City of Gosnells v Heydon - [2010] WASC 344

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CITY OF GOSNELLS -v- HEYDON [2010] WASC 344

CORAM: JENKINS J

HEARD: 23 AUGUST 2010

DELIVERED : 30 NOVEMBER 2010

FILE NO/S: SJA 1026 of 2010

BETWEEN: CITY OF GOSNELLS
Appellant
AND
TREVOR HEYDON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E K LANGDON
File No  :AR 9806 of 2009

Catchwords:

Criminal law - Leaving vehicles on a verge - Prosecution appeal - Repugnancy between general provision of local law relating to things placed on a verge and specific provisions of the local law dealing with vehicles

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Criminal Procedure Act 2004 (WA), s 132
Interpretation Act 1984 (WA), s 18, s 32(2)
Local Government Act 1995 (WA), cl 1.2, cl 2.2, cl 3.1, cl 3.5(1), cl 8.3(2)
Road Traffic Act 1974 (WA), s 5(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D P Gillett
Respondent: Mr M E Herron

Solicitors:

Appellant: McLeods
Respondent: R J Kerferd & Co

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

Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (No 2) (1980) 29 ALR 333
Smith v The Queen (1994) 181 CLR 338

JENKINS J: The City of Gosnells (the City) appeals against a magistrate's decision to acquit Trevor Heydon of a charge of placing vehicles on a verge without a permit.

Grounds of appeal

On 3 June 2010 I granted leave to appeal on each of the following grounds:
1.The learned Magistrate erred in law in finding clauses 2.2(1)(b) and 3.1(1) of the Local Law could both apply to the wrecked and damaged vehicles and vehicle bodies placed on a verge the subject of the charge but that as clause 3.1(1) was more specific, in that it applied to vehicles and parts of vehicles, clause 2.2(1)(b) was invalid to the extent that it applied to the items the subject of the charge whereas the learned Magistrate should have found the charge could validly have been brought under either of those provisions.
2.Alternatively, the learned Magistrate erred in law in finding that both clauses 2.2(1)(b) and 3.1(1) of the Local Law could apply to the wrecked and damaged vehicles and vehicle bodies placed on a verge the subject of the charge whereas the learned Magistrate should have found only clause 2.2(1)(b) could so apply on the basis that:
(a)clauses 2.2(1)(b) and 3.1(1) of the Local Law had different applications, whereby clause 3.1(1) was intended to prevent vehicles and parts of vehicles from obstructing public places or local government property and clause 2.2(1)(b) was intended to protect the amenity of a locality which included preventing the placing of damaged vehicles and vehicle bodies on a verge without permission from the Appellant; and
(b)clause 3.1(1) could not have applied because the wrecked and damaged vehicles and vehicle bodies the subject of the charge had not been left on the verge for a period exceeding 24 hours and, therefore, did not constitute an obstruction for the purposes of clause 3.1(1).
The reference in the grounds of appeal to the local law is a reference to the City of Gosnells Activities on Thoroughfares and Trading in Thoroughfares and Public Places Local Law 2000 made under the Local Government Act 1995 (WA) s 3.5(1). I will also refer to it as the local law.
In essence, the appeal is about whether the magistrate was correct to find that the provision of the local law under which Mr Heydon was charged, cl 2.2(1)(b), did not apply to the facts as proven by the City. The magistrate reasoned that because there was a different clause of the local law, cl 3.1, which applied to and regulated leaving vehicles on a verge and because there was a 'clear repugnancy' between cl 3.1 and the general cl 2.2(1)(b) under which Mr Heydon was charged, cl 3.1 prevailed to the extent of the repugnancy.

The charge and proceedings on it

Mr Heydon was charged that between 12 May 2008 and 1 May 2009 at Lower Park Avenue, Maddington within the district of Gosnells, he placed vehicles on a verge without a permit contrary to the local law cl 2.2(1)(b) and cl 8.3(1).
Mr Heydon pleaded not guilty to the charge. On 24 February 2010 his trial took place before the magistrate. Mr Heydon's counsel made a 'no case to answer' submission at the conclusion of the prosecution case. The magistrate delivered oral reasons for finding that Mr Heydon had no case to answer.

