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Carroll v Gabriel [1976] PNGLR 415 (22 September 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 415 - Paul Carroll v Thomas Gabriel 

[1976] PNGLR 415

N59

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PAUL CARROLL

V

THOMAS GABRIEL

Waigani

Williams J

7 August 1976

22 September 1976

PUBLIC HEALTH - Food - Sale of food of quality other than that demanded - No demand for specific quality - Purchase of chicken leg - Implicit that fit for human consumption and uncontaminated - Pure Food Act 1952 s. 9 (2) (a)[cdlxvii]¹.

Carroll was charged with and convicted of offence against s. 9(2)(a) of the Pure Food Act 1952, which provides that a person shall not sell any food which is not of the nature, substance or quality of the food demanded by the purchaser; it being alleged that a chicken leg was purchased at his food bar which was found to have fly eggs or maggots adhering to it. On appeal against conviction, on the ground that there was no evidence of any demand made by the purchaser for food of any particular quality, and against penalty of K40.00 fine;

Held

(1)      there being no evidence of the words used when the chicken leg was ordered, and it being improbable that the purchaser said more than that he wanted a chicken leg, without specifying any particular standard or quality, the transaction must be treated on the basis that it was a purchase of an article of food for immediate human consumption, it being implicit in the purchaser’s order that the food would be fit for human consumption, free of impurity and uncontaminated in any way.

Kench v. O’Sullivan [1910] NSWStRp 48; (1910) 10 S.R. (N.S.W.) 605 at p. 608 considered.

(2)      Upon the proper construction of s. 9(2)(a) the question for determination was not whether the food was unfit for human consumption in the sense that it was harmful to health, but rather did the purchaser get what was implicit in his order. Ex parte Wood [1908] NSWStRp 96; (1908) 8 S.R. (N.S.W.) 554 and Kench v. O’Sullivan [1910] NSWStRp 48; (1910) 10 S.R. (N.S.W.) 605 referred to.

(3)      The appeal against conviction should be dismissed.

(4)      The penalty imposed though substantial in the circumstances, was not so excessive as to warrant interference.

Appeal

This was an appeal against conviction and penalty for and offence against s. 9 (2) (a) of the Pure Food Act 1952.

Counsel

GR Rissen for the appellant

LL Gavara for the respondent

Cur. adv. vult.

22 September 1976

WILLIAMS J:  The appellant was, on the 11th June, 1976, convicted in the District Court at Lae for an offence against s. 9 (2) (a) of the Pure Food Act 1952 as amended and fined K40.00. He appeals to this Court on the grounds that the findings of the magistrate were against the evidence and the weight of evidence, that the magistrate erred in law and that the penalty imposed was excessive.

Shortly stated the allegations made against the appellant were that a chicken leg was purchased at his food bar which was found to have fly eggs or maggots adhering to it.

Some criticism was made of the magistrate’s findings that the chicken leg was purchased at the appellant’s food bar and that at the time of sale maggots were adhering to it. However, these were findings of fact which were, in my view, reasonably open to the magistrate upon the evidence adduced before him. It is not the function of this Court to interfere with findings of fact which are reasonably open on the evidence.

The main grounds of appeal, however, are concerned with the construction of s. 9 (2) (a) of the Act under which the appellant was convicted. That section is in the following terms:

“(2)    A person shall not:

(a)      sell any food which is not of the nature, substance or quality of the food demanded by the purchaser.”

It was contended for the appellant that there was no evidence of any demand made by the purchaser for food of any particular quality and that accordingly the appellant could not be convicted of selling food of a quality different from that demanded.

It appears that the actual purchase was made by one Gasabe Gigesa. He was not called to give evidence on behalf of the respondent. However, one Jarau Ino gave evidence that he was standing behind Gasabe Gigesa at the food bar when the purchase was made. There is no evidence of the words used by Gasabe Gigesa when ordering the chicken leg. Whatever words he used it is improbable in the extreme that he would have said more than that he wanted a chicken leg without specifying any particular standard of quality. That is the normal way in which transactions of this kind are conducted. In this respect I think that the words of Cullen C.J. in Kench v. O’Sullivan[cdlxviii]², a case arising under a similar section of a New South Wales Act concerning the sale of milk, are apposite:

