Kezic v City of Stirling
[2020] WASC 241
•26 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KEZIC -v- CITY OF STIRLING [2020] WASC 241
CORAM: HILL J
HEARD: 27 NOVEMBER 2019
DELIVERED : 26 JUNE 2020
FILE NO/S: SJA 1029 of 2019
BETWEEN: ZIVKO KEZIC
Appellant
AND
CITY OF STIRLING
Respondent
FILE NO/S: SJA 1030 of 2019
BETWEEN: ROSARIA KEZIC
Appellant
AND
CITY OF STIRLING
Respondent
ON APPEAL FROM:
For File No: SJA 1029 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: DEPUTY CHIEF MAGISTRATE E WOODS
File Number : PE 32407 of 2018
For File No: SJA 1030 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: DEPUTY CHIEF MAGISTRATE E WOODS
File Number : PE 32406 of 2018
Catchwords:
Criminal law - Appeal against conviction and sentence - Dividing fence - Whether City of Stirling has power to issue notice of breach - Whether breach of Fencing Local Law is a criminal offence - Turns on own facts
Legislation:
City of Stirling Fencing Local Law 2008
Constitution Act 1889 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Regulations 2005 (WA)
Dividing Fences Act 1961 (WA)
Interpretation Act 1984 (WA)
Local Government Act 1995 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
SJA 1029 of 2019
Counsel:
| Appellant | : | In person |
| Respondent | : | D P Gillett |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods |
SJA 1030 of 2019
Counsel:
| Appellant | : | In person |
| Respondent | : | D P Gillett |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Crocker v Vinicombe [2019] WASC 416
Hughes & Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shire of Tungamah v Merrett [1912] HCA 63; (1912) 15 CLR 407
Tallott v City of Stirling [2017] WASCA 126
HILL J:
This case concerns a dividing fence. The dispute had its genesis in a disagreement between the appellants and their neighbours concerning a security camera and lights on the neighbouring property. When the appellants' neighbours refused to remove these, the appellants attached items (including wires, metal poles, and bamboo sticks) to the dividing fence to shade their property.
On 10 January 2018, the City of Stirling (City) issued a notice to the appellants, pursuant to cl 5.1 of the City of Stirling Fencing Local Law 2008 (Local Law), requiring them to remove the fence within 28 days. Following their failure to do so, on 30 May 2018, the City charged each of the appellants with a failure to comply with the notice, contrary to cl 5.2(1) of the Local Law.
The charges in both matters are identical, the evidence was the same in both matters and the two matters were heard concurrently. For this reason, I will deal with them together throughout these reasons.
On 12 February 2019, both charges were listed for hearing before the learned magistrate. Neither of the appellants appeared at the hearing. In their absence, pursuant to s 55 of the Criminal Procedure Act2004 (WA), each was convicted of the offence with which they were charged, fined $1,000 and ordered to pay costs of $2,500.
The appellants seek leave to appeal against the convictions as well as the sentence imposed by the magistrate.
Notice of Appeal and Leave to Appeal
The appellants filed notices of appeal on 1 March 2019 which was within time.[1]
[1] Criminal Appeals Act 2004 (WA), s 10(3).
The initial notice of appeal contained five grounds of appeal. On 26 August 2019, Principal Registrar Strk ordered that the appellants' minute of amended proposed grounds of appeal dated 23 April 2019 stand as the grounds of appeal. The amended grounds of appeal can be summarised as follows:
(1)The court lacked jurisdiction to hear the charges on the basis that the City did not have legislative power to instigate proceedings under the Local Government Act 1995 (WA).
(2)The magistrate erred in law by failing to take into account that there is no provision under the Local Government Act which gives the City the power to issue a notice of breach or to take action in respect of a notice relating to dividing fences.
(3)The magistrate erred in law in failing to deal with the Form 6 application made by the applicants at either of the hearings on 12 October 2018 or 12 February 2019.
(4)The magistrate erred in law in denying the appellants the right to have the charges dealt with on the papers pursuant to s 66 of the Criminal Procedure Act.
