Koh v City of Joondalup
[2014] WASC 396
•29 OCTOBER 2014
KOH -v- CITY OF JOONDALUP [2014] WASC 396
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 396 | |
| Case No: | SJA:1111/2013 | ON THE PAPERS | |
| Coram: | BEECH J | 29/10/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BOON YEW KOH CITY OF JOONDALUP |
Catchwords: | Criminal law and procedure Charge of failing to clear fire-breaks in accordance with notice Whether any error in magistrate's decision Turns on own facts |
Legislation: | Bush Fires Act 1954 (WA), s 33 |
Case References: | Koh v City of Joondalup [2012] WASC 493 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF JOONDALUP
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B GLUESTEIN
File No : JO 1756 of 2013
Catchwords:
Criminal law and procedure - Charge of failing to clear fire-breaks in accordance with notice - Whether any error in magistrate's decision - Turns on own facts
Legislation:
Bush Fires Act 1954 (WA), s 33
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Koh v City of Joondalup [2012] WASC 493
1 BEECH J: The appellant, Mr Koh, appeals against his conviction of an offence of failing to comply with a notice issued by the City of Joondalup requiring him to clear a fire-break, contrary to s 33(3) of the Bush Fires Act 1954 (WA).
2 For the reasons that follow, the appeal must be dismissed.
The charge
3 Mr Koh was charged that as an owner of land situated at 19 Courageous Place, Ocean Reef (the Property), he failed to clear a fire-break on the Property in accordance with the requisitions of a notice given to him. The prosecution notice identified the charge as one under s 33(3) of the Bush Fires Act 1954 (WA).
The legislative provisions
4 Section 33 of the Bush Fires Act provides as follows:
33. Local government may require occupier of land to plough or clear fire-break
(1) Subject to subsection (2) a local government at any time, and from time to time, may, and if so required by the Minister shall, as a measure for preventing the outbreak of a bush fire, or for preventing the spread or extension of a bush fire which may occur, give notice in writing to an owner or occupier of land situate within the district of the local government or shall give notice to all owners or occupiers of land in its district by publishing a notice in the Government Gazette and in a newspaper circulating in the area requiring him or them as the case may be within a time specified in the notice to do or to commence to do at a time so specified all or any of the following things -
(a) to plough, cultivate, scarify, burn or otherwise clear upon the land fire-breaks in such manner, at such places, of such dimensions, and to such number, and whether in parallel or otherwise, as the local government may and is hereby empowered to determine and as are specified in the notice, and thereafter to maintain the fire-breaks clear of inflammable matter;
(b) to act as and when specified in the notice with respect to anything which is upon the land, and which in the opinion of the local government or its duly authorised officer, is or is likely to be conducive to the outbreak of a bush fire or the spread or extension of a bush fire,
and the notice may require the owner or occupier to do so -
(c) as a separate operation, or in co-ordination with any other person, carrying out a similar operation on adjoining or neighbouring land; and
(d) in any event, to the satisfaction of either the local government or its duly authorised officer, according to which of them is specified in the notice.
(2) A notice in writing under subsection (1) may be given to an owner or occupier of land by posting it to him at his last postal address known to the local government and may be given to an owner of land by posting it to him at the address shown in the rate record kept by the local government pursuant to the Local Government Act 1995, as his address for the service of rate notices.
(2a) The provisions of subsection (2) are in addition to and not in derogation of those of sections 75 and 76 of the Interpretation Act 1984.
(3) The owner or occupier of land to whom a notice has been given under subsection (1) and who fails or neglects in any respect duly to comply with the requisitions of the notice is guilty of an offence. Penalty: $5 000.
(4) Where an owner or occupier of land who has received notice under subsection (1) fails or neglects to comply with the requisitions of the notice within the time specified in the notice -
(a) the local government may direct its bush fire control officer, or any other officer of the local government, to enter upon the land of the owner or occupier and to carry out the requisitions of the notice which have not been complied with; and
(b) the bush fire control officer or other officer may, in pursuance of the direction, enter upon the land of the owner or occupier with such servants, workmen, or contractors, and with such vehicles, machinery, and appliances as he deems fit, and may do such acts, matters and things as may be necessary to carry out the requisitions of the notice.