“First, with regard to the question of what was the article demanded, and the argument founded on the fact that the purchaser demanded ‘milk’ and not any particular kind or standard of milk, it appears to me that apart altogether from the existence of any regulations upon the subject, no one could entertain any doubt whatever as to what was demanded. A man who asks for ‘milk’ prima facie asks for normal milk from the cow. There was no need for the purchaser buying milk from a milkman on his rounds to add any descriptive adjective or to demand that the milk should be of any standard or quality. When a man enters a restaurant and asks for steak and potatoes it is not necessary for him to specify that he wants them cooked and not raw. And if he orders steak from a butcher, or potatoes from a seed-merchant, he does not need to say he wants them raw and not cooked. There can be no possible doubt in this case what the purchaser demanded. The only question is did he get what he asked for.”

This was a purchase of an article of food for apparent immediate human consumption and I think that it was implicit in the customer’s order that the food would be of a quality fit for human consumption free of impurity and uncontaminated in any way. It is difficult to imagine any reasonable purchaser intending otherwise or any reasonable vendor of food thinking that the purchaser meant otherwise.

It was contended for the appellant that if there be inferred in the purchaser’s order a requirement that it be of a particular quality then this could not be put higher than that the food be fit for human consumption. It was said that there was no evidence that the food was unfit for human consumption in the sense that it was harmful. It may be distasteful or even revolting but there was no evidence that it was injurious and the Court should not infer that it was.

However, it seems to me that upon the proper construction of s. 9 (2) (a) the question for determination is not whether the food was unfit for human consumption in the sense that it was harmful to health. I was not referred, during the course of argument, to any authority upon the section. However my own researches have revealed a number of decided cases upon similar legislation. The question to my mind is whether the food supplied was of the quality sought by the purchaser. In other words, did the purchaser get what was implicit in his order? This test seems to accord with a number of Court decisions under similar legislation and of which Ex parte Wood[cdlxix]³ and Kench v. O’Sullivan[cdlxx]⁴ are examples.

It was also contended that s. 9 (2) (a) is not appropriate to the circumstances of this case. It was said that the essence of the charge was selling contaminated food and the section does not envisage cases of this nature but rather, for example, where goods supplied were not in accordance with sample. Reference to decided cases, however, does not support this view. Convictions under legislative provisions similar to s. 9 (2) (a) were made in Lindley v. George W. Horner & Co., Ltd.[cdlxxi]⁵ (a purchaser of sweets found a nail in the packet), Betts v. Armstead[cdlxxii]⁶ (the purchaser bought a loaf of bread containing a foreign substance), Goulder v. Rook[cdlxxiii]⁷ (the purchaser bought beer containing a quantity of arsenic), Parker v. Alder[cdlxxiv]⁸ (the purchaser bought adulterated milk).

To sum the matter up it is my view that there was evidence upon which it was open for the magistrate to find that the chicken leg was purchased at the appellant’s premises, that at the time it was contaminated, that although there was no evidence of the terms of the purchaser’s demand it was implicit in his order for the food that it be free from contamination or foreign matter and that what he actually received was of a different quality and not what he bargained for. Accordingly there was evidence establishing the elements of the offence charged. I therefore dismiss the appeal against conviction.

It was also contended that the penalty was excessive. The maximum penalty provided was K50.00. The appellant, who had no prior convictions, was fined K40.00. Whilst in the circumstances the penalty imposed was a substantial one I am unable to see that it is so excessive as to warrant the interference of this Court. Accordingly I dismiss the appeal against the penalty imposed.

Appeal dismissed.

Solicitor for the appellant: G. R. Rissen.

Solicitor for the respondent: B. W. Kidu, State Solicitor.

[cdlxvii]Infra p. 416.

[cdlxviii][1910] NSWStRp 48; (1910) 10 S.R. (N.S.W.) 605 at p. 608.

[cdlxix](1908) 8 S.R. (N.S.W.) 554.

[cdlxx](1910) 10 S.R. (N.S.W.) 605.

[cdlxxi][1950] 1 All E.R. 234.

[cdlxxii](1888) XX L.R. Q.B.D. 771.

[cdlxxiii][1901] 2 K.B. 290.

[cdlxxiv] [1899] 1 Q.B.D. 20.