Laurent v City of Greater Geraldton
[2016] WASC 48
•17 FEBRUARY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LAURENT -v- CITY OF GREATER GERALDTON [2016] WASC 48
CORAM: CORBOY J
HEARD: 31 MARCH & 14 APRIL 2014, 21 JULY 2015,
10 AUGUST & 8 SEPTEMBER 2015 (SUPPLEMENTARY SUBMISSIONS)
DELIVERED : 17 FEBRUARY 2016
FILE NO/S: SJA 1155 of 2013
BETWEEN: GERALD JEAN NOEL LAURENT
Appellant
AND
CITY OF GREATER GERALDTON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B C GLUESTEIN
File No :GN 816 of 2013
Catchwords:
Criminal law - Single judge appeal against conviction - Failure to comply with notice given under s 401(1) Local Government (Miscellaneous Provisions) Act 1960 (WA) - Whether appellant had a reasonable excuse for not complying with notice - Natural justice - Bias - Whether magistrate made errors of fact or law - Whether respondent engaged in unlawful or improper conduct - Section 115 and s 190 of the Building Act 2011 (WA)
Legislation:
Building Act 2011 (WA), s 110, s 115, s 190
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 501
Result:
Leave to admit further evidence granted
Leave to appeal refused and appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr D P Gillett
Solicitors:
Appellant: In person
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
City of Kwinana v Lamont [2014] WASCA 112
De La Espriella‑Velasco v R [2006] WASCA 31; (2006) 31 WAR 291
DPJB v The State of Western Australia [2010] WASCA 12
Eley v Town of Victoria Park [2014] WASC 103
Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liquidation) [No 8] [2015] WASC 104
Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423
Genovese v City of Perth [2012] WASCA 8
Lassock v Seidner [2013] WASC 94
Laurent and City of Greater Geraldton [2013] WASAT 57
Laurent v Armstrong [2015] WADC 101
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
M v The Queen (1994) 181 CLR 487
Myers v Myers [1969] WAR 19
Reid v Readdy [1999] WASCA 208
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Rinaldi v The State of Western Australia [2007] WASCA 53
Samuels v State of Western Australia (2005) 30 WAR 473
Smith v The Queen [2008] WASCA 128
Stavrianakos v The State of Western Australia [2011] WASCA 130
Taikato v The Queen (1996) 186 CLR 454
The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563
The State of Western Australia v Olive [2011] WASCA 25
TABLE OF CONTENTS
The appeal and the result
The prosecution case
The appellant's defence
The adjournment of the trial
The magistrate's reasons
The proceedings in SAT and the Magistrates Court
The proposed grounds of appeal
The approach taken in these reasons
A further observation
The evidence sought to be admitted
Whether the Appeal Documents should be admitted
The discretion to admit the Appeal Documents
The principles to be applied
The statutory scheme
'Reasonable excuse'
The meaning of the term 'reasonable excuse'
Reasonable excuse and s 374, s 401
The relevant time for determining whether there was a reasonable excuse
The appellant's excuses and the magistrate's findings
Consent to enter the property
The finding and the evidence
The Residential Tenancies ActTrespass
Ms Armstrong's email of 28 February 2011Conclusion
The driveway
Reimbursement of expenses incurred by the appellant
The appellant's financial position
Conclusion on the magistrate's findings
Natural justice
The relevant principles
Disposition
Other allegations relating to the fairness of the trial
Bias
The relevant principles
Disposition
Errors of fact and law
Ridgeway and the respondent's conduct
The respondent's conduct and the allegations of 'altered facts'
Other matters
Proposed grounds 13, 15 and 16
Ms Armstrong and her mother
The original owner of 4 Admiral Link
Mr Golding's property
The Notice and the Building Act
CORBOY J:
The appeal and the result
The appellant seeks leave to appeal against his conviction of the charge that between 25 December 2012 and 23 January 2013, within the district of the City of Greater Geraldton, being a person who was served with a copy of a building order, without reasonable excuse failed to comply with the order contrary to s 115 of the Building Act 2011 (WA). His appeal notice simply stated the ground of appeal as, 'natural justice'.
