Lawry v West [1947] HCA 5

Lawry v West [1947] HCA 5

The procuring of samples under s. 247(4) of the Health Act 1928-1935 (Vict.) is only a 'sale' for prosecution purposes if the samples are truly representative of the whole bulk of the food being dealt in. Here, taking samples from only five of eight cans did not meet this standard, so the magistrate was right to dismiss the information.

Parties
Appellants; Defendants: Herrick Victor Lawry, Henry Perey Lawry and Francis John Lawry (trading as H. P. & F. Lawry Bros.); Respondent; Informant: John Somerville West
Jurisdiction
Australia
Procedural Posture
Appeal / On Appeal From Supreme Court of Victoria, Following Order to Review a Magistrate's Dismissal of Information in Petty Sessions
Outcome
Appeal allowed
Legal Topics
Adulteration of Food, Sampling for Analysis, Statutory Interpretation
Public Health Law Criminal Law Adulteration of Food Sampling for Analysis Statutory Interpretation

Case Brief

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Parties

Herrick Victor Lawry, Henry Perey Lawry and Francis John Lawry (trading as H. P. & F. Lawry Bros.)

Appellants; Defendants

John Somerville West

Respondent; Informant

Procedural Posture

Appeal / On Appeal From Supreme Court of Victoria, Following Order to Review a Magistrate's Dismissal of Information in Petty Sessions

Legal Issues

  1. 1 Whether samples taken from only some cans represented the whole bulk as required by s. 247 of the Health Act 1928-1935 (Vict.)
  2. 2 Whether the taking of samples pursuant to s. 247 deemed a 'sale' under s. 247(4) for the purposes of s. 215 prosecution
  3. 3 Whether the evidence established that the appellants sold milk not complying with the prescribed standard for fatty solids

Ratio Decidendi

The procuring of samples under s. 247(4) of the Health Act 1928-1935 (Vict.) is only a 'sale' for prosecution purposes if the samples are truly representative of the whole bulk of the food being dealt in. Here, taking samples from only five of eight cans did not meet this standard, so the magistrate was right to dismiss the information.

Court Disposition

Appeal allowed

Orders

  • Order of Supreme Court set aside
  • Order nisi discharged with costs