Happy Cruising Pty Ltd v City of Gosnells

The appeal in Happy Cruising Pty Ltd v City of Gosnells [2023] WASCA 112 involved a challenge by the appellant, Happy Cruising Pty Ltd, to its conviction in its absence for a simple offence under the Planning and Development Act 2005 (WA). The City of Gosnells had charged the appellant with carrying out unauthorised development contrary to s 218(b) of the Planning and Development Act. The appellant failed to appear at a court date to which it had been properly notified, resulting in its conviction in its absence under s 55 of the Criminal Procedure Act 2004 (WA). The appellant appealed against its conviction to the General Division of the Supreme Court, arguing that the power under s 55 to determine the charge in the absence of the accused did not arise in this case. The primary judge dismissed the appeal, leading to the appellant's further appeal to the Court of Appeal. The Court of Appeal found that the power in s 55 to hear and determine the charge in the appellant's absence existed on the specified court date, and thus the appeal was dismissed.

The legal issues before the Court of Appeal revolved around the interpretation of s 55 of the Criminal Procedure Act 2004 (WA) and whether it could apply in the absence of a corporate accused that had not entered a plea of not guilty. The appellant argued that s 60 and s 153 of the Criminal Procedure Act operated to exclude the application of s 55 in such circumstances. The Court of Appeal disagreed, finding that s 55 could apply notwithstanding the provisions of s 60 and s 153. The Court held that s 55 and s 60 could apply concurrently in cases where the accused does not appear, and that the apparent conflict between the provisions could be reconciled by recognising the specific circumstances in which each provision applied. The Court further found that s 55 was not rendered redundant by the existence of s 153, as s 153 still had utility in cases where the court exercised its discretion under s 55 to adjourn a charge or in cases of indictable offences to which the power in s 55 did not apply. The Court concluded that the primary judge was correct to dismiss the appeal against the appellant's conviction, and thus the appeal to the Court of Appeal was dismissed.