PIERSON V NEW ZEALAND FOOD SAFETY AUTHORITY HC GIS CRI 2008-416-000014 [2009] NZHC 1349 (28 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
GISBORNE REGISTRY
                                                                        CRI 2008-416-000014
                                                                        CRI 2008-416-000015



                                 ROBIN
SHARPE PIERSON
                                        Appellant



                                                  v



     
              NEW ZEALAND FOOD SAFETY AUTHORITY
                                 Respondent



Hearing:           17 September 2009

Appearances: T G Stapleton for Appellant
             C R Walker for Respondent

Judgment:          28 September 2009


       
                         JUDGMENT OF KEANE J




              This judgment was delivered by Justice Keane on 28 September 2009
at 3 pm
                            pursuant to Rule 11.5 of the High Court Rules.

                                      Registrar/
Deputy Registrar

                                                Date:




Solicitors:

Elvidge & Partners, Napier

PIERSON V NEW
ZEALAND FOOD SAFETY AUTHORITY HC GIS CRI 2008-416-000014 28 September
2009

[1]    On 4 August 2008 Robin Pierson, the proprietor
of the Bushmere Arms,
Gisborne, was convicted after a defended hearing in the District Court of selling on
Christmas Day 2006, at
a buffet lunch attended by some 100 diners, turkey
contaminated with clostridium perfringens. He was later fined $400.


[2]    The
Authority's circumstantial case had four elements. Almost half the diners
became ill and displayed symptoms consistent with clostridium
perfringens. It was
discovered on analysis of one sample of left over food; and also, at levels consistent
with food poisoning, in
two faecal samples. The manner in which the turkey had
been cooked and cooled was unsatisfactory. That had allowed clostridium
perfringens
grow rapidly.


[3]    Accepting in main part that circumstantial case, Judge Wilson QC held the
charge proved in its two elements
to the criminal standard. He rejected the defence
contention that the illness the diners had suffered could reasonably have had another
cause; most especially that they might have been suffering from norovirus, a virus
then prevalent in Gisborne.


[4]    On 1 May
2009 Courtney J dismissed Mr Pierson's appeal against his
conviction and allowed the Authority's appeal against his sentence. Mr
Pierson does
not contest the latter aspect of that decision. He seeks leave to appeal to the Court of
Appeal on what he asserts to
be two questions of law of general or public importance
arising from Courtney J's decision to uphold his conviction.


[5]    Courtney
J did not uphold Judge Wilson QC's finding that the Authority had
excluded norovirus as a reasonable possibility in the case of some
diners. But, she
held, that was not fatal to the conviction entered. All the Authority had to prove
beyond reasonable doubt, she
held, was that the turkey was contaminated by
clostridium perfringens. None of the four factors on which it relied circumstantially
had to be proved beyond reasonable doubt.


[6]    The first question that Mr Pierson seeks leave to take on appeal to the Court
of Appeal goes to that very conclusion. It poses the question, what must the
prosecution prove beyond reasonable doubt in a food
contamination case where food

poisoning is alleged? His second question goes to what duty Courtney J may have
come under, once
she differed from Judge Wilson QC. Was she, in particular, under
a duty to remit the case for rehearing on the premise that norovirus
was present?


[7]    The Authority contends that to the extent, if at all, that either of these
questions raises a question of law
it cannot arise in this case. Neither can be said to
derive from the way in which the case was conducted for the prosecution or decided
at either level. The issues raised are an attempt to re-litigate matters of evidence
beyond the ambit of an appeal to the Court of
Appeal.


Leave threshold


[8]    Section 144(1) of the Summary Proceedings Act 1957 confers an ability to
appeal to the Court of Appeal on any question of law arising
from a decision given
on a general appeal to this Court, but subject to leave. This Court, s 144(2) says, may
grant leave if:

 
     the question of law involved in the appeal which, by reason of its general or
       public importance or for any other reason,
ought to be submitted to the Court
       of Appeal for decision.

[9] In R v Slater  [1997] 1 NZLR 211, CA, at 215, Thomas J, delivering the
judgment, stated that s 144 does not confer a second right of appeal. Finality is
ordinarily
to be anticipated on an appeal to this Court. He concluded:

       Neither the determination of what comprises a question of law,
nor the
       question whether that point of law raises a question of general or public
       importance, are to be diluted.

