) as if it contained additional words or for construing the provision in a manner which has the effect of giving it a decreased operation. See, generally, Taylor v The Owners ‑ Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [37] ‑ [40] (French CJ, Crennan & Bell JJ) and my review of the relevant principles in The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36 [124] ‑ [129].
I am satisfied that the primary judge did not err, as alleged in ground 2(a), by relying on 'evidence of the use of the electronic cigarettes post sale/supply for the purpose of applying the prohibition when such evidence was not permitted by the Act'.
I have already elucidated that the relevant facts and circumstances relating to a product are not restricted to its physical appearance. They comprise all attributes and features of the product as constructed, produced or manufactured, including the use for which the product is designed; the manner in which the product is ordinarily used; and the appearance, and any changes in the appearance, of the product during ordinary use. Neither s 106 nor any other provision of the Act, properly construed, makes irrelevant and therefore renders inadmissible any evidence as to the ordinary use of a product, and the appearance of a product during ordinary use, after the product has been 'sold' (within the definition of 'sell' in the Glossary to the Act) in determining whether the sale of the product infringed s 106(a).
There was no evidence at the trial, and it was not suggested at the trial, that the Items, as tendered in evidence, had been altered or modified in any respect from the Items, as originally constructed, produced or manufactured. In any event, as I have mentioned, the prohibition relates to the product when it was allegedly sold; that is, the product at that time as constructed, produced or manufactured.
Mr Hawkins and Ms Murphy gave evidence in relation to the appearance of electronic cigarettes when used. Their evidence concerned electronic cigarettes as a general class. They had not seen the Items in use. The appellant admitted, in the statement of agreed facts, that the Items were electronic cigarettes and that, when used, the Items produced a vapour and the user 'inhales the vapour from the end of the cartridge, removes the electronic cigarette away from his or her mouth, [and] the vapour is then inhaled and exhaled': par 10. See also par 1 of the statement of agreed facts. The evidence of Mr Hawkins and Ms Murphy, as to the appearance of electronic cigarettes when used, was consistent with par 10(d) of the statement of agreed facts in relation to the Items. The only reasonable inference, on the evidence as a whole, is that the Items were within the general class of electronic cigarettes as described by Mr Hawkins and Ms Murphy in their evidence. Their evidence in relation to the appearance of electronic cigarettes, as a general class, when used was therefore probative of the appearance of the Items when used.
I am satisfied that the primary judge did not err, as alleged in ground 2(b), by failing to 'identify or apply the requirement that a consideration of the technical design of the electronic cigarettes [is] an essential step for the purposes of applying the prohibition' in s 106(a).
The term 'technical design' in ground 2(b) appears to relate to the technical specifications for the Items. The technical specifications were not tendered in evidence at the trial and no evidence about them was given. The absence of any evidence as to the technical design of the Items was not, as a matter of law, an obstacle to the primary judge's process of reasoning, and the absence of that evidence did not, as a matter of law, preclude her Honour's conclusion that the sale of the Items infringed the prohibition in s 106(a).
No evidence as to the 'technical design' of the Items was required to enable the primary judge to determine whether the Items, as constructed, produced or manufactured, were designed to resemble a tobacco cigarette or cigar. The basic structure and the method of operation and use of the Items were described in the statement of agreed facts. This description was sufficient to enable the primary judge to undertake the process of evaluation that s 106(a) contemplates.
The similarities and differences between the basic structure and the method of operation and use of the Items (including the use for which the Items were designed and the manner in which the Items are ordinarily used) on the one hand, and a tobacco cigarette or cigar on the other, were patent. On a fair reading of the primary judge's reasons as a whole, those matters were taken into account by her. See, in particular, her Honour's reasons at [7], [40], [58], [77] and [87].
The primary judge determined whether the Items at the time of sale, as constructed, produced or manufactured, were, objectively, designed to resemble a tobacco cigarette or cigar, by in essence:
(a)objectively characterising the Items in the context of all relevant facts and circumstances relating to the Items;
(b)objectively characterising a tobacco cigarette or cigar in the context of all relevant facts and circumstances relating to a tobacco cigarette or cigar; and
(c)objectively comparing the Items, as objectively characterised, with a tobacco cigarette or cigar, as objectively characterised.
