Corica v Shire of Mundaring - [2017] WASC 163

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CORICA -v- SHIRE OF MUNDARING [2017] WASC 163

CORAM: TOTTLE J

HEARD: 29 MAY 2017

DELIVERED : 29 MAY 2017

FILE NO/S: SJA 1073 of 2016

MATTER :The Criminal Appeals Act 2004 Pt 2
and
MI 8615 of 2015; MI 8616 of 2015 in the Magistrates Court of WA at Midland

BETWEEN: SALVATORE CORICA
First Appellant
MARILYN KAYE CORICA
Second Appellant
AND
SHIRE OF MUNDARING
Respondent

FILE NO/S :SJA 1092 of 2016

BETWEEN :SALVATORE CORICA
First Appellant
MARILYN KAYE CORICA
Second Appellant
AND
SHIRE OF MUNDARING
Respondent

FILE NO/S :SJA 1094 of 2016

BETWEEN :MARILYN KAYE CORICA
First Appellant
SALVATORE CORICA
Second Appellant
AND
SHIRE OF MUNDARING
Respondent

ON APPEAL FROM:
For File No              :  SJA 1073 of 2016
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G BAYLY
File No  :MI 8615 of 2015, MI 8616 of 2015
For File No              :  SJA 1092 of 2016
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M D WHEELER
File No  :MI 8615 of 2015, MI 8616 of 2015
For File No              :  SJA 1094 of 2016
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P A ROTH
File No  :MI 8615 of 2015, MI 8616 of 2015

Catchwords:

Appeal - Application for leave to appeal - Where appellants convicted of offences against relevant Local Planning Act - Where decision against which the appellants seek leave to appeal is not a decision under s 6 of the Criminal Appeals Act 2004 - Where appellants were not provided with copies of the amended prosecution notice in accordance with s 132(7) of the Criminal Appeals Act 2004 - Whether failure to comply with a statutory condition results in invalidity - Whether magistrate gave appellants the opportunity to make closing address - Where no miscarriage of justice has occurred

Legislation:

Planning and Development Act 2005 (WA)
Criminal Appeals Act 2004 (WA), s 6
Criminal Procedure Act 2004 (WA)

Result:

Application for leave to appeal dismissed in each appeal

Category: B

Representation:

SJA 1073 of 2016

Counsel:

First Appellant               :     In person
Second Appellant          :     In person
Respondent:     Mr D P Gillett

Solicitors:

First Appellant               :     In person
Second Appellant          :     In person
Respondent:     McLeods Barristers & Solicitors

SJA 1092 of 2016

Counsel:

First Appellant               :     In person
Second Appellant          :     In person
Respondent:     Mr D P Gillett

Solicitors:

First Appellant               :     In person
Second Appellant          :     In person
Respondent:     McLeods Barristers & Solicitors

SJA 1094 of 2016

Counsel:

First Appellant               :     In person
Second Appellant          :     In person
Respondent:     Mr D P Gillett

Solicitors:

First Appellant               :     In person
Second Appellant          :     In person
Respondent:     McLeods Barristers & Solicitors

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

Busby v Burrow [2012] WASC 58
Corica v Shire of Mundaring [2017] WASCA 42
Dean v Legal Practice Board [2013] WASC 155
Palmer v City of Gosnells [2014] WASCA 102
Project Blue Sky Inc v The Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
TOTTLE J:

Introduction

On 20 October 2016, in the Magistrates Court of Western Australia, each appellant was convicted of an offence of using land within the Shire of Mundaring Local Planning Scheme (No 4) scheme area for the storage of materials between 20 October 2014 and 18 June 2015 inclusive, without the approvals required by the scheme having been granted, thereby contravening cl 11.4(b)(ii) of the scheme contrary to s 218(a) of the Planning and Development Act 2005 (WA).
Each appellant was fined the sum of $8,500, and each appellant was ordered to pay costs in the sum of $5,875.
The prosecutions were brought by the Shire of Mundaring. The appellants represented themselves both at the trial and at the hearing of these applications. The appellants have a number of complaints about the conduct of the proceedings before the Magistrates Court and the convictions. They have raised these complaints in three separate applications for leave to appeal.

