Robinson v Zhang

[2005] NSWCA 439

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Admissibility
3. › Improperly obtained evidence
4. › Exclusion under s 138 Evidence Act 1995 (NSW)
5. › Whether compliance testing using minors to purchase cigarettes constituted 'impropriety'
6. › Whether appearance of minor purchaser affected propriety of law enforcement conduct
7. › Evidence Act 1995 (NSW), s 138
1. Criminal Law
2. › Summary offences
3. › Sale of tobacco to minors
4. › Defences
5. › Whether common law defence of honest and reasonable mistake of fact available
6. › Whether statutory defence regime excludes common law defence
7. › Public Health Act 1991 (NSW), s 59
1. Practice and Procedure
2. › Costs
3. › Suitors' Fund Act 1951 (NSW)
4. › Whether Act applies to appeals from summary criminal proceedings or limited to civil proceedings
5. › Suitors' Fund Act 1951 (NSW), s 6
1. Appeal
2. › Reconsidering prior authority
3. › Circumstances in which Court of Appeal will review its own prior decision
4. › Whether strong conviction of incorrectness established

Quick Take

Random compliance testing by the Department of Health using minors to attempt to purchase tobacco does not constitute impropriety for the purposes of s 138 of the Evidence Act 1995 (NSW), even where the minor purchaser appears to be over 18. The common law defence of honest and reasonable mistake of fact is not available under s 59 of the Public Health Act 1991 (NSW), following Hickling v Laneyrie. The Suitors' Fund Act 1951 (NSW) is available in appeals from summary criminal proceedings, not only civil proceedings.