Shearwater Hotels Ltd v Ministry of Health
[2017] NZHC 1142
•30 May 2017
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CRI-2017-404-000023 [2017] NZHC 1142
IN THE MATTER OF an appeal against conviction BETWEEN
SHEARWATER HOTELS LIMITED
Appellant
AND
MINISTRY OF HEALTH
Respondent
Hearing: 13 March 2017 Counsel:
J Strauss for the Appellant
S A Wilson for the Respondent
Judgment:
30 May 2017
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 30 May 2017 at 12.45 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Counsel: J Strauss, Auckland
Solicitors: Davenports Harbour Lawyers, Auckland Meredith Connell, Auckland
SHEARWATER HOTELS LTD v MINISTRY OF HEALTH [2017] NZHC 1142 [30 May 2017]
Introduction
[1] The Speakers Corner restaurant and bar has two outdoor areas which front the pavements on Anzac Road and Beachfront Lane in Browns Bay. Both areas have plastic drop-down blinds which, when pulled down, function as walls along the perimeter of each area.
[2] Shearwater Hotels Ltd (Shearwater) is the licensee of the Speakers Corner. Following a Judge alone trial in the District Court,1 it was convicted of four charges of not taking all reasonably practicable steps to ensure that no person smokes at any time in a part of the premises that is not an open area.2 An “open area” is defined to be a part of the premises that is not an “internal area”.
[3] Shearwater appeals from these convictions. It alleges that the Judge erred in finding that each area was an “internal area”. Specifically, it submits that the Judge was wrong to find that the blinds were “closeable openings” which were deemed to be closed as at the date of each charge. Shearwater also says that the Judge erred in finding that it had failed to take all reasonably practicable steps to prevent patrons from smoking in those areas.
The offending
[4] Both the Anzac Road and Beachfront Lane areas have a veranda style roof which extends over the pavement, and a rear wall which is the outer wall of the building. Each area has plastic blinds fitted under the roof which can be rolled down to protect patrons against the weather. Tables and chairs are provided in both areas.
[5] The dimensions of each area are set out in an agreed statement of facts. Anzac Road is two metres wide by 14 metres long, with a ceiling height of 2.73 metres. It has four blinds: one on each short side, and two on the long side.
[6] Beachfront Lane is 4.3 metres wide by 10.5 metres long, with a ceiling height of 2.8 metres. It has one blind on each short side, and three blinds on the long side
1 Ministry of Health v Shearwater Hotels Ltd [2016] NZDC 24842.
2 Smoke-free Environments Act 1990, s12(1), s17. The maximum penalty is a $400 fine.
which fronts the road. A black picket fence runs along the long side, with a gap in the middle to allow customers to pass through. The exact dimensions of that fence were not included in the agreed statement of facts. However, at trial, one of the Ministry’s witnesses roughly estimated it to be around five feet, two inches (approximately 1.6 metres) high.
[7] On 27 November 2014, the Ministry received a complaint from a member of the public that patrons at Speakers Corner were smoking in an internal area. An enforcement officer from the Ministry (Ms Li) met with Shearwater’s director in early 2015 to discuss the complaint. Ms Li set out in writing some possible changes to be made to the premises in order to achieve compliance.
[8] The first charge concerns observations made by two enforcement officers of both areas on 14 May 2015. All blinds were pulled down in the Anzac Road area. In Beachfront Lane, the two short side blinds were pulled down, but the blinds along the long side were pulled up. Patrons were seen smoking in both areas. There were ashtrays in the Anzac Road area. Staff were observed in Beachfront Lane, but not in Anzac Road.
[9] The events leading to the second charge occurred on 11 June 2015. This charge only relates to Beachfront Lane. The two short side blinds were down, with the long side blinds pulled up. Two enforcement officers observed patrons smoking in the Beachfront Lane area. Ashtrays were seen in the area. One of the enforcement officers thought it was possible that there was signage prohibiting smoking, but was not certain. No staff were seen.
[10] Throughout this period, communications continued to be exchanged between the Ministry officers and the directors of Shearwater as to the interpretation of “internal area” under the Act, and measures which could be taken to ensure that the areas were compliant with the legislation. None of the measures suggested by the Ministry were implemented by Shearwater. Instead, the directors continued to maintain that Shearwater was not in breach of the Act.
