A. Baker

CRIMINAL LAW AND PROCEDURE : LAWS1206

SEMESTER 1, 2001

QUESTION 3

MARK: 82

Dan's liability under s30 of the Food Act 1997 (NSW) will depend on whether the Act is to be interpreted as requiring subjective fault or being of the nature of strict or absolute liability. Any defences to the act in question, that is, allowing his salamis to remain on offer for sale, will depend on the nature of the liability under s30, in the case of mistake, or on the construction of s32 of the same Act, headed "Defence in relation to Food for Export".

LIABILITY

In Dan's favour is the presumption that all offences bear a subjective fault element: Sherras v de Rutzen. However, this presumption may be displaced if the following four factors are made out (He Kaw Teh): []

  1. the language of the statute. Although s30 sets out no element of fault in words such as "knowingly" or "wilfully", this is not sufficient of itself to displace the presumption: He Kaw Teh per Dawson J [].
  1. the subject matter and purpose of the statute. This is described in s5(1)(a) ("Purpose") as the "protection of the public from public health risks associated with contaminated food". The Act seeks to prevent the sale, and consumption as a consequence, of such "contaminated food". The acts prohibited by s30 then fall within the "public interest", here the protection of public health, category of strict liability identified in Sherras v de Rutzen []. Further, adulterated food has already been held to attract strict liability in Parker v Alder for the same purpose identified in this statute. Finally, the nature of the prohibited act, i.e. of selling contaminated food is not of itself a criminal act (He Kaw Teh) but an ordinary commercial transaction, suggesting that the subjective fault element has been displaced.
  1. the consequences to the community of the prohibited act, in contrast to the consequences to the accused on conviction. Of contaminated food, such as Dan's salamis. Had been sold and consumed within Australia then not only would the consumer himself sicken, possibly contracting the fatal CJD disease, but the nation's livestock would also be threatened, noting that agriculture remains an important industry, by the serious foot-and-mouth and BSE infections []. On the contrary, s30 provides a punishment of "$10 000 and imprisonment for 3 months". The prison term is quite short and the fine probably not remarkable for those involved in the export/import trade in finer foods such as Dan's German salamis. Hence, it is probable, as it was in Kearon v Grant, that the benefits to the community of strict liability outweigh the consequences to Dan and his compatriots on conviction for selling "contaminated food".

On these grounds, it is probable that the presumption of subjective fault is displaced and at least strict liability attaches to s30 [], that is, the prosecutor need prove only the specified elements of the offence.

It is still possible, however, that the liability under s30 is absolute. According to Hawthorn (Department of Health) v Morecam, the question to be asked is whether the purpose of the Act is as well served by strict liability as it is by absolute liability. Given that s31 of the same Act provides additional penalties ($50 000 fine and 12 months imprisonment) for those acting deliberately or negligently in their sale of contaminated food, it would seem that the Act already identifies and treats differently varying levels of moral culpability based on mental states. It would seem inconsistent then to assert that the Act imposes absolute liability, precluding the defence of honest and reasonable mistake of fact (as in Proudman v Dayman) [Apply?] when such an act imports no moral culpability[]. It would seem that absolute liability would serve the purpose of the Act, set out in ss5, 30 and 31, no better than strict liability, hence it will be strict liability that is imposed.

DAN'S LIABILITY UNDER S 30

Given that s30 imposes strict liability, the prosecution must prove only the physical elements of the offence, i.e. that Dan has "[sold] food that is unfit for human consumption or food that is adulterated". []

It is not clear that Dan has actually sold any of the salamis yet, but he does have them on offer for sale. As the act says "sells", this arguably encompasses offering for sale, as that is a part of the commercial transaction. That the salamis are "contaminated" is not relevant so much as whether they are "unfit for human consumption". This would require more evidence [], as it implies that the actual salamis must be so unfit. Although the Depar5ment of Public Health has deemed all imported meats from Europe to be unfit, that is not conclusive as to whether Dan's salamis are prohibited []. On these grounds, it is likely that the physical element will not be made out.

If it were to be made out, however, Dan has two options for his defence: mistake of fact and the s32 defence [].

MISTAKE OF FACT

"An honest and reasonable mistake of fact, which, if true, would render the act innocent" will negate strict liability: Proudman v Dayman. Dan has made two possible mistakes of fact: i) believing his salamis were uncontaminated; and ii) believing the salamis were no longer on offer for sale [].

  1. Dan doesn't believe that "the salamis are unsafe for human consumption". This would appear to have been neither honestly held, given that Dan arranges for heir exportation anyway, possibly inferring that he admitted the possibility that they might be so unfit under the Food Act, nor reasonable. Dan's evidence is his personal experience and the article in the Meat Products Newsletter. He has, however, received compelling evidence to the contrary in the memorandum from the Department of Health as to scientific evidence, and also the Department's deeming of European meat to be generally contaminated. This "mistake of fact" probably will not succeed as a defence to s30 [];
  1. Dan also believes, mistakenly, that all the relevant salamis have been removed from his shelves. He has "told" his manager to do so and has no reason to expect that it would not have been done. His belief than is probably honestly held. However, this mistake is probably not reasonable [], because one would think that for an offence carrying a penalty of a $10 000 fine and 3 months in prison, Dan would have checked that his orders had been attended to.

Although Dan may raise a mistake of fact, so that the prosecution must so disprove it (He Kaw Teh), his mistakes were probably not sufficiently honest and reasonable to succeed.

S 32 DEFENCE

The Act itself provides a defence to offences under s30 in s32, which allows for the relevant goods to be exempted from s30 if they are "to be exported out of Australia" (s32(1)(a) ) and comply with the laws of the receiving country "at the time" at which it is to be exported: s32(1)(b).

Dan's agreement with Fred in New Zealand satisfies s32(1)(a). However, s32(1)(b) raises problems. The NZ Parliament on 1st September outlawed the salamis' "preparation" (s32(1)(b) ) because of its European origin. His ignorance of the NZ law is no defence (R v Turnbull). The question then becomes [] when is the relevant time under s32(1b). If it is the time when the agreement was made, Dan would succeed as that predated the NZ Act. However, if it is the time of delivery, Dan will fail because that postdates the NZ Act (presuming it comes into force before 15.9.01). The latter view seems more reasonable as goods cannot be "exported" unless it is being delivered, i.e. in progress of the action. This defence then will probably be unsuccessful [].

CONCLUSION

While s30 is an offence of strict liability, and Dan may raise a defence of mistake of fact or a s32 defence, his defences will probably fail. However, the physical element of the s30 offence is probably not made out and it is likely Dan will escape conviction anyway.

[Excellent answer ]