Prosecution Report: Update September 2010

Please click here to view the prosecutions report for September.

Welcome to this month's edition of the prosecution report. The prosecution report is published monthly to provide relevant information to our government clients in relation to what is happening in the courts and Tribunals.

Over the coming months you will find a change to our prosecution report as it becomes a more regular publication with summaries of critical industry judgments, legislation changes and any relevant news items. 

The prosecution report is designed to provide quick information to all clients in the area of planning, animal management, food, health, building and local laws. The prosecution report will be a quick and effective means of ensuring that you are kept up to date with relevant information.

If you would like to include a colleague or yourself on our mailing list please contact us at marketing@maddocks.com.au

Legislation

New Council enforcement tools – under the Food Act 1984 Councils will have a wider range of enforcement options including infringement notices and temporary closure of food premises. 

The infringement notice provisions come into operation from 1 March 2011.

The ability to temporarily close premises or stop particular food handling activities came into operation on 1 July 2010.

Please click here to view.

Cases

Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 (27 August 2010)

The above proceeding relates to an appeal commenced by Hobsons Bay City Council against the refusal of a Magistrate to grant an application for costs after the successful prosecution of a person for the contravention of the Road Rules. 

In the Magistrates' Court at Sunshine, the respondent was found guilty of a number of parking offences in relation to two separate proceedings. At the conclusion of the hearings the prosecutor sought costs in the amount of $1,651.06 and $237.50 respectively. The Magistrate awarded costs in the amount of $180.80 and $65.20 respectively. The Magistrate gave the following reasons:

The application for legal costs is refused on the basis that I think that they're disproportionate to the criminality of the defendant's conduct... It seems to me to be unfair to award costs based on the defendant's bad luck in being prosecuted by a council rather than by the police as a matter of principle, it cannot be or should not be the defendant that incurs the additional liability of substantial costs based on who prosecutes. It strikes me as unfair that an award of costs against  the defendant when thieves, drug traffickers and other wrongdoers who do far more harm than the defendant has, are not asked to pay costs. Additionally, citizens pay rates and taxes for services, including the cost of prosecuting, supervising and imprisoning wrongdoers.  It seems to me that principle ought to apply to this prosecution as well and as I also say that the costs are disproportionate to the criminality of the defendants conduct...

The Supreme Court said that it was open for the Magistrate to take into account the question of consistency. Further, the Court said that inconsistent outcomes do not support a system in which the public would have confidence in.

The Supreme Court also considered the issue of proportionality and said, it was open to the Magistrate to form a view whether the amount sought was proportionate to the criminality of the offending.

Accordingly, the appeal was refused. Please click here to view this case.

News

Environmental Health Australia is holding its 36^th National Conference at Crown between 17 November and 19 November 2010. Conference details, program and booking forms can be found here

The Planning Enforcement Officers Association is having its Annual Conference at Wodonga between 11 and 12 November 2010. 

Please contact the following for bookings and information:

Karen MacFarlane on (03) 92946319

Karen Louden on (03) 95994616

If you have any queries about any of the matters in the update or any suggestions of topics you would like to see covered in future seminars please click here to contact a member of our Prosecution & Enforcement Team.