[11] On 16 October 2015, Ms Li visited both areas with another enforcement officer. Their observations give rise to the third charge. In Anzac Road, one short side blind, and all long side blinds were pulled up, with one short side blind rolled down. Beachfront Lane had the two short side blinds rolled down, and the blinds on the long side pulled up. Patrons were seen smoking in both areas. Ashtrays were seen in Beachfront Lane. Signage prohibiting smoking was seen in Anzac Road. Neither enforcement officer recalled seeing any staff in either area.
[12] The final charge relates to events on 30 October 2015 in the Beachfront Lane area. Ms Li attended Speakers Corner with another enforcement officer. On this occasion also, the two short side blinds were down, with the long side blinds pulled up. Both enforcement officers observed patrons smoking in the Beachfront Lane area. Neither officer recalled seeing smoking signage or staff in the area. Ms Li’s evidence was that there were ashtrays on the tables.
[13] Ms Li also gave evidence about a visit on 16 June 2016 where she again observed smoking in the Beachfront Lane area, but those observations do not form the basis of any charges.
Statutory framework
[14] The prosecution was brought under the Smoke-free Environment Act 1990 (Act). The purposes of the Act are set out in s 3A, and relevantly include:3
To reduce the exposure of people who do not themselves smoke to any detrimental effect on their health caused by smoking by others.
[15] Part 1 of the Act governs smoke-free workplaces and public areas. Section 4(a) provides that the purpose of that Part is to:
prevent the detrimental effect of other people’s smoking on the health of people in work places, or in certain public enclosed areas, who do not smoke or do not wish to smoke there; and
3 Act, s 3A(1)(a).
[16] The charges were laid under s 12 and s 17 of the Act, both of which are found in Part 1. Section 17(7) makes it an offence to contravene s 12 of the Act. Section 12 provides:
12 Smoking on licensed premises
(1)The licensee of any licensed premises must take all reasonably practicable steps to ensure that no person smokes at any time in a part of the premises that is not an open area.
(2)Subsection (1) does not prevent the licensee of any licensed premises from prohibiting smoking in a part of the premises that is an open area.
(3)No person may smoke at any time in a part of any licensed premises that is not an open area.
[17]“Open area” is defined in s 2(1) of the Act as:
open area, in relation to any premises, means a part of the premises that is not an internal area.
[18]“Internal area” is defined as:
internal area, in relation to any premises or vehicle, means an area within or on the premises or vehicle that, when all its doors, windows, and other closeable openings are closed, is completely or substantially enclosed by—
(a)a ceiling, roof, or similar overhead surface; and
(b)walls, sides, screens, or other similar surfaces; and
(c)those openings
[19] Therefore, in order to prove the charges beyond reasonable doubt, the prosecution had to prove that:
(a)Shearwater was a licensee of licensed premises;
(b)An area of the licensed premises was not an open area, that is, it was an internal area;
(c)Shearwater failed to take all reasonably practicable steps to ensure that no person smoked in that internal area.
District Court decision
[20] The principal issue before the District Court Judge was whether the Anzac Road and Beachfront Lane areas were open areas or internal areas. The Judge identified the specific issues to be determined as: the meaning of “closeable openings”; whether those openings were deemed to be closed; and whether each area was enclosed or substantially enclosed.4
[21] The Judge approached the interpretation question by noting that the meaning of an enactment was to be ascertained from its text and in light of its purpose, and having regard to the immediate and general legislative context. The purposes of the statute were referred to, as was the relevant provisions of the Act. The Judge observed that the definitions of “open area” and “internal area” were mutually exclusive, indicating that an area is either one or the other.5
[22] In respect of the meaning of “closeable openings” the Judge considered both Hong Kong and Western Australian legislation where that term was used. She found that the meaning of “closeable openings” as used in the New Zealand context was coloured by the terms “doors” and “windows” which preceded those words in the definition. She considered that doors and windows were examples of closeable
openings, and the term must be interpreted ejusdem generis to cover structures in the nature of doors and windows.6
[23] The Judge observed that the “internal area” definition contained a distinction between closeable openings, and the wall and roof-like structures set out in (a) and
(b) of the definition. In the Judge’s opinion, the distinction lay in the degree of permanency of the structures. She considered that walls and screens tend to be permanent and fix the perimeter of an area, whereas closeable openings provide for temporary space.7
4 Ministry of Health v Shearwater Hotels Ltd, above n 1, at [7].
5 At [30].
6 At [37].
7 At [38].
[24] The Judge considered that the plain meaning of the section required closeable openings to be assumed closed for the purposes of assessment. Her key findings are set out as follows:
[39] Here, the relevant closeable openings are the plastic retractable blinds which seal the temporary space on three sides of each area. The blinds can be rolled down to create temporary walls in a similar way the space in a window or door can be closed to form part of the perimeter of an area.
