Investments (WA) Pty Ltd v City of Swan [No 2]
[2013] WASCA 251
•29 OCTOBER 2013
INVESTMENTS (WA) PTY LTD -v- CITY OF SWAN [No 2] [2013] WASCA 251
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 251 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:185/2012 | 21 MAY 2013 | |
| Coram: | PULLIN JA NEWNES JA MURPHY JA | 29/10/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | INVESTMENTS (WA) PTY LTD CITY OF SWAN |
Catchwords: | Appeal From judgment of single judge who dismissed an appeal against conviction by a magistrate Whether magistrate erred in refusing to consider whether appellant was excused by reason of s 22 of Criminal Code Criminal law Section 22 of Criminal Code Whether evidence gave rise to excuse under s 22 Town planning Development of land Proper construction of condition of approval to develop |
Legislation: | Criminal Code 1913 (WA), s 22 Strata Titles Act 1985 (WA), s 5B(2), s 8A(f), s 23, s 25 |
Case References: | Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 City of Swan v Investments (WA) Pty Ltd [2011] WASC 17; (2011) 181 LGERA 228 Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83 Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 Investments (WA) Pty Ltd v City of Swan [2012] WASC 278; (2012) 190 LGERA 205 MacLeod v The Queen [2003] HCA 24; (2003) 214 CLR 230 Olsen v The Grain Sorghum Marketing Board [1962] Qd R 580 R v Bernhard [1938] 2 KB 264 R v Pollard [1962] QWN 13 R v Waine [2005] QCA 312; [2006] 1 Qd R 458 Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : INVESTMENTS (WA) PTY LTD -v- CITY OF SWAN [No 2] [2013] WASCA 251 CORAM : PULLIN JA
- NEWNES JA
MURPHY JA
- Appellant
AND
CITY OF SWAN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : PRITCHARD J
Citation : INVESTMENTS (WA) PTY LTD -v- CITY OF SWAN [2012] WASC 278
File No : SJA 1059 of 2011
Catchwords:
Appeal - From judgment of single judge who dismissed an appeal against conviction by a magistrate - Whether magistrate erred in refusing to consider whether appellant was excused by reason of s 22 of Criminal Code
Criminal law - Section 22 of Criminal Code - Whether evidence gave rise to excuse under s 22
Town planning - Development of land - Proper construction of condition of approval to develop
Legislation:
Criminal Code 1913 (WA), s 22
Strata Titles Act 1985 (WA), s 5B(2), s 8A(f), s 23, s 25
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S K Shepherd
Respondent : Mr D R Williams QC & Mr D W McLeod
Solicitors:
Appellant : Tottle Partners
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
City of Swan v Investments (WA) Pty Ltd [2011] WASC 17; (2011) 181 LGERA 228
Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83
Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140
Investments (WA) Pty Ltd v City of Swan [2012] WASC 278; (2012) 190 LGERA 205
MacLeod v The Queen [2003] HCA 24; (2003) 214 CLR 230
Olsen v The Grain Sorghum Marketing Board [1962] Qd R 580
R v Bernhard [1938] 2 KB 264
R v Pollard [1962] QWN 13
R v Waine [2005] QCA 312; [2006] 1 Qd R 458
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
1 REASONS OF THE COURT: On 23 May 2011, Investments (WA) Pty Ltd (Investments) was convicted by a magistrate of the offence of having continued to carry out development of land otherwise than in accordance with a condition imposed under the local planning scheme, in contravention of s 218(c) of the Planning and Development Act2005 (WA) (PD Act). The condition required payment of a drainage contribution fee before the development was occupied.
2 Investments appealed against the conviction to Pritchard J contending that the magistrate failed to consider an honest claim of right defence under s 22 of the Criminal Code (WA) arising out of Investments' mistaken belief as to when the drainage contribution fee was required to be paid.
