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 there must be some power in the provisions of the Town Planning and Development Act 1928 which gives the Chief Executive Officer the authority to commence a prosecution. Without such a power it is asserted, no prosecution can be brought.
In my opinion this argument is misconceived and must be rejected. It is contrary to ancient authority which is both binding and persuasive.
At common law any citizen has a right to take a prosecution to enforce the law, at least in respect of offences which are not felonies. Reference can be made to two particular authorities. The first reference is to R v Stewart [1896] 1 QB 300. The issue there was whether a private person, the secretary of the Liverpool branch of the RSPCA, could take action under the Diseases of Animals Act against a ship's master.
Lindley LJ, at 302 said:
" …the right conclusion is that there is nothing in either the Act or the Order which is sufficiently plain to deprive anyone of his ordinary right to prefer an information."
Kay LJ at 303 said:
"I am of the same opinion. Prima facie there is no doubt that anybody may take proceedings to recover a penalty. That is an old rule and is well established. The Act now under consideration in terms provides that penalties shall be imposed for certain acts, and that those penalties shall be regarded as though they were penalties incurred under the Summary Jurisdiction Acts. In order to prevent the application of the general rule, it must be shewn that the Act in plain terms prevents any one, except certain specified persons, from prosecuting for offences under the Act."
Stewart was referred to with approval and followed by the High Court in Bedingfeld v Keogh(1911-1912) 13 CLR 601. Griffith CJ, after quoting the passage to which I have referred from Stewart, then referred to the Fines and Penalties Act in New South Wales. The matter under consideration in Bedingfeldwas not dissimilar from the present matter. It was a prosecution for an offence under the provisions of the Pure Food Act.
The prosecution was brought by an inspector of police and the argument that was addressed was that he was unable to take the proceedings, that the enforcement of the Act was entrusted to local authorities only.
The High Court held that the Act did not limit the enforcement of penalties to persons charged with enforcing the Act, but that the general rule which I have stated prevailed. Of relevance to another point discussed below is the judgment of Isaacs J at 607. The argument that was presented to him was that the health authorities were charged with enforcing the Act. He took the view that the word "enforce" is capable of wide application. As he says at the bottom of 607:
"You can administer an Act without enforcing it, and enforcing this Act means putting it into practical operative force. That is left primarily to the Board of Health, or the local authority if so directed by the Board. …So that ample meaning can be given to the word "enforcing" without involving the nomination of the Board, or a local authority as the sole prosecuting authority to lay an information."
So it is clear that his Honour took the view that even when enforcement provisions are given, nevertheless the power to lay complaints extends beyond those to whom the enforcement is entrusted. I observe that the Justices Act is predicated on the basis that a private individual is the usual complainant and the sections which deal with procedure make manifest that observation.
The consequence of the matters I have mentioned are that a private person may bring a prosecution for an offence, necessarily an offence created by statute, unless the statute confines that right.
I would also make reference to the decision of the Full Court of the Supreme Court of Victoria in Armstrong v Hammond [1958] VR 479 and in particular at 481. The Full Court said:
"The right of any member of the public to lay an information is an important public right and is so much to the public benefit that it is not to be presumed from uncertain language that the legislature has in any particular case taken the right away. For any offence of a public nature any person may be the informant unless it appears plainly that the legislature has expressed a contrary intention."
Then is cited a number of cases and the judgment continues:
"To hold that because the legislature has given express authority to certain persons to lay an information, they and they alone can do so, would be to run counter to a line of authorities in all of which it has been held that the right of any member of the public to lay an information for an offence of a public nature is not to be taken as denied in the absence of clear and express language."
I refer to the Full Court of Victoria because a question arose in the appeal about the effect of the repeal of the Interpretation Act and its replacement in 1984. In my opinion the common law right subsists independently of repeal and enactment and the mere repeal of the act in toto does not express a sufficient legislative intention to take away the general right of a citizen to enforce the statute.
I therefore hold that Mr Holtby had power as an individual to bring this prosecution. If I am wrong about this general power I am nevertheless of the view that the Town Planning and Development Act does authorise him to bring the prosecution as the Chief Executive Officer of the City of Gosnells. The City of Gosnells is the relevant local authority, responsible authority. "Responsible authority" is defined in the Act as:
"Means the local government responsible for the enforcement of the observance of a scheme or for the execution of any works which under a scheme, or this Act, are to be executed by a local government."
A method of enforcement plainly is by prosecution. That is made manifest in the decision of Isaacs J in Bedingfeld to which I have referred.
The City may act through its duly authorised agent, who in this case is the CEO, so for both of those reasons I would not uphold ground 1.