The appellant applied for various orders relating to the conduct and disposition of his appeal on grounds that included references to 'new' evidence (application in an appeal dated 24 February 2014). The application was supported by an affidavit made on 26 February 2014 (the Application Affidavit) in which the appellant stated:
I say I was denied an adequate opportunity to presenting my case because of altered facts that the Court and parties knew of or ought to have known from documents and I had not commenced given my case and, or complete given my case. I had 100 exhibits 3 years of collecting documents between the parties, between myself, respondent and third party to produce [as] a defence (par 4).
The appellant alleged in the Application Affidavit that he had been denied natural justice as he had not been allowed to present evidence in the trial of the charge. He further alleged that he had a reasonable excuse for not complying with the building order made by the respondent.
The appellant was directed to file and serve a document identifying how it was alleged that he had been denied natural justice. The appellant filed and served two documents following that direction: a document entitled 'Grounds (summary)' (the Grounds Document) and a document that contained numerous references to the trial transcript (the Transcript Document). The references incorporated comments on the transcript that I have treated, where appropriate, as submissions in support of the grounds of appeal proposed in the Grounds Document.
Sixteen proposed grounds were alleged in the Grounds Document (the proposed grounds of appeal are further summarised below). Proposed ground of appeal 12 referred to 'new' evidence:
Adduce evidence - new evidence to be preferred is the preferred evidence of the magistrate and the respondent in trial - matters that involve financial means or hardship to attain a contractor to deal with the fence as per order. Evidence not attainable before Court due to financial hardship and that I am not privy to attain or to a standard a court would accept because of witnesses not preferred by parties due to interference by parties refusing to attend Court and possibly hostile due to actions of the respondent.
A further direction was made requiring the appellant to file and serve an affidavit presenting the evidence that he sought to be admitted in the appeal and stating the reasons why the evidence had not been available or had not been adduced at trial. The appellant and his wife, Ms Jayne Shepherd‑Laurent, made affidavits pursuant to that direction (the appellant's affidavit will be referred to as the Evidence Affidavit). A large number of documents were attached to the affidavits. The documents cannot be conveniently summarised. However, a description of the documents by categories is provided later in these reasons.
A hearing was held to determine whether further evidence should be admitted in the appeal and whether the appellant should be granted leave to appeal on any of his proposed grounds of appeal. The parties were directed at the completion of the hearing to provide further submissions on two issues that did not arise directly out of the proposed grounds of appeal but which might have been relevant to the appellant's conviction and the question of whether there had been a substantial miscarriage of justice:
(a)whether a notice given under s 401(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (the Miscellaneous Provisions Act), which is taken to be a building order pursuant to s 190 of the Building Act, is enforceable where the notice was given to a person who was the builder of the building that was the subject of the order;
(b)what is the relevant time for determining whether the appellant had a reasonable excuse for not complying with the building order?
I have concluded that the further evidence on which the appellant seeks to rely should be admitted in the appeal but none of the proposed grounds of appeal have a reasonable prospect of success applying the test explained by the Court of Appeal in Samuels v State of Western Australia(2005) 30 WAR 473, especially at [56].
Accordingly, leave to appeal on each of the proposed grounds of appeal will be refused and the appeal will be dismissed for the reasons that follow.
The prosecution case
The appellant is the registered proprietor of land located at 2 Admiral Link, Wandina. Ms Armstrong is the registered proprietor of adjoining land located at 4 Admiral Link.
The appellant constructed a brick fence between the properties prior to Ms Armstrong purchasing her land. The fence appeared to be incomplete and Ms Armstrong was concerned about the standard of construction. Further, the appellant demanded that Ms Armstrong reimburse him for one‑half of the cost of building the fence.
Ms Armstrong contacted the respondent to inquire whether the fence was 'legal' (9 October 2013, ts 22; and see exhibit 2, a chain of emails between Ms Armstrong and the respondent). It was discovered that the appellant had erected the fence without obtaining a building licence. Accordingly, the respondent wrote to the appellant on 8 February 2011 stating, among other things, that:
The brick fence that was the subject of the original concerns is in fact present on all boundaries. If the City has not received an application for retrospective approval for the works by 1 March 2011 a section 401 notice will be issued requiring you to remove the structure that has been erected without a building licence. The notice will be issued in accordance with the Local Government (Miscellaneous Provisions) Act 1960 (exhibit 10).