3 Pritchard J dismissed Investments' appeal on the basis that the evidence before the magistrate was insufficient to raise a s 22 defence: Investments (WA) Pty Ltd v City of Swan [2012] WASC 278; (2012) 190 LGERA 205. It is against that decision that Investments have appealed to this court.
The condition imposed and the charge
4 On 21 August 2001, the City of Swan (City) granted approval to commence development of land described as 'Lot 2 (No 132) Clayton Street, Bellevue' (the Land) into 'Grouped Dwellings (38)', subject to certain conditions. Condition 5 of the 'Standard Conditions' provided that:
A drainage contribution at a rate of $25,000 per hectare shall be paid to the City of Swan, as the development falls within the Midland District drainage area. Payment shall be made before the development now approved is occupied.
5 Investments was charged under s 218(c) of the PD Act which provided:
218. Contravention of planning scheme
A person who -
…
(c) commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance withany condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,
commits an offence. (emphasis added)
6 The prosecution notice alleged that on 7 October 2009, Investments '[c]ontinued to carry out a development of the Land otherwise [than] in accordance with the condition imposed under the City of Swan Local Planning Scheme 17 - Namely condition 5 imposed on an Approval to Commence Development Dated 21 August 2001'.
The development
The approval to commence development
7 On 20 July 2001, an application was made to the City for approval to commence development of 'grouped dwellings' on the Land (GB 154). The application was made by the previous owner of the Land.
8 On 21 August 2001, the City granted approval to commence development subject to certain conditions, including condition 5 referred to earlier at [4] above.
9 There were a number of footnotes to the approval. The first footnote stated, in bold, that a 'Building Licence must be issued before any work commences on the site'. The fourth footnote stated that '[d]evelopment may be carried out only in accordance with the terms of the application as approved herein and any approved plan'.
10 The approval to commence development was valid until 21 August 2003. On 12 June 2003, the City granted an extension of the term of approval to commence development until 21 August 2004.
11 On 14 June 2004, the property was purchased by Investments (GB 133).
The application for a building licence
12 On 30 June 2004, Investments made an application for a building licence in respect of the Land. The builder's details were given as 'Primestyle Homes' (GB 162).
13 On 5 August 2004, Mr Peter Tilli, described as the Managing Director of Primestyle Homes, wrote to the City in relation to the delay in issuing the building licence. The letter mentioned that Mr Tilli had been requested to 'pay contribution for the drainage for a further $20,000'.
14 On 10 August 2004, Primestyle Homes was granted a building licence in respect of the Land (GB 169). The building licence authorised the erection of a grouped dwelling and stated that this 'must be carried out in accordance with the conditions attached to this licence'. Item 34 of the conditions of approval of the building licence stated:
34. DRAINAGE CONTRIBUTION - As this development is within the Midland District Drainage Area a Drainage contribution of $29,370 (GST Inclusive) is required as per conditions of the approval to commence development. This fee m
15 The last sentence of item 34 in the conditions of approval is incomplete.
16 The building licence also stated that the 'building work permitted by this licence must be carried out in accordance with the plans, drawings and specifications' submitted with the application for the building licence.
17 This building licence applied to the first stage of development, consisting of the construction of nine units (GB 135, 174 - 175).
The first stage of the development and form 7 of 15 March 2007
18 The first stage of the development had been completed by early 2007. It comprised lots 1 to 9, with the remaining area being described as lot 10 (GB 175 - 177).
19 On 15 March 2007, the City issued a 'form 7' which referred to the strata plan relating to the first stage of development and had a description of the 'parcel and building' (GB 179). It then stated:
CERTIFICATE OF LOCAL GOVERNMENT
City of Swan … the local government hereby certifies that in respect of the strata plan which related to the parcel and building described above (in this certificate called 'the plan'):-
(1)*(a) the building and the parcel shown on the plan have been inspected and that it is consistent with the approved building plans and specifications in respect of the building; or
…
(2) the building, in the opinion of the local government, is of sufficient standard to be brought under the Strata Titles Act 1985;
…
(4)*(a) any conditions imposed by the Western Australian Planning Commission have been complied with; or
…
20 The form 7 was stamped as being signed by a delegated officer pursuant to s 23(5) of the Strata Titles Act 1985 (WA) (Strata Act). Section 23(5) provides, in effect, that a certificate of local government may be signed by a delegate on behalf of the chief executive officer of the local government.