[40] The New Zealand definition does not refer to walls and the like being “permanent or temporary” in nature for the purpose of determining whether the area is enclosed. In overseas jurisdictions such as New South Wales, the addition of these words suggests that an area is enclosed if it can be enclosed or substantially enclosed. While I accept there is nothing in the Act to suggest that the structure creating the internal area need to be permanent I do not accept that the area can change character ad hoc.
[41] The defendant refers to legislation enacted in Australian Capital Territory where moveable walls are considered closed only to the extent that they form part of the boundary “at the time”. New Zealand’s definition does not contain the words “at the time”. However, use of the word “when” within the definition of “internal area” suggests the definition is focused on whether a particular area is capable of becoming enclosed (wholly or substantially) by closing closeable openings.
[42] I therefore consider that in circumstances such as the present, the plastic blinds act as closeable openings sealing space by forming quasi- walls, and that those blinds are assumed to be closed for the purpose of determining whether an area is internal.
[43] This position aids workability. If the nature of a particular part of premises changed at a particular time depending on, for example, whether screens were rolled up or down (fully or partially) it would be difficult for licensees to know and adhere to their obligations under the Act. It would also be difficult for enforcement officers to effectively monitor and enforce the statutory requirements. It would be difficult for members of the public who wish to minimise their exposure to second-hand smoke to identify areas where they are entitled to protection from second-hand smoke. This would likely result in inconsistent practices and confusion, which would undermine the purpose of the legislation.
[44] In determining whether an area is enclosed or substantially enclosed I note the statutory definition is less complex in comparison to some of those overseas, where a methodology is prescribed for calculating whether a particular area is “enclosed” or “substantially enclosed”. This possibly suggests that Parliament intended a common sense approach to determining whether an area is internal or open.
[25] The Judge therefore held that both the Anzac Road and Beachfront Lane areas were internal areas because when all of the closeable openings were assumed
closed, both areas were completely or substantially enclosed by a roof, rear wall and plastic retractable blinds on three sides. That interpretation meant it was unnecessary for the Judge to go on and make specific findings on whether or not the blinds were actually raised or lowered on the four occasions the subject of the charges.
[26] The Judge then considered whether “all reasonably practicable steps” had been taken by the licensee. For both areas, the Judge referred to the evidence of the Ministry’s enforcement officers who had observed smoking in both areas at the relevant time. The Judge found that there was no evidence that Shearwater took any steps to prevent smoking in either area. In particular, there was no evidence that the staff had taken any steps to address the smoking patrons despite Shearwater being notified on a number of occasions that people had been observed smoking in those
areas. There was also evidence of ashtrays being on the tables, and limited evidence of signage prohibiting smoking.8
[27] The Judge identified a number of other reasonably practicable steps that could have been taken by Shearwater to ensure no person was smoking in the area. They included staff asking patrons to desist from smoking in a smoke-free area, adding more prominent and permanent signage warning patrons not to smoke; and providing an alternative open area for smoking to take place.9
[28] Accordingly, the Judge found that the charges were proven beyond reasonable doubt.10 Shearwater was fined $675 for each conviction. There is no appeal from sentence.
Approach on appeal
[29] The appeal is brought pursuant to s 229 of the Criminal Procedure Act 2011. Section 232 provides that the appeal court must allow the appeal if satisfied that, in the case of a Judge alone trial, the Judge erred in his or her assessment of the
8 Ministry of Health v Shearwater Hotels Ltd, above n 1, at [52].
9 At [59].
10 At [60].
evidence to such an extent that a miscarriage of justice has occurred; or a miscarriage of justice has occurred for any reason.
