Koh v City of Joondalup

[2012] WASC 493

KOH -v- CITY OF JOONDALUP [2012] WASC 493

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 493
Published:	13/12/2012
Case No:	SJA:1077/2012	Heard:	11 DECEMBER 2012
Coram:	BEECH J	Delivered:	11/12/12
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal upheld
Category:	B
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Parties:	BOON YEW KOH CITY OF JOONDALUP
Catchwords:	Criminal Law and Procedure Charge of failing to clear fire-breaks Appellant convicted in his absence under s 55 of the Criminal Procedure Act 2004 (WA) Power under s 55 not engaged in circumstances of the case Whether any substantial miscarriage of justice Turns on own facts
Legislation:	Bush Fires Act 1954 (WA), s 33 Criminal Appeals Act 2004 (WA), s 14 Criminal Procedure Act 2004 (WA), s 50, s 55
Case References:	Tallot v Matier [2012] WASC 290 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : KOH -v- CITY OF JOONDALUP [2012] WASC 493 CORAM : BEECH J HEARD : 11 DECEMBER 2012 DELIVERED : 11 DECEMBER 2012 PUBLISHED : 13 DECEMBER 2012 FILE NO/S : SJA 1077 of 2012 BETWEEN : BOON YEW KOH

Appellant

AND

CITY OF JOONDALUP
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G CICCHINI

File No : JO 4940 of 2012

Catchwords:

Criminal Law and Procedure - Charge of failing to clear fire-breaks - Appellant convicted in his absence under s 55 of the Criminal Procedure Act 2004 (WA) - Power under s 55 not engaged in circumstances of the case - Whether any substantial miscarriage of justice - Turns on own facts

(Page 2)

Legislation:

Bush Fires Act 1954 (WA), s 33

Criminal Appeals Act 2004 (WA), s 14
Criminal Procedure Act 2004 (WA), s 50, s 55

Result:

Appeal upheld

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr L D Hilton­Barber

Solicitors:

Appellant : In person
Respondent : Jackson McDonald

Case(s) referred to in judgment(s):

Tallot v Matier [2012] WASC 290
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300


(Page 3)

1 BEECH J: The appellant, Mr Koh, was convicted in his absence, of an offence of failing to comply with a notice issued by the City of Joondalup requiring him to take action to plough, or clear fire-breaks, contrary to s 33(3) of the Bush Fires Act 1954 (WA). He applied under s 71 of the Criminal Procedure Act 2004 (WA) (CPA) to set aside the conviction. That application was dismissed.

2 He appeals against his conviction.

3 At the hearing of the appeal, I upheld the appeal for reasons I stated briefly, with more detailed reasons to follow. These are those reasons.

Background

4 Mr Koh was charged by prosecution notice that he had, as owner or occupier, failed to comply with a notice requiring him to take action to plough or clear fire-breaks or take other action to prevent the outbreak or spread of bush fires, contrary to s 33(3) of the Bush Fires Act.

5 The prosecution notice was signed on 8 March 2012, and stated that there would be a hearing on 13 April 2012. Mr Koh was served with a copy of the prosecution notice, and a document entitled 'Court Hearing Notice' in the form prescribed as Form 5 of the Criminal Procedure Regulations 2005 (WA).

6 The Court Hearing Notice set out options for Mr Koh. One of them, was to plead not guilty in writing. That notice stated that 'if you send the court a written plea of not guilty, you need not attend the hearing'. It also stated that 'if the court receives your written plea in time it will send you a notice of another hearing at which the court will deal with the charge(s)... and hear any evidence you wish to give and any witnesses you call'.

7 As I will explain, the Court Hearing Notice is consistent with the statutory scheme of the CPA.

8 Mr Koh filled in the written plea document that accompanied the Court Hearing Notice. He ticked the box that indicated he pleaded not guilty to the charge, and that he would not be attending the hearing on 13 April 2012. He identified that, when setting a date for the trial, account should be taken that he was overseas from 11 April 2012 to 2 May 2012 and from 4 August 2012 to 15 August 2012. On the plea document, he stated that at the trial of the charge, he intended to call one witness.

9 Mr Koh signed the form and dated it 14 March 2012.

(Page 4)

10 The plea document bears a stamp as having been received by the Joondalup Court on 19 March 2012.

11 On 13 April 2012, the matter came before a magistrate. The prosecution notice records that the magistrate proceeded in the absence of the accused, under s 55 of the CPA. It must be inferred that Mr Koh's written plea was not brought to the magistrate's attention, notwithstanding that it had been received by the court more than three weeks earlier.

12 On 13 April 2012, a conviction was entered against Mr Koh. He was fined $750, with costs of $560.50.

13 Solicitors for the City wrote a letter to Mr Koh dated 9 May 2012. The letter advised him that he had been convicted in his absence, and of the fine and award of costs. The letter enclosed a notice of conviction, and requested that Mr Koh attend to payment of the fine and costs.

14 On 28 May 2012, Mr Koh applied under s 71 of the CPA to set aside the conviction. His application stated that the grounds were that he had received notice of the court date, but did not appear because he had been unable to attend, being overseas at the time. His accompanying affidavit stated that he had indicated he would be unable to attend on the given date and was awaiting an alternate date before he left the country.