(5)The magistrate erred in imposing a penalty on each of the appellants and ordering costs against them, as dividing fence disputes are civil not criminal offences.
The appellants require leave to appeal.[2] The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a rational and logical prospect of succeeding.[3] The question of whether leave should be granted was referred to the hearing of the appeal.[4]
[2] Criminal Appeals Act, s 9(1).
[3] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
[4] Order of Principal Registrar Strk 26 August 2019.
Factual Background
The appellants are the registered owners of 46 Bamford Place, Balcatta (Property). The Property is the appellants' residential house and is located in a residential area.
In September 2017, the appellants lodged a complaint with the City regarding their neighbours at 44 Bamford Place. The complaint concerned alleged light spill from an outdoor light affixed to the neighbouring property. As a result of the complaint, officers from the City attended and inspected both properties. They observed the appellants had erected a fence structure on their Property using shade cloth, car windscreen shades, wire, metal posts and plastic. I understand that a structure had been erected on the neighbouring property as well.
During the inspection, the City's officers measured the light emitted from the outdoor lighting at the neighbouring property, which indicated the lights were not in excess of the values specified in the Australian standards. The appellants were advised of these findings but maintained they were not going to remove the fence structure from their Property.
The City wrote to the owners of both 44 and 46 Bamford Place requesting that the fence structures on each of the properties be removed. The structure at 44 Bamford Place was removed but upon further inspection by the City, the structure at the Property remained in place. Despite the City's request for removal of this structure, the appellants insisted on it remaining.
On 10 January 2018, the City issued a notice to the appellants under the Local Law requiring the fence structure to be removed within 28 days. The appellants lodged an objection with the City, which was dismissed by the City on 20 February 2018. On 27 February 2018, the City informed the appellants by letter that their objection had been dismissed and extended the time for compliance with the notice until 18 March 2018.
Between 19 and 25 March 2018, further inspections were undertaken by the City. During this period and up until 8 February 2019, the fence structure remained in place at the Property.[5]
[5] ts 12 February 2019, 5.
On 30 May 2018, prosecution notices of each of the appellants were lodged with the Magistrates Court. Under the prosecution notice, each was charged with the following offence:
Within the district of the City of Stirling, [the appellants] failed to comply with a notice given to [them] under Clause 5.1 of the City of Stirling Fencing Local Law, contrary to Clause 5.2(1) of the said Local Law.
The particulars of the offence referred to the offence occurring within the period 19 March 2018 and 25 May 2018.
Proceedings in the Magistrates Court
When the matters came before the Magistrates Court on the first return date of 29 June 2018, there was no appearance by either of the appellants. Both matters were adjourned until 12 October 2018 for directions.
On 12 October 2018, Mr Kezic appeared on behalf of the appellants and entered a plea of not guilty on behalf of each of them. From the prosecution notice, it appears that at this hearing, Mr Kezic raised the argument as to whether the City had the power to bring the prosecution and this was adjourned to be dealt with at the trial.
On 12 October 2018, the matters were adjourned to a trial hearing date of 12 February 2019.
At the commencement of the trial before the learned magistrate on 12 February 2019, the prosecution raised that the appellants were not in attendance at the hearing and were not intending to appear. Her Honour confirmed the court had received correspondence from the appellants confirming their non-attendance, despite their plea of not guilty. The magistrate stated she had directed an email be sent to the appellants on 11 February 2019, indicating the necessity for the appellants to attend the hearing.
Her Honour then stated that:[6]
They have persisted, I'm told, that they will not be coming, that the matters should be dealt with on the papers, the court has no jurisdiction and they've maintained the same arguments which have all been dealt with by various people along the way.
[6] ts 12 February 2019, 2.
The prosecution sought leave to proceed with the hearing, pursuant to the Criminal Procedure Act, s 55, which was granted by the learned magistrate.[7]
Prosecution's case at trial
[7] ts 12 February 2019, 2.
The prosecution read out the facts of the case and handed up a number of photographs of the fence structure at the Property.