[30] A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trial that created a real risk that the outcome of the trial was affected or resulted in an unfair trial or a trial that was a nullity.11 A “real risk” is a reasonable possibility that a not guilty or more favourable verdict would have been delivered if nothing had gone wrong.12
[31] The appellate court’s obligation on hearing a general appeal is to form its own independent judgment on the merits by way of rehearing. However, in determining whether the judgment was wrong, the appellate court will take into account any particular advantages enjoyed by the trial court.13
Grounds of appeal
[32] The notice of appeal dated 31 January 2017 lists 10 alleged errors in the judgment. There was agreement at the appeal hearing that those 10 errors collapse into the following four grounds of appeal:
(a)Whether the Judge erred in finding that the plastic drop-down blinds are “closeable openings” for the purposes of the Act;
(b)Whether the Judge erred in finding that the areas on Anzac Road and Beachfront Lane were internal areas for the purposes of the Act based on whether the section assumed that all closeable openings were closed;
(c)Whether there was sufficient evidence that the spaces were enclosed as a matter of fact on each of the four occasions;
11 Criminal Procedure Act 2011, s 232(4).
12 Sungsuwan v R[2005] NZSC 57, [2006] 1 NZLR 730, at [110].
13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13];
Green v Green [2016] NZCA 486 at [28], [31].
(d)Whether the Judge erred in finding that the appellant failed to take all reasonably practicable steps to prevent patrons from smoking in those areas.
The definition of “internal area”
[33] The first two grounds of appeal concern the definition of “internal area”. The definition is set out again for ease of reference:
internal area, in relation to any premises or vehicle, means an area within or on the premises or vehicle that, when all its doors, windows, and other closeable openings are closed, is completely or substantially enclosed by—
(a)a ceiling, roof, or similar overhead surface; and
(b)walls, sides, screens, or other similar surfaces; and
(c)those openings
[34] The approach to interpretation is well settled. The meaning of an enactment is to be ascertained from its text and in light of its purpose. In determining meaning, the Court must have regard to the broader legislative context, and the social, commercial or other objectives of the enactment.14
[35] The definition of “internal area” was considered in Cancer Society of New Zealand Inc v Ministry of Health.15 At issue in that case was whether the use of an airflow calculator to assess whether an area was an “open area” was in accordance with the Act. Rodney Hansen J found that Parliament had chosen to define spaces in
licensed premises by reference to the physical characteristics of the space, and in particular whether it was enclosed or substantially enclosed.16 His Honour held that the word “substantial” introduced an element of subjectivity into the assessment to be made under the Act.17 The use of the airflow calculator was found to be in error because the Ministry had replaced the “simple factual question of whether or not a
14 Interpretation Act 1999, s 5; Commerce Commission v Fonterra Co-operative Group Ltd [2007] 3 NZLR 767 (SC) at [22].
15 Cancer Society of New Zealand Incorporated v Ministry of Health [2013] NZHC 2538.
16 At [37].
17 At [48].
space is substantially enclosed by a calculation intended to assess airflow through space”.18
[36] A number of overseas jurisdictions have legislation which prohibit smoking in enclosed or substantially enclosed premises. Those overseas provisions were reviewed by the Judge and summarised in a schedule to her judgment. Most of those jurisdictions have further legislative guidance on how to measure whether or not an area is internal. For example, in Hong Kong and a number of Australian States, whether an area is enclosed is determined by reference to a percentage (ranging from
50 per cent to 75 per cent) of the total area, with further legislative rules about how to calculate that area.19
[37] There is no comparable legislative guidance given in New Zealand. The definition of “internal area” accordingly requires a simple factual assessment of whether an area is enclosed or substantially enclosed by each of the features listed in (a), (b), and (c) of the definition. That accords with the purpose of the Act which is to prevent the detrimental effects of smoking in an enclosed area.
[38] A purposive approach to the definition therefore requires meaning to be driven by whether or not an area is enclosed or substantially enclosed. It is in that context that the meaning of “closeable openings” and “when” as used in the definition is to be determined.
[39] The Judge held that the retractable blinds were “closeable openings” and the word “when” meant that they were assumed to be closed at the time of assessment.
[40] Viewed in isolation, the natural and ordinary meaning of “closeable openings” is wide enough to encompass the blinds in this case. The term itself is cast in broad terms. A closeable opening simply means an opening that may be
18 Cancer Society of New Zealand Incorporated v Ministry of Health [2013] NZHC 2538, above n 16, at [48].
19 For Hong Kong, see the meaning of “indoor” in The Smoking (Public Health) Ordinance (Cap 371), s 2. For Australian legislation, see Smoke-Free Public Places Regulation 2005 (ACT), reg 6; Tobacco Products Control Regulations 2006 (WA), cl 8; Smoke-free Environment Regulations 2016 (NSW), cl 8(2); and Tobacco Products Regulation Act 1997 (SA), s 4(3).
closed. As the Judge found, a closeable opening provides for temporary space.20 When the retractable blinds are rolled down, they close the space, and when they are rolled up, they leave it open. In that sense, they operate much like a door or window.