The respondent again wrote to the appellant on 16 February 2011 advising that further investigation had revealed that the fence had been built on a retaining wall that was located on Ms Armstrong's land. The appellant was advised by the respondent that Ms Armstrong had two options: to require that the fence be removed at the appellant's cost or to lodge a retrospective application in relation to the fence at the appellant's cost and to Ms Armstrong's 'requirements' (exhibit 11). The appellant replied by email dated 16 February 2011 stating that he accepted that he needed to apply for a retrospective building licence but he was concerned by the respondent's suggestion that he should be solely responsible for the cost (exhibit 11).
Ms Armstrong wrote to the appellant on 18 February 2011 advising that she was prepared to allow the fence to remain on her property provided the appellant obtained engineer's certificates for its design and construction and the fence was rendered (exhibit 3). The letter stated that Ms Armstrong would apply for a building licence for the fence (as it had been built on her land) if those matters were completed and that she would pay for one‑half of the cost of the fence on completion of a house that was to be constructed on her land. The letter also stated that Ms Armstrong required the fence to be removed if the appellant did not agree to her proposal.
The appellant and Ms Armstrong were unable to reach an agreement following Ms Armstrong's letter. The appellant advised the respondent that it was likely that the dispute with Ms Armstrong would require a 'court's determination' (exhibit 11).
On 24 February 2011, Ms Armstrong again wrote to the appellant. The appellant was asked by Ms Armstrong to remove the fence (exhibit 4).
Ms Armstrong wrote a further letter on 28 February 2011 (exhibit 5). The letter was apparently written in reply to a letter from the appellant that had been handed to Ms Armstrong's father on 24 February 2011 (that letter was not tendered in evidence at the trial). The appellant was advised by Ms Armstrong that he could enter her property to 'put right the brick wall that you erected on my block or to remove it'.
At the end of March 2011, the appellant applied to the respondent for a building approval certificate that would retrospectively authorise the construction of the fence. It was apparent that the appellant had persisted in his demands that Ms Armstrong contribute to the cost of the fence but by this time he was also in dispute with her and the respondent over the cost of removing the fence if it was determined that the fence had to be demolished (see exhibit 12).
The respondent advised the appellant by letter dated 12 April 2011 that it could not consider issuing a building approval certificate for that part of the fence that had been built on Ms Armstrong's land (the fence was part of a fence that had been constructed around the whole of the appellant's land) (exhibit 13). The respondent further advised the appellant by letter dated 29 August 2011 that it had not received information that it had requested in relation to the application for the building approval certificate and accordingly, the application was refused (exhibit 14).
On 17 November 2011, the respondent issued a notice (the Notice) to the appellant pursuant s 401(1) of the Miscellaneous Provisions Act requiring the fence to be pulled down (exhibit 15). The Notice stated that the fence had been built in breach of s 374(1) of the Miscellaneous Provisions Act as the respondent had not issued a building licence prior to its construction. The Notice stated that the appellant would commit an offence if he did not comply with the requirement to pull down the fence:
(a)within 35 days from the date on which the Notice was served; or
(b)if the requirement to pull down the fence was the subject of an application for review and the application is dismissed, within 14 days of the dismissal.
The appellant sought a review by the State Administrative Tribunal (SAT) of the respondent's decisions to refuse his application for a building approval certificate and to issue the Notice. The Tribunal dismissed the review applications by an order made on 10 December 2012: Laurent and City of Greater Geraldton [2013] WASAT 57. The respondent commenced the prosecution against the appellant in February 2013.
The appellant's defence
There was no issue concerning the validity of the Notice following the decision of SAT nor was it in issue that the fence had not been demolished during the period alleged in the charge (the fence had not been removed by the time that the trial commenced). Accordingly, the only substantive issue in the trial was whether the appellant had a reasonable excuse for failing to comply with the Notice.
The magistrate identified in his reasons for decision five possible excuses offered by the appellant as to why he had not demolished the fence:
(a)the appellant did not have the consent of Ms Armstrong's tenants, Mr Wales and Ms Walker, to enter her property (Ms Armstrong had leased the house that had been built on her land in early December 2012);
(b)the appellant did not have Ms Armstrong's consent to enter her property;
(c)removing the fence would cause a driveway on Ms Armstrong's property to collapse;
(d)the respondent had refused to refund fees that the appellant had paid on applying for the building approval certificate;
(e)the appellant was unemployed and did not have sufficient funds to meet the cost of demolishing the fence.