The primary judge's approach to the resolution of the critical issue, and her Honour's process of reasoning towards her ultimate conclusion, were not vitiated by any material error.
In any event, the 'technical design' of the Items (including the use for which the Items were designed) compared to the 'technical design' of a tobacco cigarette or cigar (including the use for which a tobacco cigarette or cigar is designed) was not a factor (either alone or in combination with any other factors) that was reasonably capable of affecting the outcome of the appeal to the primary judge.
I am satisfied that the primary judge did not err, as alleged in ground 2(c), by rejecting the appellant's argument that 'the prohibition [in s 106(a)] is not intended to proscribe the sale of products designed to assist those who wish to give up or minimise their "smoking" (use of ignited or combustible tobacco products)'. Also, I am satisfied that her Honour did not err, as alleged in ground 2(d), by failing to 'have reference to the intention evident in the design of [the Items] as "Tobacco Harm Reduction Products" for the purpose of determining whether [the Items] fell within the declared objects of the Act and therefore fell outside the prohibition [in s 106(a)]'.
As I have sought to demonstrate, s 106(a), properly construed, does not exclude from the ambit of the prohibition the sale of products designed to assist people who wish to give up or minimise their smoking of tobacco products.
The primary judge was correct in rejecting the appellant's argument.
As I have mentioned, s 106(a) does not create or recognise a distinction between products that are designed to reduce tobacco‑related harm, on the one hand, and products that are designed to resemble a tobacco product or a package, on the other.
The primary judge did not, against the background of s 106(a) properly construed, make a material error by failing to 'have reference to the intention evident in the design of [the Items] as "Tobacco Harm Reduction Products" for the purpose of determining whether [the Items] fell within the declared objects of the Act and therefore outside the prohibition [in s 106(a)]', as alleged by the appellant.

Conclusion

I would grant leave to appeal on ground 2. However, the appeal must be dismissed.
MURPHY JA: This is an appeal concerning the proper construction of s 106(a) of the Tobacco Products Control Act 2006 (WA) (the Act). The relevant background has been set out by Buss JA.
Section 106 of the Act provides:
106.Products resembling tobacco products etc. not to be sold
A person must not sell any food, toy or other product that is not a tobacco product but is -
(a)designed to resemble a tobacco product or a package; or
(b)in packaging that is designed to resemble a tobacco product or a package.
Penalty: see section 115.
The word 'package' is defined in the glossary of the Act to mean 'a package containing, or designed to contain, a tobacco product …'.
The term 'tobacco product' is defined in the glossary to mean any of the following:
(a)tobacco in a form prepared for human consumption or use; or
(b)a cigarette or cigar or any other product the main, or a substantial, ingredient of which is tobacco and which is designed for human consumption or use; or
(c)a product prepared for smoking that contains a herb or other plant matter, whether or not the product also contains tobacco.
The glossary defines 'cigarette' to mean a roll of cut tobacco for smoking, enclosed in paper, and a 'cigar' to mean a roll of cut tobacco for smoking, enclosed in tobacco leaf or the leaf of another plant.
The word 'smoke' when used as a verb is defined in the glossary to mean 'smoke, hold, or otherwise have control over, an ignited tobacco product'.

The prohibition in s 106 of the Act applies principally to four circumstances:
(1)the sale of a 'product that is not a tobacco product but is … designed to resemble a tobacco product';
(2)the sale of a 'product that is not a tobacco product but is … designed to resemble a tobacco … package';
(3)the sale of a 'product that is not a tobacco product but is … in packaging that is designed to resemble a tobacco product'; and
(4)the sale of a 'product that is not a tobacco product but is … in packaging that is designed to resemble a tobacco … package'.
