Hughes v Steel [1908] HCA 21; (1908) 5 CLR 755 (15 May 1908)

HIGH COURT OF AUSTRALIA

Hughes Complainant, Appellant; and Steel Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

15 May 1908

Griffith C.J., O'Connor and Isaacs JJ.

Watt, for the appellant.

Blacket, for the respondent.

May 15th

Griffith C.J.

We have had the opportunity of considering this case since the argument yesterday, and there is no reason why we should reserve our judgment.

The question arises under sec. 81 of the Public Health Act 1902. Sec. 80 provides that the purchaser or officer obtaining any food or drug with the intention of submitting it to analysis shall notify the seller of his intention to have it so submitted for analysis and offer to divide it into three parts, which, if the offer is accepted, are to be separately labelled or marked. Sec. 81 provides that, if that offer is not accepted by the seller or person dealing in the food or drug or his agent or servant, the analyst receiving the article from the purchaser for analysis shall divide it into two parts, and seal or fasten up one of them and retain it for production in the event of further proceedings being taken in the matter. Sec. 82 provides that the analyst who analyses any food or drug submitted to him in pursuance of the Act may give a certificate of the result of the analysis in a prescribed form, "and in any proceedings before any Court or justices the production of a certificate, purporting to be signed by the analyst, shall be sufficient evidence of the identity of the food or drug analysed, and of the result of the analysis without proof of the signature of the person appearing to have signed the same." The point taken is that in this case, in which the seller did not require the article to be divided into three parts, there was no evidence that the analyst divided the drug submitted to him into two parts and sealed one of them up and retained it for production as prescribed by sec. 81. The objection is well founded in fact. There was no such evidence. All that was proved was the purchase of the article, that the purchaser offered to divide it into three parts, that the seller did not accept the offer, and that the article was then sent to the analyst, and the analyst's certificate was produced. Reliance was placed by the defendant upon some English decisions, and one of the Supreme Court of New South Wales, as to the effect of the directions in sec. 80. No case was cited before us as to the effect of the provisions of sec. 81. It is to be remarked that the scheme of the English Act is very different from that of the New South Wales Act. Under the English Act there can be no prosecution at all by the purchaser until he has received a certificate from the analyst. That is not the scheme of the New South Wales Act. The certificate of the analyst in New South Wales is merely a mode of proving the committing of the offence. If reliance is placed upon the certificate, then the statutory directions, whatever they are, must be proved to have been complied with. No assistance, therefore, can be derived from these decisions. Moreover the provision in the English Act corresponding to sec. 83 is different. There is first a direction that the goods may be sent by registered letter to the analyst. Then there is a direction that the analyst, not only shall divide the article into two parts, but shall deliver one of the parts which was not analysed to the purchaser or officer either when he receives the sample or at the time when he supplies the certificate. So that if an article of food or drug is sent to an analyst for analysis the prosecutor will have in his possession, not later than the date of receiving the certificate, the half not analysed by the analyst. Sec. 81 of the New South Wales Act, on the other hand, provides merely that the analyst shall "retain such part for production in the event of proceedings being afterwards taken in the matter." "For production" must mean either to be produced if required by the defendant or by the prosecutor or to be produced in all cases. Now, the scheme of the Act is clearly that the analyst need not be called as a witness. That is the main purpose of sec. 82; and in a country like New South Wales the reason for such a provision is obvious. There is not likely to be an analyst in every town, at any rate not a competent one, though there may be prosecutions for offences against the Act wherever there are sellers of food or drugs. It seems to me, therefore, clearly to have been intended that the calling of the analyst should not be necessary. If the contention put forward by the respondent were correct it would be necessary to call the analyst in every case, so that the advantage intended to be given by the section would be gone. This provision, it seems to me, was inserted for the benefit of the defendant, but the defendant is entitled to take advantage of it only to the extent to which it was intended that he should be benefited, that is to say, if he desires to have this part produced he may ask for it. If he does not get it, or if any difficulty is placed by the magistrate in the way of his getting it, which I should think highly unlikely to occur, then a somewhat difficult question may arise, as to which I do not at present express any definite opinion. In my opinion it is not necessary for the purpose of obtaining a conviction under this Act to do any more than prove the purchase of the article, with the prescribed notification and offer, delivery to the analyst, and the result of the analysis. If the analyst fails to comply with the directions in sec. 81, that is a matter which may possibly afford a defence if it is established by the defendant, but it is not necessary for the prosecution to prove affirmatively that the analyst has complied with them. As for the suggestion that the maxim omnia prœsumuntur rite esse acta applies, I would remark that that is a maxim to be applied with very great caution. The doctrine is applied by the Statute to the extent of making the certificate sufficient proof of the identity of the goods mentioned in it with the goods received by the analyst from the purchaser, but I should hesitate to extend it further. It was, as I have said, the obvious purpose of the enactment to render it unnecessary to call the analyst as a witness.

For these reasons I think that the learned Judge was in error in thinking that proceedings under this section were subject to the rules laid down in the English cases and in New South Wales with respect to the provisions of sec. 80.

O'Connor J.