21 The registration of the strata plan for lots 1 to 10 was subject to the lodgement of the form 7. The form 7 of 15 March 2007 was lodged and the strata plan for lots 1 to 10 was registered on 3 May 2007 (GB 174).
The second stage of the development
22 The City issued a further building licence for the second stage of the development (and indeed for the third and fourth stages) (GB 135).
23 By late 2007, the second stage of the development had been completed. It involved the re-subdivision of lots 5 and 10 (GB 185) so that the total development then comprised 21 lots (GB 134).
24 On 29 January 2008, the City issued another form 7. Apart from the description of the parcel and building, it contained the same information as the form 7 dated 15 March 2007 (GB 186). The registration of the strata plan in respect of the re-subdivision of lots 5 and 10 was again made subject to the lodgement of the form 7. The form 7 of 29 January 2008 was lodged and the strata plan was registered on 10 March 2008 (GB 183).
Communications relating to non-compliance with condition 5 of the approval to commence development
25 On 4 September 2008, the City sent Investments a letter which referred to Investments' non-compliance with condition 5 of the approval to commence development. The letter set out condition 5 and said that the drainage contribution payable was $40,500. It stated that '[t]o date the City has not received this money and part of the development is occupied'. The letter requested payment of the $40,500 within 28 days of the date of the letter.
26 On 25 September 2008, Investments responded to the City's letter dated 4 September 2008. It disputed the amount payable and stated that it had 'complied with every condition of that approval prior to the initial building licence being issued'. The letter attached a copy of the building licence fee which it was said showed that the drainage contribution amount of $29,370 had been paid and that the total due amount was nil.
27 On 6 October 2008, the City replied to Investments. The City accepted that the drainage contribution payable was $29,370 and not $40,500. The City stated that it could not find any record of the drainage contribution having been paid and requested proof of payment in the form of a receipt.
28 On 19 December 2008, the City again wrote to Investments stating that it had not received a response to the previous letter, and made a further request for proof of payment of the drainage contribution.
29 On 12 February 2009, McLeods Barristers and Solicitors, acting for the City, wrote to Investments stating that it was apparent from Investments' letter dated 5 August 2004 that Investments was aware that a drainage contribution was required and that if payment was not received within 28 days then proceedings would be commenced.
30 On 13 March 2009, McLeods again wrote to Investments, this time attaching a schedule of payments that had been made in respect of the development, and said that if payment was not made within 28 days then proceedings would be commenced.
31 The prosecution notice was issued on 16 October 2009 in the terms referred to in [6] above.
The last stage of the development
32 Pritchard J found, at [11] of her reasons, that:
At the time of the offence, construction of the first three stages of the development had been completed and the units constructed had been occupied by the strata owners. A further ten dwellings in the fourth stage of the development were still under construction.
Procedural history
33 The offence was tried in the Magistrates Court on 20 August 2010. There was some confusion surrounding the basis on which the trial proceeded: see Investments (WA) Pty Ltd [12] - [20]. Investments did not dispute the facts that gave rise to the alleged offence, including the fact that it had not paid the drainage contribution and that some units had been occupied.
34 The issue which is raised in this appeal is whether the magistrate should have considered whether the appellant should be excused by reason of the application of s 22 of the Criminal Code (WA). That section was not within the contemplation of either of the parties or the magistrate at that stage. Instead, counsel for both parties proceeded on the basis that the sole issue for determination was the construction of condition 5 of the development approval. Counsel for Investments submitted that, on a proper construction of condition 5, the drainage contribution was not due and payable at the time of the alleged offence. Aside from the issue of whether the obligation to pay the drainage contribution in accordance with condition 5 had crystallised at the time of the alleged offence, the issue of the authority of Investments to otherwise continue with the development was not in dispute.