(5) The amount of any costs and expenses incurred by the bush fire control officer or other officer in doing the acts, matters, or things provided for in subsection (4) -
(a) shall be ascertained and fixed by the local government and a certificate signed by the mayor or president of the local government shall be prima facie evidence of the amount; and
(b) may be recovered by the local government in any court of competent jurisdiction as a debt due from the owner or occupier of land to the local government.
(5a) A local government may make local laws in accordance with subdivision 2 of Division 2 of Part 3 of the Local Government Act 1995 -
(a) requiring owners and occupiers of land in its district to clear fire-breaks in such manner, at such places, at such times, of such dimensions and to such number, and whether in parallel or otherwise, as are specified in the local laws and to maintain the fire-breaks clear of inflammable matter;
(b) providing that things required by the local laws to be done shall be done to the satisfaction of the local government or its duly authorised officer.
(5b) Where an owner or occupier of land fails or neglects in any respect to comply with the requirements of local laws made under subsection (5a) the provisions of subsections (3), (4) and (5) apply mutatis mutandis as if those requirements were the requisitions of a notice given under subsection (1).
(5c) Nothing in subsection (5a) affects the power of a local government to give notice under subsection (1) nor its duty to do so if so required by the Minister.
(5d) Where the provisions of local laws made under subsection (5a) are inconsistent with those of a notice given under subsection (1) or under section 34 or 35, the provisions of that notice shall, to the extent of the inconsistency, prevail.
(6) A local government may, at the request of the owner or occupier of land within its district, carry out on the land, at the expense of the owner or occupier, any works for the removal or abatement of a fire danger, and the amount of the expense, if not paid on demand, may be recovered from the owner or occupier by the local government in a court of competent jurisdiction as a debt due from the owner or occupier to the local government.
(7) Nothing in this section authorises a local government -
(a) to set fire to the bush, or to require an owner or occupier of land to set fire to the bush, contrary to the provisions of section 17; or
(b) to make local laws authorising or requiring bush to be set on fire contrary to the provisions of section 17.
(8) Any amount recoverable by a local government under this section as a debt due from the owner or occupier of land is, until paid in full -
(a) a debt due from each subsequent owner in succession; and
(b) a charge against the land with the same consequences as if it were a charge under the Local Government Act 1995 for unpaid rates; and
(c) recoverable by the local government in the same manner as rates imposed in respect of the land are recoverable under that Act.
(9) In this section -
owner or occupier of land includes a prescribed department of the Public Service that occupies land or a prescribed State agency or instrumentality that owns or occupies land.
(1) by the giving by the local government of notice in writing posted to the owner's last known postal address;2
(2) by notice to all owners published in the Government Gazette and in a newspaper circulating in the area;3 or
(3) by local laws made under the Bush Fires Act.4
6 Both the language of the prosecution notice and its reference to s 33(3) make clear that the substance of the charge was the failure to comply with the obligation created by the giving of a notice to the owner.
The trial
7 As opened, the prosecution case was that the City of Joondalup (the City) issued a written notice dated 17 January 2013 to Mr Koh under s 33(1) of the Bush Fires Act directing him to clear a fire-break on his property on or before 1 February 2013 in accordance with the requisitions of that notice, including the requirements specified in cl 6 of the City of Joondalup's Bush Fire Prevention and Control Local Law 1998.5
8 In the course of the prosecutor's opening, the learned magistrate raised with the prosecutor questions about the wording of the prosecution notice. His Honour raised a question as to whether the notice was issued under s 33(1) or s 33(5a). The prosecutor said, in effect, that the notice given by the letter of 17 January 2013 incorporated cl 6 of the Local Law in stipulating what was required to be done.6
9 The Bush Fire Prevention and Control Local Law 1998 was tendered as exhibit 1. Clause 6 of the Local Law requires all owners and occupiers of land within the district to establish and maintain during the fire-break period fire-breaks of the following dimensions relevantly:
(a) two metres wide immediately inside all external boundaries of parcels of land 2,000 square metres or under.