Counsel submitted that the meaning of 'fence' under the Local Law is defined to mean 'any structure used or functioning as a barrier irrespective of where it is located'[8] and that the structure present at the Property met this definition. Under cl 3.1(1) of the Local Law, only certain materials can be used in constructing fences on residential lots. The prosecution noted that the materials listed did not include shade cloth or any of the other materials used by the appellants.
[8] ts 12 February 2019, 3.
In relation to the appellants' argument that the City did not have the power to issue a notice under the Local Law, the prosecution referred the learned magistrate to cl 5.1 of the Local Law and in particular cl 5.1(1), which refers to the City's power to give notices, and cl 5.1(2), which provides for a notice to be issued. Counsel submitted that the Local Law was made under the Local Government Act. Pursuant to s 46 and s 47 of the Interpretation Act 1984 (WA), the Local Law forms part of the Local Government Act. He contended that cl 5.1(1) was simply a statement of the law and cl 5.1(2) set out the City's power to issue a notice.
Counsel referred her Honour to the maximum penalty for each charge, namely $5,000 with a daily penalty of $500. Counsel noted that the prosecution period covered a period of 78 days. He submitted that a fine was a more appropriate penalty rather than a daily penalty and sought costs of $5,000 to be split between both matters. Counsel submitted that, in relation to sentencing, they were seeking something that provided some 'incentive' for the appellants to comply with the notice.[9]
Appellants' case at trial
[9] ts 12 February 2019, 5.
Whilst the appellants did not appear before the learned magistrate, it is clear that a Form 6 application had been lodged by the appellants on 27 September 2018.
This application requested that the court determine a question of law or procedure, pursuant to s 64 of the Criminal Procedure Act. The question of law that the appellants sought to be dealt with was the prosecution's lack of power to bring an action under the Local Government Act, either in issuing the notice of a breach, or commencing an action in respect of that notice.
In their communications with the court prior to the hearing on 12 February 2019, the appellants maintained the matter should be dealt with on the papers, as they met the requirements of s 66 of the Criminal Procedure Act. The Form 6 application was submitted as evidence of the questions of law to be determined by the learned magistrate.
In their submissions regarding the lack of power on the prosecution's part to bring the charges, and the absence of jurisdiction for the court to hear the matter, the appellants referred to s 76 of the Criminal Procedure Act. They contended that the matters should be permanently stayed and the appellants discharged from the charges.
Reasons of the learned magistrate
The magistrate commenced her reasons for decision by dealing with the objection as to jurisdiction. She accepted on the basis of the references to the local law made by the prosecution, that the City had jurisdiction to issue the notice.[10]
[10] ts 12 February 2019, 6.
Her Honour stated that the notice that had been issued should have been complied with. She accepted the statement of facts outlined by the prosecution and relied upon the photographs handed up in determining the fence structure was still present.
In sentencing the appellants, her Honour stated that she would not impose a daily penalty, and that costs would be split between the two appellants. Her Honour did not apply any discount to the sentence, as her Honour noted there was 'little remorse or change in behaviour' due to the structure remaining in place.[11] The learned magistrate noted that there was no prior offending by either appellant in regards to the City. She fined each of the appellants $1,000 and ordered that each pay costs of $2,500.
[11] ts 12 February 2019, 6.
Relevant legislation
Before turning to consider the grounds of appeal, it is convenient to set out the principal provisions of the relevant legislation that govern the issues raised in this appeal. This is because, at its heart, the appellants' complaint is that City did not have power to prosecute them for an issue concerning a dividing fence as a dividing fence is a civil matter and not a criminal matter.
In support of this contention, the appellants referred to a number of matters, including the Dividing Fences Act 1961 (WA). The Dividing Fences Act relates to the construction and repair of dividing fences. It sets out how disputes between neighbours concerning dividing fences are to be resolved, including the liability of each neighbour to contribute to the cost of the dividing fence.
Section 3 of the Dividing Fences Act provides that:
Nothing in this Act affects the provisions of the Land Administration Act 1997, the Local Government Act 1995, the Vermin Act 1918, or the Bush Fires Act 1954, and where any provision of those Acts is inconsistent with any provision of this Act the former provision, to the extent of the inconsistency, prevails.