The prosecution case

Mr Heydon's written submissions acknowledge that he parked vehicles on the front verge of his premises during the day and brought them into his yard at the close of business each day. The evidence which established those facts was as follows.
Nicholas Simpecas, a ranger employed by the City, gave evidence that on 12 May 2008 he patrolled Lower Park Road, Maddington which is a light industrial area within the district of the City. He observed a number of unregistered vehicles on the road and verge adjacent to 6 Lower Park Road (the premises). He said that Keyline Auto Parts (Keyline), an automobile spare parts and wrecking business, operated by Mr Heydon, carried on business at the premises. The premises were owned by Mr Heydon.
Three photographs were tendered in evidence as having been taken by Mr Simpecas on 12 May 2008. The first shows a blue Hyundai station wagon with no front number plate, a damaged front bonnet and passenger quarter panel and no bumper bar. The second photograph was said by Mr Simpecas to show an unregistered Nissan Pulsar on the verge adjacent to the premises. The photograph shows a reddish coloured Nissan sedan without a number plate. The third photograph was said by Mr Simpecas to show a Ford Laser on the same verge. The photograph shows a small red Ford sedan with worn duco. The vehicle has a front number plate. It has what appears to have a hole in its front driver's side door but otherwise there does not appear to be extensive damage to the car. The rear of the car is not able to be seen in the photograph. There are other vehicles in the photographs which appear to be parked alongside the three cars on the verge. Extensive damage to a windscreen can be seen in one of the cars parked alongside the blue Nissan. Behind the vehicles there is a cyclone wire fence with a gate.
Mr Simpecas went into Keyline and spoke to Mr Heydon. Mr Simpecas told Mr Heydon that he could not place damaged, wrecked or unregistered vehicles on the verge or road. He said that Mr Heydon then arranged for his staff to move the vehicles back into the Keyline premises. Mr Heydon told Mr Simpecas that he did not have enough room on his property for the vehicles and that he had to move them out on to the verge and road during the day to make room within his yard to move around other vehicles. Mr Simpecas told Mr Heydon that under the local law, he was required to keep the vehicles within his premises.
On 20 August 2008, Mr Simpecas re‑attended Lower Park Road at about 10.30 am. He observed numerous vehicles on the road and verge outside the premises. He took photographs of those vehicles. Mr Simpecas said that there were some registered vehicles on the verge but there were three unregistered vehicles, including two vehicles stacked on top of each other. The first photograph shows a small white sedan with extensive damage to its front end and it has no number plate. Another photograph shows eight vehicles parked on the verge, including the vehicle shown in the previous photograph. The vehicle which is on top of another vehicle is a white hatchback, with very extensive damage to its front end, including its windscreen. It has no front wheels and both driver's side doors are missing. It does not have front seats. It also appears to have part of another vehicle's side panel sitting inside of it. The third photograph shows the vehicle underneath it. It is a blue sedan in poor condition, without a bumper bar, grill or front number plate. It may also have a piece of debris lying across its front passenger seats. Mr Simpecas said that some of the other vehicles on the verge belonged to employees of Keyline or Mr Heydon and were registered. However, a fourth photograph shows the front end of another vehicle which does not have any front wheels and its bumper bar, grill and number plate appear to be missing.
Mr Simpecas said that he spoke to Mr Heydon on that date and he arranged for the vehicles to be taken inside the boundary of the premises. Mr Heydon told Mr Simpecas that he needed to have the vehicles moved out on to the verge in order to move vehicles within his yard and that 'the guys were late bringing them in'. Mr Heydon also said that he had not built stacking racks because he did not have time to organise things such as the engineering approval or the building licence. Mr Simpecas advised Mr Heydon that he may receive infringement notices for putting vehicles on the verge.
On 1 October 2008 at approximately 10.00 am, Mr Simpecas again patrolled Lower Park Road and observed numerous vehicles similar to those he had seen on his earlier visits on the road and verge outside the premises. He took photographs of the vehicles. One photograph shows a damaged silver sedan and next to it there appears to be parts of two other vehicles. These appear to be the rear of a silver sedan which has been cut approximately in half and the cabin of a white truck or something similar. There also appears to be part of a seat sitting between those two vehicles. Other photographs show a silver Kia station wagon which does not have a rear number plate, a vehicle which does not have a rear windscreen and a blue Hyundai station wagon which has very extensive damage to its front and passenger side quarter panel. There are parts hanging off the vehicle. It would not be able to be driven in that condition. Next to it, lying on the verge, is a hubcap and, separate to that, a wheel.
Mr Simpecas said he spoke to Mr Heydon who told him that his staff had put the vehicles on the verge. Mr Heydon then arranged to return the vehicles to the premises.
Mr Simpecas said that on the three days he had attended the premises, the City had not granted any permission for vehicles to be left on Keyline's verge. He said that there were no bulk rubbish collections organised for those days or at any time in that area. He said that bulk rubbish collections were only for suburban areas.
