Cowie v Wood - [2021] WASC 341

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] WASC 8
Busby v Burrow [2012] WASC 58
Calandra v Civil Aviation Safety Authority [2015] WASCA 31
Cotter v The State of Western Australia [2011] WASCA 202
Re His Honour Magistrate Roth; Ex Parte Ridge [2016] WASC 121
Russell v The State of Western Australia [2011] WASCA 246
Starling v Ostrowski [2001] WASCA 74; (2001) 24 WAR 61
Tsang v Francis [2021] WASCA 131
Wharton v The Queen [No 2] [2017] WASCA 164

SMITH J:

The appeals and the result

The alleged offences

The appellant in each appeal seeks leave to appeal against the decisions of the presiding magistrate, on 31 July 2020, to dismiss the following charges against each of the respondents.
Dormant TLB 113 213 906 Pty Ltd (Dormant) (the respondent in SJA 1063 of 2020) was charged with two offences under s 68(1) of the Contaminated Sites Act 2003 (WA) alleging that it did not, 14 days before entering into a lease, give written notice to a prospective lessee (charge RO 1575/2020) and the CEO of the Department (responsible for the administration of the Contaminated Sites Act) (charge RO 1576/2020) that the land the subject of the lease agreement was a site classified as 'remediated for restricted use'.
John Christopher Wood (the respondent in SJA 1062 of 2020), as a director of Dormant at the time of the alleged offences, was charged with identical offences to Dormant, by reason of the directorial liability provision in s 118 of the Environmental Protection Act 1986 (WA) (charge RO 1573/2020 and charge RO 1574/2020).
Dormant did not enter an appearance in SJA 1063 of 2020, nor did it otherwise seek to be heard in the appeal.

Background to the commencement of the prosecutions

In each of the charges, the date of the offence was specified as 13 August 2015 (being 14 days before completion of the lease). This date was specified in error. The lease was allegedly completed on 21 January 2016, which meant, if the charges were amended, the offence date would be specified in each of the four charges as 7 January 2016.
Section 21(2) of the Criminal Procedure Act2004 (WA) provides for a 12 month time limit on commencing a prosecution for a simple offence, being within 12 months after the date on which the offence was allegedly committed, unless another written law provides otherwise or the person consents to it being commenced a later time. Section 85 of the Contaminated Sites Act provides otherwise.
In these appeals, time for bringing a prosecution does not run from the date of each of the offences. Although, s 85(1) of the Contaminated Sites Act provides that prosecutions for offences must be commenced within two years after the offence date, s 85(2) provides for an extended limitation period, being two years after the day on which evidence of the alleged offence first came to the attention of a person authorised to institute the prosecution, if that day is specified in the prosecution notice.
Section 85 of the Contaminated Sites Act provides:
85.Time for bringing prosecutions
(1)A prosecution for an offence under this Act must be commenced within 2 years after the date on which the offence is alleged to have been committed.
(2)Despite subsection (1), if a prosecution notice alleging an offence under this Act specifies the day on which evidence of the alleged offence first came to the attention of a person authorised to institute the prosecution under section 84 -
(a)the prosecution may be commenced within 24 months after that day; and
(b)the prosecution notice need not contain particulars of the day on which the offence is alleged to have been committed.
(3)The day on which evidence first came to the attention of a person authorised to institute a prosecution under section 84 is the day specified in the prosecution notice, unless the contrary is shown.
The alleged offences first came to the attention of an officer of the Department of Water and Environmental Regulation on 18 January 2018, although this officer was not authorised to institute a prosecution. The only two officers authorised to institute a prosecution were the Director General, Michael Rowe, and the appellant, Stuart Cowie, the Executive Director Compliance and Enforcement.[1] The alleged offences came to the attention of the Director General on 24 April 2018 and the appellant on 9 May 2018.[2]
[1] Affidavit of Stuart David Cowie, affirmed 24 July 2020, [7] and attachment SDC2.
[2] Affidavit of Michael Charles Rowe, affirmed 24 July 2020, [4]; affidavit of Stuart David Cowie, affirmed 4 May 2020, [3] - [4].
Each of the prosecution notices were signed by the appellant and a justice of the peace on 17 January 2020. The prosecution notices did not specify the day on which the evidence of the alleged offence first came to the attention of a person authorised to bring the prosecution. Because the alleged offence came to the attention of the Director General before the appellant, the relevant evidence date is 24 April 2018. If the prosecution notices when sworn had specified 24 April 2018 as the day on which the evidence of the alleged offences first came to the attention of the Director General, the prosecution notices would have been commenced in time, pursuant to s 85(2) of the Contaminated Sites Act.

The applications to amend each of the prosecution notices

The failure to specify in each of the prosecution notices the day on which the evidence first came to the attention of a person authorised to institute a prosecution was raised by counsel for Dormant at the first mention of each of the four charges on 9 March 2020. On the same day, the prosecution applied to amend the offence date in each of the prosecution notices, as it had foreshadowed it would in correspondence when the prosecution notices were served.[3] This application to amend is the subject of ground 4 of the appeals.
[3] ts, 9 March 2020, 2 - 3.
It is common ground, at least between Mr Wood and the appellant, that the error in the specification of the date of the offences (13 August 2015) was identified when the prosecution notice was served. The prosecution notice was accompanied by a statement of facts containing the correct date, and a letter explaining the error and foreshadowing an amendment to the charges. Although these amendments were not made at first instance, the fact that they were not made is not material to the disposition of grounds 1, 2 and 3 of the appeals. The appellant in each of the appeals, however, submits that if this court upholds the appeals, there is no basis on which to refuse the application to amend each of the charges to amend the date of each offence to 7 January 2016.