The system of local governments is established by the constitution of Western Australia[12] and is governed by the Local Government Act.
[12] Constitution Act 1889 (WA), s 52 and s 53.
Part 3 of the Local Government Act sets out the functions of local government. Relevantly, it provides:
3.1. General function
(1)The general function of a local government is to provide for the good government of persons in its district.
(2)The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.
(3)A liberal approach is to be taken to the construction of the scope of the general function of a local government.
…
3.4. Functions may be legislative or executive
The general function of a local government includes legislative and executive functions.
3.5. Legislative power of local governments
(1)A local government may make local laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act.
(2)A local law made under this Act does not apply outside the local government's district unless it is made to apply outside the district under section 3.6.
(3)The power conferred on a local government by subsection (1) is in addition to any power to make local laws conferred on it by any other Act.
…
(4)Regulations may set out -
(a)matters about which, or purposes for which, local laws are not to be made; or
(b)kinds of local laws that are not to be made,
and a local government cannot make a local law about such a matter, or for such a purpose or of such a kind.
…
3.10. Creating offences and prescribing penalties
(1)A local law made under this Act may provide that contravention of a provision of the local law is an offence, and may provide for the offence to be punishable on conviction by a penalty not exceeding a fine of $5,000.
(2)If the offence is of a continuing nature, the local law may make the person liable to a further penalty not exceeding a fine of $500 in respect of each day or part of a day during which the offence has continued.
(3)The local law may provide for the imposition of a minimum penalty for the offence.
(4)The level of the penalty may be related to —
(a)the circumstances or extent of the offence;
(b)whether the offender has committed previous offences and, if so, the number of previous offences that the offender has committed.
[(5)deleted]
(6)A local law made under this Act may specify the method and the means by which any fines imposed are to be paid and collected, or recovered.
3.11. Subdivision applies to local laws made under any Act
This Subdivision applies to local laws made under this Act and the procedure for making them and, unless a contrary intention appears in that other Act, to local laws made under any other Act, and the procedure for making them.
…
3.14. Commencement of local laws
(1)Unless it is made under section 3.17, a local law comes into operation on the 14th day after the day on which it is published in the Gazette or on such later day as may be specified in the local law.
(2)A local law made under section 3.17 comes into operation on the day on which it is published in the Gazette or on such later day as may be specified in the local law.
That is, under pt 3 of the Local Government Act, the City has legislative power to make local laws and can, by the local laws, create offences which are punishable on conviction by the imposition of fines and daily penalties.
Division 2 of pt 9 of the Local Government Act is headed 'Enforcement and Legal Proceedings'. Subdivision 2 of pt 9 div 2 contains s 9.15 ‑ s 9.22 and is headed 'Infringement notices'. The effect of these provisions is that an authorised person may issue an infringement notice for offences that are 'prescribed' under a local law, where the authorised person has reason to believe that a person has committed a prescribed offence. If the person does not want to be prosecuted for the offence, they can pay the amount specified in the infringement notice.
At the trial, the respondent referred the learned magistrate to s 46 and s 47 of the Interpretation Act 1984 (WA). These sections relevantly provide:
46.Reference to written law includes reference to subsidiary legislation made under it
(1) A reference in a written law to a written law shall be construed so as to include a reference to any subsidiary legislation made under that written law.
(1a) An example of the operation of subsection (1) is that a reference in an Act to “this Act” includes a reference to any subsidiary legislation made under the Act.
…
47. Acts done under subsidiary legislation deemed done under Act
Any act done under subsidiary legislation shall be deemed to be done under the written law under which the subsidiary legislation was made.
'Written law' is defined in the Interpretation Act, s 5 as all Acts and subsidiary legislation for the time being in force. 'Act' is defined to include any Act or Ordinance passed by the Parliament of Western Australia and 'subsidiary legislation' includes any local law made under any written law and having legislative effect.
The Local Law was published in the Government Gazette on 12 March 2009 and commenced from 27 March 2009.[13]
[13] Local Law, cl 1.2.
