Papua New Guinea Law Reports - 1975
[1975] PNGLR 87
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SECRETARY FOR LAW
V
KAVIENG HOTEL PTY. LTD.
Rabaul
Prentice SPJ
13 May 1975
19 May 1975
PUBLIC HEALTH - Food - Adulteration - Analysis of samples - Report from analyst not essential - Pure Food Act 1952, ss. 6[lxxxvi]1 13 and 14.
A report of an analyst which “may” be made pursuant to ss. 13, 14, et seq of the Pure Food Act 1952 is not an essential prerequisite of, nor part of the proof of an “adulterated food sale” offence under that Act.
Plumb v. Tritton (1915), 20 C.L.R. 408 at p. 415 followed.
Appeal
This was an appeal brought by the Secretary for Law pursuant to leave granted under s. 225(3) of the District Courts Act 1963 against the dismissal by a magistrate of an information for an alleged breach of the Pure Food Act 1952 in the selling of fish; the magistrate found in effect that a report from an analyst (which had not been obtained) was an essential prerequisite for proof of the offence. Leave to appeal was granted on the ground that a question of public importance was involved.
Counsel
T. R. Bredmeyer, for the appellant, (Secretary for Law).
Cur. adv. vult.
19 May 1975
PRENTICE J: This appeal was heard in Rabaul. The respondent was not represented — one of its directors having communicated with the Deputy Crown Solicitor and indicated that the respondent did not wish to expend more moneys on the matter in view of the smallness of the potential maximum fine involved. Apparently, in the original hearing before the District Court in Kavieng, it had been represented by counsel over some days, at considerable cost.
The respondent had been prosecuted for an alleged breach of the Pure Food Act in the selling of fish at the Kavieng Hotel. The information was dismissed; the learned court magistrate having found in effect that a report from an analyst was a sine qua non to a conviction for an offence under the Act.
In December 1974 I made an order granting leave to the Secretary for Law to appeal from the dismissal of the information on the ground that a question of public importance was involved (s. 225(3) District Courts Act).
The facts as proved to the magistrate’s satisfaction (he rejected the defence witnesses’ evidence on the ground of bias) were that a smelly piece of fish, unsuitable for human consumption, had been sold to the complainant. The magistrate felt constrained to rule that lacking an analyst’s report, this evidence alone could not establish the offence.
Section 7 of the Act provides that: “a person shall not sell an article of food which is adulterated or ...”. Section 6 provides that: “an article of food shall be deemed to be adulterated ...” in the event of one of a number of possibilities of which (d) reads “if it consists wholly or in part of a diseased or putrid or rotten animal or vegetable substance, whether manufactured or not”; and (h) “when it is damaged, deteriorated or perished”.
This prosecution was expressed to be pursuant to the fish having “deteriorated or perished”. No argument was addressed to the lower Court nor to this of course, to the effect that the words “damaged, deteriorated or perished” are to be read ejusdem generis and ought to be found inapt to cover animal food which was inedible for reason of being “bad” or “off” in modern parlance. I think much could have been made of such an argument. All dead animals, birds, fish, reptiles, sold as food, could be said to have “perished” in the old sense of “died”. Evidently it is not in this category (h), used with that meaning; but rather I think, in the sense applicable to material rather than living things i.e. ruined or destroyed as the effect of decay or exposure to destructive conditions. (Perishable foods are those subject to speedy decay). The genus of words formed by “damaged deteriorated or perished” might be thought more appropriate to long-lasting (as distinct from fresh) foods such as grains, flour, sugar, salt. However as this matter was not raised it is not I consider necessary for me to find on the subject.
It is significant that those sections which deal with the taking of samples for analysis and proof of same (ss. 13, 14 et seq.), all use the word “may”. On their face, they appear as enabling of course, not mandatory sections.
An argument similar to that accepted by the magistrate herein was put to and accepted by the Supreme Court of Queensland in Plumb v. Tritton[lxxxvii]2 but reversed on appeal in the High Court. The sections of the Queensland Act under consideration were similar to those of the Papua New Guinea Act. In holding that analysis was not an essential pre-requisite of and part of the proof of an “adulterated food sale” offence, the High Court stated:
“From the nature of the provisions of s. 91” (equivalent to P.N.G. s. 6) “as expanded, it is therefore abundantly evident that analysis cannot be an essential, or even a reasonable, mode of proof in every case of ‘adulteration’, if we give that word, as we must, its statutory signification. Analysis would be absolutely foreign to many cases of statutory ‘adulteration’. It follows that it cannot be maintained that giving full effect to that word, the provisions of ss. 104 and 111d” (the analysis sections), “are always necessary or relevant where a penalty is sought for selling ‘adulterated’ food”.
The Court pointed out as an instance that the evidence of credible witnesses who actually saw an operation of dilution might conceivably be thought more decisive than evidence of analysis in Plumb v. Tritton[lxxxviii]3. In the same way, the evidence here of credible witnesses as to rankness and offensiveness of smell and as to texture and colour could well be more impressive than an analyst’s certificate later obtained. The decision in Plumb v. Tritton[lxxxix]4 has stood and been followed for sixty years. I should point out that neither it nor the other cases on the subject collected at Vol. 17 (1st ed.) Australian Digest at col. 669 et seq, were cited to the learned magistrate, who was thereby disadvantaged.
I am of the opinion that the learned magistrate was in error in dismissing the information; and that accepting as he did the evidence of the prosecution witnesses, he should have recorded a conviction. I allow the Secretary’s appeal. This Court would normally order a return of the matter to the District Court to be dealt with further, according to law.
However the prosecution, taking into account the nature of the offence alleged, and the undoubted expense to which the respondent has been put in exercising its right to defend the matter, does not ask that a penalty should be imposed.
I therefore convict the respondent, exercising my power to make any such order as the District Court should have made (s. 236 District Courts Act). I order that no penalty be imposed.
Appeal allowed.
Respondent convicted.
No penalty imposed.
Solicitor for the appellant: B. W. Kidu Crown Solicitor.

[lxxxvi]The relevant provisions appear infra at p. 88.
[lxxxvii][1914] St. R. Qd. 239.
[lxxxviii](1915) 20 C.L.R. 408, at p. 415.
[lxxxix](1915) 20 C.L.R. 408, at p. 415.