Those reasons emerged from the evidence given by the appellant and from his cross‑examination of Ms Armstrong and another witness called by the respondent, Mr White (the respondent's compliance manager). The appellant also claimed that Mr Wales and Ms Walker were away from Ms Armstrong's property during the period of non‑compliance specified in the charge and that he could not personally demolish the fence as he had suffered a back injury.
The appellant confirmed at the commencement of the trial that his primary defence was that he did not have permission to enter Ms Armstrong's property to remove the fence (ts 5). However, the appellant also sought to refer to other matters that had been raised in the proceedings in SAT or in a claim that he had commenced in the Magistrates Court against Ms Armstrong and her mother. That led the magistrate to explain that matters that had been the subject of those proceedings were not relevant to the charge. The appellant responded to that explanation by stating that:
I get that. However, the argument will be is that the City ‑ if I'm alleged to have committed an offence of building a fence on ‑ without a permit, it's in breach of the Building Act. Prior to the prosecution, I'm told to do something illegal. I'm told to continue to build this fence without a permit. The ‑ and I must sort of inform the court that the City cannot cause someone to cause me to do something unlawful to gain a prosecution. So that's my argument.
And I think that's ‑ I can't elaborate further more on that. And that's why this prosecution is unlawful. Because the ‑ it ‑ I cannot ‑ they asked me to do everything they said. I've paid everything. I've done everything apart from constructing that fence. Because I didn't construct the fence, the City sought to prosecution (ts 16).
It was not entirely clear whether the allegation that the appellant had done what he was required to do by the respondent referred to the construction of the fence without a building licence or to the application for retrospective approval. However, the appellant alleged at the trial and in the appeal that he had been induced by the respondent to apply for the building approval certificate and that the respondent had acted improperly in relation to the application. He also claimed in the appeal that it had not been necessary to obtain a building licence for the retaining wall and fence because s 374B of the Miscellaneous Provisions Act applied. I inferred that the appellant maintained that the respondent had previously accepted that the retaining wall and fence had been constructed in response to an emergency and that a licence had not been necessary.
Those matters are dealt with in these reasons but they could not provide a reasonable excuse for the appellant's failure to remove the fence in the period specified in the prosecution notice. They were matters that might have been relevant to the proceedings in SAT (as they might have been material to the respondent's decision to serve the Notice) or to complaints made in some other forum. However, they were not relevant to the charge alleged against the appellant.
There were also documents in the Appeal Documents that indicated that the appellant had engaged engineers to advise on queries from the respondent about the structural integrity of, among other things, the boundary walls for 2 Admiral Link (attachments 'D 1' - 'D 6'). The engineers provided a response to the queries in May 2012 that referred to removing piers that were on a neighbouring property and re‑aligning a wall. It was not apparent whether the appellant contended that he had completed the work described in the engineers report and that this is what he meant when he claimed, in effect, that he had complied with the respondent's requirements. However, obviously the retaining wall and fence that had been constructed on Ms Armstrong's property had not been realigned or modified following service of the Notice and prior to the trial of the charge alleged against the appellant.
The adjournment of the trial
The trial commenced on 9 October 2013. The appellant applied for an adjournment towards the end of the first day of the trial. He stated that he wanted to put documents that had been lodged with SAT before the court and to have Mr Wales attend to give evidence.
The application was refused, the magistrate noting that the appellant had been given an opportunity to issue witness summonses at a prior hearing (ts 136) (and the appellant did call a witness, Mr Sorgiovanni, as part of his case). However, the trial was adjourned part heard in any event. The appellant had completed his evidence‑in‑chief and there had been some cross‑examination by the time that the trial was adjourned.
The trial resumed on 6 November 2013. The appellant requested that Mr White and Ms Armstrong be re‑called to give evidence. The application was refused and the appellant's cross‑examination was completed. However, the appellant then stated that he wished to re‑call himself (ts 15). That application was also refused. The appellant then informed the magistrate that he had summonsed Mr Wales to attend court but the wrong hearing date had been nominated in the summons. The appellant again applied for an adjournment but the magistrate refused the application.