[10]
  Even where a question appears to qualify on both counts, Thomas J added,
this Court must still be of the opinion that the question
is one worthy of a second tier
appeal, but qualified that by saying at 215, with one interpolation:

       The Court might, perhaps,
in certain circumstances decide that a question of
       law which is not of general or public importance ought to be submitted
to the
       Court (the Court of Appeal) for decision because of the words `or any other
       reason'. But these words go to the
reasons for submitting the question of law
       to this Court for decision; they do not enable the Court to dispense with the

      requirement that there must be a question of law.

[11]   A question of law, Fisher J said in Auckland City Council v Wotherspoon
 [1990] 1 NZLR 76, in an analysis since widely accepted, can arise in three forms.
The first and most obvious is `a conventional legal question on
unchallenged facts'
where `the argument is limited to the legal consequences of those facts in the
conventional sense'. The two remaining
categories are `a limited incursion into the
factual area'. Both are special. One is where there has been `a positive factual
finding
... unsupported by any evidence'. The other is where there has been a
`failure to draw from unchallenged primary facts an inference
... when that inference
is the only one reasonably possible'.


[12]   In Harrison v Ministry of Transport  [2004] NZAR 106 the Court of Appeal,
on an informant's application for leave, always confined to a question of law,
remarked `the Court must guard
against the assiduity of informants in attempting to
challenge a factual decision by attempts to convert such issues into questions
of law.'
That must be so whenever leave is sought to appeal in point of law.


First question


[13]   The first question for which
leave is sought to appeal is this:

       Where a defendant is charged with selling food that is contaminated contrary
       to
ss 9(4)(a) and 9(5)(b) of the Food Act 1981, and the informant alleges that
       consumption of the food caused illness of the
same type as the alleged
       contaminant, can the informant prove the ingredients of the charge if any or
       all of the following
matters are not proved beyond reasonable doubt:

       (a)       The alleged contaminant was present on the food at a level which
                 would cause illness of the same type as the alleged contaminant if
                 the food was consumed?

   
   (b)       The consumption of the food caused illness?

       (c)       All other reasonable possibilities of the cause of the
illness have
                 been excluded?

[14]   This question, Mr Stapleton confirmed for Mr Pierson, does not rest on the
premise
that either Judge Wilson QC or Courtney J on appeal, misconstrued s 9(4)(a)
of the Food Act 1981 which, creating the offence, states
`No person shall prepare or
pack for sale, or sell, ... any food that is unsound or unfit for human consumption or

contaminated'.
Nor does it derive from any misinterpretation of s 9(5)(b), the other
provision in point, which merely imposes the penalty.


[15]
  In the District Court Judge Wilson QC held that the prosecution had to prove
two elements. The first was a sale on 25 December
2006 and that was conceded. The
second, which was contested, was that the turkey sold was `contaminated in the
sense of corrupted
or infected with clostridium perfringens to a level that would be
injurious to health if ingested.' Judge Wilson QC remarked that,
in defining the
second element as he did, effectively he adopted Mr Stapleton's interpretation.


[16]   The question derives rather,
as Mr Stapleton contends, from Judge
Wilson QC's and Courtney J's failure to appreciate that the second element of the
offence, the
only element contested, that the turkey was contaminated by clostridium
perfringens, was susceptible of proof beyond reasonable doubt
only if the Authority
proved to that standard that the diners who suffered illness after Christmas Day
lunch did so, as was alleged,
because the turkey was contaminated by clostridium
perfringens. If the Authority could not exclude the reasonable possibility that
norovirus might have been the cause, the prosecution had to fail.


[17]   I am willing to accept for the purpose of this application
that this may raise a
question of law, conceivably, from one of two points of view. The first is as to the
full meaning of the second
element of s 9(4)(a). The second is as to the ordinary
principles of proof. To make these possibilities concrete I set them against
the
aspects of the two decisions that are under challenge.