The magistrate's decision to dismiss the charges

The applications to amend the prosecution notices were heard and determined on 31 July 2020 in the Rockingham Magistrates Court, after Dormant and Mr Wood had filed written submissions in support of an argument that the charges and the proposed amendments were statute barred, and the prosecution had filed written submissions, and affidavits sworn by Mr Rowe and Mr Cowie, in response.[4]
[4] Her Honour had before her the affidavit sworn by Michael Charles Rowe on 24 July 2020 and two affidavits sworn by Stuart David Cowie, the first dated 4 May 2020 and the second dated 24 July 2020; ts, 31 July 2020, 3.
At the hearing on 31 July 2020, her Honour formulated that the issue to be determined was whether the prosecution notices could be amended as to their date and content, pursuant to s 178 of the Criminal Procedure Act.
Her Honour then recited the arguments put on behalf of counsel for the prosecution, Dormant and Mr Wood.
Her Honour accepted that it was to be alleged that the offences occurred on 7 January 2016, and accepted that it was drawn to the attention of the appellant in May 2018. Her Honour then found:[5]
Section 85(2), as has been said, allows for a prosecution notice to specify the date on which evidence first came to the attention of the authorised person. If so specified, the limitation period of two years commences from that date and the prosecution notice need not contain particulars of the day on which it is alleged the offence was committed.
The prosecution notices before court do not reflect the preconditions of the subsection. I agree with defence counsel that the prosecution for these offences commenced as of the date that the prosecution notices were signed, ie, 17 January 2020. I also note there is no consent to the prosecutions being commenced outside the time limit.
As to whether section 178 of the Criminal Procedure Act should be utilised, I find that if the applications to amend were said to be regarding substance or form and granted, they would be material to the merits of the case. It is no longer the case that the prosecution seeks to have the prosecution notices re-signed which would not be an objectionable application and use of section 178.
The prosecution is seeking to amend dates and content of the prosecution notices. To do that would be material to the merits of the case. If section 178 applies and there’s prosecution, the court therefore has a discretion under section 178(2) of the Criminal Procedure Act to allow the amendments but would mean that the limitation period for these particular prosecution notices would be circumvented.
I am not satisfied that the court is required or should amend the prosecution notices to make them valid utilising section 132 and 178. I therefore reject the department’s submissions. All four prosecution notices I say are to be dismissed and statute barred.
[5] ts, 31 July 2020, 10 - 11.

Grounds of appeal

The grounds of appeal (excluding the particulars) in each matter are as follows:
1.The learned Magistrate erred in fact and in law by determining that the defect which the Appellant applied to correct under s 178 of the Criminal Procedure Act 2004 (WA) (CPA), being a failure to specify in the prosecution notice, as required by s 85(2) of the Contaminated Sites Act 2003 (WA) (CSA), the date on which the offence first came to the attention of a person authorised to institute the prosecution (Defect), was material to the merits of the case within the meaning of s 178(3)(a) of the CPA.
2.In the alternative to ground 1, the learned Magistrate erred in law in failing to give adequate reasons for deciding: (i) that the Defect was material to the merits of the case within the meaning of s 178(3)(a) of the CPA; and (ii) to exercise the discretion under s 178(3)(b) of the CPA to refuse to order that the Defect be corrected.
3.In the alternative to grounds 1 and 2, if, on the proper construction of the learned Magistrate's reasons, her Honour did not find that s 178 of the CPA could be used to correct the Defect then her Honour erred in fact and law by failing to so find.
4.To the extent that the learned Magistrate determined not to allow the Appellant's application under s 132 of the CPA to correct the offence date in each of the charges in the prosecution notice, and to the extent such a determination was independent of the decision to refuse the application pursuant to s 178 of the CPA and material to the decision to dismiss the charges against the accused, the learned Magistrate erred in fact and law by refusing the application.
In ground 1, the appellant argues that the magistrate erred in concluding the defect in each of the prosecution notices (to not specify the day on which the offence first came to the attention of a person authorised to institute the prosecution) was material to the merits of the case.
In ground 2, the appellant argues, in the alternative to ground 1, that the magistrate's reasons were inadequate with respect to whether the defect (specified in ground 1) was material and (if so) whether the discretion to correct the defect provided by s 178(3)(b) of the Criminal Procedure Act should be exercised in any event.
Grounds 1 and 2 both proceed on the basis that the magistrate accepted that s 178 of the Criminal Procedure Act could be used to correct the defect. The appellant argues that her Honour's reasons are not clear beyond argument on this point. The appellant contends that it is only necessary to deal with ground 2 if the court is unable to conclude the magistrate erred as is alleged in ground 1.
In ground 3, the appellant argues that if the magistrate's reasons properly construed reveal that her Honour did not make a finding that s 178 of the Criminal Procedure Act could be used to correct the defect, then her Honour erred in not doing so.
Ground 4 relates to the subsidiary application to amend the dates of the offence in each of the charges in the prosecution notices.