On its terms, the Local Law is stated to be made 'under the powers conferred by the Local Government Act 1995'. Its purpose is to regulate fencing throughout the City district.
Part 3 of the Local Law regulates the materials that may be used to construct a fence and how they are to be maintained. Clause 3.1 specifies that fences constructed within the City are only to comprise of the materials listed in sch 1 or sch 2, or any other material approved by the City in writing. Schedule 1 applies to those fences constructed on residential lots, while sch 2 applies to commercial and industrial lots. Under sch 1, a 'sufficient fence' is constructed of timber, corrugated pressed cement or steel sheeting, brick, stone or concrete, or be a composite of a number of specified materials.
Part 5 of the Local Law deals with enforcement. Clause 5.1 relevantly provides that:
(1)The City's powers to give notices, and take action in respect of notices, are contained in the Local Government Act 1995.
(2)If, in the opinion of the City, a person has breached a provision of this local law, the City may give to that person a written notice requiring him or her to remedy that breach before the date specified in the notice.
Clause 5.2 is entitled 'Offences' and provides that:
(1)A person who fails to comply with a notice under clause 5.1, or contravenes any provision of this local law commits an offence.
(2)A person who commits an offence under this local law is liable, on conviction to a penalty not exceeding $5000 and, if the offence is of a continuing nature, an additional penalty not exceeding $500 for each day or part of a day during which the offence has continued.
Disposition of Appeal
Grounds 1 and 2
Grounds 1 and 2 overlap one another. The appellants contend that the learned magistrate erred in not pressing the City to state specifically where their power to issue breach notices under the Local Government Act originated from and that this power was not available to the City.
The appellants submit that the learned magistrate lacked jurisdiction to hear the matter as the City did not have the power to commence the prosecution under the Local Government Act. They contend it was incumbent on the magistrate to identify which provision of the Local Government Act gave the City this power, rather than stating that she accepted there was jurisdiction for the notice to have been sent.[14] The appellants also submit that the magistrate erred in law in failing to take into account that the Local Government Act contains no set provision giving the City power to issue a notice of breach in respect to dividing fences.
[14] ts 12 February 2019, 6.
At the hearing before me on 27 November 2019, Mrs Kezic referred to sch 3.1 of the Local Government Act which sets out various matters which a notice may require to be done under div 1. Mrs Kezic stated that there was no specific clause that referred to notices issued in respect of fences on private property.[15] On this basis, she contended the respondent did not have power to issue the notice. She reiterated on a number of occasions that issues concerning dividing fences were civil matters and not criminal matters.
[15] ts 27 November 2019, 9 - 10. Mrs Kezic noted that cl 12 referred to the modification or repair of 'an unsightly, dilapidated or dangerous fence or gate' that separated land from local government property, which here was not applicable as between two private properties.
Counsel for the respondent submitted that sch 3.1 was not relevant to the issues before the court. He contended that this schedule contained separate notice obligations and did not limit the City's powers to issue notices. The respondent confirmed that the respondent's power to issue the notice was contained in cl 5.1 of the Local Law.
Under s 3.5(1) of the Local Government Act, a local government may make local laws prescribing all matters that are necessary or convenient for it to perform any of its functions under the Act. The Court of Appeal discussed this power in Tallott v City of Stirling[16] as follows:
By s 3.5(1), a local government may make local laws under the Local Government Act prescribing all matters that are 'necessary or convenient … for it to perform any of its functions' under the Local Government Act. A power of that kind was considered in Morton v Union Steamship Co of New Zealand Ltd:
'A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.
In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out that policy by specific regulation, a power to make regulations may have a wide ambit. Its ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed. In the case of a statute of the latter kind an incidental power of the description contained in s 164 cannot be supposed to express an intention that the Governor-General should deal with the same matters in another way.' (emphasis added)
Also, in Shanahan v Scott the court said that such a power will not support attempts 'to widen the purposes of the Act' or to add 'new and different means' of carrying out the legislative purpose or to 'depart from or vary' the legislative plan.