10 At trial it was not in dispute that Mr Koh's property is less than 2,000 sqm, being an area of 1,721 sqm.7
11 The prosecution led evidence from Mr Lowenhoff, an officer of the City.
12 Through Mr Lowenhoff, the prosecution tendered a number of photographs.
13 The first was an aerial photograph dated 10 July 2013 said by Mr Lowenhoff to show the Property, and some neighbouring properties.8 Mr Lowenhoff's evidence was that the photograph is computer generated, upon request, and that he requested this photograph.9
14 Exhibit 7 is a photograph of the Property taken from the lower corner of the property. Mr Lowenhoff said that he took the photograph and that it showed that there was not a two metre fire-break along the inside of the property and that in some places the areas of dry grass were up to 300 mm in height and other vegetation was up to two or three metres in height.10
15 Mr Koh said that he objected to the photograph. His Honour ruled that as the witness had said that he took it, the photograph would be admitted in evidence, but that Mr Koh could ask questions in relation to it in the course of cross-examination.
16 Mr Lowenhoff said that the next photograph, which became exhibit 8, was taken on the same day at about the same time showing other vegetation and the absence of a fire-break.11 Mr Lowenhoff also took this photograph.
17 Exhibits 9 and 10 were all taken by Mr Lowenhoff which showed other parts of the property with dry vegetation and the absence of a fire-break.12
18 The same is true of exhibits 11 and 12.13
19 Mr Lowenhoff also gave evidence that the City had sent a letter dated 17 January 2013 to Mr Koh.14
20 The letter was in the following terms:
BUSH FIRE PREVENTION LOCAL LAW (1998), REQUIREMENT TO INSTALL FIREBREAKS.
A recent inspection of your property situated at 19 Courageous Place, Ocean Reef ('the land') by one of the City's Fire Control Officers noted that you had not complied with the requirements of our letter to you dated 9 November 2012.
To be clear, all owners and occupiers of land situated within the City of Joondalup (not just owners of vacant land) must establish and maintain firebreaks on such land during the period commencing 31 October and ending 31 May in the following year ('the Firebreak Period') in accordance with the requirements prescribed in the City of Joondalup's Bush Fire Prevention and Control Local Law (1998) ('the Local Law').
You can download a copy of the Local Law from the City of Joondalup website at:
Laws/Bushfire Prevention and Control Local Law 1998.pdf
Clause 6 of the Local La requires firebreaks to be cleared before the commencement of the Firebreak Period and maintained during the Firebreak Period in accordance with the following requirements:
• a continuous firebreak no less than 2 metres wide, immediately inside all external boundaries of parcels of land with an area of 2,000 square metres or less;
• a continuous firebreak no less than 3 metres wide immediately inside all external boundaries of parcels of land with an area of more than 2,000 square metres;
• a continuous firebreak no less than 10 metres wide immediately surrounding sites being used to store flammable liquids;
• a continuous firebreak no less than 3 metres wide immediately surrounding all buildings situated on the land.
All inflammable material (including vegetation) must be removed from that area of the Land which must be cleared as a firebreak.
The following methods are permissible for the clearing of inflammable material from firebreaks:
• the vegetation must be cut to a maximum height of 20mm by either slashing or mowing the vegetation.
• Applying such chemicals such as herbicides to kill the vegetation. Please note that the use of chemicals is subject to restrictions. Please check with the City's Ranger Services before applying any chemicals to clear firebreaks.
The City notes that you have continued to allow a substantial and significant build up of vegetation on the Land. The City is concerned that this poses a heightened risk of fire to the Land as well as neighbouring properties.
This letter constitutes a final notice to you to clear a firebreak on the Land in accordance with the requirements noted above.
TAKE NOTICE that if you do not clear a firebreak on the Land in accordance with the requirements specified in the Local Law and this Notice by Friday, 1 February 2013, the City may prosecute you for contravention of Section 33(3) of the Bush Fires Act (1954) WA.
