Happy Cruising Pty Ltd v Magistrates Court of Western Australia - [2024] WASC 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   HAPPY CRUISING PTY LTD -v- MAGISTRATES COURT OF WESTERN AUSTRALIA [2024] WASC 183
CORAM:   LEMONIS J
HEARD:   30 APRIL 2024
DELIVERED          :   20 MAY 2024
FILE NO/S:   CIV 2248 of 2023
BETWEEN:   HAPPY CRUISING PTY LTD
Applicant
AND
MAGISTRATES COURT OF WESTERN AUSTRALIA
Respondent
CITY OF GOSNELLS
Other Party/Proposed Second Defendant

Catchwords:

Applicant convicted of two separate offences against the Planning and Development Act 2005 (WA) - Applicant unsuccessfully appealed second conviction to a single judge and the Court of Appeal - For the first time, applicant asserts in these proceedings that the second conviction constitutes double jeopardy and double punishment and seeks a declaration to that effect

Legislation:

Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Interpretation Act 1984 (WA)
Planning and Development Act 2005 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to amend originating process refused
Proceedings dismissed

Category: B

Representation:

Counsel:

Applicant	:	A Tokley KC & T Houweling
Respondent	:	No appearance
Other Party/Proposed Second Defendant	:	MD Cuerden SC & DP Gillett

Solicitors:

Applicant	:	Cornerstone Legal
Respondent	:	State Solicitor's Office
Other Party/Proposed Second Defendant	:	McLeods

Cases referred to in decision:

Beekman v the State of Western Australia [2022] WASCA 130
Beydoun v City of Stirling [2015] WASC 25
Cochrane v The State of Western Australia [2021] WASCA 5
Daniele v Shire of Swan (Unreported, WASC, Lib No 960513, 13 September 1996)
Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83
Happy Cruising Pty Ltd v City of Gosnells [2022] WASC 322
Happy Cruising Pty Ltd v City of Gosnells [2023] WASCA 112
Hunter v City of Joondalup [2015] WASC 444
Island Maritime Limited v Filipowski, Kulkarni v Filipowski [2006] HCA 30; (2006) 226 CLR 328
Kiely & Ors v R [1974] WAR 180
O'Halloran v O'Byrne [1974] WAR 45
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342
Prindiville v Hoffman [2005] WASC 258
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v Carroll [2002] HCA 55; (2002) 213 CLR 63
R v Emden (1808) 9 East 437; (1808) 103 ER 640
R v Gordon, ex parte Attorney-General [1975] Qd R 301
R v Industrial Appeals Court; Ex parte Barelli's Bakeries Pty Ltd [1965] VR 615
R v Viers [1983] 2 Qd R 1
Re s 46L of the Criminal Appeals Act 2004 (WA); Ex parte Commissioner of Police [2020] WASCA 210
The University of Western Australia v City of Subiaco (1980) 52 LGRA 360

LEMONIS J:

This proceeding is somewhat unusual.
The applicant (Happy Cruising) was convicted of a criminal offence and sentenced in respect of it. Happy Cruising unsuccessfully appealed its conviction to a single judge of this court. It then appealed to the Court of Appeal, where again it was unsuccessful. Happy Cruising was represented by legal counsel on the sentencing hearing and on both appeals. By this proceeding, Happy Cruising seeks to raise for the first time issues of double jeopardy and double punishment and seeks a declaration that it has been twice convicted and sentenced for the same offence. The relevant circumstances are as follows.
On 18 January 2022, Happy Cruising was convicted in its absence of one offence contrary to s 218(1)(b) of the Planning and Development Act 2005 (WA) (PD Act). I will call this the second offence.
The second offence arose out of Happy Cruising's use of a parcel of land in Gosnells (the land). Happy Cruising had obtained planning approval to use the land as a retail nursery. Over the period between 15 June 2021 and 14 October 2021, Happy Cruising used the land to store and service vehicles and to store machinery and equipment.
Happy Cruising had previously been convicted of an offence against s 218(1)(b) in respect of the same land (first offence). The gravamen of the conduct the subject of the first offence was that for the period between 6 September 2019 to 2 April 2020, it had used the land to store and service or repair vehicles and to store plant and equipment.
Broadly speaking, the character of the conduct the subject of the two offences was the same.
Happy Cruising unsuccessfully applied to set aside its conviction for the second offence and ultimately was sentenced on 19 April 2022, when it was represented by counsel. Happy Cruising appealed its conviction for the second offence to a single judge of this court. The thrust of its argument on appeal was that as a matter of criminal procedure, it could not have been convicted of the second offence in its absence. Justice Forrester dismissed the appeal.[1] Happy Cruising then appealed to the Court of Appeal. That appeal was also dismissed.[2]
[1] Happy Cruising Pty Ltd v City of Gosnells [2022] WASC 322.
[2] Happy Cruising Pty Ltd v City of Gosnells [2023] WASCA 112.
Happy Cruising engaged new legal representation and changed its approach.
Happy Cruising applied to a single judge of this court for judicial review. Happy Cruising contended that its conviction for the second offence was based on the same elements as the first offence. Happy Cruising therefore submitted that it had been doubly convicted and doubly punished and as a consequence, the learned magistrate lacked jurisdiction to convict and sentence it. When the matter first came before me, I raised with Happy Cruising's counsel that even if their arguments gave rise to a possible defence, that did not deprive the learned magistrate of jurisdiction to convict and sentence it.
Happy Cruising then sought to amend its application to seek a declaration that it was twice prosecuted, convicted and punished for the same offence. The grounds in support of the amended application are in effect that the first and second offences were based upon the same facts and thus the second offence results in the double prosecution, conviction and punishment of Happy Cruising. The essence of Happy Cruising's contention is that it has twice been convicted and sentenced in respect of the same use of the land. This argument was not put in the Magistrates Court, or on either of the appeals.
The amended application described the City of Gosnells as the second defendant. I will use that descriptor.
The second defendant submitted that Happy Cruising's propositions were untenable, pointing out quite forcefully that the offences related to the use of the land over different periods of time and therefore each offence was in respect of different conduct. The second defendant submitted that the proceedings should be dismissed without the need for substantive argument. I was more cautious. I referred the question of leave to amend the application to the substantive hearing and asked the second defendant to put on written submissions.
For the following reasons, the second defendant was correct. The proceedings should be dismissed.