In cross‑examination, Mr Simpecas confirmed that on each occasion he had spoken to Mr Heydon he (Mr Heydon) had arranged for the vehicles to be moved inside the premises within half an hour of Mr Simpecas arriving. Mr Simpecas was not able to give any evidence that the vehicles had been left for a period exceeding 24 hours. It was put to Mr Simpecas that he had been told by Mr Heydon that the parts of the vehicles which he had seen on the verge were there to be collected. Mr Simpecas said that he had been told 'something of that nature', but he did not have 'a lot of detail on that' (ts 14).
Another City ranger, Christopher Shaun Hunt, gave evidence that on 15 October 2008 he saw vehicles on the verge of the premises. He said that there were two shells, one on top of each other. He issued an infringement notice and took photographs. One of the photographs shows the wreck of a small white sedan sitting on the verge. It has an extensively damaged front end with no front wheels or passenger side doors. The remains of these appear to have been placed inside the car. The rear of the car is also badly damaged. Sitting on top of it is a damaged white sedan. It does not appear to have any tyres or driver's side doors. The second photograph shows a forklift being used to lift the second car off the bottom vehicle. The forks have been placed through the front windscreen in order to lift up the car.
Mr Hunt again attended Keyline about 9.45 am on 10 November 2008. He saw an unlicensed silver Ford station wagon on the verge. He took photographs of the vehicle. It does not have front or rear number plates. Mr Hunt issued an infringement notice in respect to that vehicle.
On 1 April 2009, Mr Hunt saw a number of vehicles on the verge adjacent to Keyline. Mr Hunt said that he saw multiple wrecks or cars which were unlicensed and were damaged. There was a man who appeared to be working on one of the vehicles. Two photographs which were tendered in evidence show at least six vehicles on the verge. One of these is a small gold sedan without headlights, grill, number plate or bumper bar. Another is a white sedan which is extensively damaged. It has a tyre and hubcap sitting on its bonnet. The second photograph shows a man apparently working on a blue damaged station wagon. Next to it is a white vehicle without a front number plate. There are car parts sitting on its bonnet.
The following day, Mr Hunt again saw multiple vehicles on the verge adjacent to the premises. He said these were mostly unlicensed and unregistered vehicles without number plates and with damage to them. He said that the gold car was again on the verge.
Mr Hunt said he saw Mr Heydon driving a forklift and using it to move car parts in the street. Photographs taken by Mr Hunt on that occasion show at least 10 motor vehicles on the verge. The gold sedan is visible in one of the photographs. Other photographs show a damaged red sedan which does not have a front bumper bar or number plate, a blue sedan which has extensive damage to its roof and a white sedan with extensive damage to its front end.
Mr Hunt returned to the premises on 3 April 2009. On that date, he took two photographs of two vehicle wrecks, one sitting on top of the other, on the verge. The wreck on the bottom is the remains of a white vehicle. It does not have any wheels, driver's side doors, engine, front side panels, bonnet, grill, bumper bar or number plate. The blue vehicle on top of it can only be described as a mangled wreck. Not only is it missing panels, but it has been squashed from various angles so that it does not have a proper cabin. It does not have wheels.
Mr Hunt also attended the Keyline premises on 7, 8 and 9 April 2009. He again took photographs. The photographs taken on 7 April show at least six vehicles on Keyline's verge. At least three of these do not have number plates and two of them are substantially damaged. One of these cars appears to be the gold sedan I have previously described.
The photographs taken by Mr Hunt on 8 April 2009 show at least five cars parked on Keyline's verge. At least two of these do not appear to have number plates and one of them appears to be substantially damaged.
The photographs taken by Mr Hunt on 9 April 2009 show at least four vehicles parked on Keyline's verge. One of these appears to be the gold sedan I have previously described. Another appears to be substantially damaged. A further two do not appear to have number plates on them.
On 1 May 2009, Mr Hunt again went to the premises and saw unlicensed and unregistered vehicles on the verge. The photographs show at least nine vehicles on the verge. A number of these vehicles do not have number plates and have had some damage done to them. There is also a vehicle on top of another vehicle and both these vehicles appear to have sustained substantial damage. There is also a red sedan on the road which would be unroadworthy as it does not have a front windscreen, headlights, a grill in place or a bumper bar. The forklift seen in other photographs is also parked on the side of Lower Park Road.
In cross‑examination Mr Hunt confirmed that when he had attended Keyline on consecutive days the cars were in different locations on each day. However, he said that on one day he had attended on two occasions approximately four hours apart and the cars were in the same position on each occasion. He was not able to say that the vehicles had been left in the same position for 24 hours.
Mr Hunt confirmed that the vehicles or parts of vehicles were an obstruction to the public thoroughfare and that it would be difficult for people to move past them.