Grounds 1 and 3 of the appeals - whether s 178 of the Criminal Procedure Act could be used to correct the defect and, if so, whether the defect was material to the merits of the case?

The first issue is also the threshold issue in the appeals and it is whether s 178 of the Criminal Procedure Act could be used to correct the defect in each of the prosecution notices by an amendment to each of the charges to specify the day on which evidence of each alleged offence first came to the attention of the Director General (being 24 April 2018). If this amendment had been made, then the time for bringing the prosecutions against Mr Wood and Dormant would have been extended to 24 months after 24 April 2018.[6]
[6] Proof that the evidence of each of the alleged offences first came to the attention of the Director General is not in issue in the appeals.
The appellant concedes that non-compliance with some statutory provisions is incapable of correction under s 178 of the Criminal Procedure Act because non-compliance in some respects renders a prosecution notice wholly ineffective.[7]
[7] Brockway v Kirk [2019] WASC 8 [45] (Strk AJ).
Mr Wood contends that whether s 178 of the Criminal Procedure Act can apply to correct the defect in the prosecution notice in SJA 1062 of 2020 turns on whether the specification of the day on which evidence of the alleged offence first came to the attention of an authorised person in a prosecution notice is a precondition for invoking the extended time limit for bringing a prosecution pursuant to s 85(2) of the Contaminated Sites Act.
Mr Wood submits that s 178 of the Criminal Procedure Act cannot apply because of the failure to plead the precondition to enable the application of the alternative limitation period in s 85(2) of the Contaminated Sites Act. The consequence that follows if this argument is accepted is that the two-year limitation period in s 85(1) of the Contaminated Sites Act applies. Thus, it would follow that even if the date of each of the offences was to be amended to 7 January 2016, because the prosecutions were instituted on 17 January 2020, the prosecutions would be out of time, and each prosecution notice wholly ineffective.

Legal principles - Defects in prosecution notices (and indictments) capable of amendment by s 178 of the Criminal Procedure Act

Defects in a prosecution notice or an indictment are capable of amendment, pursuant to s 178 of the Criminal Procedure Act, where the defect does not invalidate the prosecution notice or the indictment. This point was made clear by McLure P in Russell v The State of Western Australia.[8]
[8] Russell v The State of Western Australia [2011] WASCA 246 [23] - [28].
In Russell v The State of Western Australia, the offender and another person had been properly charged in the indictment as joint offenders to a charge of wilful murder and erroneously joined as joint offenders in the alternative count of being an accessory after the fact to wilful murder and, in the alternative, murder. The offender in that matter argued that the indictment, and thus the trial, was invalid (null and void). The defect in that matter was that the indictment did not comply with s 85(2) and cl 2(4) and (5) and cl 8 of sch 1 div 2 of the Criminal Procedure Act. President McLure observed that the central issue was the effect and consequence of the defects in the indictment, which depended upon the proper construction of the Criminal Procedure Act as a whole.[9] Her Honour first set out the court's powers to amend defects in court documents in s 178 and to amend charges in s 132 of the Criminal Procedure Act. Her Honour then found that to analyse whether the court's powers in these provisions are open to be exercised to correct a defective indictment, it is necessary to distinguish between a precondition to the exercise of a power and a condition regulating the exercise of a power. Her Honour said:[10]
[9] Russell v The State of Western Australia [2011] WASCA 246 [20].
[10] Russell v The State of Western Australia [2011] WASCA 246 [23] - [28]; applied in Wharton v The Queen[No 2] [2017] WASCA 164 [101] - [104].
In analysing the issues it is necessary to distinguish between a precondition to the existence of a power and a condition regulating the exercise of a power. The former is an essential preliminary or condition precedent to the exercise of the jurisdiction, authority or power to act (in this case, to hear and determine the prosecution). The failure to comply with a precondition to the existence of a power will invalidate an act done in purported exercise of that power (that is, the trial will be a nullity).
The failure to comply with a precondition to the existence of a power always results in invalidity. On the other hand, a failure to comply with a statutory requirement that is not a precondition to the existence of a power may (in the absence of any statutory provision to the contrary), but not must, result in invalidity. The correct approach to these questions is identified by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. The majority said:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition…
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person … exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory [91] - [92].
The majority criticised the distinction between directory and mandatory requirements which they said deflected attention from the real issue which is whether an act done in breach of the legislative provision is invalid. They continued:
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute' [93].
The first issue is whether a relevant function of an indictment is to invest the relevant court (in this case the Supreme Court) with jurisdiction to hear and determine the prosecution. If that is so, only a valid indictment can enliven the jurisdiction. Whether or not an indictment is necessary to confer jurisdiction and whether or not compliance with a statutory requirement is essential to the validity of an indictment are questions of statutory construction.
It was an unstated assumption of both parties that a valid indictment is an essential preliminary to the exercise of jurisdiction to hear and determine a prosecution. That is the unequivocally clear consequence of the text of the Criminal Procedure Act 1986 (NSW) considered in Doja and R v Janceski (2005) 64 NSWLR 10 (see s 46 and s 130(2)). Such clarity is not evident in the provisions of the CPA. However, as this issue was not specifically canvassed in the submissions of the parties, it is appropriate to proceed on the basis that the unstated assumption is correct.
The focus of attention in the appeal was on whether the failure to comply with cl 2(4) and (5) of sch 1 div 2 of the CPA invalidated the indictment. In my view, s 132 and s 178 demonstrate a clear and unequivocal statutory intention that the breaches in this case do not invalidate the indictment. The power of the court under s 132 and s 178 can only be enlivened in the event it is properly seized of jurisdiction to hear and determine the prosecution. An invalid indictment could not be the subject of amendment. Yet s 132 expressly contemplates an amendment to an indictment in the precise situation that eventuated in this case. That is consistent with s 178, which is concerned with defects of both substance and form.