TAKE FURTHER NOTICE that if, by reason of your failure to comply with this Notice and the Local Law by Friday, 1 February 2013, it is necessary for the City to enter onto the Land and carry out the works required by this Notice and the Local Law, the City may commence legal proceedings against you in the Magistrates Court to recover from you the costs of carrying out the said works as a debt due to the City.
21 In the course of cross-examination, Mr Lowenhoff said that he saw vegetation that was up to 300 or 400 mm in height, and that that was reflected in the photographs.15
22 In the course of cross-examination, Mr Koh put to Mr Lowenhoff that the Property had had fire-breaks at the relevant time. Mr Lowenhoff denied that contention when put to him, and gave evidence consistent with his evidence-in-chief.16
23 Mr Koh gave evidence in his defence, and called another witness.
24 Much of Mr Koh's evidence-in-chief was taken up with background matters that did not relate to the charge the subject of this appeal. Mr Koh questioned whether it was a requirement for every householder to create a fire-break, saying that he had built his home on a natural landscape and wanted to be close to nature. He raised questions of whether he was being discriminated against.17
25 In cross-examination, Mr Koh accepted that he had received the notice of 17 January 2013.18
26 Mr Koh said that he was under the impression that the notice required him to clear a fire-break on the western boundary of the Property. Mr Koh accepted that in fact the notice said that he must clear a fire-break on the inside of all of the external boundaries.19
27 Mr Koh said that when he got the letter of 17 January 2013 he cleared the western boundary.20 He did not give any specific evidence about what he had done in relation to the other boundaries, apart from referring to removing some trees.21
28 In cross-examination, Mr Koh accepted that the photographs showed dry grass more than 20 mm in height, such that there was not a fire-break.22
29 Mr Koh also called one of his neighbours, Mr Stephen Fairbairn. Mr Fairbairn said that he did not consider Mr Koh's property to be a fire threat to him.23 At that stage his Honour rightly pointed out to Mr Koh that whether his neighbour felt that the property was a fire threat was irrelevant to the charge.24
The learned magistrate's reasons
30 The learned magistrate delivered oral reasons for decision.25 I would summarise his Honour's reasons as follows:
(1) although the prosecution notice refers to s 33(3) of the Bush Fires Act, the charge and the letter of 17 January 2013 refer to the Local Laws, so 'by necessary inference' the complaint also refers to s 33(5)(b);
(2) the Local Laws, exhibit 1, set out the requirement to install fire-breaks on properties within the City of Joondalup;
(3) there was no issue that Mr Koh owns the Property, that the Property is within the City of Joondalup and that Mr Koh received the letter of 17 January 2013;26
(4) the photographs being exhibits 7 to 12 demonstrate that Mr Koh did not attempt to clear a fire-break, apart from on the western boundary, and made no effort to clear a fire-break on the southern side of the Property;27
(5) the photographs and the evidence of council officer Lowenhoff demonstrate that the Property has natural vegetation more than 20 mm in height;
(6) his Honour correctly set out the principles regarding onus and standard of proof;28
(7) it was difficult to identify what the defence was;
(8) the photographic exhibits demonstrate that on 4 February 2013 Mr Koh had failed to comply with the requirements of the notice, being the letter of 17 January 2013, exhibit 13; and
(9) Mr Koh failed to comply with the Local Law and, in particular, failed to comply with the notice dated 17 January 2013 and, consequently, his Honour was satisfied of the guilt of Mr Koh.
The course of the appeal
31 The appeal was listed for hearing on 13 May 2014.
32 When the matter came on for hearing, Mr Koh advised that he sought an adjournment, because he was seriously ill. He also advised that he wished to make further written submissions and that he would then be content for the appeal to be determined on the papers.
33 In those circumstances, the appeal was adjourned and directions were made for the exchange of further written submissions.