35 At trial, counsel for the City tendered a statement of agreed facts and a bundle of agreed documents, neither of which were challenged by counsel for Investments. Although the facts relevant to the offence were said to be agreed or were not disputed, and although it appears that the parties considered the only issue in dispute to be the construction of condition 5, oral evidence was given by a Mr Andrew Townsend (for the City) and by Mr Tilli (for Investments). The purpose for which this evidence was led was not clear. The following exchange took place in the course of the evidence-in-chief of Mr Tilli:
Now, when do you intend to pay the drainage contribution in this matter? - My intention to pay was once the final stage is complete and we've had a form 7 signed by the council for the strata plan that it's all complete and then I presume that we would get an invoice thereafter and pay [within] the normal payment periods with the council.
Do you have any intention not to pay the drainage contribution in due course? - No.
Why haven't you paid it to date? - Because it's not liable to be paid at this point in time (ts 12, 20 August 2010).
36 Mr Tilli was also cross-examined by counsel for the City, and during the course of that cross-examination he was asked the following questions and gave the following answers:
I understood you to say they [the units] would be completed in nine months and then you would pay. Was that what - you would pay the drainage contribution? - When it's completed and you've got strata title approval and the form 7 is signed like any other development, whatever contribution is required would get done at that point in time once the appropriate tax invoice is received.
…
Now, can I put a hypothetical question to you? What would happen if for some unforeseen reason you only completed nine of the remaining 10? What's the position of your company then? What do you say as a director? - Well, obviously it would be ridiculous to [do] that because we can't get a strata title approval and we can't complete our development.
No, no, no. Let's say for some reason outside your control - ? - Well, if you're trying to say, Mr Owen, we're not going to finish one unit, not to pay a $30,000 fee on a development of that size, well, you're misled, all right, and we've got a development, we've got a building licence and we're completing the development. It's in our interest to complete it. We have a mortgage on the property. We have a duty of care to our financiers to complete it and pay out our mortgage. It's as simple as that (ts 14, 20 August 2011).
37 As shall be seen later in these reasons, it was this evidence, and the fact that the appellant did continue construction of the units after allowing occupation by buyers of the units, that counsel for Investments now contends was sufficient evidence to discharge the 'evidential burden' (see Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [34]) necessary to raise the 'defence' under s 22 of the Criminal Code and thus to require the prosecution to prove beyond reasonable doubt that Investments was not excused for the breach of s 218 of the PD Act.
38 As already mentioned, none of this was adverted to at the first trial. At the conclusion of the trial, the learned magistrate proceeded on the basis that the sole issue for determination was the construction of condition 5 of the development approval, and this was the sole issue on which her Honour's reasons for decision focused. The magistrate found that condition 5 was ambiguous as to the time for payment and that, for that reason, Investments was found not guilty of the offence.
The appeal to Blaxell J
39 The City appealed to the Supreme Court against that decision. That appeal was heard on 21 December 2010 by Blaxell J. The two grounds of appeal concerned the magistrate's approach to, and conclusion on, the construction of condition 5 of the development approval. Investments did not file a notice of contention contending that the decision of the magistrate should be upheld on a ground not relied upon by the magistrate. Nor did Investments raise in submissions that a s 22 excuse had been raised on the evidence at trial and not negatived by the prosecution, which would warrant a finding that the prosecution had not proved the offence beyond a reasonable doubt.
40 Blaxell J allowed the appeal on both grounds and concluded that, on the proper construction of condition 5, Investments was 'obliged to pay the drainage contribution prior to any stage of the development becoming occupied and lived in': City of Swan v Investments (WA) Pty Ltd [2011] WASC 17; (2011) 181 LGERA 228 [29]. This construction or interpretation of condition 5 is now accepted by both parties, and properly so.