Duplicity in the complaint

The complaints against each of the appellants are in similar form and I will refer to that form. They read:
"Between 1 November 1997 and 16 June 1997 at Lot 53 Edward Street, Kenwick," the named appellants "of Lot 53 Edward Street, Kenwick, such premises within the municipality and district of the City of Gosnells, did carry on at the said premises a motor repair station, which use is prohibited on the said premises by virtue of it being zoned rural, pursuant to the provisions of the City of Gosnells Town Planning Scheme No. 1 as amended and thereby contrary to Section 10(4)(a)(i) of the Town Planning and Development Act 1928 as amended."
To understand this ground it is necessary to set out some background from the City's Town Planning Scheme No 1. Part III of the scheme classifies land, other than reserved land, into zones. Zone 10 is classified rural. Subject to certain matters not relevant, no land or building shall be used or adapted for use for any purpose other than those permitted in the zone. By cl 16, motor repair stations are not permitted in rural or special rural zones. The scheme defines a motor repair station as follows:
"'Motor Repair Station' means premises for or in connection with mechanical repairs and overhauls to or for motor vehicles, tractors or engines, including tyre recapping, retreading, panel beating, spray‑painting and chassis reshaping."
I pause to note that the definition is both definitive, that is "Motor repair station means", and inclusive in that the general definition is expanded by the words "including tyre recapping", etcetera.
It is submitted for the appellants that the activities which are carried on are of an intermittent nature and not continuous, or more precisely, that there is no evidence that they are. Further, the actual acts are not particularised. The activities, it is said, must be repeated acts. Thus, if the complaint is to be satisfied, the respondent must necessarily show that on a number of occasions over the period and at least on 1 November 1997 and 16 June 1998, the appellants undertook some form of motor repair station activity.
This latter point seems to me not an attack on the complaints as duplicitous. It is more a submission that the evidence was insufficient to sustain proof.
In my opinion the complaints as framed are not duplicitous. They assert that the appellants carried on at the premises a motor repair station. The start and end dates are particulars. A conviction will be sustained upon proof that for a period of time between those dates, not necessarily encompassing the whole of the dates, a motor repair station was "carried on." The business of a motor repair station may be carried on even though the work proceeds intermittently or occasionally.
The mischief of duplicity is twofold. First, it may prevent a defendant from understanding with precision the case that he or she must meet. Second, a subsequent prosecution may not be able to be defeated by a claim of autrefois convict or acquit as the case may be.
This is pointed out by Goddard LCJ in Bastin v Davies [1950] 2 KB 579 where the Lord Chief Justice said at 581:
"The point taken for the defendant, to which the justices gave effect, was that this information was bad for duplicity, in that it disclosed three offences. The blemish, however, if any, is not duplicity but uncertainty. Duplicity consists in charging two or more separate offences in one information or count conjunctively: uncertainty arises when two or more offences are so charged in the alternative or disjunctively, for obviously such a procedure leaves it quite uncertain with which of those offences the defendant is charged, and the conviction, which must follow the information, would also leave it in doubt of which offence the defendant had been found guilty."
The allegation which the defendants had to meet was clear enough. Between the dates specified they carried on a motor repair station on the premises. The evidence to support the allegation may or not be sufficient, but that is not to the point.
When considering duplicity, regard must principally be had not to the evidence but to the form of the complaint, as has been pointed out in cases such as Chew v R (1990) 4 WAR and Vrisakis v ASC (1993) 9 WAR 395. Duplicity is essentially a pleading point.
A conviction of the appellants on the charge as laid would necessarily preclude any prosecution for carrying on a motor repair station between the same dates, even if the actual evidence called in support supplied proof of carrying on a motor repair station over a less period or in a way different from that alleged in this charge.
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."
From the foregoing, and in reliance particularly upon Walsh v Tattersell and Hodgetts & Anor v Chiltern District Council, in my opinion, this complaint is not bad for duplicity. It alleges a single offence and does not give rise to uncertainty. It is not an allegation of a series of discrete offences but an allegation as to one offence, that of carrying on a particular occupation in particular premises. I therefore would not uphold ground 2.