Aspects of decisions under challenge


[18]   Judge Wilson QC, when
defining the second element of the offence, accepted
that clostridium perfringens had to be present in the turkey `to a level that
would be
injurious to health if ingested', in this accepting Mr Stapleton's submission. But he
qualified that in two ways, upheld
by Courtney J, that Mr Pierson must necessarily
wish to contest.


[19]   In proving the second element Judge Wilson QC said the
Authority was not

under the burden of proving that everyone, who ate the turkey that Christmas Day,
became unwell because it contained
clostridium perfringens:

       If the prosecution establishes that some people who ate the turkey were
       made physically ill
by that contamination, it will succeed because the illness
       would be tangible proof that health has been injuriously affected.

[20]   Then in the next paragraph, Judge
Wilson QC said, the Authority did not
have to prove that all the turkey sold that day was contaminated by clostridium
perfringens:

       The prosecution must satisfy me as to the integrity of the investigation and
       must exclude other reasonably possible
causes of contamination beyond
       reasonable doubt. It is however unnecessary for the prosecution to prove that
       all of
the turkey sold was contaminated by clostridium perfringens provided
       I am satisfied that some of the turkey ... sold was contaminated
...

[21]   That conclusion as to what was required, which was challenged on the
appeal, led Courtney J at paragraph [12] of her
decision to set out the proposition
that I understand underlies the first proposed question:

       Mr Stapleton submitted that
food poisoning was not a matter of inference,
       but in view of the ingredients of the charge (selling turkey contaminated
 
     with clostridium perfringens) and the definition of contaminated used in the
       judgment at [19](b), food poisoning was
a matter which had to be proved by
       the prosecution beyond reasonable doubt. As he a result, he submitted that if
       the
prosecution could not prove beyond reasonable doubt that the diners'
       illnesses were clostridium perfringens food poisoning,
caused by turkey
       contaminated with clostridium perfringens then the ingredients of the charge
       could not be proven beyond
reasonable doubt. He further submitted that the
       prosecution case was not that only some diners had suffered from
       clostridium
perfringens food poisoning but that all sick diners had suffered
       from it.

[22]   Courtney J's conclusion, to be challenged
on the appeal if leave is given, is
that set out in the next paragraph of her decision:

       I do not accept this submission.
The charge requires proof beyond
       reasonable doubt that the meat was contaminated, not proof reasonable doubt
       that diners
were poisoned. A prosecutor is entitled to invite an inference of
       guilt on the basis of several pieces of evidence that point
to guilt but do not
       actually prove it. Those various pieces of circumstantial evidence do not
       need to be proved beyond
reasonable doubt. It is for the Judge to determine
       whether the totality of the evidence is sufficient to prove that charge.

[23]   Also to be challenged on the appeal proposed is Courtney J's related

conclusion when, differing from Judge Wilson QC, she
found that the Authority's
evidence did not suffice to exclude norovirus as a cause for the illness that some at
least of the diners
suffered:

       The issue of Norovirus was an important one because if there was a
       reasonable possibility that the illness
reported by diners was caused by
       Norovirus rather than clostridium perfringens then the prosecution would be
       significantly
weakened. However ... the defence has proceeded on the
       wrong view that the FSA should have proven that all the diners were
       suffering from clostridium perfringens poisoning. That was not so and,
       provided some of the diners fell ill as a result
... the prosecution would
       stand, even though others may have fallen ill as a result of Norovirus.

[24]   For completeness,
I add this. Courtney J recapitulated her conclusions in a
lengthy paragraph, paragraph [61], which divides naturally into three:

       All of this evidence showed that it was reasonably possible (indeed highly
       likely) that there were some diners who
were suffering from norovirus when
       they attended the lunch and that it was reasonably possible that others
       became infected
as a result. To that extent the Judge did make an error in
       finding that norovirus could be excluded beyond reasonable doubt
as `the
       real cause of the illness which diners reported'.

       However, the error was probably not so much the finding that norovirus
       could be
excluded but the assumption that what it was being excluded from
       was being the `real cause of the illness which diners reported'.
This, of
       course, was not the question that the Judge had to decide. The evidence
       showed plainly enough that there were
both norovirus and clostridium
       perfringens poisoning amongst the diners. Each illness had a different cause
       and not
all diners suffered from the same illness. So to speak of the `real
       cause' of the illness fails to properly identify the issue.