41 His Honour published advance reasons and invited submissions from the parties as to the appropriate orders: City of Swan [33]. The matter was listed for judgment delivery and hearing as to the appropriate orders on 28 January 2011 before Blaxell J. A minute of proposed orders was provided by counsel for the City. The City sought an order that, inter alia, the dismissal of the prosecution in the Magistrates Court be set aside and a conviction entered of the offence charged in the prosecution notice. However, during the course of the hearing, counsel for Investments submitted that it would be inappropriate for his Honour to enter a conviction in relation to the prosecution notice on the basis that, because of the way in which the matter was heard by the magistrate, other defences which may have been available on the evidence weren't raised during trial: ts 55 (28 January 2011). In particular, counsel submitted that a s 22 excuse had been raised on the oral evidence of Mr Tilli: ts 61 (28 January 2011).
42 His Honour ordered that the dismissal of the prosecution be set aside and the matter otherwise be remitted to the Magistrates Court to be dealt with according to law.
The remittal of the matter to the Magistrates Court
43 The matter was dealt with again by the magistrate on 23 May 2011. During the course of that hearing, counsel for Investments submitted that Mr Tilli's evidence during the trial on 20 August 2010 was sufficient to found a s 22 excuse and sought to make submissions in respect of the s 22 excuse before the learned magistrate proceeded to make her decision on the prosecution notice. Counsel for the City opposed this application, on the basis that it was an application to reopen the defence case.
44 The magistrate refused the application and proceeded to enter a conviction for the offence, sentence Investments and make an order for costs. It appears that the magistrate refused to consider the s 22 excuse either because she considered that the scope of the remittal of the matter did not require it, or because Investments had not raised the defence at trial, or because Investments had run its case at trial solely on the construction of condition 5 of the development approval and had not raised the issue of a possible s 22 excuse during the hearing of the appeal before Blaxell J.
The appeal to Pritchard J
45 Investments appealed to the Supreme Court. The sole ground of appeal was that the magistrate had erred in failing to hear argument on, and consider, the s 22 point. The findings of Pritchard J are detailed later in these reasons.
The form 7 certificates
46 As noted earlier, after each of the first and second stages of development, the City of Swan issued a form 7 which was described as being a certificate of local government. (If a form 7 was issued after the third stage of the development, it was not in the appeal papers.)
47 The form 7 referred in its heading to 'Strata Titles Act 1985, Section 5B(2), 8A(f), 23(1)'.
48 Section 5B(2) of the Strata Act provided that a strata plan lodged for registration shall be accompanied by a certificate given by the local government in accordance with s 23.
49 Section 8A(f) provided:
8A. Requirements for plan of re-subdivision
A plan of re-subdivision shall -
…
(f) in the case of a re-subdivision of a lot in a strata scheme, be accompanied by a certificate given by the local government containing, subject to appropriate and necessary modifications, the same particulars as are required by section 23 and the local government shall not issue a certificate for the purposes of this paragraph unless satisfied, subject to appropriate and necessary modifications, in respect of the matters referred to in section 23(2).
50 Section 23 relevantly provided:
23 Certificate of local government
(1) Subject to this section, the certificate of the local government which is required by section 5B(2) to accompany a strata plan lodged for registration shall be in the prescribed form and shall certify -
…
(e) in a case where the Commission has granted a certificate subject to conditions under section 25(4), that the parcel and the buildings shown on the plan have been inspected and the conditions attached to the approval of the Commission have been complied with.
(2) An application for a certificate under subsection (1) shall be granted by the local government and the certificate shall be issued where the local government is satisfied in respect of the matters referred to in that subsection and is also satisfied that -
(a) separate occupation of the proposed lots will not contravene the provisions of any local planning scheme in force under the Planning and Development Act 2005;
(b) any consent or approval required under any such local planning scheme or under the provisions of the last-mentioned Act relating to any interim development order, has been given in relation to the separate occupation of the proposed lots; and
(c) the development of the parcel as a whole, the building and the proposed subdivision of the parcel into lots for separate occupation will not interfere with the existing or likely future amenity of the neighbourhood, having regard to the circumstances of the case and to the public interest.