34 Mr Koh has not filed any further written submissions. Further contact with Mr Koh has proved difficult.
35 In the circumstances, it is appropriate to determine the appeal based on the material before the court.
The disposition of the appeal
36 The appeal notice contains two grounds:
1. The magistrate erred in allowing into evidence which was properly the subject of expert evidence and/or a contravention of the best evidence rule.
2. The magistrate erred in the weight placed on the evidence such that the conviction is unsafe or unsound.
37 Mr Koh's written submissions in support of the appeal set out ten propositions, under the heading of 'Grounds of Appeal'. Whether these are said to elucidate the two grounds of appeal in the notice of appeal, or are asserted as distinct grounds of appeal, is not entirely clear. In any event, in my opinion, whichever way the matter is approached, for the reasons which follow, there is no merit in the appeal.
38 I will consider each of Mr Koh's contentions in his written submissions in turn.
39 First, Mr Koh alleges that the magistrate erred by allowing into evidence the photographs presented by the prosecution which are hearsay and should have been the subject of expert evidence.
40 The admission of the photographs did not infringe the hearsay rule. In the course of his evidence, Mr Lowenhoff said that he had taken the photographs that are exhibits 7 to 12.29 Mr Lowenhoff's evidence was that the other photograph, exhibit 6, was a computer generated aerial photograph. Based on Mr Lowenhoff's evidence, that photograph was admissible under s 79(C) of the Evidence Act 1906 (WA).
41 The photographs were not in the nature of expert evidence, and nothing in their admission into evidence infringed any rule about expert evidence.
42 Mr Koh asserts that the prosecution failed to prove beyond reasonable doubt whether the fire-break had not been installed on the appellant's property. This appears to elucidate ground 2 of the grounds of appeal in the notice of appeal. I reject this contention. It was well open to the magistrate to find, as he did, that the prosecution had proven beyond reasonable doubt that Mr Koh failed to clear a fire-break on the property in accordance with the requirements set out in the notice. Among other things, the following evidence supported that finding:
(a) the appellant acknowledged that he was the owner of the property and that the area of the property was 1,721 sqm;30
(b) the appellant acknowledged that he had received the notice of 17 January 2013;31
(c) the appellant acknowledged that the notice required him to clear a fire-break along the inside boundaries of the property;32
(d) it was clear from the photographs, and from Mr Lowenhoff's evidence, that there was no continuous fire-break, namely an area two metres in width clear of inflammable material with no inflammable vegetation above a maximum height of 20 mm, that ran along the external boundaries of the property;33
(e) the appellant did not lead any evidence to contradict those matters; and
(f) to the contrary, the appellant conceded under cross-examination that the natural vegetation on the property was inflammable;34 and that he had not cleared a fire-break on all relevant parts of the property.35
43 The appellant contends that no infringement notice had been issued to him, contravening s 8, s 9 and s 10 of the Criminal Procedure Act 2004 (WA). There is no merit in this complaint. It is true that the respondent did not issue any infringement notice in respect of this offence. The respondent was not obliged to do so. Although by s 59A of the Bush Fires Act, the respondent could have issued an infringement notice, nothing in that section or any other provision of the Bush Fires Act required that it do so.
44 Next, the appellant contends that the letter of 17 January 2013 did not constitute proper notice. There is no substance in that complaint. The letter of 17 January 2013 satisfied all of the requirements of a notice issued under s 33(1)(a). A notice under s 33(1)(a) must specify which of the things set out in s 33(1)(a) are required to be done and must specify time within which those things must be done. The letter of 17 January 2013 required the appellant to do the following by 1 February 2013:
(a) clear a continuous fire-break no less than two metres wide immediately inside all of the external boundaries of the property;
(b) remove all inflammable material (including vegetation) from that area of the property; and
(c) ensure that all inflammable vegetation inside the area of the fire-break is trimmed or cut to a maximum height of 20 mm.
45 The letter of 17 January 2013 was given to the appellant in accordance with s 33(2) by posting it to him at his last known address of 19 Courageous Place, Ocean Reef.