       In this sense I agree that the Judge erred. However this error had no bearing
       on the ultimate result because the question
that the Judge actually had to
       decide was whether it had been shown beyond reasonable doubt that the
       turkey meat had
been contaminated with clostridium perfringens. Having
       reviewed the evidence and the factual findings that were admitted were
not
       supported by the evidence, I consider that the FSA had proved beyond
       reasonable doubt that the turkey meat was
contaminated with clostridium
       perfringens.


Conclusions


[25]   Expressed as its most abstract, the principle of law Mr
Pierson seeks to have
the Court of Appeal affirm in answering question one needs no affirming. It is, as I
understand it, simply
this: the evidence on which the prosecution relies must suffice
to prove each element of the offence charged beyond reasonable doubt;
and, if the

prosecution relies on one item of evidence only to prove the offence in all or any one
of its elements, that item of
evidence must itself be acceptable beyond reasonable
doubt. That goes without saying. And there is nothing singular about this category
of
case, where the contamination contended for is said to have resulted in food
poisoning, that raises any question of law that is
distinct.


[26]   The question is also at odds with the way in which the Authority mounted its
case. As both Judge Wilson QC and
Courtney J accepted, the Authority's case did
not depend on food poisoning alone. It was a circumstantial case founded on
multiple
inferences. It depended on the total clinical picture and had four bases. One
was food poisoning. The second and third were the analyses
of the leftover food and
of the faecal samples. The fourth was deficiencies in the way in which the food was
prepared. It is common
place that no one item of a circumstantial case has to be
proved beyond reasonable doubt.


[27]   To advance the question as posed
Mr Pierson would have to show that the
Authority's case reduced to a single proposition - that there had been food poisoning
and
that each other factor had no independent weight. In reality what is proposed is
an interrogation of the evidence, its character
and sufficiency. That does not engage
any matter of law but, if it does, it can only be one confined to the case. It cannot be
a
question of law of general or public importance.


Second question


[28]   The second question for which leave is sought is this:

       In this case, where the defendant was charged with selling turkey meat that
       was contaminated with clostridium perfringens,
and the High Court Judge
       found that the evidence showed that it was reasonably possible (indeed
       likely) that there
were some diners who were suffering from norovirus when
       they attended the lunch and that it was reasonably possible that others
       became infected as a result and to that extent the learned District Court
       Judge made in error in finding that norovirus
could be excluded beyond
       reasonable doubt as `the real cause of the illness which the diners reported',
       was the High
Court Judge correct in law:

       (a)     In holding that the evidence and the error had no bearing on the
               ultimate
result?

       (b)      In reviewing the evidence and the factual findings that were
                admitted were not supported by the evidence in considering
that the
                informant had proved beyond reasonable doubt that the turkey meat
                was contaminated with
clostridium perfringens?

[29]   This question assumes, it seems to me, that leave has been given in respect of
the first question,
and that the first question has been answered in favour of Mr
Pierson. They stand and fall together. Whether or not that is so, however,
it is not a
question that warrants leave. Again the answer has to be that it does not arise on a
comparison of the decisions under
challenge. Courtney J and Judge Wilson QC did
not differ in the fashion the question assumes.


[30]   Both accepted that the Authority's
case was circumstantial. Both accepted
that no one of the four elements had to be proved beyond reasonable doubt. Courtney
J, though
she differed from Judge Wilson as to whether norovirus was completely
excluded, agreed with him that, despite that, the Authority's
four element
circumstantial case held together to prove contamination of the turkey by clostridium
perfringens beyond reasonable
doubt.


[31]   The result is that the question of law that Mr Pierson wishes to ventilate by
his second question either does not
arise or, if it does, is confined to the case. It is not
of any general or public importance.


Conclusion


[32]   In the result
neither of the questions proposed, I consider, qualifies for leave
to the Court of Appeal in point of law under s 144(1) of the Summary
Proceedings
Act 1957. The application is declined.



                                                                _____________
                                                                P.J. Keane J