A certificate granted by the Commission under this section shall certify the approval of the Commission to the subdivision…and in the case of an application made prior to construction…of a building proposed to be divided into lots under the scheme, the Commission may grant a certificate unconditionally or subject to such conditions as are specified in the certificate.
52 There was no evidence that the Commission had granted a section 25 certificate subject to conditions.
An honest claim of right - s 22 of the Criminal Code
53 Section 22 of the Criminal Code provides:
22. Ignorance of law, honest claim of right
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
54 The phrase 'honest claim of right' must be considered in the context of the opening words of s 22 that ignorance of the law does not of itself afford any excuse for an action or omission which would otherwise constitute an offence: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 580.
55 In Olsen v The Grain Sorghum Marketing Board [1962] Qd R 580, Hanger J said of the then identical Queensland provision:
Section 22, after stating that ignorance of the law is no excuse, does not proceed to say that ignorance of the law is an excuse in the case of an offence relating to property for an act done with respect to property. It refers to an act done in the exercise of an honest claim of right and without intention to defraud.
In Cooper v Phibbs ([1867] LR 2 HL 149, at p 170) Lord Westbury has some remarks which I think are relevant:
It is said 'Ignorantia juris non excusat'; but in that maxim the word 'jus' is used in the sense of denoting general law, the ordinary law of the country. But when the word 'jus' is used in the sense of denoting a private right, that maxim has no application.
It is this distinction that must be kept in mind in construing and applying s 22 of the Code.
56 In MacLeod v The Queen [2003] HCA 24; (2003) 214 CLR 230 [41], Gleeson CJ, Gummow and Hayne JJ cited the following passage from the judgment of Dawson J in Walden as to what is meant when it is said that an accused raises an honest claim of right:
It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner — to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs (1867) LR 2 HL 149 at 170, per Lord Westbury.
57 An honest belief as to an entitlement to do the act with respect to property will only constitute a defence under s 22 if that 'entitlement would, if well founded, preclude what was done from constituting breach of the relevant criminal law which an accused is assumed to know': Walden v Hensler (580 - 581). What is claimed or believed must, if it were the fact, negative an element of the alleged offence or constitute a defence to it: Walden v Hensler (581); Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 [77].
58 A person acts in the exercise of an honest claim of right in respect of property if they honestly believe that they are entitled to do what they are doing in relation to that property: R v Waine [2005] QCA 312; [2006] 1 Qd R 458 [27] - [28]; see also Interim Advance Corporation Pty Ltd v Fazio [76].
59 A person has a claim of right if he or she is honestly asserting what they believe to be a lawful claim, even though such a claim may be unfounded in law or in fact: R v Bernhard [1938] 2 KB 264, 270; MacLeod v The Queen [42]. The claim need only be honest and need not be reasonable: R v Pollard [1962] QWN 13, 29; Interim Advance Corporation Pty Ltd v Fazio [79]. However, a claim that is unreasonable and unfounded is less likely to be believed, or more correctly, to engender a reasonable doubt: MacLeod v The Queen [42].
60 As the defence is not constituted by mere ignorance of the criminal law, it must have some foundation or basis independent of a mere belief in a liberty to engage in that which is not unlawful: Walden (606, 608) (Gaudron J); see also (580) (Deane J), (592 - 593) (Dawson J) and (603) (Toohey J). In Walden, Gaudron J said that the honest claim of right must have 'a foundation in some event, transaction, status or relationship, and is not founded merely on a claim to immunity (whether by reason of ignorance or mistake) from the operation of the criminal law' (608). An erroneous belief that what one is doing is lawful is a mere mistake of law and no defence: R v Waine [23]; Olsen v The Grain Sorghum Marketing Board (589).