46 The appellant complains that the prosecution failed to provide discovery. There was no obligation on the City to provide disclosure of evidential material in the circumstances of this case. This offence is a simple offence. Thus the prosecution was not obliged to provide disclosure of evidentiary material unless ordered to do so by the court under s 60(5)(b) of the Criminal Procedure Act. The appellant did not make any application for such an order, and no order was made by the court.
47 Further, it is to be noted that the respondent provided the appellant with a statement of material facts and colour copies of all the photographs to be relied on. The appellant could have no complaint as regards the evidentiary material available to him before his trial.
48 The appellant further contends that a letter of 16 September 2011 informed him that no fire-break was applicable if there was a building on the land. What was said in this letter, almost 18 months before the letter of 17 January 2013 the subject of the present charge, is not relevant to this appeal and cannot be used to challenge the magistrate's decision.
49 The appellant complained that the prosecution failed to exercise its powers under s 33(4)(a) and (b) of the Bush Fires Act. That section empowers a local government, here the City, to enter onto land and carry out the requisitions of a notice. It does not create any obligation on the part of a local government to do so. The fact that such powers are not exercised is not a defence to a charge against the owner of the land for failing to clear a fire-break in accordance with the requisitions of a notice issued under s 33(1).
50 Finally, the appellant contends that that the prosecution failed to establish whether the charge was under the Bush Fires Act or under cl 6 of the Local Law, and that the precise wording of the prosecution notice was unclear, and described by his Honour as 'a little clumsy'.36
51 As I have said, in the course of his reasons, the learned magistrate said that although the prosecution notice refers to s 33 of the Bush Fires Act, because the charge in the letter of 17 January 2013 refers to the Local Laws the complaint also refers, by necessary inference, to s 33(5b). In my view, the prosecution notice was correctly worded by reference to s 33(3); that is, the prosecution case relied on the appellant's failure to comply with the notice of 17 January 2013 that had been given under s 33(1). The fact that the notice of 17 January 2013 referred to the Local Law and incorporated its requirements does not detract from that. In my respectful view, insofar as his Honour said that by necessary inference the complaint also referred to s 33(5b), he was in error. However, nothing turns on this. The magistrate correctly asked whether he was satisfied beyond reasonable doubt that the appellant had failed to comply with the requirements of the notice of 17 January 2013. His affirmative answer to that question was amply justified by the evidence before him.
Conclusion
52 For these reasons I would not grant leave to appeal, and would dismiss the appeal.
1Koh v City of Joondalup [2012] WASC 493 [36].
2 Section 33(1).
3 Section 33(1).
4 Section 33(5a).
5 ts 28 August 2013, 3.
6 ts 28 August 2013, 8 - 9.
7 ts 28 August 2013, 13.
8 ts 28 August 2013, 13, exhibit 6.
9 ts 28 August 2013, 14.
10 ts 28 August 2013, 15.
11 ts 28 August 2013, 16.
12 ts 28 August 2013, 16 - 17.
13 ts 28 August 2013, 18 - 19.
14 ts 28 28 August 2013, 19 - 20.
15 ts 28 August 2013, 23.
16 See, for example, ts 28 August 2013, 24 - 25; see also ts 28 August 2013, 31.
17 ts 28 August 2013, 33 - 34.
18 ts 28 August 2013, 35.
19 ts 28 August 2013, 36.
20 ts 28 August 2013, 38.
21 ts 28 August 2013, 38.
22 ts 28 August 2013, 39.
23 ts 28 August 2013, 42.
24 ts 28 August 2013, 42.
25 ts 28 August 2013, 48 - 50.
26 ts 28 August 2013, 48.
27 ts 28 August 2013, 48 - 49.
28 ts 28 August 2013, 49.
29 ts 28 August 2013, 15 - 17.
30 ts 28 August 2013, 13, 33.
31 ts 28 August 2013, 35.
32 ts 28 August 2013, 36.
33 ts 28 August 2013, 48 - 49.
34 ts 28 August 2013, 37.
35 ts 28 August 2013, 39.
36 ts 28 August 2013, 8.
1