[41] The meaning attributed to the word “when” by the Judge means that the closeable openings are assumed closed for the purposes of assessment. Therefore an area is to be regarded as internal if it is capable of becoming an internal area when all its closeable openings are closed.
[42] Shearwater submits that “when” means that the closeable openings must in fact be closed in order for an area to be considered “internal”. But if that meaning were adopted an area would only be regarded as internal at the point in time that all its doors and windows were actually closed.
[43] That does not accord with the plain and ordinary meaning of “enclosed” or “substantially enclosed” in my view. A space which is enclosed by four walls, and a roof, may in fact be “substantially enclosed”, even if a window or door is open. Because the definition refers to “all” closeable openings being closed, an area could be taken outside the provisions of the Act by simply pushing a door or window ajar.
[44] The flaw in that approach is further demonstrated when that meaning is applied to vehicles as referred to in the “internal area” definition. The Act does not define “vehicle”, but “workplace” is defined in s 2 to include an internal area within a vehicle if the vehicle is provided by the employer and normally used by employees.21 Construing the word “when” as suggested by the appellant would mean that the regulation of smoking in a work vehicle would only apply when all the
windows and doors were in fact closed. If a window was open, by even just a crack, the legislation would not be engaged. That cannot have been intended by Parliament.
20 Ministry of Health v Shearwater Hotels Ltd, above n 1, at [38].
21 Act, s 2.
[45] The only meaning of “when” as used in the clause which accords with purpose is that adopted by the Judge. That is, “when” means that windows, doors and other closeable openings are assumed closed for the purposes of assessment.
[46] Although “closeable openings” and the word “when” are each capable of bearing the meanings attributed to them by the Judge, the combination is problematic when a closeable opening functions as a wall (as in this case), or a roof. That combination means that a wall or roof-like structure is assumed to be in place – even when it is not.
[47] That consequence is also at odds with the scheme and purpose of the Act. An offence is only committed under s 12 if the relevant conduct takes place in an area which is not an “open area”. That requires an assessment of the area to be made at the time of the alleged infringement. An area is either an open area or an internal area; it cannot be both at the same time. In order to be an “internal area”, the space must be “completely or substantially” enclosed by the structures listed in (a), (b) and
(c) of the definition. If it is not substantially or completely enclosed, then the area will be an “open area”. There is no prohibition on smoking in open areas. An assessment of an open area as an internal area on the grounds that it could become an internal area would extend the reach of the Act beyond that which was intended by Parliament.
[48] The Judge considered that this interpretation of the definition aided enforceability, and provided clarity and certainty as to the obligations of licensees and patrons. From one perspective that is so. There is certainty for both the licensee and the Ministry if an area is classified as internal irrespective of the position of its blinds.
[49] But, from other perspectives, such an interpretation adds to confusion about when the provisions of the Act are engaged. For example, a patron standing outside a restaurant in an area with all its roof and wall-like structures fully retracted might reasonably consider the area to be an “open area” where smoking is permitted. Yet that patron would be guilty of an offence pursuant to s 12(3) if, unbeknown to the patron, the area could be converted into an internal area at a different point in time.
[50] Similarly, a licensee may never in fact pull down blinds, or extend a roof out over an outdoor area of their premises. Yet they will be convicted of failing to take all reasonable steps to prevent smoking in an area which is, for all intents and purposes an open area, simply because it may one day become enclosed or substantially enclosed.
[51] Applying a purposive approach therefore, an area cannot be considered an internal area unless it is in fact enclosed or substantially enclosed as at the date of the infringement. Deeming entire walls or roof-like surfaces to be in place when they are not is inconsistent with both the scheme and purpose of the Act.
[52] That result prompts a fresh look at the meaning of “closeable openings”. The appellant suggests that “closeable openings” are structures which sit within a wall or roof, and are not therefore the wall or roof itself. That submission receives support from the definition which distinguishes between wall and roof-like surfaces on the one hand and closeable openings on the other. Such an interpretation would mean that structures which function as either a wall or roof (such as the blinds in this case) would have to in fact enclose a space, but closeable openings (being something different to either a roof or wall surface) would be assumed closed. Applying that distinction, the blinds in this case would fall outside the definition of “closeable openings” because they function as a wall surface.