Circumstantial evidence:

I now deal with the balance of the grounds. The evidence in this case was circumstantial. The Magistrate correctly directed himself as to the law and in particular directed himself that the prosecution had to exclude all other conclusions consistent with innocence.
Formal matters were admitted.
The prosecution case relied substantially upon of the evidence of Mr Moss, a planning inspector at the time. His credibility did not seem to be in issue. Rather, the issue was the alternative inferences which could be drawn from his evidence and the photographs and the documentary evidence also tendered.
Accordingly, this Court is in as good a position as the Magistrate to draw inferences and consider whether there are inferences consistent with innocence, which cannot be excluded. In Vrisakis, to which I have already referred, Ipp J said, at p447:
"This is an appeal under the Justices Act and is by way of rehearing (O65A r9 read with O63, r2 and O65 r10). In general this Court is in as good a position as the magistrate to decide on the proper inference to be drawn from facts which are undisputed or which are established by her findings. Respect and weight will be given to the conclusion of the magistrate but this Court, having reached its own conclusion, will not shrink from giving effect to it. Moreover, the question whether the facts found do or do not give rise to the inference that a party failed to exercise a reasonable degree of care and diligence is not one which is to be treated as peculiarly within the province of the magistrate."
Then his Honour refers to Warren v Coombes. His Honour continued, after another matter, at p448:
"It is correct that primary findings of fact will not ordinarily be interfered with, provided there is evidence to support those findings, and provided the appellant fails to establish that the Court below has not taken proper advantage of seeing and hearing the witnesses. Nevertheless, when findings as to the primary facts are attacked, and the inferences drawn from the primary facts are said to be wrong, it remains the task of an appellate court in an appeal by way of rehearing to embark on an analysis of the evidence, documents and objective facts in order to determine the issues afresh."
His Honour cites Wing Luck Foods v Lay Choo Lim and continues:
"Further, it is to be noted that this is not an appeal from a jury but from the reasoned decision of a Magistrate. The appeal stands or falls upon an examination of the Magistrate's reasons in the light of the evidence. A decision of a court of summary jurisdiction is not regarded with the same sanctity as a verdict of a jury: see Davern v Messel (1984) 155 CLR 21 at 37-38.

On that basis, as I have indicated, I propose to examine the material myself to see whether I am satisfied that the irresistible conclusion is one of guilt.

