14 December 2005

NSW Health welcomes NSW Court of Criminal Appeal judgement in tobacco case

NSW Health today welcomed the judgement of the NSW Court of Criminal Appeal in two matters involving the illegal sale of tobacco to minors. The decision supports NSW Health's long-standing compliance monitoring program in relation to the prohibition on the sale of cigarettes to minors.
NSW Health had prosecuted Woolworths Ltd (t.a. Woolworths Werrington), as well as a central coast tobacco retailer, for selling cigarettes to minors. Those prosecutions had previously been dismissed on the basis of a District Court finding that sending a young person into tobacco retail premises in an attempt to purchase cigarettes was improper if NSW Health had no reason to suspect that the retailer would sell cigarettes to the young person.

The Court of Criminal Appeal upheld the Department's appeals saying that the conduct of health enforcement officers, "did not involve the application of any form of pressure, persuasion or manipulation."

The Court of Criminal Appeal also said, "the conduct involved a straightforward request, made in a public place, in the course of a legitimate business and therefore involved no intrusion on individual rights or freedoms and certainly no inappropriate harassment".

Of the minors assisting NSW Health with their compliance testing, the Court stated, "the two minors acted in the manner of ordinary members of the public seeking to purchase cigarettes. ….the conduct constitutes a viable and practical means of achieving a better level of compliance than would be likely if law enforcement were dependant on the receipt of complaints".

The Court of Criminal Appeal found that, "a properly run compliance program, backed by the possibility of prosecution where contravention occurs, is itself a reasonable and proper means of promoting compliance with the law. The conduct of the Department was not capable of constituting impropriety for the purposes of s138 of the Evidence Act".

The Court of Criminal Appeal has set aside a May 2005 Local Court order that dismissed the proceedings brought against the central coast retailer who sold cigarettes to a minor, and the Local Court has been asked to re-hear the case and to make a determination in this case, based on today's judgement of the NSW Court of Criminal Appeal.

The youth anti-smoking program, which uses volunteer youths to test compliance by retailers with the prohibition on selling cigarettes to minors, is an important part of NSW Health's strategy to reduce youth smoking. The percentage of smoking among secondary school students fell substantially from 18 per cent in 1999 to 13 per cent in 2002.

For a range of health information, go online to www.health.nsw.gov.au