61 The claimed right must be one existing at the time of the offence. A belief that the right will be acquired in the future is insufficient: R v Pollard (29); Olsen v The Grain Sorghum Marketing Board (590).
62 The evidential burden of a claim of right is on the accused, but the persuasive burden is on the prosecution to rebut it: MacLeod v The Queen [39].
The reasons of Pritchard J
63 Pritchard J found that a defence under s 22 was capable of application to an offence under s 218 of the PD Act [53]. That matter was not disputed in this appeal and, in what follows, the correctness of that conclusion is assumed (without deciding) for present purposes.
64 However, her Honour found that the evidence of Mr Tilli did not raise a s 22 defence. Her Honour referred to Mr Tilli's evidence-in-chief, referred to in [35] above, which she said was the evidence relied on by counsel for Investments as giving rise to the s 22 defence [19].
65 Her Honour later referred to the argument advanced by counsel for Investments in this regard and said:
Counsel for Investments WA submitted that the honest claim of right raised by Mr Tilli's evidence was as follows:
In this case the honest claim of right was, 'It was my property. I was developing it. I had a building licence. I had develop[ment] approval and I believed that I was entitled to continue' - because there's no argument that the development was entitled to start - 'but I believe that I was entitled to continue, because the drainage contribution wasn't yet payable under the condition' and if that state of facts had been correct, there was no offence [58].
However that was not what Mr Tilli's evidence was. That part of his evidence which was relied on by counsel as giving rise to the s 22 defence was much more confined. It was concerned solely with the fact that Investments WA had not paid the drainage contribution at the date of the offence because Mr Tilli believed that payment was not required by that time. At no point did Mr Tilli give evidence that he believed that Investments WA was authorised to continue the development of the Land for some reason, irrespective of the payment of the drainage contribution. Accordingly, his evidence did not, in my view, amount to a claim to an entitlement, arising in some way under the civil law, to continue the development of the Land.
Furthermore, because the other evidence before the court was very confined in its scope, and because the agreed facts did not touch on the question of Investment WA's authority to develop the Land, there does not exist a basis for inferring that Mr Tilli believed that Investments WA had authority to develop the Land at the time of the alleged offence.
Counsel for Investments WA submitted that Mr Tilli's evidence supported the conclusion that Investments WA believed that condition 5 did not, at the time of the offence, require Investments WA to have paid the drainage contribution and if that belief had been true, one of the elements of the offence under s 218 would not have been proved. Counsel relied on an observation by Buss JA (with whom Miller JA & Newnes AJA agreed) in Interim Advance Corporation v Fazio that a defence under s 22 'will not be available unless what is claimed or believed would, if it were the fact, have negatived an element of the alleged offence or constituted a defence to it' [77]. However, that statement cannot be read in isolation from the rest of the judgment of Buss JA in Interim Advance Corporation v Fazio. In particular, it cannot be read in isolation from the other aspects of his Honour's discussion of the principles in relation to s 22 of the Criminal Code where his Honour emphasised that the belief must constitute an honest claim of right in respect to property. An honest but mistaken belief as to the general law is not an excuse for the purposes of s 22. That amounts to no more than ignorance of the law, which, as the first paragraph of s 22 makes clear, is no excuse [59] - [61].
Grounds of appeal
67 The appellant's grounds of appeal allege that:
1) the learned judge erred in fact and law by finding that the evidence before the Magistrates Court at first instance did not raise a defence arising from an honest claim of [right] pursuant to s 22 of the Criminal Code; and
2) the learned judge erred in law in finding that the failure of the learned magistrate at first instance to consider a defence arising from an honest claim of right under s 22 of the Criminal Code occasioned no miscarriage of justice.
Disposition
68 The critical issue in this case is whether there was evidence which could provide a proper foundation for an honest claim of right: Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83 [57].