Grounds of the application

Happy Cruising contends that the conviction for each offence relies upon the same facts as relied on for the other offence. As a consequence, Happy Cruising contends that the convictions are:
… the double prosecution, [conviction] and punishment for the offence created by section 218(b) of the Planning and Development Act 2005 (WA), in the circumstances where the facts relied upon in each instance were materially the same, albeit different time periods contrary to section 17 of the Criminal Code (WA) and/or the common law rule against 'double jeopardy' and/or s.11 of the Sentencing Act 1995 (WA).
The use of the phrase 'and/or' on two occasions in the framing of Happy Cruising's grounds gives rise to several different formulations of its case.
It is useful to commence the analysis of Happy Cruising's contentions by explaining the nature of the charges brought against it.

The respective charges brought against Happy Cruising

The charge brought against Happy Cruising in respect of each offence was in the same terms, putting the date range to one side.
Each charge stated that, at the land, Happy Cruising:
Used land within the City of Gosnells Town Planning Scheme No. 6 Scheme Area without having obtained the development approval of the local government under Part 8 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 thereby carrying out development otherwise than in accordance with the provisions of the said Scheme, contrary to section 218(b) of the Planning and Development Act 2005.
The charge in respect of the first offence stated the relevant conduct was between 6 September 2019 and 2 April 2020, both dates inclusive. The charge in respect of the second offence stated that the relevant conduct was between 15 June 2021 and 14 October 2021, both dates inclusive. [3]
[3] Affidavit of Thomas Jarryd Millar affirmed 3 November 2023, page 14 and page 100.
Happy Cruising pleaded guilty to the first offence on 10 May 2021[4] and was sentenced on 16 June 2021.[5]
[4] Affidavit of Mr Millar, page 105.
[5] Affidavit of Mr Millar, pages 22 - 99.
Happy Cruising was convicted in its absence of the second offence on 18 January 2022[6] and was sentenced on 19 April 2022.[7]
[6] Happy Cruising Pty Ltd v City of Gosnells [2022] WASC 322 [1] - [2].
[7] Affidavit of Mr Millar, pages 102 - 114.
The statement of material facts for the first offence was not before me.[8] The learned magistrate's sentencing remarks described the offending in these terms:[9]
… the land was … being used as a storage type yard for plant and equipment, some trucks and also from time to time augers and other matters that at face value appear to be consistent with the operation of construction type works and civil earthworks.
…
The shed that had been approved for the retail nursery, it appears, was and remains as of yesterday on the recent photos used to service or repair vehicles.
[8] Mr Millar's affidavit at par 11 referred to annexure TJM1 as including the statement of material facts for the first offence. However, TJM1 includes the statement of material facts for the second offence.
[9] Affidavit of Mr Millar, pages 90 - 91.
The learned magistrate's sentencing remarks for the second offence were brief and did not descend into any detail as to the circumstances of the offending. The sentencing facts read out by the second defendant's counsel on the sentencing hearing included these matters:[10]
Further inspection of the property by officers of the city in June, July and September 2021 revealed vehicles, including trailers, trucks, machinery, continued to be stored on the property.
The shed continued to be used as a garage to service vehicles and machinery and there were also large stockpiles of sand and gravel being stored at the rear of the site. The city wrote to the company and its director, Michael Donners, again on 8 September 2021, advising the company to immediately cease the unlawful use of the property and remove all items being stored on the property. That letter advised that a further inspection would be carried out after 15 September 2021 and that if the land continued to be used unlawfully, the city would commence further legal action against the company.
…
Inspection of the property by an officer of the city on 14 October 2021 revealed no change in the state of the property.
…
…it's clear that the premises had never been used as a retail nursery.
He built the shed, built the hardstand and then used it to store the equipment associated with his various businesses.
[10] Affidavit of Mr Millar, pages 105 - 106.
This was broadly consistent with the statement of material facts.[11]
[11] Affidavit of Mr Millar, pages 18 - 19.
On the sentencing hearing for the second offence, the second defendant's counsel handed up to the learned magistrate a number of photographs showing a hoist set up that was used to service vehicles.[12] The second defendant's counsel also referred to the circumstances of the first offence.[13]
[12] Affidavit of Mr Millar, page 106.
[13] Affidavit of Mr Millar, pages 103 - 105.
On the hearing of this proceeding, Happy Cruising's counsel submitted that the facts of the first offence were relied on at the sentencing hearing for the second offence as forming part of the overall facts sustaining the commission of the second offence. In my view, it is clear from the sentencing transcript that the facts of the first offence were only relied on as an aggravating feature in respect of penalty.
When addressing on penalty, the second defendant's counsel submitted:[14]
The other factor, sir, so while there's a use offence, in my submission, there's the fact that it has continued unabated. There has been a prior conviction. It continues to this day. In all of those circumstances, sir, in my submission the offending is clearly flagrant. He's thumbing his nose both at the local government [and] this court and it's a commercial breach. It's motivated, it must be motivated by commercial considerations.
…
So here, really, the aggravating factors are the flagrant nature of the breach, the commercial, the fact that it has been driven by commercial considerations and there's a prior conviction for this identical same offence on this land.
[The learned magistrate asked 'How many days are we talking about here?']
122 days, sir. And given those circumstances and those aggravating factors, in my submission, this is clearly a case where it would be appropriate to impose a daily penalty.
[14] Affidavit of Mr Millar, pages 109 - 110.
These submissions make clear that the first offence was relied on as an aggravating feature of the second offence. In that respect, the circumstances of the first offence informed the brazen nature of the second offence. Having regard to the first offence, personal deterrence was an important sentencing consideration for the second offence. That is, the need to impose a penalty of sufficient gravity to deter Happy Cruising and its director from engaging in prohibited activity on the land.[15]
[15] See by way of example Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342 and Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83.
I will now turn to the applicable legislative provisions, and the common law principles, concerning double jeopardy and double punishment.