The magistrate's reasons
The magistrate found in his reasons for decision that:
(a)There was no requirement at law for the appellant 'to have to go beyond the owner of No 4 for consent to enter'. Ms Armstrong had advised the appellant in her letter of 28 February 2011 (exhibit 5) that she consented to him entering her property for that purpose.
(b)There was no evidence presented by the appellant on the effect that removing the fence might have had on the driveway located on Ms Armstrong's property. In any event, it would be necessary for whoever demolished the fence to take 'sensible and appropriate steps to ensure soil stability and safety'.
(c)The respondent had been entitled to refuse the appellant's demand for reimbursement of the expenses that he had incurred in applying for the building approval certificate.
(d)The appellant had not provided evidence about his financial position and there was no evidence on the cost of demolishing the fence. The appellant had not previously complained to the respondent or Ms Armstrong that he could not afford to remove the fence.
The magistrate also concluded that:
The reasons put forward by [the appellant] for his refusing to remove the fence are unreasonable, lack credibility and are fanciful. I was left with the view, in the way [the appellant] gave his evidence, that he was thinking up answers as he went along and I had little confidence in his being a witness to the truth (reasons for decision, [18]).
The proceedings in SAT and the Magistrates Court
It is apparent from the Tribunal's reasons for decision that the appellant argued in the SAT proceedings that:
(a) he was not the 'builder' of the retaining wall and fence and so the Notice ought not to have been served on him [13];
(b)Ms Armstrong had consented to the application for a building approval certificate [13];
(c)Ms Armstrong had agreed to the encroachment of the retaining wall and fence onto her land [14];
(d)the previous owner of 4 Admiral Link had consented to the construction of the fence and the respondent had been aware for some time that the appellant intended to build the fence [48];
(e)the fence had been built 'due to the extreme weather conditions that [were] causing debris to emanate from 4 Admiral Link' [49].
The Tribunal held that the appellant had not been entitled to apply for a building approval certificate under s 374AA of the Miscellaneous Provisions Act as he was not the owner of the building (the retaining wall on Ms Armstrong's land) on which the unauthorised building work (the construction of the fence) had been undertaken. Ms Armstrong owned the retaining wall and she was the only person who could have made an application for a building approval certificate. The appellant's application had been made without Ms Armstrong's consent and accordingly, was not made on her behalf.
The Tribunal further found that the respondent had properly refused the application, even if valid, on the basis of deficiencies in the construction and completion of the fence.
As to the decision to serve the Notice, the Tribunal held that the appellant was the 'builder' of the fence within the meaning and for the purpose of s 401 of the Miscellaneous Provisions Act and that the Notice had been validly issued by the respondent. The Tribunal concluded that the decision to serve the Notice was the correct and preferable decision having regard to the deficiencies in the completion and construction of the fence. Accordingly, the appellant's applications for review were dismissed.
The Tribunal also found that the previous owner of 4 Admiral Link had not given its consent to the construction of the fence [53] - [54].
As has been mentioned, the appellant also commenced a minor case claim in the Magistrates Court against Ms Armstrong and her mother alleging that he had suffered financial loss as a result of their conduct in relation to the fence. The circumstances of claim and the allegations made by the appellant in the claim are set out in the reasons of Staude DCJ in Laurent v Armstrong [2015] WADC 101.
The proceedings in the Magistrates Court were commenced in July 2012. There were a number of references to matters that had occurred in the proceedings in SAT and the Magistrates Court in the course of the evidence given by Ms Armstrong and the appellant in the trial of the charge.
