Pierson v The New Zealand Food Safety Authority

[2010] NZCA 118

IN THE COURT OF APPEAL OF NEW ZEALAND

CA659/2009
[2010] NZCA 118

BETWEENROBIN SHARPE PIERSON

Applicant

ANDTHE NEW ZEALAND FOOD SAFETY AUTHORITY

Respondent

Hearing:2 March 2010

Court:Randerson, Priestley and MacKenzie JJ

Counsel:T G Stapleton for the Applicant

A M Powell and  B M Piper for the Crown

Judgment:1 April 2010 at 11.30 a.m.

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

Introduction

[1]        The sole issue is whether the applicant should be granted special leave to appeal under s 144(3) of the Summary Proceedings Act 1957.

[2]        For over 30 years the applicant has operated hotels and restaurants in the East Coast and Gisborne regions.  He is clearly an experienced restaurant operator, enjoys a good reputation, and had not had any penalties or sanctions imposed on him arising out of his trade.

[3]        On Christmas Day 2006 things went wrong.  The applicant’s restaurant in Gisborne offered a Christmas lunch.  One hundred and twelve people, many elderly, paid to attend what would undoubtedly have been an enjoyable and festive lunch.  Unfortunately, in the wake of the lunch, between 50 and 53 of the diners became ill.  Their symptoms included vomiting, diarrhoea and stomach cramps.

[4] The New Zealand Food Safety Authority investigated this spectacular outbreak. Its conclusion was that the applicant had provided the lunch guests with turkey which was contaminated with clostridium perfringens. The applicant was accordingly prosecuted under ss 9(4)(a) and 9(5)(b) of the Food Act 1981.

[5]        There was a three day defended hearing in the Gisborne District Court before Judge Wilson QC.  The prosecution case depended largely on circumstantial evidence.  The defence case challenged the Crown evidence and raised the possibility that the diners’ illness had been caused by an unrelated disease, norovirus, for which the applicant had no responsibility.

[6]        In a careful and comprehensive reserved judgment delivered at the end of July 2008[1] the Judge concluded he was satisfied beyond reasonable doubt the applicant had sold turkey contaminated with clostridium perfringens to guests in his restaurant on Christmas Day 2006.  He was further satisfied that the contamination was injurious to the health of the diners and had caused illness to those who had purchased and consumed it. 

[1]      New Zealand Food Safety Authority v Pierson DC Gisborne CRN0701650078, 31 July 2008.

[7]        The maximum statutory penalty was a $3,000 fine.  On 4 August 2008 Judge Perkins, with an acknowledgement of the applicant’s good record and overall compliance with food and hygiene requirements, imposed a $400 fine and ordered payment of court costs.[2]

[2]New Zealand Food Safety Authority v Pierson DC Gisborne CR!-2007-016-3304, 4 August 2008.

[8]        The applicant appealed against conviction.  The prosecutor appealed against the sentence.  Courtney J, in a reserved judgment of 1 May 2009,[3] considered that the Judge had made an error in an additional finding excluding beyond reasonable doubt norovirus as “the real cause of the illness which diners reported”.[4]  However, having reviewed the evidence and Judge Wilson’s factual findings, Courtney J too was satisfied that the prosecution had proved beyond reasonable doubt that the relevant turkey meat was contaminated with clostridium perfringens.

[3]      Pierson v New Zealand Food Safety Authority  HC Gisborne CRI-2008-416-14, 1 May 2009.

[4] At [61].

[9]        The appeal against sentence resulted in the fine being upheld but the applicant additionally being ordered to pay reparation to six victims totalling $510, plus the prosecution’s costs and disbursement in the sum of $10,414.  (The appearance by a different prosecutor before a different judge in August 2008 had led to those aspects being overlooked.)

[10]       The applicant’s next step was to seek leave in the High Court to appeal to this Court.  Two questions of law of general public importance arising out of Courtney J’s judgment were formulated.  It is unnecessary for us to specify those points since they have effectively been folded into the points advanced to this Court.  The leave application was heard before Keane J.  His 28 September 2009 reserved judgment[5] was that neither of the applicant’s questions of law qualified for a grant of leave to appeal.

[5]Pierson v New Zealand Food Safety Authority HC Gisborne CRI-2008-416-14, 28 September 2009.