Under the Local Government Act, the provision of good government for persons in its district is the general function of a local government, and a liberal approach is to be taken to the construction of the scope of the 'general function': s 3.1(1) and s 3.1(3) of the Local Government Act. (citations omitted).
[16] Tallott v City of Stirling [2017] WASCA 126 [188] - [190].
The effect of s 3.5(1) of the Local Government Act is that the City has broad powers to make local laws. This power includes the power to make laws concerning the regulation of fences within the City. The power to regulate involves 'the continued existence of that subject matter but is not inconsistent with an entire prohibition of some of its occasional incidents.'[17] That is, the City had the legislative power under s 3.5(1) of the Local Government Act to make laws which prohibit certain matters associated with fences within the City, including what matters can comprise fencing materials.
[17] Shire of Tungamah v Merrett [1912] HCA 63; (1912) 15 CLR 407, 423; see also Hughes & Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127, 161 and Tallott v City of Stirling [205].
Turning then to the issue of the notice and the creation of the offence, cl 5.1 to cl 5.3 of the Local Law, which create the offence of which the appellants were charged, operate consistently with s 9.15 to s 9.23 of the Local Government Act. These sections recognise that an offence against a local law can be 'prescribed' under a local law. Under cl 5.3 of the Local Law, an offence against the Local Law is a 'prescribed offence' for the purposes of s 9.16(1) of the Local Government Act. As a result, an infringement notice can be issued under s 9.16 of the Local Government Act if an authorised person has reason to believe that the prescribed offence in cl 5.2 of the Local Law has been committed.
For these reasons, I consider that the respondent had the power to issue the infringement notices to the appellants on 10 January 2018 under the Local Law and to subsequently charge them under the Local Law on 30 May 2018 with the offence of failing to comply with the infringement notice. While neither counsel who appeared for the respondent at trial nor the learned magistrate referred to the specific sections of the Local Government Act, I do not consider that this gives rise to any appellable error.
Accordingly, I consider that grounds 1 and 2 of the appeal have no merit and should be dismissed.
Ground 3
Ground 3 of the appeal concerns the Form 6 application filed by the appellants in the Magistrates Court on 27 September 2018. The appellants contend that the failure of the magistrate to deal with this application on 12 February 2019 resulted in two wrongful convictions and was a denial of procedural fairness.
A Form 6 allows an application to be made in or after a prosecution for the use of a video or audio link, a change of date for the hearing or 'other'. On the form submitted by the appellants, they marked 'other' and attached an annexure detailing their application, namely, that the matter be stayed permanently as a result of the proceedings being unlawful and an abuse of process. The copy of the application that was filed in this court contained additional annexures to the original Form 6 application, being correspondence the appellants received from several local government employees and officials.
Mrs Kezic specifically referred to correspondence she received on 10 January 2019 stating that the Form 6 application would be addressed at the hearing before the magistrate on 12 February 2019. The appellants contended that at this hearing, no reference was made to the application and that the focus was solely on the photographs of the fence.[18]
[18] ts 27 November 2019, 34 - 35.
Counsel for the respondent accepted at the hearing before me that the Form 6 application had not been dealt with by the learned magistrate at the hearing on 12 February 2019.[19] As a result, I ordered that the parties file short supplementary submissions within 14 days of the hearing limited to reg 20 of the Criminal Procedure Regulations 2005 (WA).
[19] ts 27 November 2019, 50 - 51.
Regulation 20 of the Criminal Procedure Regulations relevantly provides:
20.Applications, non-appearance at hearing of
If a court is satisfied that a party who does not appear at the hearing of an application has had adequate notice of the hearing, the court may deal with the application in the absence of the party.
The appellants submitted that the use of the word 'may' in reg 20 inferred that it was within the learned magistrate's discretion as to whether or not the application was dealt with in the absence of the appellants.[20]
[20] Appellants' supplementary submissions filed 10 December 2019 [2].
