Caruso v Holtby - [1999] WASCA 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: CARUSO & ANOR -v- HOLTBY [1999] WASCA 39

CORAM: McKECHNIE J

HEARD: 22 APRIL 1999

DELIVERED : 22 APRIL 1999

PUBLISHED : 28 MAY 1999

FILE NO/S: SJA 1211 of 1998

BETWEEN: CHRISTOPER VICTOR CARUSO
SUZANNE FRANCINE CARUSO
Appellants
AND
SIMON HOLTBY
Respondent

Catchwords:

Town Planning - Offence against Town Planning Scheme - Proper complainant - Whether any person may lay complaint at common law - Duplicity - Whether allegation of breadth of zoning rules over a period duplex - Circumstantial evidence - Drawing of inferences

Legislation:

Town Planning and Development Act 1928

Result:

Appeal dismissed

Representation:

Counsel:

Appellants: Mr D E Eley
Respondent: Mr P J Hannan

Solicitors:

Appellants: Eley & Partners
Respondent: Lewis Blyth & Hooper

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

Armstrong v Hammond [1958] VR 479
Bastin v Davies [1950] 2 KB 579
Bedingfeld v Keogh (1911-1912) 13 CLR 601
Chew v R (1990) 4 WAR
Hodgetts & Anor v Chiltern District Council (1983) 2 WLR 576
Meiklejohn v Central Norseman Gold Corporation (1998) 19 WAR 298
R v Stewart [1896] 1 QB 300
Vrisakis v ASC (1993) 9 WAR 395
Walsh v Tattersall (1996) 188 CLR 77
Weissensteiner v The Queen (1993) 178 CLR 217

Case(s) also cited:

Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25
Deveney v Sturt [1969] VR 174
Giowkos v R, unreported; SCt of WA; Library No 9802245; 5 May 1998
McMaster v Giles [1969] VR 1015
Potter & Ors v East Coast Bays Borough [1975] 1 NZLR 627
R v Latham; ex parte Issell (1987) 64 LGRA 334
Rabcznyski v Morrison [1988] WAR 71
Scott v Harry (1951) 53 WALR 1
Shepherd v The Queen (1990) 170 CLR 573
Tagliaferri v De Villiers (1995) 89 LGERA 49
Woon v The Queen (1964) 109 CLR 529

McKECHNIE J : Lot 53 Edward Street, Kenwick lies within the City of Gosnells. The premises are jointly owned by the appellants. The City of Gosnells, like all municipalities, has a town planning scheme. Under that scheme lot 53 is zoned rural and was approved for use as an emu farm.
An ongoing dispute as to the use of Lot 53, allegedly as a motor repair station, finally led the City, through its Chief Executive Officer Mr Holtby, to prosecute the appellants in the Armadale Court of Petty Sessions. After a trial in which they did not give evidence they were convicted and fined.
On 5 February this year the appellants were granted leave to appeal on three principal grounds. The first ground challenges the power of Mr Holtby, the respondent, to bring the prosecution. Ground 2 asserts that the complaints were bad for duplicity. The essence of the remaining grounds variously expressed is that, this being a circumstantial case, the evidence was insufficient to enable the Magistrate to be satisfied beyond reasonable doubt as to the guilt of each appellant.

Authority to Prosecute

The appellants' argument, in summary, proceeds on the basis that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Caruso v Holtby

Details

AGLC: Caruso v Holtby [1999] WASCA 39
Case: [1999] WASCA 39
Decision Date: 28 MAY 1999

CaseChat Overview and Summary

Caruso v Holtby was a case before the Supreme Court of Western Australia, where Caruso, a local council, brought an action against Holtby for alleged breaches of the town planning scheme. Caruso claimed that Holtby had contravened zoning rules by using their property in a manner inconsistent with the approved zoning over an extended period. The case raised several legal questions, including whether any individual could bring a complaint about zoning breaches at common law, whether the allegations were overly broad and constituted a duplicity, and whether the evidence presented was sufficient to infer a breach of the zoning rules. The court had to determine if the complaint was appropriately brought, if the allegations were properly framed, and if the evidence was adequate to support the charges.

The court examined the principles of duplicity in criminal charges and continuous activity offences, referencing decisions from Meiklejohn v Central Norseman Gold Corporation and Walsh v Tattersall. The court found that offences involving continuous activity, such as zoning breaches over time, could be charged in a single count if the acts were part of the same offence. The reasoning aligned with Hodgetts & Anor v Chiltern District Council, where Lord Roskill held that an offence could take place over a period of time. The court noted that while the complaint's timing details were crucial, the essence of the offence was the ongoing non-compliance with the zoning rules.

The Supreme Court found that Caruso's complaint was properly brought and that the allegations, while broad, did not constitute a duplicity. The court accepted that the evidence was sufficient to infer ongoing breaches of the zoning rules. The court concluded that Holtby's actions constituted a continuing offence under the town planning scheme.

The court ordered Holtby to cease the non-compliant use of the property and to comply with the approved zoning within a specified timeframe. The decision reinforced the principle that zoning breaches over a period could be effectively charged and adjudicated in a single proceeding, provided the acts were part of a continuous offence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KECHNIE J

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Ratio Decidendi

Legal Principle Established

Established by: KECHNIE J

In Meiklejohn v Central Norseman Gold Corporation (1998) 19 WAR 298, Anderson J, after an extensive examination of authority, concluded that there was difficulty in reconciling many of those decisions. In Walsh v Tattersall (1996) 188 CLR 77 the question under consideration was whether an offence of obtaining by dishonest means a payment or benefit gave rise to a continuing offence or discrete offences. Kirby J from p104 on examined the principles governing duplicity in criminal courts. At 107-8, he deals with continuous activity:"Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment (96) and trafficking in drugs (97). Obviously, nice questions arise as to whether individual acts of supply of prohibited drugs create the same, or substantially the same, offence so as to sustain a single count and to resist an allegation of duplicity." His Honour also has noted the difficulty in this area of the law in reconciling some of the cases in a manner similar to that of Anderson J of this Court. Reference may also be made to the exhaustive analysis of the cases by the Chief Justice and Ipp J in Vrisakis v ASC (supra). In my view this present case has similarities with the case of Hodgetts & Anor v Chiltern District Council (1983) 2 WLR 576. The charge there was that the respondents on and since a particular date had permitted land to be used in contravention of an enforcement notice. At 582 Lord Roskill said:"It is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence should take place once and for all on a single day. It may take place, whether continuously or intermittently, over a period of time. The initial offence created by subsection (1) in the case of non‑compliance with a 'do notice,' is complete once and for all when the period for compliance with the notice expires; but it is plainly contemplated that the further offence of non‑compliance with a "do notice" created by subsection (4), though it too is a single offence, may take place over a period of time, since the penalty for it is made dependent upon the number of days on which it takes place." His Lordship observes as well that "an initial offence may take place over a period" and he gives the example of holding a Sunday market. The comment about the particulars of the time alleged and expressed in the complaint was also the subject of comment by his Lordship at 582, when he says:"…but it might be preferable if hereafter offences under the first limb of section 89(5) were charged as having been committed between two specified dates, the termini usually being on the one hand the date when compliance with the enforcement notice first became due and on the other hand a date not later than the date when the information was laid, or of course some earlier date if meanwhile the enforcement notice had been complied with."