I am of the same opinion. The charge before the magistrate was laid under sec. 88, sub-sec. 2 of the Public Health Act 1902. It is necessary, in order to substantiate that offence, to prove that the article in question was not of the nature, substance, and quality demanded by the purchaser. In proof of that allegation the certificate of an analyst was put in evidence. Sec. 82 enables the analyst's certificate as to the result of the analysis to be put in evidence without calling the analyst, and there is nothing in that section which makes it necessary to prove that there has been a division of the sample into two parts as provided in sec. 81. In order to establish his contention, therefore, it was necessary for Mr. Blacket to satisfy the Court that from reading these sections of the Act together there can be deduced an expression of the intention of the legislature that the division of the samples under sec. 81 must be proved before the certificate can be allowed to be effective in evidence. Now, I am unable to find in these sections anything from which that deduction as to the intention of the legislature can be drawn. There is a very great difference between the position and duties of the analyst under the New South Wales Act and that of the analyst under the English Act. Under the English Act of 1875 (sec. 21) the party accused has the opportunity of having the analyst called as a matter of right by giving notice of his desire to have him called. After such notice, the analyst will then have to be called as a witness, bringing with him the portions of the articles which are directed to be sealed up and retained for production. With regard to the analyst and his duties under the New South Wales Act there is no such provision. The analyst there is a public officer. "Analyst" is by sec. 76 defined to be the government analyst, and to include any person appointed an analyst by the Board for the purposes of the Act. Power is given by the Act to appoint an analyst, in sec. 81 the analyst is treated as a public officer, and it becomes his duty to divide the sample received for analysis into two parts only in the event of the seller not accepting the offer of the purchaser or officer to divide the drug or food into parts as required by the Act. The analyst is not present when the offer is made, and therefore he must get information in some form from the purchaser as to whether the seller has or has not accepted the offer. This seems to me to clearly indicate that the communication of this information is to be regarded as a communication between one officer of the department and another, and under some circumstances it may become the duty of the magistrate to see that the part not analysed is produced. No doubt it was the intention of the legislature that this division should be carried out for the protection of the person charged, but it is merely a departmental matter, the failure to carry out which may be a contravention of the Act, possibly subjecting the analyst to punishment under sec. 107. However that may be, I have no doubt that the proof of that having been carried out is not a condition precedent to the putting in evidence of the certificate. If it were not for the cases cited as to the effect of sec. 80 and as to the corresponding sections of the English Act, I do not see how there could be any question that the meaning of the Act is what I have stated. But the argument has been raised by reason of the supposed analogy between the provision of sec. 80 and those of secs. 81 and 82. I do not see any such analogy. The position of the prosecutor, with whom sec. 80 deals, is altogether different from the position of the public officer, the analyst whose duty is set out in secs. 81 and 82.

I wish to rest my judgment entirely upon the Act itself. I think that the maxim omnia prœsumuntur rite esse acta must be applied with a great degree of care. If it was the duty of the analyst to make this division, I am not at all certain that we should assume that it had been made from the mere fact of the certificate being produced. In my opinion, the matter should be decided entirely apart from any consideration of that kind. I rest my judgment, therefore, on the ground that it is not a condition precedent to the production and efficacy of the certificate that the division of the sample specified in sec. 81 should be proved to have been made.

Isaacs J.

I am of the same opinion. The question here is, what is the intention of the legislature? As to whether the requirements of sec. 81 should be affirmatively proved before there can be a conviction, there is nothing in the Act which says that the omission to carry out those requirements shall invalidate the certificate. The intention of the legislature must be gathered from the Act itself and from a comparison of its various parts. Now Mr. Blacket, in a very able argument, has endeavoured to place sec. 81 upon the same footing as sec. 80. But there is one great difference between the two, as it seems to me. Sec. 80 provides that the purchaser shall do certain things. There is no provision in the Act as to any special mode of proving these things. The law therefore necessarily implies that he must be called to prove that these things have been done. Sec. 81 requires the analyst to do certain things, but sec. 82 definitely provides that he need not be called. When I say definitely provides, the section does not say that in so many words, but it provides that his certificate shall be evidence of the analysis, &c., which amounts to the same thing. It would be inconsistent with sec. 81 that any of the matters there directed to be done should go unproved, but it is not inconsistent with sec. 81 that the matters there mentioned should not be proved affirmatively. It would be inconsistent, on the other hand, with sec. 82 for affirmative proof to be required in respect of the matters prescribed in sec. 81. It would make sec. 81 qualify sec. 82. The learned Chief Justice has pointed out the inconvenience of such a requirement, and the reasons why the legislature of the State has provided that documentary evidence should be sufficient. There is nothing to prevent the defendant from proving, if he can, that the provisions of sec. 81 were not complied with. But that was not done in this case.

I rest my judgment upon the Act itself. I gather the intention of the legislature from reading secs. 81 and 82 together, and unless one is prepared to nullify the provisions of sec. 82, I do not see how you can give effect to the argument of the respondent here, that affirmative evidence must be given of the matters in sec. 81.

With regard to the maxim omnia prœsumuntur rite esse acta, I do not think any English case goes the full length required for the appellant's argument here. There is an Irish case, Hill v. Hennigan[1], as to which I shall only say this, that I agree with Mr. Blacket that the decision goes to an extraordinary length, and I desire to reserve my opinion whether it can be justified or not.

Per Curiam. It is not the practice of the Court to grant costs of the appeal in such a case. It may be of great importance to the appellant to have the matter decided, but it is not of such importance to the other side.

Appeal allowed. Order appealed from discharged. Case remitted to the magistrate for determination. Respondent to pay the costs in the Supreme Court.

Solicitor, for the appellant, The Crown Solicitor of New South Wales.

Solicitor, for the respondent, J. W. Abigail.

[1] I.R. 11 C.L., 522.