The magistrate's reasons

The magistrate summarised the submission put on behalf of Mr Heydon as being that the City had failed to establish a prima facie case under cl 2.2(1)(b) of the local law because cl 2.2(1)(b) does not apply to vehicles. Her Honour found that headings in a statute could be used to determine the meaning of a provision where that provision was ambiguous, although the title or headings must give way to an otherwise unambiguous provision in a statute. She noted that the heading to that part of the local law containing cl 2.2 was 'Activities allowed with a permit' which generally referred to anything on a verge. Whereas the heading to pt 3 of the local law was 'Obstructing animals, vehicles or shopping trolleys' and div 1 of pt 3 was headed 'Animals and vehicles'. Clause 3.1 was entitled 'Leaving animal or vehicle in public place or on local government property'. Her Honour found that cl 3.1 was specific and comprehensively dealt with vehicles and any part of a vehicle left in a public place or on local government property so that it obstructed the use of any part of that public place or local government property. Her Honour found that cl 3.1 was intended exhaustively to govern the subject‑matter of vehicles left in public places or on local government property. There was, her Honour found, a clear repugnancy between the general cl 2.2(1)(b) and the specific cl 3.1. She determined that the latter must prevail to the extent of that repugnancy. Based on that determination, her Honour found that the evidence of the prosecution, taken at its highest, was not capable of establishing beyond a reasonable doubt the guilt of Mr Heydon. She found that he had no case to answer.

The law

Clause 2.2(1)(b), which is the provision of the local law under which Mr Heydon was charged, appears in pt 2 of the local law. Relevantly pt 2 states:
PART 2 - ACTIVITIES ON THOROUGHFARES AND PUBLIC PLACES
Division 1 - General
…
2.2Activities allowed with a permit - general
(1)A person shall not, without a permit -
…
(b)subject to Division 3 of this Part, throw, place or deposit any thing on a verge except for removal by the local government under a bulk rubbish collection, and then only during the period of time and manner prescribed in any advertising literature distributed in connection with that collection by the local government.
Division 3 of pt 2 deals with verge treatments. It permits an owner or occupier of land to install a permissible verge treatment, such as a lawn, on an abutting verge. It is not relevant to this appeal.
Part 3 of the local law contains the following provisions:
PART 3 - OBSTRUCTING ANIMALS, VEHICLES OR SHOPPING TROLLEYS
Division 1 - Animals and vehicles
3.1Leaving animal or vehicle in public place or on local government property
(1)A person shall not leave an animal or a vehicle, or any part of a vehicle, in a public place or on local government property so that it obstructs the use of any part of that public place or local government property, unless that person has first obtained a permit or is authorised to do so under a written law.
(2)A person will not contravene subclause (1) where the animal is secured or tethered for a period not exceeding 1 hour.
(3)A person will not contravene subclause (1) where the vehicle is left for a period not exceeding 24 hours.
Clause 8.3 of the local law provides that any person who does any thing which under the local law that person is prohibited from doing, commits an offence. A penalty is provided in cl 8.3(2).
The local law cl 1.2 provides the following relevant definitions:
footpath means the paved or made portion of a thoroughfare used or intended for use by pedestrians and cyclists;
local government property means anything except a thoroughfare -
(a)which belongs to the local government;
(b)of which the local government is the management body under the Land Administration Act 1997; or
(c)which is an 'otherwise unvested facility' within section 3.53 of the Act;
public place includes any thoroughfare or place which the public are allowed to use, whether or not the thoroughfare or place is on private property, but does not include -
(a)premises on private property from which trading is lawfully conducted under a written law; and
(b)local government property;
vehicle includes -
(a)every conveyance and every object capable of being propelled or drawn on wheels, tracks or otherwise; and
(b)an animal being ridden or driven;
but excludes -
(a)a wheel‑chair or any device designed for use by a physically impaired person on a footpath; and
(b)a pram, a stroller or a similar device; and
verge means that part of a thoroughfare between the carriageway and the land which abuts the thoroughfare, but does not include any footpath.

