Kwa v Town of Cambridge - [2010] WASC 408

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KWA -v- TOWN OF CAMBRIDGE [2010] WASC 408

CORAM: EM HEENAN J

HEARD: 29 NOVEMBER 2010

DELIVERED : 29 NOVEMBER 2010

PUBLISHED : 23 DECEMBER 2010

FILE NO/S: SJA 1044 of 2010
Consolidated by order dated 1 July 2010

BETWEEN: FRANCIS TAK LAU KWA
Applicant
AND
TOWN OF CAMBRIDGE
Respondent

FILE NO/S :SJA 1045 of 2010

BETWEEN :FRANCIS TAK LAU KWA
Applicant
AND
TOWN OF CAMBRIDGE
Respondent

ON APPEAL FROM:
For File No              :  SJA 1044 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A WOODS
File No  :PE 34778 of 2008, PE 39955 of 2008
For File No              :  SJA 1045 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G R SMITH
File No  :PE 34778 of 2008, PE 39955 of 2008

Catchwords:

Applications for leave to appeal - No power to grant leave to appeal from an interlocutory decision before trial in Magistrates Court - No reasonably arguable grounds of appeal - Applications dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374

Result:

Applications for leave to appeal dismissed

Category: B

Representation:

SJA 1044 of 2010

Consolidated by order dated 1 July 2010

Counsel:

Applicant: In person
Respondent: Mr D P Gillett

Solicitors:

Applicant: In person
Respondent: McLeods

SJA 1045 of 2010

Counsel:

Applicant: In person
Respondent: Mr D P Gillett

Solicitors:

Applicant: In person
Respondent: McLeods

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

Rabczynski v Morrison [1988] WAR 71

EM HEENAN J: These are two applications for leave to appeal from decisions of the Magistrates Court of Western Australia in Perth, given in relation to proceedings by the respondent, the Town of Cambridge, against the applicant, Mr Francis Tak Lau Kwa, a resident within the boundaries of the municipality, concerning building activity at his home at 1 Turriff Road, Floreat.
The prosecutions were laid pursuant to s 374(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA). The applications for leave to appeal came before Jenkins J on the papers on 1 July 2010 and, by orders made that date, her Honour directed that the two applications should be consolidated and become one appeal, and that the applications for leave to appeal be heard at the same time as the appeal. The matters have since proceeded as appeal SJA 1045 of 2010, but that incorporates the earlier appeal SJA 1044 of 2010.
The charges are, first, that in July 2006 the applicant, at lot 809, 1 Turriff Road, Floreat, within the district of the Town of Cambridge, proceeded with a building on the land without having first caused to be submitted to the Town of Cambridge and the Town having approved by the issue of a building licence in the prescribed form and on payment of the prescribed fee a copy of the specifications of a plan showing clearly the building proposed to be built, contrary to s 374(1)(a) of the Local Government (Miscellaneous Provisions) Act 1960.
The second charge is that in January 2008, at the same address, the applicant, within the district of the Town of Cambridge, in respect of the structure of a building already erected on the land, altered the structure of the building without first having caused to be submitted to the Town of Cambridge and the town having approved by the issue of a building licence in prescribed form and on payment of the prescribed fee a copy of the specifications of and a plan showing clearly the alteration proposed to be made, contrary to s 374(1)(b) of the Local Government (Miscellaneous Provisions) Act 1960.
These two separate charges were, for convenience, referred to as 'the shed charge', being the alleged offence in July 2006 and 'the mezzanine floor' charge being the second charge in January 2008.
The history of the matter in the Magistrates Court is that, long before the eventual hearings in April 2010, Mr Kwa pleaded guilty to the shed charge and that matter had been stood over to hear submissions on penalty and for orders at a time to be fixed. It seems that it was contemplated that it would be convenient for that to be done if and when the second charge, the mezzanine floor charge, was ultimately disposed of and, in the event, that is what happened.
The mezzanine floor charge was then later listed for hearing. It seems that it had been listed on a number of occasions, four or perhaps six, before it eventually came on for hearing on 1 April 2010.
It is necessary at this point to go back a little. Presumably, in preparation for that hearing, Mr Kwa had caused to be issued witness summonses under s 161 of the Criminal Procedure Act 2004 (WA) to three witnesses associated with the Town of Cambridge to attend to give evidence at the hearing.
The solicitors for the Town of Cambridge objected to the issue of the witness summonses, apparently on the basis that they did not relate to any matter or matters material to the determination of the pending charge, and duly brought an application before the court to cancel the witness summonses. Those applications, that is, to cancel the witness summonses, came on for hearing before Magistrate Woods on 30 March 2010 and at that hearing there was produced a letter from Mr Kwa, addressed to the manager of the Central Court Registry, referring to the witness summonses and the application for them to be set aside which included the paragraph:
I wish to submit that I consent to not having the parties attending court on 1 April to give evidence on the basis of their affidavits filed and, accordingly, I would be grateful if the hearing could be vacated.
That is a reference to the application to set aside the witness summonses. The hearing before Magistrate Woods on that occasion was brief, but it is recorded in the transcript where it was explained to the learned magistrate that there was this consent, and her Honour then ordered that the witness summonses should be set aside and ordered the applicant to pay the costs of the prosecution in relation to that in the amount of $1,980. There was no appearance by Mr Kwa on that occasion.
Now, the first appeal is in relation to the decision to set aside the witness summonses, but the proposed grounds of appeal, and certainly the written submissions in support of the appeal, go far beyond any possible significance of the witness summonses and allege error in law, refer to prosecutions based on hearsay and allege that the applicant was not validly served with the original applications, and submitted that a valid building licence had been granted, although the allegation is that it was granted much later.
It seems that Mr Kwa misunderstood the significance of the hearing on 30 March 2010, and that his proposed grounds of appeal do not address any matter of substance which would provide a basis for challenging the decision of the magistrate by consent to set aside the witness summonses.
There is a second and significant obstacle to the proposed application for leave to appeal from this decision, and it is that that decision dealt with a matter of procedure before the trial and so was an interlocutory decision and leave to appeal to this court cannot be granted from such a decision: Criminal Appeals Act (2004) s 6 and s 7. On pointing this out to counsel for the respondent, the respondent adopted that proposition as an additional ground to oppose the application for leave but conceded, as I had put to counsel, that if the point were a good one, it would perhaps be a basis for an additional ground of appeal in the second appeal which challenged the convictions themselves. I think, in fairness to Mr Kwa and his lack of legal experience or knowledge of the procedure of the court, it would be a tolerable concession for me to treat it on that basis.
Whichever way one looks at the matter, however, there is no arguable ground shown for questioning or varying the decision of the learned magistrate on 30 March 2010 to set aside the witness summonses. That being the case, I am satisfied that leave to appeal should be refused and, accordingly, I refuse leave to appeal in relation to the decision of 30 March 2010, and dismiss that application for leave to appeal in the consolidated appeals, being SJA 1044 of 2010.
That now brings me to the decision on 1 April 2010, dealing with the matters of substance. On that day, both charges against Mr Lau came before his Honour, Magistrate Smith, in the Magistrates Court at Perth for final disposition. The hearing in relation to the shed charge, as I have already made plain, was for disposition on the basis of the earlier plea of guilty. The charge on the mezzanine floor offence was for hearing on the merits.
At the hearing, there was some discussion between the learned magistrate and Mr Kwa and counsel for the prosecution about the procedure to be followed. There appears to have been some question raised by the magistrate as to the basis for the defence and an inquiry as to whether or not, in the light of the facts as they appeared, Mr Kwa really wished to maintain his plea of guilty and if he did, how it was to be supported, by expert evidence or otherwise.
This discussion about the approach to the hearing went on for some time, and it is unnecessary for me to summarise it in more detail. It is enough to say that dialogue between his Honour and Mr Kwa was successful in identifying the issue for determination as being whether or not the actual work done at the home in Floreat in relation to this mezzanine floor was work which required the issue of a building licence, as being alleged by the municipality, or not.
Mr Kwa, himself an experienced and qualified engineer, was maintaining that although the work had been done, it was not the kind of work for which a building licence or permit was necessary, and he indicated that he was in a position to give evidence to that effect himself and to call evidence from another engineer to similar effect. His Honour seems to have been concerned as to whether or not the case would be disposed of in the time set aside, and pointed out the need to have any additional expert evidence to be heard for the applicant available promptly. These inquiries also revealed that there was an engineering expert available for the prosecution, that is the respondent, to give evidence.
The result of these preliminary discussions was that the court was adjourned for a short time, it would seem about half an hour, to allow Mr Kwa to make arrangements for his witness to attend and perhaps for him to discuss the matter with counsel for the municipality and the municipality's engineer.