[11]       Thus, after the passage of three further Christmas Days, the applicant seeks special leave from this Court to appeal.

Counsel’s submissions

[12]       Mr Stapleton’s submissions in support of the special leave application comprised 20 pages.  Rule 5G of the Court of Appeal (Criminal) Rules 2001 stipulates such submissions should be limited to 5 pages.  When taxed with this issue Mr Stapleton’s reply was that his duty to his client made it impossible for him to deal with the issue more succinctly.

[13]       That may be the case.  Nonetheless the purpose of the Rule 5G is to ensure that counsel focus both themselves and this Court on precise questions of law and also to discourage trawling through factual matters in attempts to dress up facts specific to a case as issues of law.

[14]       Additionally the applicant filed 17 pages of an affidavit and exhibits from his brother, a retired book publisher, in New South Wales.  The affidavit was described as “setting out further evidence relating to the dosage level required for clostridium perfringens food poisoning”.  The deponent, who has no relevant scientific qualifications or expertise gives evidence of his researches on websites and in particular of exchanges of emails between November 2009 and January 2010 between himself and Dr Roger Cook of the New Zealand Food Safety Authority who gave evidence at the applicant’s trial.

[15]       Although we have read the affidavit we see no proper basis to admit it.  The deponent has no relevant expertise and is not independent.  Nor is material he seeks to place before the Court fresh evidence in the sense discussed in the authorities.  It is evidence which could have been obtained and placed before the Court, or have been the subject of cross-examination.  It was not. 

[16]       Counsel agreed on the central issue which applies to s 144(3) special leave applications.  As this Court stated in R v Slater[6] there must be a question of law; the question must be one which by reason of its general public importance or for some other reason ought to be submitted to this Court; and this Court must be of the opinion that it ought to be so submitted.

[6]           R v Slater [1997] 1 NZLR 211, at 214–215.

[17]       Mr Stapleton relied on two further authorities in support of the submission that the special leave jurisdiction was additionally designed to avoid miscarriages of justice.  In Clifford v Commissioner of Inland Revenue (No. 2),[7] North P referred to this Court having a wide and unfettered discretion to do what is right in any particular case.

[7]           Clifford v Commissioner of Inland Revenue (No. 2) [1962] NZLR 897 (CA) at 899.

[18]       Counsel also referred to the High Court decision of Sigglekow v Gibbs[8] in which Williamson J referred to s 144(2) as having received a flexible interpretation to ensure that injustices are avoided .  Courts at all levels, including appellate courts, will of course try to avoid or correct injustices.  A palpable injustice would undoubtedly inform the s 144(2) and (3) leave jurisdictions.  But a mere assertion that there has been an injustice will not by itself satisfy the well established Slater criteria or give an automatic right to a second appeal which the legislation does not provide.  The short answer to Mr Stapleton’s point is that our reading of the judgments of Judge Wilson QC and Courtney J reveals no injustice or miscarriage.

The three framed questions of law

First question of law

[8]           Sigglekow v Gibbs [1991] 2 NZLR 215 at 217.

[19]       The first question relates to the range and application of the criminal burden of proof. 

[20] It asks whether an informant, when a person is charged with selling contaminated food under ss 9(4)(a) and 9(5)(b) of the Food Act 1981, “can … prove the ingredients of the charge if … the following matters are not [proved] beyond reasonable doubt:

(a)The alleged contaminant was present on food at a level which would cause illness of the same type as the alleged contaminant if the food was consumed.

(b)         The consumption of the food caused illness.

(c)All other reasonable possibilities of the cause of the illness had been excluded”.

[21]       This question and its components necessarily focus on the evidence produced at the applicant’s trial which has already been weighed and scrutinised at two levels.  The prosecution case was that approximately half of the Christmas luncheon diners became ill, exhibiting symptoms consistent with clostridium perfringens food poisoning.  A subsequent analysis of unconsumed food from the buffet showed that turkey was contaminated with clostridium perfringens.  Faecal samples from two of the diners showed the presence of clostridium perfringens at levels consistent with food poisoning.  In addition to this evidence the prosecution contended that the applicant’s procedure for cooking and cooling the turkeys provided at the luncheon was unsatisfactory and had provided an opportunity for the rapid growth of relevant pathogens.