The appellant's case

The City concedes that a verge is part of a thoroughfare and, because a thoroughfare is included in the definition of a public place, a verge is a public place. Thus, both cl 2.2(1)(b) and cl 3.1(1) apply to a verge.
However, the City submits that the two clauses have different applications and therefore there is no need to construe cl 2.2(1)(b) as giving way to the specific provision in cl 3.1(1) even to the extent that those clauses both apply to vehicles placed on a verge. It submits that the purpose of cl 2.2(1)(b) is to protect the amenity of thoroughfares within its district by prohibiting the placement or the deposition of things on verges without a permit. Whereas the purpose of cl 3.1(1) is to regulate the obstruction of public places and local government property by animals and vehicles. Accordingly, the City submits that cl 3.1(1) only regulates vehicles placed on a verge where those vehicles are obstructing that verge. On the other hand, in order to protect the amenity of thoroughfares within the district, cl 2.2(1)(b) regulates the placing of things on a verge without a permit, including placing wrecked or damaged vehicles and vehicle bodies on a verge, whether or not those things are left on a verge for a period exceeding 24 hours and whether or not they obstruct the verge.
The City also submits that cl 3.1 only applies to vehicles and that the definition of vehicles does not include vehicle wrecks which are not capable of being propelled by an engine. It submits that a car does not meet the definition of a vehicle if it is unroadworthy and can only be drawn on its own wheels if it was to be towed.
Finally, the City submits that the phrase 'any part of a vehicle' in cl 3.1(1) does not refer to a part of a vehicle such as a tyre or an engine, but rather a segment of a whole vehicle which protrudes on to a public place or on to local government property so that it obstructs the use of any part of that public place or local government property. For example, cl 3.1(1), relevantly, prohibits a person from parking a car on their property in such a manner that its front wheels and bonnet protrudes onto and obstructs a public place. The City submits cl 3.1(1) is not intended to prohibit leaving a vehicle part, disconnected from any other portion of a car, from being left in a public place or on local government property.

The respondent's submissions

Mr Heydon submits that the mischief addressed by cl 3.1(1) is that of leaving a specific thing, being a vehicle, on amongst other places, a verge, rather than the throwing, placing or depositing of any thing on a verge, as in the general cl 2.2(1)(b).
He says that he was charged with placing a vehicle on a verge and cl 3.1 permits the leaving of vehicles on a verge for a period not exceeding 24 hours, even if it obstructs the verge. Therefore, the prohibition in cl 2.2(1)(b) gives way to the specific provision in cl 3.1 in respect to vehicles left on a verge for less than 24 hours.
Mr Heydon also submits that the expression 'throw, place or deposit' means and refers to the permanent disposal of, rather than the temporary leaving of, a thing on a verge. He submits that the intention and purpose of cl 2.2(1)(b) is to prohibit the permanent disposal of any thing on a verge, unless the thing is placed on a verge for the purpose of being removed by the local government under a bulk rubbish collection, or unless a permit is granted. The mischief which is addressed by the clause is the leaving of rubbish on the verge unless it is for the purpose of being collected under an authorised rubbish collection. Therefore, cl 2.2(1)(b) does not prohibit the temporary leaving of a vehicle, meaning the leaving of a vehicle for less than 24 hours, on a verge.
Mr Heydon submits that he left vehicles on the front of his premises during the day and brought them into the yard at the close of business each day. He says he did not permanently dispose of, or dump, vehicles on the verge. Thus, he did not 'throw, place or deposit' the vehicles on the verge within the meaning of cl 2.2(1)(b). Rather, he temporarily parked the vehicles on the verge. He says that this conduct is and was permitted by cl 3.1, for a period not exceeding 24 hours. Whereas, if cl 2.2(1)(b) applied, it would prohibit the leaving of a vehicle on a verge for any period of time. To the extent that there is an inconsistency between the two clauses and because it is impossible to leave a vehicle on a verge for a period not exceeding 24 hours as permitted by cl 3.1 without contravening cl 2.2, cl 2.2 should be construed so as not to apply to a vehicle left on a verge for less than 24 hours.
Mr Heydon submits that the City's argument in relation to the application of cl 2.2(1)(b) to wrecks, vehicle parts and unregistered cars must fail because he was charged by the City with placing vehicles on the verge. He says the word 'vehicle' as used in the charge should be defined as it is in the local law. The City should not now be allowed to change its case to allege that he had left vehicle wrecks or vehicle parts which did not meet the local law's definition of vehicle, on the verge.
However, Mr Heydon, while not formally conceding the point, does not positively assert that the reference to any part of a vehicle in cl 3.1(1) refers to a car part as opposed to partially placing a car on a verge.