[53] That approach reconciles meaning with purpose in the circumstances of this case. But there are a myriad of different structures which may simultaneously operate as both a closeable opening and wall or roof surface. Whether such structures are to be assumed closed depends less on their classification as a closeable opening, and more on the function they play in enclosing an area at a particular point in time. In my view, what is to be regarded as a closeable opening is to be determined on a case by case basis in light of the scheme and purpose of the Act.
[54] In summary, I consider s 12(1) requires a factual assessment to be made of an area at the time of the infringement. An area is either an open area or an internal area. In order to be considered an internal area, it must possess the physical features listed at (a), (b) and (c) of the definition. Those physical features must in fact
completely or substantially enclose the area as at the date of the alleged infringement. Closeable openings are assumed to be closed as at the relevant date. Whether a structure is a closeable opening is a question of fact to be determined on a case by case basis in light of the scheme and purpose of the Act.
Were the areas completely or substantially enclosed?
[55] It follows from the above that the prosecution had to prove that Anzac Road and Beachfront Lane were in fact, completely or substantially enclosed by each of the features listed in (a), (b) and (c) of the definition at the time of the relevant charges.
[56] The appellant concedes that Anzac Road was completely or substantially enclosed as at the date of charge one (14 May 2015) as all its blinds were pulled down at that time. However, in respect of the remaining charges, it submits that there is insufficient evidence to conclude that the areas were in fact completely or substantially enclosed at the relevant times.
[57] I have carefully considered whether to make the necessary factual determinations based on the evidence adduced, or remit the charges back to the District Court.
[58] Although it may be possible to make the factual determinations at the appeal stage, the meaning of “internal area” outlined in this judgment differs to that put forward by either party or the Judge in this case. That may require each party to recalibrate their case in line with this judgment. Further submissions on what is meant by “substantially enclosed”, and whether each or both of those areas meet that definition on the relevant date, may also be required.
[59] I therefore consider it preferable that the charges be remitted back to the District Court for determination of whether each area was an “internal area” as at the relevant date.
All reasonably practicable steps
[60] The final ground of appeal is that the Judge erred in finding that Shearwater had failed to take all reasonably practicable steps.
[61] The Judge’s findings on this issue were summarised in her judgment as follows:
[57] So in summary there is no evidence that on any of the four occasions enforcement officers witnessed staff at the premises telling patrons at either the Anzac Road area or the Beachfront Lane area to cease smoking. Despite Mr Quinn being notified on each occasion when people had been observed smoking no additional steps were taken and people continued to smoke on 16 October 2015. There were at least five occasions between December 2014 and October 2015 when Ms Li discussed the issue with Mr Quinn and through email. In any event it is clear from most of the emails sent by Mr Quinn that he did not believe the areas constituted internal areas and therefore did not believe he was in breach of the Act.
[58] I consider it was and is reasonably practicable for Mr Quinn and his staff to frequently monitor patrons. While the defendant has referred to a sign purportedly annexed to the wall of the premises requesting staff ensure no one is smoking on Anzac Road, this was not produced in evidence and I can therefore place little weight on it.
[59] In my view there are a number of other reasonably practicable steps that could have been taken by Shearwater to ensure no person was smoking in the area, for example:
(i)Specifically telling a patron that the area is smoke free and to desist smoking. (It is possible the staff member could have responded to Ms Li’s statement on 16 October 2015. However aside from this particular incident there is no evidence that the defendant had told the patrons the area was smoke free.)
(ii)Requiring the patrons to leave the premises if they refused to stop smoking.
(iii)Adding more prominent and permanent signage warning patrons not to smoke.
(iv)Providing an alternative open area for smoking to take place and providing ashtrays at each entrance to the premises so that patrons who are smoking on arrival have somewhere to extinguish their cigarettes.
[62] The fact that there was no proof that staff were aware that people were smoking in the relevant areas, or that Shearwater had provided the ashtrays, does not alter these conclusions. There is no error in the Judge’s approach.
[63] On the basis that each of the areas were “internal areas” at the relevant time, it is clear that Shearwater did not take all reasonably practicable steps to prevent smoking in those areas. This ground of appeal cannot succeed.
Result
[64] The appeal is allowed insofar as it relates to the interpretation of “internal area” under the Act. All other appeal grounds are dismissed.
[65] The convictions are quashed. The charges are referred back to the District Court to determine whether the Beachfront Lane and Anzac Road areas were “internal areas” in accordance with this judgment as at the date of each charge.
Edwards J
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