[22]       The applicant’s defence was that the case had not been proved beyond reasonable doubt, with particular focus on the symptoms exhibited by the diners and whether those symptoms were attributable to the clostridium perfringens.  There were criticisms of the investigation of the diners’ illness compared with the ESR’s disease outbreak manual; the faecal samples taken from only two diners; and the time interval between taking the faecal samples and Christmas Day was said to be too long.  In addition flags of doubt were waved by evidence that another disease, norovirus, which was active in the Gisborne area at the time and which produced similar symptoms to clostridium perfringens, had not been excluded beyond reasonable doubt as a reasonable possibility of the diners’ illness.  An additional focus on norovirus at trial stemmed from evidence that a diner had accidentally defaecated on a toilet floor during the lunch.  (Although there had been some criticism at trial about the identity of this diner not being disclosed, Judge Wilson was satisfied the accidental defaecation did not contaminate the served turkey, nor was it a result of norovirus.)

[23]       Mr Stapleton, turning the formulated question into a submission, contended that, in a food poisoning case, a charge of selling contaminated food could not be established if contamination at a level which would cause the illness and a causal connection between the illness and the consumption of the food were not proved beyond reasonable doubt in addition to excluding other reasonable possibilities as the cause of the illness.

[24]       Keane J, when declining leave (at [17] and [27]) was prepared to accept this formulation as a possible issue of law but considered that what the question really raised was “an interrogation of the evidence, its character and sufficiency”.  We agree with that observation as well as with his observation that any matter of law raised was confined solely to the applicant’s case and did not raise issues of general or public importance.

[25]       The judgments of the two courts below proceeded on the basis of drawing conclusions on the basis of all the evidence before them.  Reliance was placed on inferences which those Courts considered were appropriately drawn from established facts.  As the Privy Council observed in Campbell v Hamlet[9] a sufficient number of strong probabilities or even near probabilities can in aggregate amply support a finding of proof beyond reasonable doubt.  Such a process is frequently applicable where a prosecution case relies principally upon circumstantial evidence.

[9]      Campbell v Hamlet [2005] 3 All ER 116 at [24].

[26]       The scrutiny of the relevant evidence by both the trial judge and Courtney J and their respective conclusions that the prosecution case had been proved beyond reasonable doubt do not give rise to a question of law of general or public importance.  The application for special leave on the first question thus fails.

Second question of law

[27]       The second question of law, closely related to the first, essentially arises out of a process issue and would not have been available to the applicant but for the appellate judgment of Courtney J.

[28]       Her Honour stated in her judgment at [7] that it was reasonably possible, and indeed highly likely, that some of the diners were suffering from norovirus when they attended the lunch and thus it was reasonably possible that other diners had been infected.  On that basis Courtney J decided that Judge Wilson had erred when excluding norovirus beyond reasonable doubt as “the real cause of the illness which diners reported”. 

[29]       Mr Stapleton constructs from Courtney J’s judgment some questions which are closely related to the first question.  The first is whether Courtney J was correct at law holding that the evidence and the error in combination had no bearing on the ultimate result.  The second question feeds back into the burden of proof and is whether a review of the evidence and factual findings justified Courtney J’s conclusion that the informant had proved beyond reasonable doubt that the turkey meat was contaminated with the clostridium perfringens.

[30]       The second question and its subsidiaries in our view are solely factual matters.  Courtney J, sets out the circumstantial evidence which the applicant had raised at his trial on the norovirus matter, including the awareness of an ambulance officer that there had been a lot of stomach bug illnesses in Gisborne at the time; a newspaper article; and some factors and symptoms which were more consistent with norovirus than clostridium perfringens.[10]

[10]      At [58] – [60].

[31]       Keane J at [6] of his judgment declining leave, commented briefly that there was a possible legal issue as to whether Courtney J, having differed from Judge Wilson, was under a duty to remit the case to the District Court for a re-hearing on the premise that norovirus was present.  Mr Stapleton submits there was such a duty.  Courtney J should have allowed the appeal “outright” or alternatively she should have allowed the appeal, quashed the conviction, and directed a rehearing predicated on a High Court direction that norovirus was present and might have produced a different result.