SJA 1073 of 2016

Application number SJA 1073 of 2016 was commenced by an appeal notice filed on 5 October 2016. Pursuant to that notice, the appellants seek leave to appeal against a decision made by Magistrate Bayly dismissing an application made by the appellants on 15 September 2016. The precise nature of that application is obscure, but its purpose appears to have been to raise two complaints. The first complaint was that the court had no authority to have entered a plea of not guilty on behalf of the first‑named appellant, Mr Salvatore Corica, when he refused to plead when he had been first required to do so at a hearing on 30 November 2015. The second complaint was that the Shire had failed to produce certified copies of various statutes. The application was heard by Magistrate Bayly on 3 October 2016, and his Honour gave brief oral reasons dismissing the application. The application was misconceived, and the magistrate's decision to dismiss it was undoubtedly correct and it is unnecessary to refer to his Honour's reasons in any detail.
Section 7 of the Criminal Appeals Act 2004 (WA) states that:
A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
Section 6 of the Criminal Appeals Act provides that unless a contrary intention appears a decision of a court of summary jurisdiction means any of the following:
(a) a judgment entered under the Criminal Procedure Act 2004, sections 128(2) or (3);
(b) a decision ordering a permanent stay of a prosecution;
(c) a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
(d) a decision to acquit an accused of a charge;
(e) a decision to acquit an accused of a charge on account of unsoundness of mind;
(f)a sentence imposed or an order made as a result of a conviction or acquittal;
(g) a refusal to make an order that might be made as a result of a conviction or acquittal;
(h) a decision as to costs; and
(i) a decision made under the Criminal Investigation Act 2006 section 151.
The decision made by Magistrate Bayly on 3 October 2016 against which the appellants seek leave to appeal is not a decision within the meaning of s 6 of the Criminal Appeals Act: see also Dean v Legal Practice Board [2013] WASC 155 [19]. Accordingly, the appellants have no right to apply for leave to appeal against that decision, and for that reason I dismiss the application.

SJA 1092 of 2016

Application 1092 of 2016 was commenced by an appeal notice filed on 3 November 2016. Pursuant to that notice, the appellants seek leave to appeal against a decision made on 10 October 2016 by Magistrate Wheeler, pursuant to which witness summonses issued to twelve members of the Shire council and to five directors of the Shire at the request of the appellant were set aside. The Shire had applied to have the witness summonses set aside on grounds that the proposed witnesses could not give any evidence relevant to the subject matter of the charges, and thus the issue of the witness summonses constituted an abuse of process.
The magistrate gave brief oral reasons for setting aside the witness summonses, a decision that, in my respectful opinion, was undoubtedly correct. The decision made by Magistrate Wheeler on 10 October 2016 is not a decision within the meaning of s 6 of the Criminal Appeals Act and, accordingly, the appellants have no right of appeal against that decision. I dismiss the application.