15 Mr Koh's application came before a magistrate on 27 June 2012. Although no transcript has been provided it is to be inferred, from what was said on 29 June 2012, that the application was adjourned for two days to enable Mr Koh to bring his passport in order to substantiate that he had been overseas.

16 On 29 June 2012, Mr Koh's s 71 application came before a magistrate.

17 In his submissions to the magistrate, Mr Koh referred to the written plea he had sent to the court. The magistrate asserted that the court had not received the written plea. It is evident that, even by 29 June 2012, Mr Koh's written plea was not before the magistrate, even though it had been received by the court on 19 March 2012. During the hearing on 29 June 2012, Mr Koh informed the magistrate that since returning from his overseas trip he had realised that a judgment had been made against him. He further advised that he had inquired with the court and the court 'found the document in their office' (ts 4). The magistrate responded that the form was not with the court file.

(Page 5)

18 In my respectful opinion, the learned magistrate should have gone beyond that statement in response to what Mr Koh said. If, as was in fact the case, the form had been sent to the court prior to 13 April 2012 and the court registry had failed to ensure that it was before the magistrate on that day, Mr Koh could not be responsible for that. Further, there were significant legal consequences, as I will explain later in these reasons. In short, it meant that Mr Koh could not and should not have been convicted in his absence.

19 During the hearing on 29 June 2012, Mr Koh showed his passport to the prosecutor. Following that, the prosecution accepted that Mr Koh had been overseas.

20 The magistrate then stated to Mr Koh that the second factor, on the s 71 application, was whether there was any defence.

21 In the course of the exchanges that then followed, Mr Koh stated that the land was a total area of 1,721 sq m, and that it was not a vacant block, being an owner occupied premises. In the course of the exchanges, the learned magistrate stated that photographs handed up by the prosecutor 'clearly show that [Mr Koh] hadn't cleared it the correct way. [He was] supposed to clear it' (ts 8).

22 Her Honour gave the following reasons for dismissing the application to set aside:

The simple answer … is he has no defence. I have heard Mr Koh saying to the court that he is a simple householder, he shouldn't have to plough his land, and that the photographs clearly show that this is his idea of a garden and that that is how he would like his block. That's his choice. However, he still has to comply with the local shire regulations and he hasn't. Therefore there is absolutely no defence before the court on the merits to allow the matter to be set aside.

23 The court awarded further costs in the sum of $506 in favour of the prosecution.

Appeal grounds

24 The appellant's notice of appeal contained two grounds. Ground 2(a) complained that the appellant had applied for an adjournment by his written plea of not guilty, and that the hearing was conducted in his absence, despite the fact that he pleaded not guilty in writing, in accordance with the form sent to him.

(Page 6)

25 At the hearing of the appeal, the appellant was granted leave to amend his grounds to add as ground 3:

That the court erred on 13 April 2012 in convicting the appellant in his absence on the first court date.

26 That ground reflected a complaint that had been made by the appellant, at the hearing on 29 June 2012, in ground 2(a) of his appeal grounds, and in his written submissions.

27 For reasons which will become apparent, it is necessary only to deal with ground 3.

Ground 3 succeeds: there was no power to convict under s 55

28 The respondent concedes that in the circumstances of this case, on 13 April 2012, the court had no power to convict the appellant. In my opinion, that concession was rightly made, because:

(1) on 19 March 2012, the court received a written plea of not guilty from the appellant;

(2) 13 April 2012 was the first court date; see s 18(b)(i) of the CPA;

(3) as a consequence of (1) and (2), on 13 April 2012, s 50 of the CPA applied: see s 50(1);

(4) by s 50(3), if on the first court date, the accused does not appear, the court must adjourn the charge to a new date; and

(5) thus, s 55 was not engaged. The court was required to adjourn the charge to a new date, and notify the appellant of that new date.

29 As I have said, the respondent conceded that the court's reliance on s 55 was erroneous. However, the respondent submitted that I should dismiss the appeal under s 14(2) of the Criminal Appeals Act 2004 (WA), on the ground that I should be satisfied there was no substantial miscarriage of justice.

The proviso does not apply

30 In considering whether the proviso can be applied, the far reaching effect of the wrongful invocation of s 55 of the CPA must not be overlooked.

(Page 7)

31 The primary court wrongly invoked s 55. As Hall J explained in Tallot v Matier [2012] WASC 290 [12] - [13], s 55 has very significant effects. First, it empowers the court to take as proved any allegation in the prosecution notice, without requiring the prosecution to lead any evidence. That is what occurred here. Secondly, it denies the accused the opportunity to contest the prosecution evidence, lead contrary evidence and make submissions on the evidence.

32 In short, the result of the wrongful application of s 55 is that there has not been a trial at which the guilt of the appellant has fallen for determination. That is, to say the least, an unusual context for application of the proviso. Generally, the proviso is invoked by a respondent to an appeal who submits that the evidence properly admitted at trial proved beyond reasonable doubt the guilt of the appellant.