[32]       The flimsiness of the purported question of law is self-evident.  The norovirus issue was squarely before both Judge Wilson and Courtney J.  Judge Wilson drew an inference from the evidence before him.  Courtney J did not consider the error she found to be significant or determinative.  Whether or not they were correct to do so is essentially a question of fact.

[33]       The applicant has not framed as an issue of law whether Courtney J exercised her discretion correctly.  Even were it to be framed that way the principles of the appellate discretion to acquit or remit are well known.  It was open to her to exercise her discretion in the way she did.  There is no issue of general public importance arising out of the matter in the context of this case.

[34]       The application for special leave on the second question also fails.

Third question of law

[35]       The third formulated question of law, similarly to the second, is framed on Courtney J’s appellate judgment, particularly her finding that the prosecution had proved beyond reasonable doubt that the turkey meat was contaminated with clostridium perfringens.  The question asks whether Courtney J erred by failing to direct herself or apply the principle that the charge could only be proved beyond reasonable doubt if the inference of guilt was the only rational conclusion to be drawn from the evidence relied on by the prosecution.  A supplementary question is asked whether Courtney J’s finding was “inconsistent with the evidence and contradictory of it”. 

[36]       Mr Stapleton’s submissions on the third question effectively relied on well settled principles relating to drawing inferences in a criminal trial from circumstantial evidence.  He referred to Police v Pereira,[11] R v Ramage,[12] R v Hart,[13] and the early requirement of a Hodge[14] direction.

[11]           Police v Pereira [1977] 1 NZLR 547 (SC).

[12]           R v Ramage [1985] 1 NZLR 392 (CA).

[13]           R v Hart [1986] 2 NZLR 408 (CA).

[14]           R v Hodge (1838) 2 Lew CC 227, 168 ER 1131.

[37]       Mr Stapleton’s submission was that where a trial involved circumstantial evidence before a judge alone, the judge was required to give him or herself a direction that proof beyond reasonable doubt was only established if the inference of guilt was the only inference reasonably available from the circumstantial evidence presented.  A direction to that effect in a jury trial, although not required as a matter of law, was perfectly proper.  Courtney J, submitted Mr Stapleton, had failed to give herself such a direction.

[38]       Although dressed up as a question of law this question, like its two predecessors, has at its heart a rescrutiny of the evidence.  There is no requirement in law for a judge sitting alone to remind him or herself of the law governing the drawing of inferences.  For the purposes of the third question there is nothing to suggest that either Judge Wilson or Courtney J misdirected themselves on the requirements to draw safe inferences and to weigh all the available circumstantial evidence when deciding whether guilt had been proved beyond reasonable doubt.  The question as formulated relies on well established principles and does not give rise to any question of general or public importance.

Other reasons

[39]       Mr Stapleton drew various other matters to our attention, mainly designed to support a proposition that there had been a miscarriage of justice.  He referred to the evidence of Dr Cook, the prosecution’s expert witness at trial.  He referred to passages of Courtney J’s judgment where she referred to an “unjustifiable reluctance”[15] by Dr Cook to make concessions on the size of the faecal sampling and to the applicability of Australian guidelines to New Zealand.[16]  Counsel analysed Dr Cook’s evidence and referred to the affidavit of additional evidence (above [14]).  He also submitted that a research of relevant legal databases suggested that prosecutions involving clostridium perfringens and norovirus (in combination) were rare and, in a food poisoning case, unique.  Thus, it was argued, there is a real need for care and caution in a criminal proceeding of this type which justified a grant of special leave.  We have already expressed our views on the supporting affidavit (above [15]). 

Conclusion

[15] At [47].

[16] At [48].

[40]       We are not persuaded that this is a case where special leave should be granted.  We accept that the findings against the applicant at trial and in the High Court were important to him.  At both levels the merits were carefully and extensively examined.  The applicant’s trial and his appeal involve the application of long-established principles to the evidence presented.  The questions of law which have been advanced essentially raise factual issues.  Despite the importance to the applicant, special leave, involving as it does a second appeal limited to questions of law, is normally available only on matters of general or public importance.  That threshold in our view is not crossed.

Result

[41]       For reasons apparent in the previous subsections of this judgment, the application for special leave to appeal is declined.

Solicitors:

Crown Law Office, Wellington for Respondent