SJA 1094 of 2016

Application number 1094 of 2016 was brought by a document entitled Application in an Appeal, filed on 16 November 2016. That document has been treated as an application for leave to appeal for the purposes of the Criminal Appeals Act, and, by it, the appellants seek leave to appeal against their convictions.
The first section of the document comprises 19 numbered paragraphs each containing a number of contentions disputing the authority of the Shire to bring the prosecution and the jurisdiction of the Magistrates Court to determine the charges. These paragraphs culminated in a section entitled Orders Sought. The orders sought by the appellants are as follows:
The following Company's [sic] Known as be Deregistered immediately:
1Attorney General ABN 70 598 519 443
2Supreme Court of Western Australia ABN 70 598 519 443
3District Court of Western Australia ABN 70 598 519 443
4Magistrates Court of Western Australia ABN 70 598 519 443
5Fines Enforcement Registry ABN 70 598 519 443
6Shire of Mundaring ABN 20 431 487 930
7The Shire of Mundaring's CEO Jonathon Throssell be charged with fraudulently representing himself as a judicial official contrary to chapter 111 of the Constitution 1901
8that Mr Peter Gillett, the lawyer acting for the prosecutor, be charged with fraudulently representing himself as a judicial official contrary to chapter 111 of the Constitution 1901
9the Shire of Mundaring produce proof of their authority under the Commonwealth legislation and Commonwealth laws that binds them and the real proper living entity
10that the Shire of Mundaring produce the CONTRACT entered into by both parties
11that the Shire of Mundaring produce proof of its interests in the cause of action in the proceedings to bring the jurisdiction of the magistrate and the jurisdiction of the Supreme Court to prosecute these proceedings.
Under the heading Costs, the following is sought:
Compensation be Paid to the Accused Proper Living Entities in the sum of Two Million to Each Accused and any other amount this honourable court deems necessary to relation to the hardship to the normal enjoyment of Proper and Disruption of life caused by the dishonourable unconscionable deception conduct by the Respondent
That Mr Peter Gillett and Mr Jonathon Throssell pay all the Costs in relation to the matter on an indemnity basis in the capacity as proper living entity's [sic].
None of the grounds to which I have referred have any prospect of success. They repeat arguments raised on a number of other occasions by these appellants and others: Palmer v City of Gosnells [2014] WASCA 102 and Corica v Shire of Mundaring [2017] WASCA 42. I will not grant leave to appeal in respect of those grounds.
The application then lists a further 36 grounds of appeal. Many of these grounds are of the same nature as the earlier grounds, and the observations made in respect of the earlier grounds apply with equal force to them. I will not grant leave to appeal in respect of any of them.
Three grounds warrant separate consideration. Grounds 27 and 28 focus on an application made by the Shire to amend the prosecution notices by substituting a reference to cl 11.4(b)(ii) for the reference to cl 11.4(a)(ii) of the Local Planning Scheme (No 4) as it appeared in the prosecution notice. The scheme did not contain a cl 11.4(a)(ii). The application to amend was made just before the magistrate delivered his oral reasons for decision.
His Honour raised with counsel for the Shire the question of whether an error had been made in the prosecution notice: see the transcript for 20 October 2016 at page 92. Counsel accepted that there was an error and applied for leave to amend in the manner that I have described. The application was granted, and the magistrate delivered his reasons for decision. Section 132(3) of the Criminal Procedure Act 2004 (WA) confers a power on the court to amend the charge and the prosecution notice.
The amendment was to a particular of the charge. The prosecution notice had disclosed the offence with which each appellant had been charged. The error in the identification of the clause number involved no procedural unfairness and no prejudice to the appellants.
The appellants complain that they were not provided with copies of the prosecution notices as amended in accordance with s 132(7) of the Criminal Procedure Act which provides:
A court that amends a charge, prosecution notice or indictment must ensure that the prosecutor and the accused are each given a copy of it.
In this case, it would appear from the transcript that copies of the amended prosecution notice were not provided either to counsel for the Shire or to the appellants.
The question that arises is whether the failure to comply with the obligation to give a copy of the amended prosecution notice to the parties invalidates the amendments to the prosecution notices and the subsequent convictions against the appellants.
In my view, this is what is known as a Project Blue Sky issue; that is, in the absence of an express provision specifying the consequences of non‑compliance with a statutory condition whether the legislative intent is that invalidity should result from a failure to comply with the statutory condition: see Project Blue Sky Inc v The Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In my opinion, I do not consider that the Criminal Procedure Act discloses a legislative intent that invalidity should result from a failure to comply with the statutory obligation to provide a copy of an amended charge or prosecution notice to the parties.
Although the word must is used in s 132 (7), there is no textual or contextual warrant for inferring that invalidity is the intended consequence of non-compliance. Moreover, the obligation to ensure the amended notice is given to the parties arises after the amendment has been made. The obligation of s 132(7) of the Criminal Procedure Act is not expressed to operate as a condition subsequent such that non-compliance invalidates the amendment.
A wide variety of amendments in a wide variety of circumstances may be made to a prosecution notice, a charge or indictment pursuant to s 132 of the Criminal Procedure Act. Many amendments may be of a very minor nature, as were the amendments in this case. In my view, the legislature should not be taken to have intended that a failure to ensure that the parties are given a copy of an amended charge, prosecution notice or indictment invalidates the amendment or any conviction resulting from it.
The principles of procedural fairness will operate to protect the interests of the parties in the event that a party is prejudiced by a failure to give a copy of the amended prosecution notice, charge or indictment.
I note that the conclusion that I have reached is the same as the conclusion reached by EM Heenan J in Busby v Burrow [2012] WASC 58.
I will not grant leave to appeal in respect of the grounds that relate to the amendment of the prosecution notices.
Ground 41 alleges that the magistrate did not give the appellants an opportunity to give a closing address. In my opinion, this mischaracterises what occurred in the course of the hearing. The magistrate asked Mr Corica, after the counsel for the prosecution had finished his address:
What would you like to say in response to what Mr Gillett has just said? [see the transcript for 20 October 2016 at page 88]
Mr Corica then addressed the magistrate, and what he said and his exchanges with the magistrate occupy three pages of the transcript, between pages 88 and 91. I will not grant leave to appeal in respect of this ground.
I wish to add that in respect of each grounds 41, 27 and 28, that had I been satisfied that an error had been made by the magistrate and had I, on that basis, granted leave to appeal, I would have still dismissed the appeal on the basis that the errors involved no miscarriage of justice, and no miscarriage of justice was suffered by the appellants.
It follows from the reasons I have given that I dismiss each application for leave to appeal.