Burgoyne v Earl

[1999] WASCA 154

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   BURGOYNE -v- EARL [1999] WASCA 154

CORAM:   McKECHNIE J

HEARD:   10 AUGUST 1999

DELIVERED          :   10 AUGUST 1999

FILE NO/S:   SJA 1023 of 1999

BETWEEN:   PETER JOHN BURGOYNE

Appellant (Complainant)

AND

GRAEME JOHN EARL
Respondent

Catchwords:

Criminal law - No case submissions - Failure to prove authority to prosecute - Discretion to re-open case - Delegation of power - Whether power to delegate to police officer - Practice and procedure - Authority to prosecute specified in complaint

Legislation:

Wildlife Conservation Act 1950(WA) s 26

Conservation and Land Management Act 1984 (WA) s 135

Result:

Appeal allowed

Representation:

Counsel:

Appellant (Complainant) :     Mr R M Mitchell

Respondent:     Mr B J Singleton QC & Mr W B Harris

Solicitors:

Appellant (Complainant) :     State Crown Solicitor

Respondent:     W B Harris

Case(s) referred to in judgment(s):

Hanley v Peters and Rogers, SCt of WA; Library No 5911; 8 July 1985

Hansford v McMillan (1976) VR 743

Palos Verdes Estates v Carbon (1991) 6 WAR 223

Wasow v R(1985) 18 ACR 348

Williams v Berini (1960) WAR 24

Case(s) also cited:

Dever v Creevey [1992] 1 Qd R 232

Lavars v Lambert, unreported; SCt of WA; Library No 950042; 7 February 1995

McDonald v Camerotto (1984) 36 SASR 66

Moltoni & Anor v Shepherd [1999] WASCA 73

Piszczyk v Bolton (1984) 38 SASR 330

Schulz v Virgin (1966) SASR 94

Turner v Tsaousis (1974) 7 SASR 488

1. McKECHNIE J: On 5 February 1999 the respondent stood trial in the Broome Court of Petty Sessions on four charges relating to unlawful possession of protected fauna.  The complaints in each case were laid by Peter John Burgoyne, a police officer.

The prosecution case

1. The first prosecution witness, Mr Roe, gave evidence that he was a district wildlife officer with CALM.  On 3 June 1998 he went to Walter Drive in Broome where he was introduced to the respondent.  He took possession of various items of fauna.  There were seven green turtle shells, a number of crocodile skulls and the feet of three different types of crocodile.  He described what he found within the transcript.

2. He outlined a conversation which he had with the respondent.  The respondent said that the items were his and had been obtained at the Broome Expo from a business called Crocodile Capers, or they were gifts.  He was cross‑examined as to the source of some of the items and as to other items which are not the subject of charge because the respondent was an Aborigine.

3. The next witness was Elizabeth Lucke, the regional manager for GWN in the Kimberley who gave short evidence that she was unable to locate any company known as Crocodile Capers at the Broome Expo.

A no case submission

1. At the conclusion of the prosecution case, counsel for the respondent submitted that there was no case to answer because the authority to lay the complaints had not been proved.  The prosecution sought to reopen the case to prove the authority.  After a brief adjournment, the Magistrate ruled that he had no authority to reopen the case as the prosecution case was closed.

2. What he actually said was:

   "An application was then lodged by Sergeant Glossop Prosecutor of the Broome Court to re‑open the case so that they could then lead evidence in relation to the appointment.  Having considered the matters and having looked up on two authorities my conclusion and my ruling is that there is no authority that I have to re‑open the case as the prosecution case was closed and secondly because there is no evidence before the Court as to the proper authority of the Police Officer Peter John Burgoyne to commence these proceeding, these proceedings must fail."

3. He therefore dismissed the complaint.

4. From that decision the prosecution appeals on the following grounds:

   "AThe learned Magistrate erred in law in holding that he had no authority to allow the Applicant to reopen his case.

   Bthe learned Magistrate erred in law and fact by refusing to grant the Applicant leave to re‑open the Applicant's case in order to prove that the Applicant was authorised to institute the proceedings by the Executive Director of the Department of Conservation and Land Management for the purposes of section 26(3) of the Wildlife Conservation Act 1950."

The first ground

1. If the Magistrate's opinion that he had no authority to allow the prosecution to reopen its case was in fact the decision he made, then it is an error.  There is always a judicial discretion to allow the prosecution to reopen the case.

2. On a reading of the Magistrate's reasons, it is not clear whether he was saying that he had no authority to allow the prosecution case to be reopened or that he had a discretion but was not compelled to allow the prosecution to reopen.  I proceed on the basis that he exercised a discretion and exercised that discretion adverse to the prosecution.

3. If there ever was a time when, under the guise of the presumption of innocence, the defence to a prosecution could successfully ambush a prosecutor in respect of a technicality or an inadvertent slip, those days are over: see Williams v Berini (1960) WAR 24, per Wolffe J at 22. Furthermore, where the issue is a procedural matter rather than one which goes to the merits of the defence, as a matter of course, the discretion should be exercised to allow the prosecution to reopen its case: Palos Verdes Estates v Carbon (1991) 6 WAR 223, per the Chief Justice at 230; Wasow v R (1985) 18 ACR 348 at 350; Hansford v McMillan (1976) VR 743, per Anderson J at 751; Hanley v Peters and Rogers, SCt of WA; Library No 5911; 8 July 1985; per Franklyn J at 4 and 5.