Double jeopardy and double punishment in Western Australia

It is useful to start by identifying the nature of an offence in Western Australia.
Section 2 of the Code provides that:
An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
The act or omission which renders the person doing the act liable to punishment is often described as the element of conduct.[16]
[16] R v Barlow [1997] HCA 19; (1997) 188 CLR 1, 9 (Brennan CJ, Dawson and Toohey JJ).
Further, the word 'offence' means an offence under the law of Western Australia irrespective of whether the offence is provided for by the Code, unless the context of a particular provision otherwise requires.[17] Accordingly, it picks up offences under the PD Act.
[17] Kiely & Ors v R [1974] WAR 180, 181(Jackson CJ), 183 (Jones J agreeing).
Moving then to double jeopardy.
Section 17(1) of the Code states:
It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment or prosecution notice on which he might have been convicted of the offence with which he is charged, or has already been convicted or acquitted of an offence of which he might be convicted upon the indictment or prosecution notice on which he is charged.
The rationale and public policy underpinning the common law pleas of autrefois acquit (already acquitted) and autrefois convict (already convicted) are reflected in s 17. Autrefois acquit and autrefois convict are pleas in bar to a prosecution and are aspects of the rule against double jeopardy.[18]
[18] Re s 46L of the Criminal Appeals Act 2004 (WA); Ex parte Commissioner of Police [2020] WASCA 210 [79], [94] - [95].
Much attention in written and oral submissions was directed to the analysis of double jeopardy, autrefois acquit and autrefois convict in the High Court decisions of Pearce v R,[19] R v Carroll[20] and Island Maritime Limited v Filipowski.[21] Of those three cases, only Carroll had to consider the application of a Criminal Code, that being by reference to s 17 of the Criminal Code (Qld) (the Queensland Code).
[19] Pearce v R [1998] HCA 57; (1998) 194 CLR 610.
[20] R v Carroll [2002] HCA 55; (2002) 213 CLR 63.
[21] Island Maritime Limited v Filipowski, Kulkarni v Filipowski [2006] HCA 30; (2006) 226 CLR 328.
Before turning to particular aspects of the judgments, it is useful to first set out the relevant circumstances of each case. They illustrate the necessary correlation between charges for a plea of double jeopardy to be made out, whether at common law or under statute.
In Pearce, the accused was charged in New South Wales with maliciously inflicting grievous bodily harm with intent to do so. The accused was also charged with breaking and entering the dwelling house of the same victim and while in there, inflicting grievous bodily harm on him. The accused was convicted of both offences. He appealed on the grounds of double jeopardy and double punishment. In respect of the ground of double jeopardy, the High Court held no plea in bar was available as each of the offences required proof of a fact which the other did not. In respect of the ground of double punishment, the High Court held that the sentencing process miscarried because the accused was doubly punished for the single act of inflicting grievous bodily harm. The matter was remitted for resentencing.
In Carroll, the accused had been acquitted of a charge of murder brought under the Queensland Code. The accused was then charged with perjury in relation to the evidence that he had given at his murder trial, in particular his denial that he killed the victim. He applied for a stay, which the trial judge refused to grant. The accused was convicted of the perjury charge. He appealed. The Queensland Court of Appeal held that a stay should have been granted. The Crown then applied for special leave to appeal to the High Court, which application was referred to the hearing of the appeal. The High Court found that the accused did not have a defence under s 17 of the Queensland Code (which is in similar terms to the Code). This was because on the accused's trial for murder, perjury was not a verdict open to the jury and on his trial for perjury, murder was not a verdict open to the jury.[22]
[22] Carroll [7] - [20] (Gleeson CJ and Hayne J). See also [66] - [69] (Gaudron and Gummow JJ) and [141] - [145] (McHugh J).
However, the High Court also found that the accused was entitled to a permanent stay of the perjury charge as an abuse of process. At the trial of the murder charge, the accused had given evidence affirming his plea of not guilty. The court was therefore of the view that the perjury charge sought to controvert the accused's acquittal on the murder charge. That being so, the perjury charge was an abuse of process.
Island Maritime concerned charges brought in New South Wales. The two accused were each charged with an offence arising from the discharge of oil from a ship. The first accused was charged as the owner of the ship and the second as the master. Both charges were brought under a particular part of the Maritime Pollution Act 1987 (NSW). At the close of the prosecution case, counsel for both accused made a 'no case to answer' submission on the ground that the particular part of the Maritime Pollution Act under which the charges were brought did not apply in the relevant circumstances. The submission was accepted and the charges dismissed. Each accused was then charged with an offence under a different part of the Maritime Pollution Act arising from the same conduct. Each accused sought a permanent stay on the ground the proceedings were barred by the principles of autrefois acquit, or that the proceedings were an abuse of process on the ground of oppression. The trial judge dismissed the application for a stay and an appeal to the Court of Criminal Appeal was dismissed. The High Court held that a plea of or in the nature of autrefois acquit was not available. This was because each accused never stood in jeopardy of being convicted on the first set of charges as they were brought under the wrong part of the Maritime Pollution Act. The court also held that no appellable error arose in respect of the refusal to grant a stay.

