Robinson v Zhang [2005] NSWCA 439

Robinson v Zhang [2005] NSWCA 439

The evidence obtained by the compliance test was not improperly obtained for the purposes of s 138 of the Evidence Act 1995 (NSW), and the common law defence of honest and reasonable mistake of fact is not available under s 59 of the Public Health Act 1991 (NSW); therefore, the Local Court erred in dismissing the proceedings and should be set aside.

Parties
Plaintiff: Dr Denise Robinson; Defendant: Qun Zhang
Jurisdiction
Australia
Judgment Date
14 December 2005
Procedural Posture
Appeal / Judgment on Appeal From Local Court to Court of Appeal
Outcome
Appeal allowed; order of Local Court set aside; matter remitted to Local Court; certificate under Suitors' Fund Act granted to Defendant; no order for costs in Court of Appeal.
Legal Topics
Improperly Obtained Evidence, Entrapment, Defence of Honest and Reasonable Mistake of Fact, Compliance Testing, Admissibility of Evidence, Prosecution of Sale of Tobacco to Minors, Suitors' Fund Act Certificates
Criminal Law Evidence Law Administrative Law Improperly Obtained Evidence Entrapment Defence of Honest and Reasonable Mistake of Fact Compliance Testing Admissibility of Evidence +2 more

Case Brief

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Parties

Dr Denise Robinson

Plaintiff

Qun Zhang

Defendant

Procedural Posture

Appeal / Judgment on Appeal From Local Court to Court of Appeal

Legal Issues

  1. 1 Whether evidence obtained by compliance testing (using minors to purchase cigarettes) was improperly obtained for the purposes of s 138(1) of the Evidence Act 1995 (NSW)
  2. 2 Whether the common law defence of honest and reasonable mistake of fact is available under s 59 of the Public Health Act 1991 (NSW)
  3. 3 Whether the appearance of the minor affected the propriety of the compliance operation

Ratio Decidendi

The evidence obtained by the compliance test was not improperly obtained for the purposes of s 138 of the Evidence Act 1995 (NSW), and the common law defence of honest and reasonable mistake of fact is not available under s 59 of the Public Health Act 1991 (NSW); therefore, the Local Court erred in dismissing the proceedings and should be set aside.

Court Disposition

Appeal allowed; order of Local Court set aside; matter remitted to Local Court; certificate under Suitors' Fund Act granted to Defendant; no order for costs in Court of Appeal.

Orders

  • 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);
  • Remit the matter to the Local Court to be determined in accordance with the conclusions that: (a) the evidence relied on by the Defendant was not capable of establishing an impropriety for s 138(1)(b) of the Evidence Act 1995 (NSW), nor was the evidence tendered by the prosecutor capable of being evidence improperly...