On the resumption of the hearing, Mr Kwa changed his plea to guilty. He was asked that by the learned magistrate (at page 17 of the transcript) and thereupon he pleaded guilty to the charge. The facts were then outlined, the details of which I need not repeat. Then submissions were made in relation to penalty, dealing not only with the mezzanine floor offence but with the shed offence as well. At the completion of those submissions his Honour said:
In relation to the 2008 charge, which is the mezzanine in the garage, I have taken into account what you have said and what the prosecutor has said and what the maximum penalty is in relation to those types of offences. There's a fine of $1750 and I direct that on that particular prosecution notice, which is 39955, the sum of $3000 in costs be paid to the prosecution.
In relation to the earlier charge, which is 34778, that is the one relating to the shed, there's a fine of $2000 and costs of $3000 awarded. I think that takes care of everything.
It is from those convictions that Mr Kwa now seeks leave to appeal to this court. The proposed grounds of appeal are:
Not properly authorised to lay a complaint:
1.His Honour entertained the prosecution without ensuring that the Complainant or the person issuing the prosecution notice, namely, Jason Richard Buckley, has had established beyond reasonable doubt that he had the authority to take proceedings in respect of the offences for the Prosecution.
2.His Honour failed to ensure that there was sufficient evidence produced to show that the complainant had the authority to lay the complaints in question:
and then there is a citation
'The Onus lies upon the complainant to establish beyond reasonable doubt that he has the authority to take proceedings in respect of offences There was insufficient evidence produced to show the complainant had authority to lay the complaints in question'-
and a reference to Rabczynski v Morrison [1988] WAR 71, at 20 ‑ 25.
Alternatively
Fresh Evidence:
3.The complainant, namely, Jason Richard Buckley, raised the prosecution on the basis of hearsay and the Magistrates Court is not at liberty to entertain a notice issued by a person on the basis of hearsay. This is due to Mr Buckley's own admission, amongst other things, in an affidavit sworn affirmed on 25 March 2010 and filed in the Court that:
1.He had no knowledge of the building work on the appellant's property.
2.The full extent of his involvement in these matters is the signing of the 2 prosecution notices of 15 May 2010.
Next:
Prejudicial misguidance given by his Honour:
4.The Appellant pleaded guilty because he was misguided by his Honour during the hearing. By implications, his Honour erred in suggesting that:
1.Success of the case is founded upon the opinion of an engineer when the Appellant was not an engineer and not qualified and not likely to be recognised by him as being qualified to give evidence as an expert witness.
Prejudicial implications
2.His Honour assumed that the engineer called in by the Appellant was the only expert witness to argue for the Appellant in his case with the exclusion of the appellant as a qualified engineer.
3.That the Appellant had no defence on the basis of his honest belief under section 22 of the Criminal Code Act (the Act) because he was not a qualified engineer.
4.That the Appellant should plead guilty due to an example given by him regarding driving without a licence. This was in despite of the fact that the alleged offence before him was with respect to property (his home) and what the Appellant did was in the exercising of his honest claim of right and without intention to defraud and his defence should thus also be considered by his Honour under section 22 of the Act.
5.His Honour failed to take into consideration that, regardless of his finding from the witnesses, the Appellant honestly believed that he, as a qualified engineer, had the right to strengthen the existing floor for safety reasons.
Prejudicial Implications
6.His Honour pre‑empted that he was to disregard the appellant's defence under section 22 of the Act in any event because he said 'Because removing a ceiling, even a defective ceiling, and replacing it with a steel frame mezzanine floor, is something which is considered an alteration to a building which requires a builder's licence? Well Mr Kwa, if it turns out that Mr Gillett is right about that, then it sounds to me like you might be wasting your time defending the charge.'
A reference to the transcript at page 6:
'It's going to matter whether I decide that this work requires a building licence, and it does. If that is my decision then you will be found guilty.'
Again, a reference to the transcript page 13:
7.The Appellant had to plead guilty because His Honour said that the cost was '…out of control already'. -
Again a reference to the transcript page 10:
Excessive Penalty
8.The Gross penalty, including costs for each of the offences, is almost $5,000.00 and close to the maximum prescribed under the Local Government Act and cannot be justified because:
1.A guilty plea was entered with respect to the shed at an early stage, on 10 September 2008. Transcript dated 10 September 2008 refers
2.The adjournments due to unavailability of witnesses were beyond the control of the appellant and his Honour did not ask for justification for such high costs or in all fairness that the costs be taxed.
9.His Honour took into account of photographs shown to him over the bench which was taken on 17 March and shortly before the hearing (01/04) contrary to section 137 of the Act.
10.His Honour erred in dispensing penalties on the basis of submissions over the bench and apparently taking into account of the untrue statements made by the Prosecution, in that he denied that the Appellant had not had a building licence at the time of hearing on 1st April when the Appellant was prosecuted for failing to comply with conditions of a building licence only two days ago on 30 March.
11.His Honour erred for imposing a penalty as to costs because the Appellant was not put on notice as to costs in the Prosecution Notices and the question of costs to the Appellant was not mentioned during any of the previous proceedings of the same matters.
In relation to the proposed grounds of appeal for the alleged mezzanine floor charge, I do take into account Mr Kwa's allegations that the decision to set aside the witness summonses was erroneous and I also notice that Mr Kwa has handed to me today two affidavits, one from Rachel Lim sworn 26 November 2010 relating to some background matters, and an affidavit of Yuen Poh Wong of 26 June 2010, concerning a different prosecution and with photographs. He asks me to receive both affidavits as fresh evidence and in support of allegations that this prosecution was out of time and, therefore, should have been dismissed, and that there had been a failure to show that the prosecution was authorised, in the sense that it was commenced by an officer duly authorised by the municipality.
I do not consider that the affidavits amount to fresh evidence which is admissible in these proceedings, but I will receive them and mark them as exhibit A and B respectively in this appeal in case at any point some other court might take a different view. I observe that there was no submission made to the learned magistrate at the hearing that either of the prosecutions was outside any limitation period or that it had not been issued or commenced by an officer duly authorised for the municipality. The decision which was given by the learned magistrate on 1 April 2010 was based on a plea of guilty which, as has long been recognised, amounts to an admission of all essential elements of the charges alleged.
I am also satisfied that the decision to cancel the witness summonses made by her Honour, Magistrate Woods on 30 March 2010 was well justified having regard to the material before her Honour showing consent to that course. It is also obvious that that decision made no contribution to the decision of his Honour, Magistrate Smith on 1 April 2010 to convict the applicant because of the plea of guilty and to impose the sentences.
It seems that all the grounds of appeal which are sought to be raised by Mr Kwa in relation to the conviction in relation to the mezzanine offence have failed to take these matters into account. The only matters which are marginally relevant are the grounds relating to the alleged misguidance given by his Honour, and to the entry of the plea of guilty based on that alleged misguidance.
I have already briefly summarised the transcript of the hearing before his Honour on the morning of 1 April 2010 and how his Honour, in dialogue with counsel and the applicant, sought to identify the critical issue in the case, and succeeded in doing so, characterising it as whether or not the work in question was the kind of work for which a building licence was necessary. That dialogue certainly occurred and that conclusion was reached, largely as a result of the submissions of Mr Kwa and, with respect, it appears to me to be entirely justified. Nowhere during the course of that dialogue was it suggested that there were other defences upon which Mr Kwa wished to rely or which might require separate consideration.