Double jeopardy at common law

The expression 'double jeopardy' does not only encompass pleas of autrefois acquit and autrefois convict. In Pearce, McHugh, Hayne and Callinan JJ explained that: [23]
The expression 'double jeopardy' is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be 'punished again for the same matter'. Further, 'double jeopardy' is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment. (footnotes omitted)
[23] Pearce [9].
In a similar vein in Pearce, Gummow J observed that:[24]
… double jeopardy is a 'concept' rather than 'a definitive legal principle according to its own terms'. (footnote omitted)
[24] Pearce [66].
Further, in Carroll McHugh J observed that the pleas of autrefois convict or autrefois acquit were inadequate to give effect to the full rationale of the double jeopardy rule and the policy behind it. His Honour stated:[25]
Plainly, the formal pleas of autrefois convict or autrefois acquit were inadequate to give effect to the full rationale of the double jeopardy rule and the policy behind it in some cases where the prosecution brought successive proceedings against an accused person. The pleas of autrefois convict and autrefois acquit were confined to successive charges based on the same or substantially the same facts. They do not protect the accused against prosecutorial harassment in many cases that, in substance but not in form, offend the double jeopardy principle.
To remedy these and other defects in the application of the double jeopardy principle, the common law courts have applied other weapons in the judicial armoury to make the double jeopardy principle more effective. In particular, they now intervene to protect the accused by staying proceedings that they consider are an abuse of their processes…
[25] Carroll [130] - [131].
The result in Carroll is an example of the broader operation of the concept of double jeopardy. A defence under s 17 of the Queensland Code was not available, however the perjury charge was stayed as an abuse of process because it controverted the accused's acquittal on the murder charge.
Dealing more specifically with pleas of autrefois convict and autrefois acquit, McHugh, Hayne and Callinan JJ in Pearce stated:[26]
It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for 'substantially the same' offence, or for an offence the 'gist' or 'gravamen' of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins, for the 'same matter'. It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts. (footnotes omitted)
[26] Pearce [18].
In Island Maritime, Gummow and Hayne JJ clarified the meaning of the passage set out at [47] above in so far as it applied to the plea of autrefois acquit. The NSW Court of Criminal Appeal had held the passage conveyed that a plea of autrefois acquit is only available if all of the elements of the offence first charged were included in the elements of the offence later charged. Justices Gummow and Hayne said that was not right, explaining that:[27]
… to treat an acquittal on one charge as barring a subsequent prosecution concerning the same events as founded that first charge only where all the elements of the first offence are included in the elements of the second offence not only would fail to accept that the earlier decision was correct, but also would require the individual to relitigate matters that the public interest requires be treated as finally determined.
[27] Island Maritime [57].
Justices Gummow and Hayne concluded their analysis on this topic by stating:[28]
… in Australia the values encompassed by double jeopardy require that the plea of autrefois acquit, and the analogous principle applied in summary jurisdiction, be available whenever all of the elements of one offence (of which an accused stands, or stood, in jeopardy) are included in the other offence of which that accused stands, or stood, in jeopardy, and that the plea be available, and the analogous principle applied, no matter the order in which the offences are charged.
[28] Island Maritime [63].
Happy Cruising emphasised in its submissions that the decisions in Pearce and Island Maritime directed attention to the characterisation of the elements, divorced from the facts which proved those elements. However, that is not right. The reference in Pearce and Island Maritime to 'elements' is a reference to the matters necessary to prove the charge. It is not to the legal characterisation of those elements, unconnected from the facts of the charge under consideration. This is made clear from the following passage in the judgment of McHugh, Hayne and Callinan JJ in Pearce:[29]
In each of Chia Gee v Martin and Li Wan Quai v Christie, Griffith CJ identified the test for whether a plea in bar would lie as being 'whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first'. At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the enquiry suggested is different; it is an enquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the enquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events. (underlining added)
[29] Pearce [20].
Moreover, in concluding their analysis as to whether the plea in bar was available, McHugh, Hayne and Callinan JJ stated:[30]
Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld.
[30] Pearce [28].
This position is also confirmed by R v Emden,[31] cited in Pearce as authority for the proposition that the plea in bar goes to the elements of the offences. Emden concerned separate charges for perjury arising from the same affidavit. The first charge did not refer to the jurat of the affidavit. The second charge did. The jurat stated the affidavit was sworn in London, however on the second charge it was alleged it was sworn in Middlesex. The jurat did not however form part of the alleged perjury. The accused was acquitted of the first charge and successfully relied on that acquittal as a plea in bar to the second charge. The plea was upheld on appeal. Lord Ellenborough CJ stated:[32]
It appears to me that the jurat is not a necessary part of an affidavit to be stated in an indictment assigning perjury in such affidavit: it is only necessary to state so much of it as constitutes the crime; namely, that which contains the false oath, together with the averments proper to substantiate the perjury.
[31] R v Emden (1808) 9 East 437; (1808) 103 ER 640.
[32] Emden (1808) 103 ER 640, 643.
Another important aspect of the passages from the judgments in Pearce and Island Maritime set out above is they recognise that pleas of autrefois convict and autrefois acquit are confined to successive charges based on the same events. In this respect, McHugh J in Carroll said the 'pleas of autrefois convict and autrefois acquit were confined to successive charges based on the same or substantially the same facts': see [45] above. Justices Gummow and Hayne in Island Maritime spoke of a subsequent prosecution concerning the same events: see [48] above.

Interaction between s 17 of the Code and the pleas of autrefois convict and autrefois acquit

Happy Cruising submits that the common law pleas of autrefois convict and autrefois acquit apply in Western Australia in addition to the operation of s 17 of the Code.
I do not accept that submission. It is contrary to decisions of this court[33] and of the Supreme Court of Queensland.[34] It is also contrary to the analysis undertaken in Carroll. Chief Justice Gleeson and Hayne J undertook the analysis as to the availability of a plea of autrefois acquit by reference to the provisions of the Queensland Code.[35] Justices Gaudron and Gummow did likewise.[36] Justice McHugh definitively stated that s 17 of the Queensland Code exhaustively defines the circumstances in which a person can plead a defence of double jeopardy.[37] Further, pleas of autrefois convict and autrefois acquit are not an available plea pursuant to s 126(1) of the Criminal Procedure Act 2004 (WA). To the contrary, s 126(1)(c) provides that an accused may plead that they have a defence under s 17 of the Code.
[33] O'Halloran v O'Byrne [1974] WAR 45, 53; Prindiville v Hoffman [2005] WASC 258 [35] - [36].
[34] R v Gordon, ex parte Attorney-General [1975] Qd R 301, 322; R v Viers [1983] 2 Qd R 1, 4.
[35] Carroll [7] - [20].
[36] Carroll [66] - [69].
[37] Carroll [145], citing the decisions of Gordon and Viers.
I turn now to section 17.

