Prosections and Enforcement: Update July 2011

We are pleased to publish Maddocks' Prosecution update for the months of March, April, May and June. Please click here to view the report. 

We would like to point out two matters that may be of interest to you. The first relates to an application before the Frankston Magistrates' Court for the review of two improvement notices issued under the Public Health and Wellbeing Act 2008. The improvement notices were issued to the proprietor of two rooming houses for 'allowing a nuisance to emanate from land owned by the proprietor'. The Court upheld the notices requiring the proprietor to abate the nuisance emanating from the land.

The second matter relates to a long-standing neighbourhood matter where a resident was threatening adjoining neighbours, damaging property and behaving in a way causing distress and fear. As well as the use of the nuisance provisions, Council commenced an application for breach of the peace. The application was successful resulting in the resident bound over to keep the peace for a period of 18 months. 

If you would like to know more about these matters, please contact Mathew Sherwell.

Hobsons Bay City Council v Viking Group Pty Ltd – Costs in successful proceedings

As you may know, the Supreme Court delivered its decision in Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386, in August 2010.  We were very interested to see what role this case would have in relation to the awarding of costs to councils after a successful prosecution.  There have been many instances when this case has been referred to in relation to the question of costs. However, we have found that the case has not altered the basic approach to costs.

Please click here if you would like to see the decision. If you would like to discuss the role of this decision in relation to the awarding of costs, please click here to view and contact one of our lawyers. 

Why an environmental health officer is not an authorised officer under the Environment Protection Act 1970

The Criminal Procedure Act 2009, provides at schedule 3 a list of persons who can sign an informant's statement. One of those persons identified is an authorised officer under the Environment Protection Act 1970. 

Recently it was suggested that environmental health officers were 'an authorised officer under the Environment Protection Act 1970'. Please click here to see why an environmental health officer is not an authorised officer under the Environment Protection Act 1970.

Samples and seizure – clarification

At a recent seminar on evidence gathering, it was suggested that evidence gathering includes seizing anything and taking a sample of anything. In relation to the taking of samples it was suggested that theFood Act 1984 (Act) set out specific requirements for procuring, retaining and destroying samples. An example given was the payment of current market value of the food and the provision of information to have the samples analysed by others. 

Section 21 of the Act sets out the various powers of an authorised officer. Section 21(1)(a)(vii) gives an authorised officer the power to seize or take samples of any 'thing or matter' (other than an article of which a sample may be taken pursuant to subparagraph (iv) or which may be seized under subparagraph (v)) where that matter or thing is reasonably believed to be evidence. This allows an authorised officer to seize or take samples of any 'thing or matter' that is evidence. 

Section 21(1)(a)(v) gives an authorised officer the power to seize any 'article' (which is food, equipment, a package or any label) that on reasonable grounds the officer believes is or is related to a contravention or failure to comply with the Act. This power relates to the seizure of 'articles' which are the subject of the contravention or failure to comply with the Act.

Section 21(1)(a)(iv) gives an authorised officer the power to take samples of any article 'subject to the Act'. This empowers an authorised officer to take samples that are subject to the Act and, therefore, must be read in conjunction with the Act as a whole. Therefore, the process of compulsorily acquiring samples relies on section 21(1)(a)(iv) and section 22 of the Act (as well as the other provisions relevant to sampling).

In relation to prosecutions, the environmental health officer must consider whether he or she is seizing an article that is the subject of the contravention, or taking a sample of any thing or matter as evidence or whether the sample is being taken for the purpose of analysis under the Act. 

Not every evidence gathering exercise involves the taking of samples of articles and environmental health officers should familiarise themselves with the structure and construction of section 21.

Getting more for your legal spend

Recently we witnessed an interesting session on how to save on legal costs. 

The best way to save on legal costs is to consider the brief of evidence and its content. How easy does it read and get to the issues? Is it complete and does it direct the prosecutor to the important issues?

Every brief should be in a preliminary brief format (as a minimum). That is, it ought to conform with the requirements of sections 37 and 38 of the Criminal Procedure Act 2009. If the brief is in this format, there is no further work to be done but to read the brief, draft the charges and have them issued at Court. If the brief is not in this format (or a format which mirrors this format) there is likely to be additional costs incurred in reviewing and obtaining further evidence and considering possible evidentiary issues.

The preliminary brief format also allows a matter to proceed at the first mention if the accused does not appear. This saves the costs of adjournment and running an ex parte hearing. It also saves the costs to Council in having officers sitting in court waiting to give evidence. 

If you would like to discuss any of these topics, please click here to view and contact one of our lawyers.

Regards  

Prosecutions and Enforcement Team