4. Of course, where the matter goes to the actual merits of the defence, the discretion is not so confined and other factors may combine to rule against the reopening of the prosecution.

5. These comments should not be taken as a reflection upon counsel.  The point raised in this case was legitimate.  The complaint did not specify what authority the prosecutor had to bring the prosecution.

6. The Wildlife Conservation Act 1950 (WA), s 26, requires complaints to be authorised. No authority was asserted in the complaint. As a matter of practice, authority to prosecute should be set out in the complaint. It is much easier for a court to apply a presumption of regularity when the authority is specified in the body of the complaint to the Justice before whom the complaint is made.

7. In my opinion, the Magistrate's discretion miscarried.  He ought to have granted the prosecution leave to reopen its case to prove the authority.

The authority to prosecute

1. By leave, the appellant has submitted further evidence by way of portions of an affidavit from the prosecutor and Mr Mell the chief wildlife officer.

Relevant statutory provisions

1. The Wildlife Conservation Act s 26 provides:

   "26. Offences

   (1)Any person who contravenes or who fails to comply with any provisions of this Act or the regulations is guilty of an offence against this Act and is liable, if no other penalty be prescribed, to a maximum penalty of $4 000 in the case of a contravention or failure to comply with a provision of the Act and of $2 000 in the case of a contravention or failure to comply with a provision of a regulation, and any licence issued pursuant to the provisions of this Act and held by him may be cancelled.

   (2)All proceedings for offences against this Act shall be disposed of summarily before a court of petty sessions.

   (3)All proceedings in respect of any such offences shall be taken by and in the name of the Executive Director or by and in the name of any person authorised in that behalf by the Executive Director."

2. The Conservation and Land Management Act 1984(WA) s 133 provides:

   "133. Delegation

   (1)The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to the Executive Director or a person employed in the Department any of his functions under this Act or the Wildlife Conservation Act 1950, other than this power of delegation or the power to make any instrument having legislative effect.

   (2)The Executive Director may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to a person employed in the Department any of his functions under this Act or the Wildlife Conservation Act 1950, other than this power of delegation or a function delegated to him under subsection (1)."

3. Mr Mell deposes that he is the chief wildlife officer of CALM and holds the delegation from the executive director.  The delegation is produced, and there is prima facie evidence of that fact:  Conservation and Land Management Act, s 38(3).

4. In turn, Mr Mell authorised the complainant to undertake this prosecution.  He wrote a letter to the complainant in the following terms.

   "Officer in Charge

   Kimberley District Police Office

   P.O. Box 2291

   BROOME    WA    6725

   AUTHORITY TO PROSECUTE UNDER SECTION 26 OF THE WILDLIFE CONSERVATION ACT 1950

   Pursuant to Section 26(3) of the Wildlife Conservation Act, anyone taking proceedings under the Wildlife Conservation Act must first be authorised by the Executive Director to do so. In accordance with his power to delegate certain functions under section 133(2) of the Conservation and Land Management Act, the Executive Director, has delegated to the Chief Wildlife Officer or any person who from time to time acts in that position, the power to authorise the taking of proceedings under the Wildlife Conservation Act.

   Accordingly, I David John Mell, being the Chief Wildlife Officer, do hereby authorise Senior Constable Peter John Burgoyne of the Kimberley District Police Office, to take proceedings under the Wildlife Conservation Act against the following person for breaching the provisions of Section 16A(1) of the said Act.

   Graeme John Earl of 8 Wattle Drive, Broome

   Date of Offence: - On or about 4 June 1998.

   Enclosed for your information is a sample of the wording of a complaint for an offence of this nature, along with copies of the relevant sections of the Wildlife Conservation Act.

   I would be grateful if, upon completion of this matter, a copy of the Face sheet or brief, the P18 Apprehension Information Sheet, the P76 Court Sheet, the complaint and the Results Sheet detailing results of the court action could be forwarded for this Department's record.

   Yours faithfully

   D.J. Mell

   CHIEF WILDLIFE OFFICER

   9 June, 1998

   Enc."

5. The prosecutor deposes that if he had been given leave, he would have sought to tender the letter.  If he had done so, a question would have arisen as to whether the letter was admissible.  Unlike the executive director, the chief wildlife officer is not a person of whom judicial notice may be taken as to signature.

6. The letter, however, might be admissible under the Evidence Act1906(WA) s 79C. It appears to fulfil the conditions of s 79C(1)(a). Whether it would be admitted depends on whether the prosecution satisfies the Court as to any of the provisions of s 79C(2). Alternatively, of course, the prosecution could call Mr Mell to give direct oral evidence.

7. The respondent submits that the power contained in the Conservation and Land Management Act, s 133, prevents the delegation of power to proceedings to a person outside the department. I am unable to accept this submission. There is one delegation of functions under the Conservation and Land Management Act from the executive director to the chief wildlife officer.

8. Under the Wildlife Conservation Act, s 26, there is no further delegation. Rather, there is an authorisation to commence proceedings. Neither Act limits the categories of persons who may be authorised and in particular the Wildlife Conservation Act does not.

9. Consequently, I hold that an authority to prosecute may be given by the chief wildlife officer to a police officer provided that it conforms with the Wildlife Conservation Act s 26.

10. For these reasons, I will allow the appeal and set aside the dismissal.  The ruling of the Magistrate did not relate to the merits of the hearing and did not involve any determination of fact.  Therefore, I consider that the appropriate order would be to send the matter back to the Magistrate to be dealt with further according to law in the light of these reasons.