Section 17

President Buss and Mazza JA observed in Ex parte Commissioner of Police that section 17 comprises two limbs. Their Honours described each limb as follows:[38]
The first limb is, in essence, that it is a defence to a charged offence to show that the accused person has already been tried, and convicted or acquitted upon, relevantly, an indictment on which he or she might have been convicted of the offence with which the accused person is now charged. The second limb is, in essence, that it is a defence to a charged offence to show that the accused person has already been tried and has already been convicted or acquitted of an offence of which he or she might be convicted upon, relevantly, the indictment on which he or she is now charged.
…
What is fundamental to the defence under the first limb of s 17 of the Code, as at common law, is a previous trial and a previous judgment of conviction or acquittal, as the case may be, upon, relevantly, an indictment, on which the accused might have been convicted of the offence with which he or she is now charged. What is fundamental to the defence under the second limb of s 17, as at common law, is a previous trial and a previous judgment of conviction or acquittal, as the case may be, of an offence of which the accused might be convicted upon, relevantly, the indictment on which the accused is now charged.
[38] Ex parte Commissioner of Police [93], [95].
The reference in this passage to an indictment reflects that the charge before the Court of Appeal was brought on indictment. Section 17 in its terms also extends to a prosecution notice.
President Buss and Mazza JA held that the word 'tried' in s 17 includes the scenario where the accused pleads guilty to an offence charged on indictment.[39] The second defendant did not submit the word 'tried' does not capture the scenario where an accused pleads guilty to an offence charged on a prosecution notice. I will therefore proceed on the premise that the word 'tried' does include that scenario.
[39] Ex parte Commissioner of Police [119(a)].
Where the charged offences are in respect of different statutory provisions, the application of s 17 is not without difficulty.[40] In that scenario, it is usually necessary to consider whether the subsequent charge was an alternative charge open on the indictment/prosecution notice on which the accused had been acquitted or convicted (first limb) and whether the charge on which the accused has been acquitted or convicted is an alternative charge open on the indictment/prosecution notice that contains the subsequent charge (second limb). Further, it may also be necessary to consider whether the verdict on the first indictment/prosecution notice is a 'general verdict' and thus applies to all charges that were open on it, or whether it is a 'partial verdict' and only applies to certain charges.[41]
[40] O'Halloran; Prindiville.
[41] See O'Halloran (48) (Jackson CJ), (49) (Burt J), (50) (Wickham J).
Thankfully, in this case the charges on both prosecution notices are in respect of the same statutory provision. Accordingly, for a defence under s 17 to have been available in the Magistrates Court, Happy Cruising needed to establish:
(a)the second offence is an offence that Happy Cruising might have been convicted of on the prosecution notice for the first offence; or
(b)the first offence is an offence that Happy Cruising might have been convicted of on the prosecution notice for the second offence.
Putting to one side alternative offences, the relevant enquiry under s 17 of the Code is directed to the conduct that constitutes each offence. That is, in the language of s 2 of the Code, the act or omission which renders the person doing the act liable to punishment. As I have explained earlier, this is often described as the element of conduct. Under the common law plea of autrefois convict, attention is directed to what must be proved to establish the commission of each of the offences. In a case such as this, there is no practical difference in the substance of both enquiries.
I turn now to the principles of double punishment.

Double punishment

The principles of double punishment in Western Australia are addressed by both the Sentencing Act 1995 (WA) and the common law.
I will start with the Sentencing Act. Section 11 provides:
(1)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
(2)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of an offence under the law of the Commonwealth, a Territory or another State, and the person has been sentenced for the offence under the law of that other place, the person is not to be sentenced for the offence under the law of this State.
(3)Despite subsections (1) and (2), if an act or omission of an offender causes the death of another, the offender may be sentenced for the offence of which he or she is guilty by reason of causing the death despite the fact that he or she has already been sentenced for some other offence constituted by that act or omission.
(4)Nothing in this section affects the operation of section 17 of The Criminal Code.
As can be seen from s 11(4), s 11 does not affect the operation of s 17 of the Code. This recognises that in certain circumstances a defence under s 17 might arise in conjunction with the relevant criteria in s 11(1) and (2) being met. If that were the case, the defence would ordinarily prevail and there would be no need to revert to s 11.
Section 11(1) is engaged only if the evidence necessary to establish the commission of one offence establishes without more all of the elements of and consequently the commission of another offence.[42] Where s 11(1) is engaged, it dictates the appropriate response, namely the person is 'not to be sentenced for more than one of the offences'.
[42] Beekmanv the State of Western Australia [2022] WASCA 130 [46(d)].
There is also a common law principle that when an offender is to be sentenced for multiple offences which contain one or more common legal or factual elements, care must be taken to avoid punishing the offender twice (or more) for the commission of the common elements.[43] This principle is another aspect of the concept of double jeopardy. Pearce is an example of the application of this principle.
[43] Beekman [43].
Unlike s 11 of the Sentencing Act which dictates the sentencing outcome, the common law principle informs the sentencing outcome. In that respect, in Beekman, the Court of Appeal stated: [44]
No single correct mechanism exists for avoiding double (or more) punishment. For example, that outcome may be avoided by reducing the otherwise appropriate sentence for an offence or by ordering partial or total concurrency in relation to two or more sentences.
[44] Beekman [44].
I turn now to the provisions of the PD Act relevant to the first and second offences.

PD Act

Section 4 of the PD Act sets out the definition of the word 'development' in these terms:
development means the development or use of any land, including -
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b) the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a protection order made under the Heritage Act 2018 Part 4 Division 1 applies, any act or thing that -
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building;
The word 'use' that appears in the first line of the definition is not separately defined in the PD Act.
In The University of Western Australia v City of Subiaco,[45] the meaning of the word 'use' was considered in respect of the then Town Planning and Development Act 1928 (WA). The word 'development' was defined by that Act to mean, unless the context otherwise requires, 'the use or development of any land and includes the erection, construction, alteration or carrying out, as the case may be, of any building, excavation or other works on any land'.[46] The word 'use' was not separately defined.
[45] The University of Western Australia v City of Subiaco (1980) 52 LGRA 360.
[46] The University of Western Australia (360).
The definition of 'development' in the PD Act and the Town Planning and Development Act are substantially the same except for the addition of par (c) in the PD Act. Paragraph (c) is specifically directed to protection orders under the Heritage Act 2018 (WA) and does not affect the meaning of the word 'use' in its general application.
In The University of Western Australia, Burt CJ stated:[47]
In my opinion the definition of 'development' in the Town Planning and Development Act makes use of and it encompasses two ideas. The first is the 'use' of the land which 'comprises activities which are done in …. or on the land but do not interfere with the actual physical characteristics of the land' and the second being 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself': See Parkes v. Environment Secretary (1978) 1 W.L.R 1308, at 1311 per Lord Denning M.R.
[47] The University of Western Australia (363 - 364).
Given the similarity in the definitions of 'development' contained in the Town Planning and Development Act and the PD Act, in my view his Honour's elucidation of the word 'use' should be applied to the definition of development in the PD Act. Accordingly, 'use' within the definition of development in the PD Act comprises activities which are done in or on the land, but do not interfere with the actual physical characteristics of the land.