When these principles are applied, the issue to be determined in this appeal is what are the preconditions of the authority or power conferred by s 85(2) of the Contaminated Sites Act on a person authorised (pursuant to s 84 of the Contaminated Sites Act) to commence a prosecution of an offence under the Contaminated Sites Act.
In determining this issue, it is necessary to consider the legislative purpose of the Contaminated Sites Act by regard to the language of s 85 and the scope and objects of the whole of the Contaminated Sites Act.

Construction of s 85(2) of the Contaminated Sites Act

The principles that apply to the construction of statutory provisions, in particular to the construction of express object and purpose provisions in a statute and statutory provisions creating offences, were recently summarised by the Court of Appeal in Tsang v Francis as follows:[11]
[11] Tsang v Francis [2021] WASCA 131 [138] - [148] (footnotes omitted).
The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT); Travelex Ltd v Federal Commissioner of Taxation; SZTAL v Minister for Immigration and Border Protection.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd.
However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd; Alphapharm Pty Ltd v H Lundbeck A/S.
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd.
A section in a statute which specifically states the purposes or objects of the statute is relevant to the proper construction of the statute. See Tickner v Bropho; Russo v Aiello. It is necessary to consider the method by which Parliament has implemented the specified purposes or objects. See Municipal Officers' Association of Australia v Lancaster. The purposes or objects must be read and understood in the context of the statute as a whole. See IW v The City of Perth.
By s 29 of the Interpretation Act 1984 (WA), every section of an Act takes effect as a substantive enactment without introductory words. This provision was included in the Interpretation Act to avoid the repetition of enacting words before each section. See Smalley v Motor Accident Authority of New South Wales. A section in a statute which specifically states the purposes or objects of the statute therefore, of itself, takes effect as a substantive enactment.
Section 18 of the Interpretation Act provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects. See Mills v Meeking.
The view has been expressed that a section in a statute which specifically states the purposes or objects of the statute cannot cut down the meaning of another provision of the statute if that meaning is, in its textual and contextual surroundings, plain and unambiguous. See, for example, Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd; S v Australian Crime Commission; Director of Public Prosecutions v Mattiuzzo. This view has been based primarily on similar observations in Wacando v Commonwealth in relation to the proper construction of a preamble to a statute.
More recently, in Lynn v The State of New South Wales, Beazley P stated that the object provisions of a statute cannot control clear statutory language. Her Honour then elaborated:
Further, there are many statutes where the objects of the Act are directed to disparate ends and are not necessarily harmonious. Nonetheless, as Gleeson CJ observed in Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 at [5], the statement of legislative objects is 'not an exercise in apologetics', rather, it gives practical content to terms such as 'reasonable', 'justification' and 'satisfactory'. Likewise, the long title of an Act may be referred to as an aid to construction of the provisions of the Act: Pitt, Son & Badgery Ltd v Municipal Council of Sydney (1908) 24 WN (NSW) 203 at 204; Birch v Allen (1942) 65 CLR 621.
In Beckwith v The Queen, Gibbs J made these observations in relation to the proper approach to the construction of penal provisions in a statute:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v Adams ((1935) 53 CLR 563, at pp. 567 - 568); Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort.
See also Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd; Waugh v Kippen; Newcastle City Council v GIO General Ltd;Re Day (No 2); Aubrey v The Queen.
The existence of a penal provision in a statute is part of its context. See Alcan (NT) Alumina [57].
It is clear that s 85(2) of the Contaminated Sites Act creates an extended time limit of 24 months to institute a prosecution, being 24 months after the day on which evidence of the alleged offence first came to the attention of a person authorised to institute the prosecution under s 84. The question is whether this extended time limit can be invoked only if that day is specified in the prosecution notice on the day when it is sworn by the person authorised to institute the prosecution, and whether a failure to so specify can be corrected on a later day by the power to amend in s 178 of the Criminal Procedure Act.
The Contaminated Sites Act is described in its long title as an Act providing for, among other matters, 'the identification, recording management and remediation of contaminated sites'. Section 8 sets out the object and principles of the Contaminated Sites Act as follows:
Object and principles of Act
The object of this Act is to protect human health, the environment and environmental values by providing for the identification, recording, management and remediation of contaminated sites in the State, having regard to the principles in the Table to this section -
Table
1.The polluter pays principle
Those who generate pollution and waste should bear the cost of containment, avoidance or abatement.
2.The principle of full life cycle costs
The users of goods and services should pay prices based on the full life cycle costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes.
3.The principle of waste minimisation
All reasonable and practicable measures should be taken to minimise the generation of waste and its discharge into the environment.
Section 9(1) of the Contaminated Sites Act provides that the provisions of the Act are complimentary to and not in derogation of the provisions of any other law of the State. Part 2 of the Contaminated Sites Act provides for the reporting of known or suspected contaminated sites, and the classification of sites.
'Contaminated' is defined in s 4 of the Contaminated Sites Act to mean, in relation to land, having a substance present in or on that land, at above background concentrations that presents, or has the potential to present, a risk of harm to human health, the environment or any environmental value. Classification is to be made in accordance with the classification set out in the first column of schedule 1 of the Contaminated Sites Act. Section 13 requires the CEO to classify a site when required to do so under the Contaminated Sites Act, or to exercise a discretion to classify a site at any other time and, pursuant to s 15, issue a notice or certificate of contamination audit, which includes a classification of 'contaminated - restricted use'.
An appeal lies under div 3 of pt 2 of the Contaminated Sites Act against classification.
Part 3 of the Contaminated Sites Act deals with remediation of contaminated sites and renders a person who caused or contributed to the contamination of a site responsible for remediation, and provides that more than one person may be responsible for remediation.
There are a number of offences created under the Contaminated Sites Act. For example, it is an offence not to report to the CEO any site that a person knows to be contaminated, within 21 days after the day on which the person first knew that the site was contaminated; or such later period as the CEO approves in writing before the expiry of that 21 days; or where the person suspects the site is contaminated, as soon as is reasonably practicable.[12] It is also an offence for a person not to comply with a binding investigation notice, clean up notice or hazard abatement notice within such time as is specified in the notice.[13] Section 53 gives the CEO powers to enter land for the purpose of effecting remediation. Section 54 deals with the position where a person who is responsible for remediation is refused access to the land to carry out remediation work. In those circumstances, the Contaminated Sites Committee may make a decision that the occupier or owner is to be the person responsible for that remediation and the person who has been refused access is no longer the person responsible. It also constitutes an offence under s 54(1)(b) and (2) for an owner or occupier without reasonable cause to refuse permission for a person who is responsible for the remediation of a site to enter, or remain on, the land to take any action on the land necessary to carry out the remediation, or to comply with a requirement of a notice.