The issues on appeal

The issues on appeal can be distilled as follows:
(1)Is there an inconsistency between cl 2.2(1)(b) and cl 3.1 such that the general prohibition in cl 2.2(1)(b) must give way to the specific provision in cl 3.1 which permits a person to leave, for a period not exceeding 24 hours, a vehicle, or any part of a vehicle, on a verge (as long as the verge falls within the definition of public place or local government property)?
(2)If there is no such inconsistency, is cl 2.2(1)(b) nevertheless not applicable to these facts because it requires proof that a person has permanently thrown, placed or deposited any thing on a verge?
(3)If there is an inconsistency between cl 2.2(1)(b) and cl 3.1 which is resolved by determining that cl 2.2(1)(b) does not apply to vehicles left on a verge for a period not exceeding 24 hours, but cl 2.2 does not require proof of permanent disposal of items on the verge, is there still a case for Mr Heydon's answer because:
(a)the word 'vehicle' in cl 3.1 does not include an unregistered, damaged or wrecked vehicle or vehicle part; and
(b)the charge laid against Mr Heydon was broad enough to include such items; and
(c)there is evidence which, taken at its highest, is capable of proving that Mr Heydon had left such items on the verge contrary to cl 2.2(1)(b)?

Resolution of issues (1) and (2)