69 The elements of the offence were, relevantly, that on 7 October 2009, Investments continued to carry out the development, otherwise than in accordance with a condition imposed under the City's local planning scheme. The City contended that the relevant condition was condition 5, and that it was not complied with in that condition 5 required payment of the drainage contribution fee (fee) before any occupation commenced. As her Honour found, in fact, the fee had not been paid prior to the commencement of occupation of units from the earlier stages of construction.
70 If Investments continued the development on 7 October 2009 after the occupation of units from earlier stages of the development, in the exercise of some asserted right arising under the supposed operation of the civil law, a s 22 defence may have arisen. If, however, the claim was no more than a mere assertion of a right by Investments to do whatever it wished on its own property without restraint, the assertion would, in substance, be 'a claim to freedom to act in a particular manner - to the absence of prohibition' (Walden (592)) and no s 22 claim would arise. Also, if the asserted claim merely involved ignorance of the existence of condition 5 or ignorance or mistake as to the true meaning of condition 5, it would involve ignorance of the law or a mere mistake of law, but not a claim of right (R v Waine [23]). On the other hand, if, for example, Investments continued the development on 7 October 2009 in the honest belief that condition 5 had been waived, varied or superseded by some other permission to continue development of the units despite the earlier occupation of units without the prior payment of the fee, a s 22 defence might have been available.
71 In the hearing of this appeal, counsel for Investments alleged an arguable claim of right based upon the effect of Mr Tilli's evidence concerning form 7 certificates. In addition to the passage referred to in [35] above, he also relied upon the passage of evidence given by Mr Tilli in cross-examination referred to in [36] above.
72 Mr Tilli's evidence was to the effect that the drainage contribution fee had not become payable at the time of the offence, and that the fee only became payable at the time that the development as a whole was completed and a final form 7 was signed by the council.
73 In our view, Mr Tilli did not give any evidence from which an inference could be drawn that Investments had a belief, based on the supposed effect of the form 7 certificates previously issued with respect to the earlier stages of development, that it had a right to continue to develop the Land despite the units relating to the earlier stages of the development having been occupied without the prior payment of the fee. Rather, Mr Tilli's evidence was given with reference to the expected issuance of the final form 7, and related to the timing of the completion of the development. His evidence was consistent with the way in which the claim was formulated by Investments' counsel, namely, that he believed that condition 5 did not require Investments to pay the fee until the development was completed. However, such an assertion involves, in substance, no more than a misunderstanding of the true meaning of condition 5. It does not provide a proper foundation for a claim of right. Pritchard J's reasons at [59] and [61] indicate that her Honour, correctly in our respectful view, dismissed the appeal on this basis. It is not entirely clear, with respect, what Pritchard J had in mind when she made a 'furthermore' finding at [60] that there was no basis to draw an inference that Mr Tilli believed that Investments had authority to develop the Land at the time of the alleged offence. Even if Mr Tilli held such a belief, it would appear in this context to involve no more than a freedom to act in the absence of prohibition, or an ignorant or mistaken belief as to the meaning of condition 5, none of which would provide a proper foundation for a claim of right.
74 For these reasons, we would dismiss Investments' appeal.
75 We would only add that after the hearing of the appeal, Investments was given an opportunity to provide certain written submissions dealing with cl 4(a) of the form 7 certificates issued by the City. The submissions were not received within the time ordered by the court, and there was no application for an extension of time. Further, the submissions went beyond the court's orders, without leave, insofar as they contended that the issuance of a form 7 certificate constituted a binding certification by the City that it was satisfied that occupation could proceed. Even if these supplementary submissions could properly be taken into account, the relevant question is not the legal effect of the form 7 certificates, but whether there was evidence before the magistrate which could provide a proper foundation for an honest claim of right, which may or may not have been sustainable at law. The form 7 certificates were in evidence and, on their face, made reference to the statutory provisions which we have outlined earlier. However, there remains, on the evidence, no proper foundation for a claim of right defence.
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