The respondent submitted that the appellants had adequate notice that the Form 6 application would be heard at the 12 February 2019 hearing before the learned magistrate. Specifically, counsel referred to Mr Kezic's appearance on 12 October 2018 where the application was adjourned to the hearing on 12 February 2019. The respondent also referred to the references by the magistrate at this final hearing to correspondence the court had with the appellants in respect of the hearing on 12 February 2019 as demonstrating they had 'adequate notice' of the hearing. The respondent contended that in continuing to hear the matter in the absence of the appellants, the magistrate implicitly dealt with and dismissed the appellants' application.[21]
[21] Respondent's supplementary submissions filed 10 December 2019 [4] - [5].
It is clear from reading the transcript that the learned magistrate did not expressly consider or dismiss the appellants' application. However, in my view, I consider that it is implicit from a fair reading of the transcript that her Honour considered and rejected the application.
The application by the appellants in their Form 6 application was that the prosecution was unlawful and should be stayed permanently. The basis for this application was the matters raised by the appellants in grounds 1 and 2 of the appeal, which I have dealt with above.
In my view, in continuing to hear the respondent's application and in referring to the 'references to the local law and their application'[22] in her reasons for decision as the basis upon which she considered she had jurisdiction to deal with the City's application, her Honour implicitly dismissed the appellants' application.
[22] ts 12 February 2019, 5 - 6.
Even if I am wrong in this regard and the learned magistrate failed to deal with the appellants' application, this does not, of itself, mean that the convictions should be set aside. Unless the failure to deal with the application (if this is what occurred) has resulted in a substantial miscarriage of justice, the appeal will be dismissed.[23]
[23] Criminal Appeals Act, s 14(2).
In my view, any failure to consider the application has not led to a substantial miscarriage of justice. I accept from the evidence before this court that the appellants had adequate notice of the hearing before the learned magistrate on 12 February 2019. For that reason, on their non-attendance the learned magistrate could consider and deal with the application in their absence.[24] Had her Honour considered the application, for the reasons set out above in respect of grounds 1 and 2, she would have dismissed the application. For this reason, I do not consider that any failure to consider the application has led to a substantial miscarriage of justice.
Ground 4
[24] Criminal Procedure Act, s 55.
Ground 4 of the appeal concerns the assertion by the appellants that the matter should have been dealt with on the papers by the magistrate. This ground was advanced on the basis of their argument in grounds 1 and 2 that the charges were flawed and lacked jurisdiction to be heard.[25]
[25] Appellants' submissions filed 17 September 2019 [18] - [19].
At the hearing before me, the appellants stated that they 'were debating whether or not to persist with this ground because the respondent does have some substance in what they submit.'[26] However, Mrs Kezic continued to press that the appellants' request that the matter be dealt with on the papers related to their Form 6 application.
[26] ts 27 November 2019, 39.
At the hearing before me, counsel for the respondent submitted that:[27]
[T]he appellants, to an extent, have conceded that there wasn't the requisite consent by the parties to hear the charges on the papers and in those circumstances, it wasn't capable of being dealt with in that way.
[27] ts 27 November 2019, 53.
In my view, this ground of appeal mistakes the 'right' of an accused to have a matter dealt with on the papers.
Section 66 of the Criminal Procedure Act specifically provides that:
66. Trial on the papers
(1)A court may -
(a) if a plea of not guilty is entered to a charge, determine the charge; or
(b) if a plea referred to in section 126(1)(a), (b) or (c) is entered to a charge, decide the issues raised by the plea, on the evidence contained in documents lodged with the court by the prosecutor and the accused if —
(c) the accused requests the court to do so; and
(d) the prosecutor consents to the court doing so; and
(e) both the accused and the prosecutor agree on which of the documents they have lodged the court is to consider to determine the charge or to decide the issues; and
(f) the court is satisfied that it is in the interests of justice to do so.
That is, it is only where the accused requests a hearing on the papers, the prosecutor consents and the parties agree the documents that should be lodged with the court that the court can consider whether it is in the interests of justice to determine the matter on the papers.
In this case, the prosecution had not consented to the matter being determined on the papers as required under s 66(1)(d), Criminal Procedure Act nor had the parties agreed which documents the court should consider in determining the charges against the appellants.[28]
[28] Criminal Proceeding Act, s 66(1)(e).
