Citation: Robinson v Woolworths Ltd [2005] NSWCCA 426
Court: NSW Court of Criminal Appeal
Date: 14 December 2005
Judge(s): Basten JA; Barr J; Hall J
Background
The NSW Department of Health ran a compliance program to test whether retailers were observing the prohibition on selling tobacco products to minors under s 59(1) of the Public Health Act 1991 (NSW). As part of that program, departmental officers procured two young women to enter a Woolworths petrol station and attempt to buy cigarettes. An employee sold cigarettes to one of the minors without checking her age.
The informant (the head of the Department of Health, referred to by her title) brought a prosecution against Woolworths. At first instance in the District Court, Berman DCJ held that the conduct of the departmental officers in obtaining the evidence was "improper" for the purposes of s 138 of the Evidence Act 1995 (NSW), meaning the evidence could be excluded. The prosecutor appealed by way of a stated case to the Court of Criminal Appeal.
The central question before the Court of Criminal Appeal was whether the Department's use of minors to test compliance with the tobacco sales law amounted to improperly obtained evidence, potentially triggering exclusion under s 138.
Legal Issues
- Whether the Department of Health's conduct in procuring minors to purchase cigarettes constituted "impropriety" under s 138(1) of the Evidence Act 1995 (NSW)
- Whether the District Court erred in finding the conduct improper without accounting for the absolute liability nature of the offence
- Whether the District Court failed to distinguish the present facts from those in Ridgeway v The Queen (1994) 184 CLR 19
- To what extent common law principles from Ridgeway survive and inform the operation of s 138
- Whether the Second Reading Speech for the Public Health Act 1991 (NSW), which described prosecution as "a last resort," was relevant to the propriety assessment
Decision
The Court of Criminal Appeal held that the District Court had erred. The conduct of the departmental officers was not capable of constituting impropriety for the purposes of s 138. Because the Evidence Act 1995 does not define "impropriety," the Court applied the principles from Ridgeway v The Queen as a baseline. Those principles require that the conduct be "quite inconsistent with" the minimum standards expected of law enforcement, and involve some element of encouragement, persuasion or manipulation directed at inducing the commission of an offence.
On the facts, none of those elements were present. The two young women simply approached the counter and asked to buy cigarettes, as any ordinary member of the public might. There was no pressure, persuasion or inducement applied to the employee who made the sale. The conduct occurred in a public place in the ordinary course of business and involved no intrusion on individual rights.
Basten JA (with Barr J agreeing) emphasised that where there is no unlawfulness on the part of the law enforcement officers, mere doubts about the desirability of the investigative technique are insufficient to establish impropriety. The Court also noted that because the offence carries absolute liability (no criminal intent is required), the policy concern about tempting people to commit offences they might not otherwise commit carries reduced weight. Hall J added that the absence of any enticement or inducement made it readily inferable that the Woolworths employee would have sold cigarettes to any underage person who asked, regardless of the compliance test.
The Court declined to answer questions 2 and 3 (concerning absolute liability and the distinguishing of Ridgeway) as it considered them inappropriate to answer given the answer to question 1.
Orders Made
- Q1: The conduct of the informant was not capable of constituting "an impropriety" for the purposes of s 138(1)(b), nor did it have the effect that evidence of the offence was improperly obtained for the purposes of s 138(1)(a), of the Evidence Act 1995 (NSW)
- Q2: Inappropriate to answer
- Q3: Inappropriate to answer
Key Takeaways
- Common law principles from Ridgeway v The Queen continue to inform the meaning of "impropriety" under s 138 of the Evidence Act 1995 (NSW), because the Act does not define that concept and no clear legislative intention to depart from those principles is apparent.
- To establish impropriety, the conduct must be more than merely questionable or undesirable: it must be clearly inconsistent with minimum law enforcement standards and must involve some element of encouragement, persuasion or manipulation directed at inducing the commission of an offence.
- The onus of establishing impropriety falls on the party resisting admission of the evidence.
- Where an absolute liability offence is under investigation, the policy concern about tempting people into committing crimes they would not otherwise have committed is of limited force, and a properly structured compliance program backed by prosecution can itself constitute a legitimate and proportionate enforcement method.
- The Court of Criminal Appeal confirmed that using members of the public (including minors in appropriate circumstances) to test retail compliance, without any element of inducement beyond a straightforward purchase request, does not constitute the kind of conduct that renders evidence improperly obtained under s 138.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 138
- Public Health Act 1991 (NSW), s 59(1)
- Criminal Appeal Act 1912 (NSW), s 5B
- Law Enforcement (Controlled Operations) Act 1997 (NSW)
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW)
Key Cases:
- Ridgeway v The Queen (1994) 184 CLR 19
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Coulstock (1998) 99 A Crim R 143
- R v Dalley (2002) 132 A Crim R 169
- R v Ladocki [2004] NSWCCA 336
- R v Sloane (1990) 49 A Crim R 270
- R v Hsing (1992) 25 NSWLR 685
- Rice v Tricouris (2000) 110 A Crim R 86
- Director of Public Prosecutions v Carr (2001) 127 A Crim R 151
- R v Looseley [2001] 1 WLR 2060
- Nottingham City Council v Amin [2000] 1 WLR 1071