The principles of statutory interpretation, which also apply to the interpretation of delegated legislation such as the local law, provide that a general provision gives way should it be applicable to the same subject‑matter as is dealt with in a specific provision. In Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (No 2) (1980) 29 ALR 333 Deane J expressed the principle in the following manner:
As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. 'The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative …' (per Romilly MR: Pretty v Solly (1859) 26 Beav 606 at 610). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter. A more fundamental example of such repugnancy is where the particular provisions prescribe or encourage conduct which the general provisions would render prima facie, though not irremediably, unlawful or where the particular provisions assume to be lawful conduct which the general provisions would render prima facie unlawful. I have already indicated my view that the latter, more fundamental, example of repugnancy is present in the instant matter. I consider that the former example of repugnancy is likewise present (347).
The majority of the High Court in Smith v The Queen (1994) 181 CLR 338 [21] approved Deane J's dicta.
The first issue to determine is whether both cl 2.2(1)(b) and cl 3.1 can be given their full meaning without a resulting conflict. If conflict is apparent, both provisions cannot receive their full meaning and they must be reconciled, usually by the application of the above principle.
I am satisfied that there is an apparent conflict between the two provisions. Clause 2.2(1)(b) states that a person shall not, except in specific circumstances which are not relevant, place any thing on a verge except for removal by a local government under a bulk rubbish collection. The respondent submits that the provision only applies to the permanent disposal of things on a verge. I do not perceive that there is any valid reason to limit the application of the provision in that manner. The relevant phrase used in the clause is 'throw, place or deposit' a thing on a verge. The ordinary meanings of those three words do not require, as opposed to permit, the permanent disposal of an item. If it had been intended to limit the application of the clause to permanent disposal of an item, then the words permanently dispose or others denoting the same meaning could easily have been used. Further, the exception for placing items on a verge for removal by the local government under a bulk rubbish collection would not be necessary if the clause's general application was only to prohibit the permanent disposal of items on a verge, as leaving items for collection on a verge would not meet that general meaning of the clause, in any event.
The general meaning of cl 2.2(1)(b) would include prohibiting placing, without the permission of the local government, a vehicle as defined in the local law on a verge for any period of time.
Clause 3.1 prohibits a person from leaving a vehicle, as defined by the local law, in a public place or on local government property so that it obstructs the use of any part of that place or property, unless the person has obtained a permit or is authorised to do so. Clause 3.1(3) exempts a person who leaves a vehicle in such a place for a period not exceeding 24 hours from application of cl 3.1(1). As I have said, the appellant concedes that a verge falls within the definition of a public place. Thus, cl 3.1 makes it unlawful for a person to leave a vehicle on a verge so that it obstructs the use of any part of that verge, only where the vehicle is left for a period exceeding 24 hours. Whilst cl 3.1 does not expressly make it lawful for a person to leave a vehicle on a verge for a period less than 24 hours, cl 3.1(1) is a specific provision which addresses the legality of leaving a vehicle on, amongst other places, a verge. It, by implication, permits the leaving of a vehicle on a verge for less than 24 hours, even where it obstructs the verge. Whereas, cl 2.2(1)(b), in its ordinary meaning, prohibits such conduct, even where there is no obstruction.
I reject the City's argument that there is no inconsistency between cl 2.2(1)(b) and cl 3.1 because they have different purposes. I accept that I should prefer a construction of the local law which would promote the purpose underlying the law: Interpretation Act 1984 (WA) s 18. However, it cannot be that there is a prohibition on placing a vehicle for any period of time on a verge because it destroys the amenity of the verge (cl 2.2(1)(b)) but that placing a vehicle on a verge so that it obstructs the use of the verge is only prohibited if it is left there for more than 24 hours. This would seem to me to lead to an absurd result. Further, there is nothing in cl 2.2 which leads me to the view that it is confined to activity which affects the amenity of a verge. Lastly, there seems to me to be scope for overlap between the concepts of amenity and obstruction. I do not see how applying the purposes of the two clauses can reconcile the inconsistency between them.
It was not suggested by the City that cl 2.2(1)(b) was the specific provision and cl 3.1 was the general provision in that the former clause is specific to verges and the latter clause is general in respect to any public place. Nevertheless, I have considered that position and I reject it because it also leads to an absurd result. For example, if cl 3.1 had to give way to cl 2.2(1)(b) so far as the latter clause relates to verges, it would mean that it was an offence to leave a vehicle on a verge at any time but that it was only illegal to leave a vehicle on other public places, for example a footpath on a verge, if it was left more than 24 hours and it obstructed the use of the footpath.
Thus, I am of the view that the magistrate was right in holding that there was a repugnancy between cl 2.2(1)(b) and cl 3.1 insofar as cl 2.2(1)(b) prohibits placing a vehicle on a verge at all and cl 3.1, read as a whole, only prohibits placing a vehicle on a verge if it is left for more than 24 hours and if it obstructs the use of the verge. The clauses overlap and are inconsistent. Although, unlike the magistrate, I do not find it useful or necessary to use the headings of the parts or divisions of the local law to arrive at this conclusion. Neither have I used the headings of the clauses of the local law as an aid to interpretation as these are not part of the local law: Interpretation Act s 32(2).
The magistrate was also right to resolve the repugnancy by holding that the prohibition in cl 2.2(1)(b) did not apply to vehicles, as defined in the local law, left on a verge for a period not exceeding 24 hours.
In respect to the second issue I have identified, I find for the reasons already stated that cl 2.2(1)(b) does not imply that the thing must be left on a verge for permanent disposal thereon.

Resolution of issue (3)

