There can be little doubt that contraventions of food hygiene standards are among the most serious of all "environmental" offences in terms of their potential impact on human health. While leaks and spills from industrial facilities may despoil waterways, for example, it is the truly unusual case where such an incident causes a detrimental effect on the health of the community. In fact, it is rare for a pollution prosecution in the Land and Environment Court to involve "actual environmental harm" (most likely because comprehensive environmental surveys are not typically carried out following an incident, and thus whatever real harm does occur is not well documented and thus evidence of the "extent of harm" is not presented in Court).
By contrast, the failure of a food business to comply with the Food Safety Standards can directly cause illness to consumers - ranging from gastrointestinal illness to severe food poisoning that leads to death. For that reason, the Local Courts of New South Wales have quite properly become attuned to the seriousness of offences against the Food Act. It is not at all uncommon for penalties of several thousand dollars to be imposed for a breach.
However, as is the case with other types of environmental offences, not all breaches of the Food Act "are created equal". A prosecutor (which in the case of Food Act offences is most usually a local council) that does not carefully consider the circumstances surrounding the alleged offence, and does not take into account legitimately well grounded extenuating circumstances, may unhappily learn that the case has not resulted in the desired outcome of a penalty (to punish the offender and to send a message of general deterrence to the regulated community) or an order for recovery of the professional costs that it has incurred in connection with the case.
The risks associated with the failure to carefully consider all the relevant facts, and to exercise the discretion whether to prosecute in a reasoned and cautious way were demonstrated in a case that we handled on 14 October 2014 in the Downing Centre Local Court.
Our client is the proprietor of a small takeaway food shop in Redfern, NSW. In early August, inspectors visited the premises. They found that a "pre-made" sandwich that was kept in a display case, and a container of cooked chicken pieces that was found on a bench, were not being kept "under temperature control", in other words, the temperature of these foods was higher than 5 degrees Celsius. On the face of the situation, the discovery of these foods would suggest that clear breaches of the Food Safety Standards had been committed. Indeed, based on their findings, the inspectors proceeded to issue penalty notices to the proprietor.
However, the underlying circumstances demonstrated that the food items that the council inspectors had found on the premises were not going to be sold, and therefore presented no risk of harm to human health. The inspectors had attended the premises at a time when it was preparing to close for the day. The refrigerated display case where the sandwich was kept had been turned off in anticipation of the closing of the store for the day, explaining why the sandwich was not under temperature control. The proprietors were preparing to dispose of the sandwich immediately upon closing of the shop. Furthermore, the chicken pieces had been cooked by a member of the proprietors' family for her own personal consumption, and were also not going to be offered for sale to the public.
Even though these matters were put to the council in writing before the case came before the Local Court, the council nonetheless decided to "bat on" with the prosecution.
However, when the extenuating circumstances were explained by us to the presiding magistrate, she quickly came to the conclusion that the alleged offences were "trivial" when viewed in context. The magistrate also gave weight to the fact that the food business did not have a record of prior convictions, and that the owners were suffering significant financial hardship due to a sharp decline in trading conditions.
Consequently, the magistrate saw fit to dismiss the prosecution in its entirety under section 10 of the Crimes (Sentencing Procedure) Act. Thus, no fine was imposed on the food business, no order for costs was made, and the name of the food business was not listed on the "Name and Shame" register of convicted offenders that is published on the Website of the NSW Food Authority. In short, the prosecution was a complete failure for the council.
The result that we obtained for our client should provide a reminder to councils that are administering the Food Act, and more generally to prosecutors pursuing environmental offences, of the need to be very mindful of mitigating and extenuating circumstances when running enforcement cases. The failure to carry out a studied, nuanced appraisal of the specific factual circumstances that prevail in a case (or to re-consider the prosecutor's position after such circumstances have been brought to its attention) may well cause the case to run aground.
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