In relation to the grounds of appeal which suggest that his Honour was in some way prejudiced by indicating a lack of readiness to accept evidence from Mr Kwa on the critical engineering issue, I must say, with respect, that I consider Mr Kwa to be mistaken. The transcript plainly indicates that his Honour was prepared to hear evidence from Mr Kwa if he wished to give evidence as an engineer, and it seems to be equally clear that the learned magistrate accepted that Mr Kwa was qualified to give evidence as an engineer. Similarly, there does not appear to me to be any arguable basis that the learned magistrate forced or persuaded or misled Mr Kwa into pleading guilty. The plea of guilty followed discussions out of court with the engineer for the prosecution.
That being the case, I do not consider that there are any arguable grounds of appeal which have been shown in relation to the convictions which were imposed on 1 April 2010 and, therefore, the application for leave to appeal against those convictions must be dismissed.
That leaves the question of the penalties imposed. It seems that by the stage that there was discussion about penalties his Honour, counsel for the prosecution and Mr Kwa were treating the background events as being objectively established and uncontroversial.
On the question of the penalties and the orders for costs, it was the case that both prosecutions had been pending for a long time. There had been preparation for earlier hearings. The respondent had engaged an engineer to support by his opinion evidence the case being advanced. The question of costs was considered by the learned magistrate in the course of dialogue with counsel for the prosecution and in the course of that his Honour plainly indicated that he was of the preliminary view that the amount being sought for costs by the respondent was moderate. There was no application made on behalf of Mr Kwa that the costs should instead be taxed. Whether Mr Kwa was aware or not aware of his right to seek an order for costs to be taxed is not a matter which has been raised but, if he were not aware of it, then I am afraid that that is one of the disadvantages which occurs if a person seeks to represent himself without a lawyer if he is not without legal training or experience. It seems to me that the orders for costs are justified.
In relation to the penalties imposed ‑ the fines which have already been mentioned ‑ it has been pointed out that they are, respectively, 35% and 40% of the maximum penalties which were then applicable. These penalties have since been very greatly increased by later amendment. Not that that increase is relevant in the disposition of this case. Having regard to the long history of these matters, I do not consider that there is any arguable basis to show that the penalties represent any error by the learned magistrate.
This being the case, I do not consider that leave to appeal should be granted in relation to any aspect of the convictions leading to orders for penalties or costs and I, therefore, dismiss all applications for leave to appeal.