[12] Contaminated Sites Act 2003 (WA) s 11(3).
[13] Contaminated Sites Act2003 (WA) s 41 and s 43(1).
Most relevantly to this appeal, s 68(1) requires each owner of land who is a party to a transaction which would result in another person becoming an owner, mortgagee or lessee of land that comprises all, or part of a site classified as, 'contaminated - remediation required'; 'contaminated - restricted use'; or 'remediated for restricted use', to give written disclosure in respect of the land in the prescribed form to each person who would become an owner, mortgagee or lessee of the land as a result of the transaction, and a copy of that disclosure to the CEO. Section 68(2) also provides that a contravention of s 68(1)(c), to give written disclosure to each person who would become a owner, mortgagee or lessee of the land as a result of the transaction, is a breach of statutory duty that, subject to the defences and other incidents applying to actions for breach of statutory duty, is actionable at the suit of a person who should have been given the disclosure and who has sustained loss or damage in consequence of that breach.
It is also an offence under s 94 for a person to give false or misleading information when making particular prescribed reports, requests, written submissions, making disclosure statements or purporting to comply with a requirement made by or under the Contaminated Sites Act to provide information to the CEO or to the Contaminated Sites Committee.
The appellant argues there are two objectives evident in s 85(2) of the Contaminated Sites Act, and these are:
(a)broadly, the provision aims to ensure that offenders do not escape prosecution merely because it takes some time for the authorities to discover offences, and to investigate and commence criminal proceedings; and
(b)more narrowly, the evident purpose must be to ensure the accused understands the basis on which it is alleged that the prosecution is properly commenced. It is in that sense analogous to the requirement to provide particulars of the alleged offence under sch 1 cl 5 of the Criminal Procedure Act.
The Contaminated Sites Act deals not only with contaminated sites but also sites that are suspected of being contaminated, and the presence of substances that present, or have the potential to present, a risk of harm to human health, the environment or environmental value, and it also creates obligations requiring compliance by persons who on reasonable grounds believe or suspect land is contaminated.[14]
[14] Contaminated Sites Act2003 (WA) s 11.
It is apparent that when regard is had to the express provisions of pt 3 of the Contaminated Sites Act, that the legislative scheme contemplates that particular land may be contaminated or suspected of being contaminated, which circumstances leading to an inference of the fact of contamination may not be evident to an owner or occupier of land or to a prospective owner, mortgagee or lessee of land, and it may take some time to investigate whether the land is contaminated or may be contaminated and who is responsible. Section 22(1) and s 23 provide that more than one person may be responsible for remediation of a site that is classified 'contaminated - remediation required'. Section 24 creates a hierarchy of responsibility, being the person who caused or contributed to the contamination, or the person who changes the use of land, or in particular prescribed circumstances, and the person who became an owner of a site before the commencement of the Contaminated Sites Act.
Section 27 contemplates a change of ownership of contaminated land and deems an owner to be liable for remediation or partially liable to a certain extent if particular criteria going to knowledge are satisfied.
Pursuant to s 30(1), a person responsible for remediation of a site may transfer that responsibility, or part of that responsibility, to another person with that person's written consent or in prescribed circumstances.
When regard is had to s 22, s 23, s 27 and s 30, it is clear that s 68(1) is part of a legislative scheme where one of its purposes is to ensure those who have knowledge of contamination are responsible for complying with the identification, reporting and remediation requirements of the Contaminated Sites Act. Part of this scheme is that a s 68(1) notice is to be given to a person who would become an owner, mortgagee or lessee of land that has been classified as 'contaminated - remediation required', 'contaminated - restricted use' or 'remediated for restricted use', at least 14 days before the completion of the transaction, and a failure to disclose is an offence and a breach of statutory duty actionable in a civil suit.[15]
[15] Contaminated Sites Act 2003 (WA) s 68(2).
The purpose and effect of s 85(2) is that time to bring a prosecution for an offence under the Contaminated Sites Act does not begin to run until a person who is authorised to institute a prosecution first has notice of evidence of an alleged offence, and that the time to institute a prosecution does not expire until two years after that date. It is important to specify this date in a prosecution notice to ensure that an accused understands why the prosecution claims a prosecution for an offence or offences has been commenced in time. In this respect, the requirement to specify in s 85(2) is about fairness and notice to the accused.
When regard is had to the scheme of the Contaminated Sites Act, it is evident that the purpose is to confer an extension of time on an authorised person to bring prosecution proceedings by the operative effect of s 85(2) if evidence of the alleged offence first comes to the attention of the person authorised to institute the prosecution within 24 months of the day the prosecution is commenced. Consequently, an authorised person has 24 months to investigate an alleged offence.
The preconditions for the exercise of the discretion to institute a prosecution, pursuant to s 85(2) are:
(a)evidence must come to the attention of a person authorised to institute a prosecution; and
(b)because time runs from the day upon which an authorised person first has notice of the evidence, time expires for instituting a prosecution within 24 months of that day. Consequently, any prosecution must be commenced prior to that day.
However, the requirement to specify that day in the prosecution notice that commences the prosecution for the offence is not a precondition for the extended time limit to apply. It is a condition regulating the exercise of a power to institute a prosecution.
The purpose of the requirement to specify that day in the prosecution notice is a procedural requirement as it is necessary to give notice of that day to the accused so that he, she or it can ascertain the prosecution has been instituted within time. As such, the specification of the day is not an essential precondition to the court's jurisdiction to hear and determine the charge or charges initiated by the prosecution notice, but is only a procedural condition (or put another way a regulating condition) for the exercise of the authority by an authorised person to rely upon the extended time limit in s 85(2) to institute a prosecution.
The failure to specify in each of the prosecution notices that on 24 April 2018 evidence of each alleged offence first came to the attention of the Director General did not invalidate the prosecution notices, and the presiding magistrate at first instance was properly seized of jurisdiction to hear and determine the prosecution. Consequently, her Honour was empowered to consider whether to amend the prosecution notices by exercising the power conferred by s 132 and s 178 of the Criminal Procedure Act, to specify this day as being the day on which evidence of the alleged offence first came to the attention of the Director General.
For these reasons, leave to appeal on ground 3 in each appeal should be granted.

