Robinson v Woolworths Ltd [2005] NSWCCA 426

Reported Decision : 158 A Crim 546 64 NSWLR 612

New South Wales Court of Criminal Appeal

CITATION: Robinson v Woolworths Ltd [2005] NSWCCA 426

HEARING DATE(S): 18 November 2005

JUDGMENT DATE: 14 December 2005

JUDGMENT OF: Basten JA at 1; Barr J at 82; Hall J at 86

DECISION: The Court answers the questions asked in the case stated as follows:; Q1: Did I err in holding that, for the purposes of s 138(1) of the Evidence Act 1995 (NSW), the prosecutor's conduct was improper?; A: 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: In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the Evidence Act 1995, did I err in failing to have regard to a critical factor, namely, absolute liability nature of the offence?; A: Inappropriate to answer; Q3: In finding that the prosecutor's conduct was improper in accordance with s 138(1) of the Evidence Act 1995, did I err in failing to take into account the essential respects in which the prosecutor's conduct and the legislative context of this conduct differed from the conduct and legislative context in Ridgeway v The Queen (1994) 184 CLR 19?; A: Inappropriate to answer

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