As the matters in s 66(1)(d) and (e) of the Criminal Procedure Act were not satisfied, the jurisdiction for the learned magistrate to consider the matter on the papers had not been enlivened. There is no merit in this ground of appeal.
Ground 5
Ground 5 of the appeal concerns the penalty that was imposed by the learned magistrate.
Initially, in their written submissions, the appellants contended that the learned magistrate erred in imposing a fine and costs against the appellants as the matter is a civil dispute regarding a dividing fence. However, at the hearing before me, Mrs Kezic submitted that the appellants should not have been charged due to their innocence and that the dispute was not a criminal matter:[29]
And how can penalties and costs be imposed on appellants when the respondent had no legal authority to bring the prosecution in the first instance? Then another aspect of it is how did the magistrate come up with those figures, where she had no other case law to guide herself on discretionary matters concerning costs as well? But our argument is that she didn't have the power – the jurisdiction to hear it in the first place.
[29] ts 27 November 2019, 40.
In support of this oral submission, the appellants referred me to Crocker v Vinicombe which discussed the lack of authority regarding the imposition of a period of disqualification under s 64AA of the Road Traffic Act 1974 (WA). As a result, the guidance that could be derived from other similar provisions was limited due to the difference in offending and the nature of the circumstances of the offenders and the offending.[30] The appellants submitted that the same principles applied in this case as there was a lack of clear authority on the penalty that should be applied.[31]
[30] Crocker v Vinicombe [2019] WASC 416 [71].
[31] ts 27 November 2019, 40 - 41.
The respondent noted that ground 5 of the amended grounds of appeal referred to the imposition of the penalties and costs by the magistrate as being unfair and unjust on the basis the prosecution charge was a false prosecution and did not refer to the calculation of costs as advanced by the appellants in their oral submissions. In addressing the expanded ground of appeal, counsel for the respondent submitted that the penalty of $1,000 imposed on each of the appellants needed to be considered against a cumulative maximum penalty of $44,000.[32] This maximum penalty was calculated on the basis of a daily penalty for the 78 days set out in the prosecution notice.
[32] ts 27 November 2019, 54.
Counsel for the respondent accepted that the magistrate had made it clear that she would not entertain a submission on a daily penalty. In this case, the maximum fine that could be imposed was $5,000 for each charge. On this basis, counsel submitted that it could not be said that the penalty of $1,000 (or 20% of the maximum) was excessive.
In respect of costs, the respondent submitted that under the relevant costs determination, costs of $7,700 were allowed for a half day hearing (excluding prior appearances). On this basis, he contended that a costs order of $5,000, divided between the appellants, was not excessive.[33]
[33] ts 27 November 2019, 55.
At the hearing before me, I raised with the appellants the alteration of ground 5 from the ground in the amended appeal to a ground that the penalty imposed was manifestly excessive. The appellants elected not to seek leave to amend their ground of appeal and to leave it as set out in the amended grounds of appeal.[34]
[34] ts 27 November 2019, 57, 65, 67.
For the reasons set out in relation to grounds 1 and 2 of the appeal, I consider that the learned magistrate had the power, under cl 5.2(2) of the Local Law, to impose a penalty not exceeding $5,000 on each of the appellants. On convicting the appellants of the offences with which they were charged, her Honour had power to order that the appellants pay the respondent's costs.[35] Under the Legal Profession (Magistrates Court) (Criminal) Determination 2018 (WA), the maximum amount of costs that could be ordered was $7,744 for the trial (excluding the two previous appearances).
[35] Criminal Procedure Act, s 67.
In my view, this ground of appeal has no merit.
Conclusion
For the reasons stated above, none of grounds 1, 2, 4 and 5 of the appeal has any reasonable prospect of success. Accordingly, in respect of these grounds both the applications for leave to appeal are refused and the appeals dismissed.
In respect of ground 3, while I would grant leave to appeal on this ground, the appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill26 JUNE 2020
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