Was the failure to specify the day on which evidence of the alleged offences first came to the attention of a person authorised to commence a prosecution a defect material to the merits of each case within the meaning of s 178(3) of the Criminal Procedure Act?

Construction of s 178(3) – scope and purpose

Section 178(3) of the Criminal Procedure Act provides:
(3)If a court document is defective in substance or form, the court, on an application by a party or on its own initiative -
(a)must order that the document be corrected if the defect is not material to the merits of the case;
(b)may order that the document be corrected in any other case.

Section 178(5) provides that s 178 is in addition to, and does not affect, the operation of s 132. Section 132(10) provides:
(10)A court may refuse to amend a charge, prosecution notice or indictment if it is satisfied -
(a)the amendment is material to the merits of the case; and
(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.
In Calandra v Civil Aviation Safety Authority, a prosecution notice had been signed the presence of a justice of peace appointed in and for the State of New South Wales, rather than a justice of the peace in and for the State of Western Australia, and as such did not comply with s 23 of the Criminal Procedure Act.[16] The Court of Appeal found that the jurisdiction of the Magistrates Court did not depend upon the execution of a valid prosecution notice complying in all respects with the requirements of s 23 and could be amended under s 178. In making this finding, Martin CJ observed:[17]
…s 178 is plainly intended to be a remedial provision, the objective of which is to prevent deficiencies in originating criminal processes causing criminal proceedings to miscarry. If the relevant defect is not material to the merits of the case, the obligation imposed by the section upon the court requires the court to take all necessary steps to remedy the defect. The apparent objective of the section would be almost entirely thwarted if other provisions in the Act were construed as giving rise to incurable invalidity in the absence of strict compliance. So, consistently with the process of reasoning adopted by McLure P in Russell, the enactment of s 178, and the breadth of its application, to defects in both substance and form, tells strongly against a construction of s 23 which would render a notice which did not comply with the section invalid.
This conclusion is reinforced if consideration is given to the particular aspect of s 23 which was not complied with in this case, being the requirement that the notice be signed in the presence of a JP or prescribed court officer who must also sign the notice. The obvious purpose of that requirement is to enable the execution of the prosecution notice by the prosecutor to be verified or authenticated in cases of doubt. In this case the requirement of the section that the notice be executed in the presence of another person who must also sign the notice was met. The only requirement that was not met was the requirement that the witness be a justice of the peace in and for the State of Western Australia. It is difficult to attribute to any rational legislature an intention that a failure to comply with that aspect of s 23 should render the prosecution notice invalid, based upon the language of the section, viewed in the context of the CPA as a whole, including s 178.
So, even if it be concluded, contrary to my view, that the jurisdiction of the Magistrates Court depends upon the existence of a valid prosecution notice, in this case the fact that the person who witnessed the prosecutor's execution of the notice was not a justice of the peace in and for the State of Western Australia did not have the consequence that the notice was invalid, and consequently did not deprive the court of jurisdiction.
Next it was submitted that s 178 had no application because the effect of the correction or amendment required would be to initiate fresh proceedings, and s 178 should not be construed as authorising corrections or amendments having that effect. In this context reliance was placed upon s 21(3)(a) of the CPA, which specifies that the time at which a prosecution is commenced is when it is signed by the prosecutor and JP. So, it is said, re‑execution of the prosecution notice in the presence of a justice of the peace in and for the State of Western Australia constitutes the commencement of a fresh prosecution.
There are a number of reasons why this submission must be rejected. First, implicit in the submission is the proposition that the prosecution notice is invalid unless and until it is corrected or amended in order to comply with s 23. For the reasons I have already given, that assumption is not correct.
Second, there is nothing in the language of s 178 which would support a construction which limits its operation to corrections or amendments having a particular character. To the contrary, the language used in the section connotes a legislative intention to give the section a broad breadth of operation, applying to defects both of substance and form, and, where appropriate, defects going to the merits of the case. In answer to this proposition, it was submitted on behalf of Mr Calandra that if s 178 were construed as empowering corrections or amendments which had the effect of commencing fresh proceedings, relevant limitation periods could be overcome. However, this submission overlooks the distinction between the proper construction of the section and the exercise of the powers conferred by it. The expiry of a limitation period may well be relevant to the exercise of the powers conferred by the section. However, it would be erroneous to construe the section on an assumption that it would only be invoked where a limitation period has expired, as there will be many cases, such as this, where, if the point had been taken at the time specified by the section, no limitation issues would have arisen in relation to the commencement of fresh proceedings.
[16] Calandra v Civil Aviation Safety Authority [2015] WASCA 31 [2].
[17] Calandra v Civil Aviation Safety Authority [2015] WASCA 31 [28] - [33].
Thus, s 178 is a remedial provision, whereby the object of the provision is to allow amendments to prosecution notices and indictments to prevent deficiencies in originating criminal processes that would otherwise, without amendment, cause criminal proceedings to miscarry.