33 In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], the court emphasised the need to focus on the statutory language of the proviso. However, their Honours said that one proposition can be stated; it is a necessary (but not sufficient) condition for the application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the accused's guilt.

34 The limited material before me does not satisfy me beyond reasonable doubt of the accused's guilt. In any event, where the wrongful invocation of s 55 has deprived the appellant of his right to have his guilt determined at a trial, even if, contrary to my view, the material satisfied me beyond reasonable doubt of guilt, I would be extremely hesitant to invoke the proviso. See, for example, Weiss [45] - [46].

35 Section 33 of the Bush Fires Act provides as follows:

(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

(Page 8)

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 Act1995 , 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

(Page 9)

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.

(Page 10)

36 It can be seen from s 33, that that section does not itself, create an obligation for an owner to clear fire-breaks. Rather, it provides for three mechanisms by which such an obligation may be created:

(1) by notice in writing posted to the owner's last known postal address: s 33(1);

(2) by notice to all owners published in the Government Gazette and in a newspaper circulating in the area: s 33(1); or

(3) by local laws: s 33(5a).

37 On the appeal, the respondent submitted that the charge relied upon a local law made under s 33(5a), and a notice to all owners and occupiers that had been published under the Government Gazette under the second limb of s 33(1).

38 No local law or Government Gazette was in evidence in the Magistrates Court, or provided to the magistrate, or in any of the material available to me. In those circumstances, it is, with respect, somewhat difficult to understand the respondent's submission that this court can be satisfied that there was no substantial miscarriage of justice.

39 There are further impediments to the conclusion invited by the respondent.

40 The material before me reveals a letter dated 16 September 2011 from the City to the appellant and his wife or partner. That letter is headed 'Firebreak Required On Vacant Property by 31 October 2011'. The letter begins with the statement that s 33 of the Bush Fires Act requires all owners of vacant land to clear fire-breaks, and continues. The appellant's land was not at that time, and is not now vacant. His home is on it.

41 Counsel for the respondent informed me that the respondent does not rely upon that letter as a notice under s 33(1). Nevertheless, on a reading of the terms of the letter, there would seem to be at least room for the view that that letter was such a notice. Further, as counsel for the respondent accepted, it would seem to be at least arguable that the letter was saying, in effect, that a fire-break is required on vacant property, and only on vacant property. If that were so, the provisions of s 33(5d) would or may be engaged. That subsection provides that, where the provisions of local law is made under subsection (5a) are inconsistent with those of a notice given under subsection (1), the provisions of that notice shall, to

(Page 11)

the extent of the inconsistency, prevail. In the course of submissions, counsel for the respondent acknowledged that an argument to that effect would appear to emerge from the material, and presented, at the least, a significant obstacle to the invocation of the proviso (appeal ts 7).

42 At the 29 June 2012 hearing, the prosecutor provided some photographs to the magistrate. They were not tendered or proved. On appeal, the respondent handed up what he said were those photographs, and initially sought to rely upon them in support of his argument that the proviso should be invoked. However, in the course of submissions, counsel for the respondent accepted that there was no evidence before me to prove what the photographs depicted (appeal ts 4 - 5). Thus, the photographs do not provide a secure foundation for the application of the proviso.

43 Counsel for the respondent appeared also to place some reliance on the reasoning of the magistrate, who concluded, on 29 June 2012, that the appellant had no defence to the charges. In my view, the magistrate's conclusions in dismissing the s 71 application do not sustain or support the application of the proviso in this appeal. The magistrate was considering an application under s 71, on the understandable but mistaken footing that the appellant had been correctly convicted under s 55. In that setting, her Honour approached the question, in effect, on the basis that it was for the appellant, as applicant under s 71, to demonstrate that he had a defence. The position on appeal is fundamentally different. Given the wrongful invocation of s 55, there has been no trial. The question now is whether, notwithstanding the absence of a trial, the court is satisfied beyond reasonable doubt of the guilt of the appellant, and that it is appropriate to apply the proviso.

44 Finally, the respondent pointed to one passage in the transcript of the application on 29 June 2012 (ts 7), contending that it involved an admission by the appellant that he had not properly cleared the required fire-breaks. Apart from anything else, the first question is what obligations (if any) had been placed upon the appellant to clear fire-breaks. As I have explained, the position in that respect is not sufficiently clear to sustain the application of the proviso.

45 For these reasons, I was satisfied that the proviso has no application to this case.

Conclusion

46 For the reasons I have given, I ordered that:

(Page 12)

(1) there be leave to appeal;

(2) the appeal be upheld;

(3) the appellant's conviction be set aside; and

(4) the matter be remitted to the Magistrates Court for trial.

47 All of this seems to me to be a regrettable effect of administrative error in the Magistrates Court, in that the appellant's written plea of not guilty was not brought to the attention of the magistrate who heard the case on 13 April 2012. That error was compounded when the same occurred in relation to the magistrate hearing the case on 29 June 2012.

48 This is the second appeal to this court in the last two weeks which has been upheld on a similar ground. That underlines the need for care in ensuring that all material received by the court is before the magistrate who hears a case.