In s 106 of the Act, the word 'designed' in the phrase 'designed to resemble' precludes the operation of s 106 in relation to any accidental or fortuitous resemblance. As applied to an article of manufacturing such as a 'product', the word 'design' in its most natural and ordinary meaning, refers to 'plan or fashion … skilfully'[1] and 'fashion, shape'.[2] The concept of planning, shaping or fashioning a product to resemble something else draws attention not just to the physical appearance of the product, but also to the way in which the product is intended to be used and applied in everyday life.
[1] Macquarie Online Dictionary.
[2] Shorter Oxford Dictionary.
The word 'resemble' bears its ordinary meaning of 'to be like or similar to'.[3]
[3] Macquarie Online Dictionary.
Whether a product is planned or fashioned to be like a 'tobacco product' or a 'package', will be a matter of evaluative inference to be determined objectively and in a common sense way, having regard to the observable features of the product in question, including in relation to its use and application. It could not be supposed that Parliament intended that a shopkeeper's compliance or otherwise with the provision would depend upon ascertaining the plans and specifications in connection with its manufacturing process, or by reference to the subjective intention of those who designed the product for manufacture.
The first and primary ground of appeal raised by the appellant is to the effect that the prohibition in s 106 'does not prohibit the sale of "products" that are designed to give effect to … reducing the incidence of illness and death related to the use of tobacco products, by discouraging the use of tobacco products, and restricting the promotion of tobacco products and smoking generally'.[4] (original emphasis)
[4] Appellant's substituted submissions, par 5.
This absence of prohibition is said to be, in effect, contained within s 106 when construed in context, and in particular in light of the long title of the Act, the express purposes of the Act, and certain extrinsic materials.
The long title of the Act provides, amongst other things, that it is an Act to 'prohibit the sale of products that resemble tobacco products'.
Section 3 of the Act provides:
3.Purposes of Act
The purposes of this Act are -
(a)to reduce the incidence of illness and death related to the use of tobacco products -
(i)by prohibiting the supply of tobacco products and smoking implements to young persons;
(ii)by discouraging the use of tobacco products;
(iii)by restricting the promotion of tobacco products and smoking generally;
(iv)by reducing the exposure of people to tobacco smoke from tobacco products that are smoked by other people;
and
(b)to promote good health and activities which encourage healthy lifestyles. (emphasis added)
The appellant also referred to the second reading speech of the Tobacco Products Control Bill 2005 (WA) in the Legislative Assembly in which the then Minister for Health, on 29 June 2005,[5] stated:
This bill is a fundamental step forward in tobacco reform, demonstrating the government's ongoing commitment to reducing the health hazards posed by smoking. The bill is aimed at reducing the availability of tobacco products to minors and reducing the influences of tobacco promotion generally, thereby enhancing health protection for our children and the general community.
[5] Hansard, Legislative Assembly, 3598(d) - 3601(a).
In my view, the appellant's construction should not be accepted.
In City of Kwinana v Lamont,[6] this court observed:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
[6] City of Kwinana v Lamont (2014) 201 LGERA 334; [2014] WASCA 112 [47].
This is not a case where there is a provision expressed in general terms, the meaning of which may properly be constrained by reference to the particular context in which that provision appears within the scheme of the Act as a whole and in light of the evident objects of the Act: cf K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd;[7] Independent Commission Against Corruption v Cunneen.[8]
[7] K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309, 315 ‑ 319.
[8] Independent Commission Against Corruption v Cunneen [2015] HCA 14 [57].
Section 106 appears within div 2 of pt 7 of the Act. Division 2 of pt 7 is headed 'Offences' and deals with a range of subject matters. A number relate, in terms, to 'tobacco products' (eg, s 104 ‑ s 106). Some relate to 'smoking' (eg, s 107A ‑ s 107D). Section 106 stands as a separate provision, comprehensively addressing its own particular subject matter. It does not simply deal with 'smoking' or 'tobacco products', but extends to include things 'designed to resemble' a tobacco product, and even to things in packaging 'designed to resemble' a tobacco product. Section 106 is not, relevantly, expressed in general terms but supplies its own specific criteria for the operation of the prohibition enacted by it.