Part 13 div 1 of the PD Act provides the responsible authority (here, the second defendant) with certain powers concerning a development that contravenes the applicable planning scheme. In particular, where a development is undertaken in contravention of an applicable planning scheme, s 214(2) of the PD Act provides that the responsible authority may give a written direction to the owner of the relevant land, or the person undertaking the development, requiring the development to stop. A person who fails to comply with such a direction commits an offence.[48]
[48] PD Act, s 214(7).
Section 218(b) of the PD Act is the offence provision applicable to this case. It appears in pt 13 div 2. Relevantly, s 218(b) provides that a person who commences, continues or carries out any development otherwise than in accordance with the provisions of the applicable planning scheme, commits an offence.
Section 223 of the PD Act is the penalty provision. It also appears in pt 13 div 2. Section 223 provides:
Unless otherwise provided, a person who commits an offence under this Act is liable to a fine of $200 000 and, in the case of a continuing offence, a further fine of $25 000 for each day during which the offence continues.
As Happy Cruising is a body corporate, it is liable upon conviction to a fine of five times the maximum fine that could be imposed on a natural person.[49]
[49] Sentencing Act, s 40(5).
Section 223 is directed to a singular offence; it refers to 'an offence'. The reference in s 223 to 'a continuing offence', and the allowance of a daily penalty for each day the offence continues, recognises that the conduct the subject of an offence may be ongoing. This is consistent with the words 'commences, continues or carries out any development' that appear in s 218(b). Those words recognise that the offending conduct may not be constituted by a single event. Further, by using the singular 'an offence' and providing for a daily penalty, s 223 permits one charge to be laid for the period during which it is alleged the conduct occurred.
Section 224 of the PD Act (also in pt 13 div 2) provides:
(1)This Division does not prejudice or affect the operation of sections 214, 215 or 216.
(2)A person may be prosecuted for an offence under this Division irrespective of whether or not a direction has been given under section 214.
In the circumstances of this case, pursuant to s 214(2), the second defendant could have directed Happy Cruising to cease using the land in the way in which it was. If Happy Cruising failed to comply with that direction, then the second defendant could have charged it with an offence for failing to do so.
On the facts read out to the learned magistrate in respect of the second offence, it is not clear whether the letter sent on 8 September 2021[50] constituted a direction under s 214(2). However, even if it did constitute such a direction, s 224(2) makes clear that Happy Cruising could still be prosecuted for an offence under s 218(b).
[50] The letter is referred to in the second defendant's sentencing submissions set out at [23] of these reasons.

Disposition

It is important to commence with a precise analysis of the two offences with which Happy Cruising was charged.
The prosecution notice for each of the first and second offences identified the relevant conduct the subject of the charge as being:
Used land … without having obtained the development approval of [the second defendant] … thereby carrying out development otherwise than in accordance with the provisions of the … Scheme, contrary to section 218(b) of the [PD Act].
The first prosecution notice identified that the relevant use occurred in the period between 6 September 2019 and 2 April 2020, both dates inclusive. The second prosecution notice identified that the relevant use occurred in the period between 15 June 2021 and 14 October 2021, both dates inclusive.
Applying the reasons of Burt CJ in The University of Western Australia, the word 'used' in respect of each charge conveys that Happy Cruising engaged in activities done in or on the land that did not interfere with the actual physical characteristics of the land. It is by engaging in those activities that Happy Cruising was 'carrying out development'.
In respect of the first offence, the activities were the storage and service or repair of vehicles, and the storage of plant and equipment. The learned magistrate said these activities appeared to be consistent with the operation of construction type works and civil earthworks.
In respect of the second offence, the activities were the storage and service of vehicles and the storage of machinery and equipment. The sentencing submissions by counsel for the second defendant suggested that this use took place as part of the operation of businesses associated with the director of Happy Cruising.
Broadly speaking, the characterisation of the activities the subject of each offence is the same.
Happy Cruising submits that the elements of the first and second offences are the same. In its written submissions, it emphasised three matters: the nature of the charged acts, the land was identical and the charges were brought under the same provision of the PD Act, namely s 218(b).[51]
[51] Happy Cruising's written submissions dated 5 March 2024, pars 6 - 9.
In oral submissions, the second defendant's counsel pointed out that the grounds of the application referred to the facts of each offence being the same, not the elements being the same. I read the grounds as referring to the facts necessary to make out each conviction. Understood in that way, the grounds refer to the elements of each offence being the same. However, Happy Cruising's submissions focused on the characterisation of its conduct, not what its conduct was. In that sense, the manner in which Happy Cruising's argument was presented did not accord with the grounds set out in the amended originating summons.
A core component of Happy Cruising's submissions is that it used the land in the same manner over the respective periods the subject of each offence. That appears to be correct. However, it does not have the result that Happy Cruising contends for, namely it does not result in the elements of each of the first and second offence being the same.
As I have said, the enquiry is directed to the acts the subject of each offence which renders Happy Cruising liable to punishment (the element of conduct). In respect of each offence, the element of conduct is constituted by the activities that Happy Cruising engaged in during the period specified in the relevant prosecution notice. The second defendant needed to prove beyond reasonable doubt that the activities Happy Cruising engaged in during that period breached the applicable scheme in place at that time. Understood in this way, the elements the subject of the first offence can never constitute the elements the subject of the second offence. Each offence relates to different conduct, namely what happened during different periods of time. The elements do not transform into each other because the conduct taken as a whole has the same characterisation.
Happy Cruising also pointed to the second defendant's sentencing submissions in respect of the second offence that Happy Cruising's conduct continued unabated.[52] That submission however does not convey that the element of conduct is the same. Rather, it conveys that Happy Cruising continued to engage in conduct of the same character.
[52] Happy Cruising's written submissions dated 5 March 2024, pars 17 - 19.
Happy Cruising also made the following additional submissions. First, that the period of the offending was not an element of the offence, and therefore the different periods prescribed for each offence did not result in the offences having different elements. Second, when sentencing for the first offence, it was open to the learned magistrate to impose a daily penalty for future offending conduct. Third, the decision in Hunter v City of Joondalup[53] is authority for the proposition that only one offence is committed where the offending conduct continues from day to day.
[53] Hunter v City of Joondalup [2015] WASC 444.
I will address those submissions in that order.

