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Cowie v Wood

Cowie v Wood

Case [2021] WASC 341 7 October 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   COWIE -v- WOOD [2021] WASC 341
CORAM:   SMITH J
HEARD:   25 JUNE 2021
DELIVERED          :   7 OCTOBER 2021
PUBLISHED           :   7 OCTOBER 2021
FILE NO/S:   SJA 1062 of 2020
BETWEEN:   STUART DAVID COWIE
Appellant
AND
JOHN CHRISTOPHER WOOD
Respondent

FILE NO/S: SJA 1063 of 2020
BETWEEN: STUART DAVID COWIE
Appellant
AND
DORMANT TLB 113 213 906 PTY LTD
Respondent

ON APPEAL FROM:
For File No:   SJA 1062 of 2020
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L ATKINS
File Number            :   RO 1573 of 2020, RO 1574 of 2020
For File No:   SJA 1063 of 2020
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L ATKINS
File Number            :   RO 1575 of 2020, RO 1576 of 2020

Catchwords:

Criminal law and procedure - Appeals against dismissal of complaints - Offence of failing to give written disclosure that land was subject to classification 'contaminated or remediated for restricted use' to a potential owner, mortgagee or lessee at least 14 days prior to completion of transaction - Contaminated Sites Act 2003 (WA) s 68(1) - Whether magistrate erred in finding the complaints were instituted out of time

Criminal law and procedure - Prosecution notices - Whether it is a precondition to the operation of an extended time limitation for commencing a prosecution that the day on which evidence first came to the attention of a person authorised to institute a prosecution must be specified in the prosecution notice, which failure has a consequence that the complaints were invalid and thus incapable of amendment pursuant to Criminal Procedure Act 2004 (WA) s 178

Criminal law and procedure - Prosecution notices - Power to amend defects - Criminal Procedure Act s 178 and s 132 - Whether the failure to specify the day on which evidence first came to the attention of a person authorised to institute a prosecution in each of the prosecution notices is a defect material to the merits of the case

Legislation:

Contaminated Sites Act 2003 (WA), s 4, s 8, s 9(1), s 11, s 13, s 15, s 22, s 23, s 24, s 27, s 30, s 41, s 43(1), s 53, s 54, s 68, s 84, s 85, s 94
Criminal Procedure Act 2004 (WA), s 21(2), s 132, s 178, sch 1 div 2 cl 2, sch 1 div 2 cl 8
Environmental Protection Act 1986 (WA), s 118

Result:

Leave to appeal on grounds 1 and 3 granted
The appeals allowed
Decisions to dismiss prosecution notices set aside
Matters remitted to Magistrates Court

Category: A

Representation:

SJA 1062 of 2020

Counsel:

Appellant	:	Mr S R Pack
Respondent	:	Ms L B Black

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Clyde & Co (Perth Office)

SJA 1063 of 2020

Counsel:

Appellant	:	Mr S R Pack
Respondent	:	No appearance

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	No appearance

Cases referred to in decision:

Brockway v Kirk [2019]…

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 Cowie v Wood

Details

AGLC: Cowie v Wood [2021] WASC 341
Case: [2021] WASC 341
Decision Date

CaseChat Overview and Summary

The appeals were brought by Stuart Cowie against the decisions of the presiding magistrate, on 31 July 2020, to dismiss the prosecution notices against John Wood and Dormant TLB 113 213 906 Pty Ltd. The charges against each respondent were that the respondent did not, 14 days before entering into a lease, give written notice to a prospective lessee and the CEO of the Department (responsible for the administration of the Contaminated Sites Act) that the land the subject of the lease agreement was a site classified as 'remediated for restricted use'. The magistrate dismissed the prosecution notices on the basis that they were statute barred. The magistrate held that the defect in the prosecution notices (not specifying the day on which evidence of the alleged offence first came to the attention of a person authorised to institute the prosecution) was material to the merits of the case within the meaning of s 178(3)(a) of the Criminal Procedure Act 2004 (WA) (CPA). The magistrate also found that if the court was required to, or should, amend the prosecution notices to make them valid, the limitation period for these particular prosecution notices would be circumvented. The magistrate therefore refused to amend the prosecution notices. The court held that the magistrate erred in concluding that the failure to specify in the prosecution notices the day on which evidence of the alleged offence first came to the attention of a person authorised to institute the prosecution was material to the merits of the case, and in concluding that it was not required to, or should, amend the prosecution notices to make them valid. The magistrate had jurisdiction to hear and determine the prosecution. The failure to specify the day on which evidence of the alleged offence first came to the attention of the Director General in the prosecution notices was a defect in the prosecution notices that was not material to the merits of the case. The magistrate was required to order that the prosecution notices be amended. The decisions to dismiss the prosecution notices were set aside and the matters were remitted to the Magistrates Court for further consideration.

Orders