The proposed grounds of appeal
The Grounds Document alleged that:
(a)the appellant had been denied natural justice (proposed ground 1);
(b)the magistrate had displayed bias ('predominantly actual Bias') (proposed ground 2);
(c)the appellant had been denied procedural fairness to present his case (proposed ground 3 ‑ this proposed ground further referred to the Transcript Document);
(d)the magistrate had made errors of fact (proposed ground 4);
(e)the magistrate had made 'error in law matters that are contrary to public expectation and matters in law' (proposed ground 5);
(f)the magistrate had made errors of fact and law (proposed ground 6);
(g)the magistrate had made 'error in law' (proposed ground 7);
(h)the appellant's conviction and sentence had been 'a final product of Respondent engaging in countless Criminal Code Compilations Act (1913) (WA) offences, galvanized with the public policy and public interest tests and, flying directly in the face of the High Court authority of Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 and others' (proposed ground 8);
(i)the appellant's conviction and sentence had been the 'byproduct of Respondent interference with the purported independent third tier of Government, namely our judicial system' (proposed ground 9);
(j)the prosecution had been an abuse of process to 'mask the actions of the Respondent' (proposed ground 10);
(k)the 'sum total' of proposed grounds 1 ‑ 10 was that a miscarriage of justice had occurred (proposed ground 11);
(l)new evidence ought to be admitted in the appeal (proposed ground 12 ‑ this ground has been reproduced above);
(m) 'adduce evidence and denial of natural justice magistrate erred in not adequately dealing with a right to be heard, a right to present case and prosecution to not alter the facts - deal or interfere with my evidence and witnesses as a statutory authority where the witnesses was influenced to not give evidence and in evidence' (proposed ground 13);
(n)in effect, the respondent had 'altered facts' or its case in prosecuting the charge so as to mislead the magistrate and secure a conviction (proposed ground 14);
(o)the magistrate had exceeded his jurisdiction by, among other things, telling witnesses not to answer questions asked by the appellant; by comments made during the trial; by 'interfering with evidence' by 'not dealing with altered facts' and by 'demonising and mocking' (proposed ground 15);
(p)in effect, the court should conduct a judicial review of the magistrate's decision (proposed ground 16) - this proposed ground included allegations that the magistrate made 'jurisdictional errors' by instructing witnesses not to answer questions; by interfering with evidence; by not dealing with 'altered facts' and by making comments that were intended to influence this court.
Some aspects of the appellant's proposed grounds of appeal should be immediately noted.
First, there was apparent repetition between the grounds: proposed grounds 1 and 3; proposed grounds 4 and 6; and proposed grounds 5 ‑ 7.
Second, the appellant provided no particulars for a number of the proposed grounds so that it was not possible to identify the actual error(s) alleged ‑ for example, the errors of fact and/or law allegedly made by the magistrate. I have reviewed the Transcript Document and the affidavits made by the appellant in an attempt to further identify the errors that he alleges were made by the magistrate.
Third, it was not easy to identify the nature of the error alleged in proposed grounds 8 ‑ 10. Again, I have had recourse to the other documents filed and served by the appellant in an attempt to identify the errors alleged in those proposed grounds.
Fourth, proposed grounds 13 ‑ 15 referred to the respondent 'altering' the facts and the magistrate 'not dealing with altered facts'. I have inferred from the appellant's submissions made at the hearing of his application for leave to appeal that those grounds are related to the allegations made in proposed grounds 8 ‑ 10. In effect, the allegation was that the respondent commenced the prosecution in circumstances where it had previously accepted that it had been necessary for the fence to be constructed without a building licence; further or alternatively, the respondent and Ms Armstrong had indicated that the fence could remain if the appellant took certain steps; further or alternatively, the respondent, in conjunction with Ms Armstrong, had led the appellant to believe that retrospective approval would be given for the construction of the fence.
Fifth, proposed grounds 11 and 16 do not allege any error of fact or law or any other matter that could form a ground of appeal pursuant to s 8 of the Criminal Appeals Act 2004 (WA). However, I have taken into account that part of proposed ground 16 that, in effect, alleged that the appellant did not receive a fair trial.
Finally, the proposed grounds of appeal did not fully expose the issues that the appellant apparently sought to raise in the appeal. In particular, the further evidence that the appellant applied to have admitted in the appeal largely concerned whether he had a reasonable excuse for failing to comply with the Notice. That was the primary issue in the trial and accordingly, the appellant made a number of 'submissions' about that issue in the materials that he filed and served in the appeal.
The approach taken in these reasons
The materials filed and served by the appellant in the appeal presented another problem - they contained submissions and statements that were not directly related to each of the proposed grounds of appeal and were, with respect, difficult to follow at some points. Accordingly, I have decided that, consistent with this court's appellate jurisdiction, it is appropriate to consider at the outset whether there is any basis for concluding that the magistrate erred in finding that the appellant had no reasonable excuse for failing to comply with the order. I will then turn to consider whether there is any ground for contending that the appellant did not receive a fair trial or that the magistrate made an error of the kind alleged by the appellant and if so, whether a substantial miscarriage of justice has occurred.