The prescribed periods of offending

Happy Cruising submitted that the date (or dates) on which the relevant conduct took place is not an element of either the first or second offence. Happy Cruising says it follows that the specification of different date ranges for the first and second offences does not result in those offences having different elements.
Happy Cruising referred to the decision of Beydoun v City of Stirling, where Pritchard J (as her Honour then was) stated: [54]
… generally speaking, the date of an offence is not treated as a material fact which the prosecution must prove beyond a reasonable doubt. It has been recognised that statutory provisions may render the specification of a date material (such as in relation to sexual offences where the age of the victim is an essential element of the charge) but an offence under s 218 of the PD Act is not an offence of that kind. (footnotes omitted)
[54] Beydoun v City of Stirling [2015] WASC 25 [85].
Whether a date or date range must be proved beyond reasonable doubt does not advance Happy Cruising's argument. Ordinarily, the purpose of the specification of a date or date range is to assist in identifying the alleged conduct the subject of the charge with sufficient specificity to enable the accused to meet the charge. So, in this case, the date range in each of the prosecution notices assisted in identifying the conduct the subject of each charge that needed to be proved beyond reasonable doubt. The provision of a date range reinforces that the enquiry is directed to the conduct that took place. Further, as I explain at [105] below, the date range limits the days in respect of which a daily penalty can be imposed.
During oral submissions, an issue was briefly ventilated as to whether it is necessary to prove beyond reasonable doubt that the offending conduct occurred on each day for which a daily penalty is sought. That issue was not considered in Beydoun. It does not affect the outcome of this proceeding. Given little attention was directed to the issue in submissions, I will not express a view on it.

Could a future daily penalty have been imposed at the time of sentencing for the first offence?

In oral submissions, Happy Cruising's counsel submitted that a sentencing court could impose a daily penalty for future non-compliant conduct. Therefore, it is suggested, that on sentencing for the first offence, a penalty could have been imposed that covered the offending the subject of the second offence.
I do not accept this submission. The penalty provision in s 223 is directed to offending conduct that has occurred. Further, as a general proposition, a penalty imposed for a criminal offence is in respect of conduct that has happened, not possible future conduct that might happen at some unspecified time in the future. Happy Cruising's suggested approach also belies the prescribed nature of sentencing. Section 6 of the Sentencing Act requires that the sentence must be commensurate with the seriousness of the offence. Seriousness is assessed by reference to factors that include the circumstances of the commission of the offence and any available mitigating factors. Such matters cannot be known in respect of possible future conduct. Happy Cruising did not refer me to any authorities to the effect that a criminal penalty could be imposed for future conduct if it eventuated.
Moreover, in Daniele v Shire of Swan,[55] Scott J held that a daily penalty can only be imposed in respect of the period of offending specified on the prosecution notice. In coming to that finding, his Honour observed that the complaint itself should make the accused aware of the penalty they face if convicted, as the potential penalty may well affect how the complaint is handled. For example, whether legal representation is sought, or what plea will be entered.
[55] Daniele v Shire of Swan (Unreported, WASC, Lib No 960513, 13 September 1996) 19 - 20.
Further, in Cochrane v The State of Western Australia, the Court of Appeal held that the charge against an accused is that which is contained in the initiating document.[56]
[56] See Cochrane v The State of Western Australia [2021] WASCA 5 [53].
In this case, the charge the subject of the first offence referred to the use of land for the period between 6 September 2019 and 2 April 2020. A daily penalty could only be imposed in respect of that specified period, subject to the learned magistrate being satisfied the offending use occurred over the entirety of that period.