Turning to whether s 178(3)(a) required the presiding magistrate to order that the document be corrected (as opposed to exercising the discretion to amend under s 178(3)(b)), it is important to first observe that s 178(3)(a) is only open to be invoked if the defect is not material to the merits of the case.
It is argued on behalf of Mr Wood that an amendment to the prosecution notice that specifies the day on which evidence of the alleged offences first came to the attention of the Director General is clearly material to the merits of the case because it relates to the application of a limitation period. Further that what constitutes the merits of the case relates to the running of the case itself, the capacity to run the case and a fair trial.
However, this construction is contrary to the usual meaning of the words 'the merits of the case'.
The words 'the merits of the case' are usually construed in a criminal matter to mean a consideration of the elements of an offence based upon the facts found in the evidence and the legal principles that apply to that evidence, and not to matters of procedural deficiencies. This distinction is commonly considered in civil proceedings, in particular in authorities that apply to administrative law, for example, in applications for judicial review bought pursuant to O 56 of the Rules of the Supreme Court 1971 (WA) in which a merits review (that is a review of the facts found on the evidence) is impermissible.
In Re His Honour Magistrate Roth; Ex Parte Ridge, Martino J found that a prosecution notice was defective because the police officer who commenced the prosecution was not authorised to do so, and found that the defect was not material to the merits of the case.[18] His Honour found that the magistrate who had heard the case at first instance had failed to make an order pursuant to s 178(3)(a) by amending the prosecution notice to provide that it was commenced by a police officer (Sergeant Page) who was authorised to commence the prosecution he was under a duty to make. In making this finding, his Honour said:[19]
The defect in the prosecution notice had no bearing on whether the second respondent had breached the regulation, on the particulars of the charge or the identity of the alleged offender. It did not affect the evidence to be lead on the prosecution or any evidence that may be lead in defence of it. As I have noted Sergeant Page had endorsed the commencement of the prosecution. I conclude that the defect in the prosecution notice was not material to the merits of the case.
As the defect was not material to the merits of the case the first respondent was required by s 178(3) of the CPA to order that the prosecution notice be amended. I conclude therefore that in failing to so order the learned magistrate failed to make an order which he was under a duty to make.
[18] Re His Honour Magistrate Roth; Ex Parte Ridge [2016] WASC 121.
[19] Re His Honour Magistrate Roth; Ex Parte Ridge [2016] WASC 121 [99] - [100].
It is implicit in the findings made by Martino J that if a proposed amendment to correct a defect in a prosecution notice does not have bearing on the evidence, the particulars of a charge, the identity of the alleged offender, or does not affect the evidence to be lead on the prosecution or any evidence that may lead to defence of a charge, such an amendment could not be characterised as an amendment that is material to the merits of the case.
The specification of the day on which evidence of an alleged offence first came to the attention of a person authorised to institute a prosecution is not an element of the offences charged in the prosecution notice against Mr Wood and Dormant pursuant to s 68(1) of the Contaminated Sites Act. Nor could the specification of this date be said to be a particular of the offence. In Cotter v The State of Western Australia, Hall J explained the distinction between particulars and the elements of an offence as follows:[20]
Particulars serve the purpose of ensuring that an accused person is aware of the act and occasion which the prosecution relies upon as being the commission of the offence alleged. It is one of the components of a fair trial that an accused person be informed of precisely what it is that the prosecution alleges he or she has done that constitutes a crime: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J). This requirement is reflected in sch 1 div 2 cl 5 of the Criminal Procedure Act.
In assessing whether particulars have been adequate, the relevant question is whether the accused person has been able to identify the act, omission and circumstances which the prosecution alleged amounted to the offence charged…
[20] Cotter v The State of Western Australia [2011] WASCA 202 [30] - [31] (Martin CJ and Newnes J agreeing).
Nor can the specification of the day on which evidence of an alleged offence first came to the attention of the Director General have any bearing on whether either Mr Wood or Dormant have breached s 68(1) of the Contaminated Sites Act, or relate to their identity as offenders.
For these reasons, the failure to specify in the prosecution notices the day on which evidence of the alleged offences first came to the attention of the Director General was a defect in the prosecution notices that in each case was not material to the merits of the case.
As the defect in each of the prosecution notices was not material to the merits of the case, the presiding magistrate was required by s 178(3)(a) of the Criminal Procedure Act to order that each prosecution notice be amended. If the amendments had been made by her Honour on 31 July 2020, the amendments would have been made out of time, although when the prosecution first made an application for the amendments on 9 March 2020 the time for bringing a prosecution by the appellant pursuant to s 85(2) of the Contaminated Sites Act had not expired. The fact that her Honour did not consider the applications until 31 July 2020 does not bar the making of the amendment, as an amendment without altering an offence charged may take place after the limitation period has expired, as the prosecution was commenced within time.[21]
[21] Starling v Ostrowski [2001] WASCA 74; (2001) 24 WAR 61, 67 (Kennedy J) (Ipp J and Owen JJ agreeing); applied in Busby v Burrow [2012] WASC 58 [79] (EM Heenan J).
For these reasons, leave to appeal on ground 1 of each appeal should be granted.
Having formed the opinion that leave to appeal on both ground 1 and 3 in each appeal should be granted, I am of the opinion that each appeal should be allowed.