Moreover, s 3 of the Act, which states the purposes of the Act, is itself to be read and understood in the context of the Act as a whole, including s 106: IW v The City of Perth.[9] The purposes outlined in s 3, including the reference to discouraging the use of tobacco products in s 3(a)(ii), are to be understood as being effectuated by the provisions of the Act, including the prohibition in s 106: Municipal Officers' Association of Australia v Lancaster.[10] There is no difficulty in concluding that a provision such as s 106, which is evidently aimed at precluding circulation within the community of products designed to resemble tobacco products and packaging, may, on that account, serve the broader purpose in s 3(a)(ii) of discouraging the use of tobacco products. The absence of circulation within the community of such products may also serve, in a general way, to assist in the promotion of activities which encourage healthy lifestyles within the meaning of s 3(b) of the Act. There is no inconsistency between s 3 or any other provision of the Act, on the one hand, and s 106 on the other, if s 106 is given its plain and ordinary meaning. Nor is there any absurdity in giving s 106 its plain and ordinary meaning. The appellant's construction attributes to s 3 a limitation in the way in which the Act's purposes may be effectuated which is not found either in s 3 read in the context of the Act as a whole, or elsewhere in the Act.
[9] IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12 (Brennan CJ & McHugh J).
[10] Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129, 153.

Also, the long title of the Act, and the extrinsic materials, are expressed in terms of generality which provide no support for the appellant's construction. Moreover, in relation to the extrinsic materials, '[t]he words of the statute, not non‑statutory words seeking to explain them, have paramount significance': Nominal Defendant v GLG Australia Pty Ltd.[11]
[11] Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22].
In substance, although not in form, the appellant's argument is that s 106 should be read as containing a proviso to the effect that the prohibition in s 106 does not apply to prohibit the sale of any products that are designed to reduce the incidence of smoking tobacco products within the community. The appellant contends that 'electronic cigarettes' or 'e‑cigarettes' fall into this category of product.
In my view, the language of s 106 of the Act, read in the context of the Act as a whole, is insusceptible of accommodating the proviso for which, in substance, the appellant contends. It is plainly not express. Nor could it be implied. In Taylor v The Owners - Strata Plan No 11564,[12] French CJ, Crennan and Bell JJ said:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.
[12] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [38].
In the same case, Gageler and Keane JJ (albeit in dissent in the result) observed:[13]
Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always'. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
[13] Taylor [65].
Further, whilst s 18 of the Interpretation Act 1984 (WA) requires the court to prefer a construction which would promote the purpose or object of the Act over one which would not, that requirement 'can have meaning only where two constructions are otherwise open, and … is not a warrant for redrafting legislation nearer to an assumed desire of the legislature': R v L.[14]
[14] R v L (1999) 49 FCR 534, 538.
The question of whether 'e‑cigarettes' should be exempted from the operation of s 106 is a matter of policy. The language of s 106, read in context, gives no indication that Parliament has resolved that policy issue in favour of the vendors of e‑cigarettes. The construction proposed by the appellant is, in my view, not open.
For these reasons, I would dismiss ground 1 of the appeal.

Buss JA has set out the evidence in relation to the product sold by the appellant. Generally, for the reasons given by Buss JA, I would grant leave to appeal with respect to ground 2, but dismiss ground 2.
Accordingly, I would dismiss the appeal.
MAZZA JA: I agree with Buss JA and Murphy JA that neither of the grounds of appeal have been made out, and that the appeal against Pritchard J's decision must be dismissed. I agree with Buss JA's reasons on grounds 1 and 2. I also agree with Murphy JA's reasons in respect of ground 1. Further, I agree that the applications to adduce additional evidence should be dismissed.
As each of their Honours has pointed out, the outcome of this appeal turns on the proper construction of s 106(a) of the Tobacco Products Control Act 2008 (WA). I cannot usefully add to what has been written by them. However, I wish to make these additional observations.
Each of the grounds of appeal asserts that the e‑cigarettes in question were designed as 'tobacco harm reduction products' as if that was a fact found in the proceedings below. No finding to that effect was made. Moreover, for the sake of clarity, this court should not be understood as having considered whether e‑cigarettes are therapeutic and ought be available for sale. These are matters for Parliament.