The evidence

Mr Moss testified that at the relevant time he was a planning inspector with the City of Gosnells. On 19 November 1997, he first visited the property, where he observed what he considered to be a motor transport (sic) station conducted on the property. There were at least eight vehicles. He could not see inside the shed.
On 6 March 1998 he again observed eight vehicles. The shed doors were open and there were two hydraulic hoists. There were no vehicles on the hoists and no work was being carried out. The hoists left very little room in the shed for rural type machinery. On 13 March 1998 he observed eight vehicles. There was a grey 1-ton truck on the hoist.
On 16 March 1998 he again attended, this time taking photographs. He also observed a gentleman wearing blue overalls alighting from a yellow utility. Some time after 16 March he again attended, observing at least eight vehicles. He spoke with the appellants. While speaking for at least a half an hour, two vehicles arrived. One was a utility which off‑loaded a tyre.
On 25 March 1998 he observed 12 vehicles, two of which were in the workshop, not on any hoist. No-one was working on the vehicles. There were at least two men wearing overalls. Further photographs taken after 25 March 1998 show a petrol bowser outside the shed. Some of the vehicles observed over the period have been the same and some have been different. There were, except for some four-wheel drive vehicles, mainly family vehicles. During the period of his observation he never observed work actually taking place.
The prosecution also relied on a business name registration and telephone White Pages entries. It is important to go to each of those documents. The business name registration provides that the business name "West Coast Automotives" was registered in 1987; the nature of the business said to be mechanical repairs. The current principal place of business, from 15 January 1996, is said to be Lot 53 Edward Street, Kenwick; that is, the premises under consideration. The registered proprietors of the business are the two appellants, both of Lot 53 Edward Street, Kenwick.
The White Page entry for 1997 has this entry, "West Coast Automotives, Lot 53 Edward Street, Kenwick" and then a telephone number, beneath that, "Mobile service" and another telephone number. For 1998 the entry is, "West Coast Automotives Consultant, Edward Street, Kenwick," and a phone number, the same fixed phone number as in 1997. There is no mobile number. I observe that the name, West Coast Automotives, does not of itself carry any connotation for rural repairs or in any way suggest that it is engaged particularly in repair of rural equipment used in rural industry.
The appellants did not give evidence. In my view, the case of Weissensteiner v The Queen (1993) 178 CLR 217 and the inference that can be drawn from the fact of silence has some application and perhaps more application in circumstantial evidence cases, than others. Nevertheless, it would be wrong to use Weissensteiner to overcome the right to silence and silence itself cannot supply proof of essential steps in a reasoning process. It may render the drawing of a conclusion easier.
In approaching this matter afresh - that is, setting to one side for the moment the Magistrate's decision - I have not sought the assistance of the principles in Weissensteiner.
The appellants had a conversation with Mr Moss where they put various "what if" propositions. In my view, no inference can be drawn from this conversation and I exclude it from further consideration.
I note that the Magistrate did pay some regard to it and he was probably entitled to do so. However, for my part, I cannot necessarily draw consciousness of guilt from that conversation, which is why I set it to one side. I consider that the following features emerge from the evidence:
(1)The appellants have registered a business name, the business being mechanical repairs, the address of the business is at Lot 53, the premises. Whether or not this is prima facie proof under the Business Names Act is, to my mind, beside the point. The Business Names Act s 24 does in fact provide that it is prima facie proof of that fact but in my view resort does not need to be had to the Act. It speaks for itself. It is registered by the appellants. The premises are nominated and the business is "mechanical repairs". In my opinion, "mechanical repairs" comes well within and is specifically mentioned in the definition "motor repair stations."
(2)The business was advertised at that address in 1997 and in 1998 in the White Pages and, as I have already observed, there is no suggestion of a speciality in rural services.
(3)The land on which the premises are located is zoned "rural". A rural industry includes a workshop servicing plant or equipment used for rural purposes in the locality.
(4)The shed is a large shed. However, two hydraulic hoists take up so much space that little is left for rural‑type machinery.
(5)At randomly different times a considerable number of non‑rural vehicles were observed at the premises. Some were registered and some were not. Some remained throughout and others did not.
(6)There were men observed on two occasions in overalls.
The appellants put forward as an hypothesis reasonably consistent with innocence, a hypothesis that all of the above is equally open to the interpretation that the premises were being used in accordance with the zoning, that is, for a rural machinery‑type workshop in the sense mentioned under the scheme. I do not consider that hypothesis, on all the evidence, to be open.
There were no rural vehicles ever observed. There is no suggestion in the use of the name that rural vehicles are to be targeted. The turnover and type of vehicles present in the yard, together with the advertising in the White Pages and the business name leads, in my view, to the only and irresistible inference that the appellants were conducting a motor repair station on the premises for a period during the dates set out in the complaints.
I return now finally to the Magistrate's decision. I would take the view that on his reasoning on the evidence it was open for him to be satisfied beyond reasonable doubt as to the proof of the complaints. My independent analysis of the evidence has reached the same conclusion. Therefore I would dismiss this appeal.