Robinson v Zhang [2005] NSWCA 439

Reported Decision : 158 A Crim R 575

New South Wales Court of Appeal

Robinson v Zhang [2005] NSWCA 439 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18 November 2005

JUDGMENT DATE: 14 December 2005

JUDGMENT OF: Basten JA at 1; Barr J at 40; Hall J at 41

DECISION: (1) Set aside the order of the Local Court made on 12 May 2005 dismissing the proceedings brought against the Defendant alleging an offence under s 59 of the Public Health Act 1991 (NSW); (2) Remit the matter to the Local Court to be determined in accordance with the conclusions of this Court that; (a) the evidence relied on by the Defendant was not capable of establishing an impropriety for the purpose of s 138(1)(b) of the Evidence Act 1995 (NSW), nor was the evidence tendered by the prosecutor capable of being evidence improperly obtained for the purposes of par (a) or evidence obtained in consequence of an impropriety for the purposes of par (b) of s 138(1) of that Act, and; (b) the common law defence of honest and reasonable mistake of fact was not available to the Defendant.; (3) Grant a certificate under the Suitors' Fund Act 1951 (NSW) to the Defendant

CATCHWORDS: EVIDENCE – s138 of the Evidence Act 1995 (NSW) – improperly obtained evidence - whether prosecuting authority acted 'improperly' in procuring minors to purchase cigarettes as part of 'compliance testing' – extent to which common law principles of Ridgeway v the Queen survive the Evidence Act 1995 (NSW) – consideration of whether statements made in Second Reading Speech for the Public Health Act 1991 (NSW) that 'prosecution is used by public health units and the department as a last resort' informed the propriety of the conduct of the Department of Health for the purposes of s138 – whether finding that one of the minors could have been in her early twenties affected the propriety of the conduct of the Department of Health. - COSTS – whether the Suitors' Fund Act applies in relation to appeals from convictions for summary offences or is limited to civil proceedings.