Ground 2 of the appeals - whether the magistrate's reasons were inadequate

The appellant in each appeal only raises this ground in the alternative to ground 1 of the appeal. Because I have found that ground 1 of the appeal has been made out, I do not find it necessary to consider this ground of appeal.

Ground 4 of the appeals - the prosecution's application to amend the date of each of the offences

Both counsel for Dormant and Mr Wood at first instance put a submission to the presiding magistrate that the prosecution's application to amend each of the charges in the prosecution notices to change the date of the alleged offences should be disallowed because the charges would still be statute barred.[22] This submission was put to her Honour on the basis that the extended time limit for the appellant to bring prosecution proceedings in s 85(2) of the Contaminated Sites Act could not be invoked, so that it necessarily followed that there was no point in amending the date of the alleged offences because the time prescribed for bringing the prosecutions pursuant to s 85(1) of the Contaminated Sites Act had expired.
[22] Written submissions filed on behalf of Dormant in the Magistrates Court held at Rockingham, dated 17 April 2020, [9] - [10], [13] - [14], [35] and dated 7 May 2020, [28] - [29], both of which were adopted by Mr Wood at the hearing on 24 April 2020; ts, 24 April 2020, 4 - 5.
As Mr Wood points out in written submissions, filed in this court on 24 February 2021, because the presiding magistrate decided to dismiss the prosecution because she was not satisfied that the court was required to, or should, amend the prosecution notices to make each of them valid, the appellant's application to amend each of the dates of the alleged offences pursuant to s 132 of the Criminal Procedure Act did not arise. It should be noted, that, in any event, following amendment to each of the prosecution notices to specify the day on which evidence of each offence first came to the attention of a person authorised to institute the prosecution, s 85(2)(b) provides that the prosecution notice need not contain particulars of the day on which the offence was committed.
However, in circumstances where it must be accepted that her Honour did not turn her mind to the application, ground 4 of the appeal has no prospect of success because it cannot be found that her Honour refused the applications to amend.
For these reasons, leave to appeal on ground 4 in each appeal will be refused.

Conclusion - The matters to be remitted to the Magistrates Court

For the reasons that I have given, leave to appeal on grounds 1 and 3 in each appeal should be granted, leave to appeal on ground 4 refused, and each appeal allowed.
Further, orders to the following effect should be made in each appeal:
(a)the decision to dismiss each charge and the prosecution notice be set aside;
(b)the orders made by the presiding magistrate as to the costs to be paid by the prosecution on 31 July 2020 be set aside;
(c)the case in respect of each offence is to be dealt with again by the Magistrates Court sitting at Rockingham according to law including:
(i)by first, amending the prosecution notice to specify the day on which evidence of the alleged offence first came to the attention of the Director General; and
(ii)by second, considering the prosecution's application to amend the date of each of the offences.
I will hear the parties further as to the precise orders that should be made to reflect these reasons for decision, and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Associate to the Honourable Justice Smith
7 OCTOBER 2021