Hunter v City of Joondalup

Happy Cruising relied on Hunter in support of the proposition that there is no separate offence committed on each day that the offending conduct occurs.[57] The circumstances of Hunter are vastly different to this case.
[57] Happy Cruising's written submissions dated 5 March 2024, par 33.
The City of Joondalup had issued Mr Hunter with a notice under the Local Government Act 1995 (WA) requiring him to construct a fence on a particular boundary of his property within 150 days of receipt of the notice. He did not do so. He was prosecuted for, and convicted of, an offence under the Local Government Act of failing to comply with the notice. The specified period of that offence commenced on a date after the notice had been issued and ended on the date of the prosecution notice containing the charge.
Mr Hunter still did not construct the fence. He was again charged with the offence under the Local Government Act of failing to comply with the notice. The date range in respect of that second charge commenced approximately nine months after his conviction.[58] Counsel for Mr Hunter at trial relied on s 17 of the Code as providing him with a defence. The learned magistrate rejected that plea. The learned magistrate was of the opinion that the notice created an ongoing obligation so that the failure to comply with the direction was an ongoing offence.[59] Mr Hunter was ultimately convicted after trial and appealed to a single judge of this court.
[58] Hunter [12], [14].
[59] Hunter [9] - [14].
The two charges against Mr Hunter were for failing to do an act by a specified time, not for engaging in an activity over a specified period of time. Justice Corboy held that the charged offence was complete once and for all when Mr Hunter had not constructed the fence by the expiry of the prescribed 150 day period. His Honour held that the second charge under the Local Government Act was in respect of the same conduct, namely the failure to comply with the notice. Therefore, Mr Hunter had a defence under s 17 of the Code to the second charge.[60] His Honour also held that by reason of s 71 of the Interpretation Act 1984 (WA), Mr Hunter was still required to construct the fence and could have been charged with an offence under s 71. However, this was a different offence, being constituted by a failure to do the required act after the specified time had expired.[61]
[60] Hunter [66], [71] - [73].
[61] Hunter [68] - [70].
It is not necessary for the purposes of this case to analyse s 71 in detail. It is sufficient to note the following. Section 71 of the Interpretation Act has three preconditions. First, by or under a written law, an act or thing is required or directed to be done within a particular period or before a particular time. Second, the failure to do the act or thing within, or by, that specified timeframe is an offence. Third, the act or thing is not done within the specified timeframe.[62] Where those conditions are met, pursuant to s 71(1)(d), the obligation to do the act or thing continues, notwithstanding that the timeframe has expired. In those circumstances, s 71(1)(e) creates a separate and further offence. Justice Corboy found that an element of that further offence is that the person has already been convicted of an offence of not complying with the requirement or direction.[63]
[62] Interpretation Act, s 71(1)(a) - (c).
[63] Hunter [69] - [70].
In summary, in Hunter, Corboy J held that the defence under s 17 of the Code applied to the second charge under the Local Government Act because Mr Hunter had already been charged and convicted of that offence.[64] Thereafter, a different offence arose pursuant to s 71 of the Interpretation Act.
[64] Hunter [73].
In Hunter, Corboy J also addressed the meaning of the expression 'a continuing offence' in criminal law. His Honour explained it is used in two senses, quoting with approval the following passage from the judgment of O'Bryan and Gillard JJ in R v Industrial Appeals Court; Ex parte Barelli's Bakeries Pty Ltd:[65]
A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed.
…
The question whether an offence is of a continuing or continuous nature generally arises in the case of statutory offences and the question is solved by ascertaining what is the precise nature of the offence.
(emphasis added)
[65] R v Industrial Appeals Court; Ex parte Barelli's Bakeries Pty Ltd [1965] VR 615, 620; Hunter [25].
In the judgment of O'Bryan and Gillard JJ in R v Industrial Appeals Court, their Honours gave the following example of a case which fell within the italicised portion of the passage set out at [114] above:[66]
A very clear case of an offence which continued in the sense first used above was that under consideration in Verney v. Mark Fletcher and Sons, Ltd., [1909] 1 K.B. 444. That was a prosecution under the Factory and Workshop Act 1901 (Eng.) for that the factory was, on 1 July 1908, not kept in conformity with the Act in that a certain fly-wheel was not securely fenced as required by s. 10 of the Act. The facts were that in May 1905 a factory inspector (the informant) visited the defendant's factory and saw the fly-wheel in question not securely fenced and required the defendant to fence it. On 12 March 1908 he again visited the factory, found the same state of things and again required the defendant to comply with the statute. On 1 July 1908 he visited the factory for a third time and found the same state of affairs continuing and on 22 July 1908 he laid his information. Without going into the merits of the case the solicitor for the defendant contended without going back to the first visit in May 1905 that the offence charged was the same offence as had been committed on 12 March 1908 and that the offence, therefore, first came to the knowledge of the informant more than three months before the information was laid and was, therefore, barred by s. 146(1) which required such an information to be laid within three months after the date at which the offence first came to the knowledge of the inspector. It was held that the offence was as much committed in 1 July as on 12 March and that as he was charged with the offence committed on 1 July that offence first came to the inspector's knowledge on that date. The view taken of the offence in that case apparently was that a fresh crime was committed on each day that the defendant failed securely to fence the fly-wheel. This is not surprising when one considers the nature of the offence and that the defendant was continually carrying on its factory operations with this dangerous machinery (cf. Knox v. Bible, [1907] V.L.R. 485; 13 A.L.R. 352).
[66] R v Industrial Appeals Court (620).

In effect, the passage at [115] above conveys that continually carrying on factory operations with dangerous machinery constitutes a separate offence on each day that occurs.
In this case, the charged conduct for each offence was constituted by Happy Cruising engaging in positive acts, namely using the land in a particular manner. Applying the meaning attributed to the word 'use' by Burt CJ in The University of Western Australia, Happy Cruising used the land by engaging in activities which were done in or on the land. Happy Cruising was not charged with failing to comply with a direction to cease using the land in the way it which it was. The charged conduct was not of a passive character. Rather, the charged conduct plainly fell within the first sense described in the passage at [114] above and therefore 'constitutes a separate and distinct offence each day the conduct continues'.
Accordingly, the analysis undertaken in Hunter and R v Industrial Appeals Court does not assist Happy Cruising's argument.

Summary of the position and its application to Happy Cruising's grounds

In summary, the relevant enquiry is directed to the elements of conduct the subject of each of the two offences. It is not directed to the characterisation of the conduct, divorced from the facts. Each of the first and second offences were made up of different elements of conduct. The element of conduct the subject of the first offence was the activities engaged in or on the land within the period 6 September 2019 to 2 April 2020. The element of conduct the subject of the second offence was the activities engaged in or on the land within the period 15 June 2021 to 14 October 2021. Irrespective of whether those activities have the same character, they cannot comprise the same acts, as they have occurred on different days.
That being so, s 17 was not available to Happy Cruising.
In relation to the first limb, it was not open for Happy Cruising to have been convicted of the second offence on the first prosecution notice. The first prosecution notice was directed to a different period and thus different activities to the conduct the subject of the second offence. Further, by the point in time that Happy Cruising pleaded guilty on the first prosecution notice (10 May 2021), the conduct the subject of the second offence had not commenced.
In relation to the second limb, it was not open for Happy Cruising to be convicted of the first offence on the prosecution notice for the second offence. The second prosecution notice was directed to a later period and thus different activities to the conduct the subject of the first offence.
For the same reasons, s 11 of the Sentencing Act is not engaged, nor are any common law principles of double punishment. Further, the sentence for the first offence could not include a penalty for future ongoing conduct.
There is also no arguable basis upon which the prosecution of the second offence ought to have been stayed by reason of Happy Cruising's conviction for the first offence. To the contrary, the first offence was a matter of some importance to the sentencing disposition on the second offence.
Accordingly, the numerous grounds relied on by Happy Cruising do not succeed.

Should a declaration have been made?

In my view, it is not appropriate to consider whether a declaration should have been made if Happy Cruising had succeeded in any of its arguments. That would require an abstract assessment against all of the different arguments and permutations put up by Happy Cruising. I will say though that there are powerful public policy considerations as to why a declaration should not be made. Happy Cruising has unsuccessfully appealed its conviction twice. The grounds put forward in support of this proceeding were not argued on either appeal. The raising of those grounds for the first time in this proceeding circumvents the appeal process provided for by the Criminal Appeals Act 2004 (WA).

Conclusion

For these reasons, in my view, Happy Cruising should not be permitted to amend its application in terms of the amended originating summons. Further, the proceedings should be dismissed.
I will hear from the parties as to the appropriate form of orders and also as to the appropriate order for costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Lemonis
20 MAY 2024