The appellant submits that cl 3.1 only includes vehicles as defined by the local law. It says that this definition does not include unregistered, damaged or wrecked vehicles and that as the evidence taken at its highest proved that Mr Heydon had left such items on the verge, cl 2.2(1)(b) still applied to those items and Mr Heydon had a case to answer.
In my opinion, (a) of the definition of 'vehicle' in the local law should be construed as meaning every conveyance capable of being propelled or drawn on wheels, tracks or otherwise and every object capable of being propelled or drawn on wheels, tracks or otherwise. Further, the use of the word 'capable' denotes that the conveyance or object at the relevant time must then be able to be propelled or drawn on wheels, tracks or otherwise. An object does not meet the definition of vehicle if wheels or another device are able to be fitted to it at some future time in order to make it capable of being propelled or drawn.
I note that the definition of 'vehicle' in the local law to some extent mirrors the definition of 'vehicle' in the Road Traffic Act 1974 (WA) s 5(1). It is a moot point whether it was intended that, apart from express exclusions or additions, that the word would mean the same in the local law as it does in the Road Traffic Act. Whatever is the case, it is clear from the extension of the definition in the local law to objects capable of being propelled or drawn that objects other than means of transport are included within the definition. However, no matter how wide the definition may be, I do not think that it is so wide as to include conveyances or objects which are not physically capable of being propelled or drawn on wheels, tracks etc. I am of the view that vehicle wrecks which are so damaged that they are not capable of being propelled or drawn on their wheels do not fall within the definition of vehicle. Further, parts of vehicles would not be included within the definition.
The magistrate found that individual parts of motor vehicles were included within the definition because of the phrase 'any part of a vehicle' in cl 3.1(1). The better view is that this phrase refers to the situation where a vehicle has been left partly on private property and partly on a public place or local government property.
On the other hand, the use of the phrase 'capable of being' in the definition of vehicle means that it does not matter that a conveyance or other object which is physically capable of being propelled or drawn on wheels etc is unlicensed or unregistered. It still falls within the definition of a vehicle.
Thus, cl 2.2 would apply to prohibit the throwing, placing or depositing of vehicle parts or wrecks on a verge. In each case it will be a matter of fact as to whether an object meets the definition of vehicle in the local law, so as to be excluded from the prohibition in cl 2.2(1)(b).
The City says that its case taken at its highest was capable of proving that Mr Heydon had placed vehicle parts and wrecks on the verge during the relevant period. Thus, the City says that the magistrate should have held that he had a case to answer. In response, Mr Heydon says that he was only charged with leaving vehicles on a verge and that it would now be wrong to allow the City to change its case.
For the reasons which I have given the magistrate was correct to hold that Mr Heydon had no case to answer to the charge as laid. The allegation in the charge was that Mr Heydon had left vehicles on a verge contrary to cl 2.2(1)(b) of the local law. For the reasons which I have given, cl 2.2(1)(b) must give way to cl 3.1 so far as it purports to apply to vehicles, as defined in the local law. The evidence before the magistrate was incapable of proving the offence as charged. The evidence was only sufficient to prove an offence under cl 2.2(1)(b) of placing vehicle parts or wrecks on a verge. To proceed with such a charge would have required an amendment to the charge as laid. The City did not ask the magistrate to amend the charge and it has not asked me to amend it. Presuming without deciding that I have the power to amend a charge on appeal (Criminal Appeals Act 2004 (WA) s 14) any such power would have to be exercised having regard to the Criminal Procedure Act 2004 (WA) s 132. Section 132(4) provides that a court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor in support of it. Section 132(10) says that a court may refuse to amend a charge if it is satisfied that:
(a)the amendment is material to the merits of the case;
(b)the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and
(c)an adjournment would not overcome the prejudice.
Mr Heydon says that he was charged with placing vehicles on the verge, the witnesses for the prosecution described the objects they saw on the verge as vehicles and the prosecutor made submissions to the court on the basis that what had been left on the verge were vehicles. Mr Heydon says that he cross‑examined the prosecution witnesses and made submissions to the magistrate based on those allegations.
In one respect it could be said that any amendment would not be material to the merits of the case as the nature of the items left on the verge was not in dispute. However, I prefer the view that any amendment to allege that Mr Heydon left vehicle parts or wrecks on the verge would be material to the merits of the case as it would substantially alter the nature of the allegations against Mr Heydon. I am further of the view that any such amendment would prejudice Mr Heydon's defence to the charge as his defence almost wholly centred on the submission that cl 2.2(1)(b) had to give way to cl 3.1 in respect to vehicles placed on a verge. He was entitled to defend the charge on that basis. If he had been charged originally with an offence relating to vehicle parts or wrecks then he may have defended the charge in an entirely different manner. He has now lost the opportunity to do that. In my view, an adjournment would not overcome the prejudice because the prosecution case has closed. For these reasons I would refuse to amend the charge and hold that the magistrate's decision was correct.

For these reasons the appeal is dismissed.