The Transcript Document referred to numerous pages in the transcript. Comments/submissions were then made in 'dot point' form for each page of the transcript to which the document referred (most often, several comments/submissions were made for each transcript reference). Consequently, it was not possible to conveniently summarise the effect of the comments and submissions made in the document. I have identified in these reasons the issues raised in the Transcript Document by citing the transcript page to which the comments and submissions referred. That follows the way in which the appellant organised his comments and submissions. The transcript references are to the hearing on 9 October 2013 unless otherwise stated.
A further observation
It was apparent from the numerous emails sent to the court, and from the material that he submitted in the appeal, that the appellant misconceived the powers conferred on this court by the Criminal Appeals Act and the nature of the court's appellate jurisdiction. The court's jurisdiction and powers in an appeal from a decision of a court of summary jurisdiction are essentially defined by a combination of s 6, s 8 and s 14 of the Criminal Appeals Act. The court's task is to determine whether the court of summary jurisdiction made an error of fact or law or acted in excess of jurisdiction or whether there has been, what the law recognises to be, a miscarriage of justice. If an error has been made or a miscarriage of justice has occurred, the court is then required to consider if a substantial miscarriage of justice has occurred. Subject to s 39(3) and s 40(1)(e) of the Criminal Appeals Act, an appeal is decided on the evidence and material that was before the court of summary jurisdiction. Obviously, the court does not inquire into matters that are not relevant to the charge and its prosecution. Criminal proceedings are adversarial, not inquisitorial, in nature. It is not the court's role to conduct an inquiry into any grievance that an appellant may have against a respondent or any other person. In particular, this court does not have power to 'review' the various allegations of misfeasance made by the appellant against the respondent or the claims that the appellant wishes to pursue against Ms Armstrong and her mother.
Further, there is a public interest in the finality of litigation. Parties are expected to be ready to present their case when a trial or an appeal is listed for hearing. Parties are not permitted to endlessly add evidence or raise issues as new points occur to them during or after a trial or appeal.
The evidence sought to be admitted
The documents attached to the Evidence Affidavit can be generally described by reference to the following categories:
(a)documents relating to the grant of the building licence for the construction of the appellant's residence at 2 Admiral Link;
(b)engineering documents relating to the fence;
(c)emails to and from Mr White of the respondent and Ms Armstrong sent between 21 March 2011 and 9 October 2012;
(d)emails to and from the appellant, Mr Wales, Ms Walker and Ms Moore (the property manager for Ms Armstrong's property) sent between 31 January and 14 February 2013;
(e)correspondence dated 25 April 2013 from the Department of Commerce (Consumer Protection) to Mr Wales concerning a complaint that had been made about the fence;
(f)emails between Ms Moore and Mr Wales and others sent in June 2013 concerning removal of the fence;
(g)emails to and from Mr Wales, Ms Moore, Mr Sorgiovanni (the principal of the estate agency that employed Ms Moore) and others concerning removal of the fence sent in June and July 2013;
(h)correspondence between the appellant and the respondent concerning payment of rates variously dated in December 2012, October 2013 and March 2014;
(i)Bankwest credit card records for December 2012 to February 2013;
(j)a direct debit repayment invitation by Lion Finance dated 15 March 2013;
(k)correspondence dated in November 2011 and February 2013 between GESB Member Services and the appellant concerning super benefit partial payment;
(l)medical reports and associated documents relating to a total and permanent disablement claim made on 1 November 2012 - the medical records were variously dated between May 2004 and January 2014;
(m)emails and correspondence to and from the appellant and Ms Armstrong sent between 15 February 2011 and 22 March 2012;
(n)a letter dated 31 July 2012 from Ms Armstrong to the Registrar of the Magistrates Court at Geraldton;
(o)an application dated 5 August 2013 to cancel summonses issued by the appellant on officers of the respondent to produce documents and various documents related to the application;
(p)emails exchanged in October 2013 between the appellant, Ms Armstrong and Mr Wales regarding removal of the fence;
(q)a letter dated 23 October 2013 from the appellant to the Geraldton Magistrates Court seeking to stay the prosecution on a variety of grounds;
(r)emails exchanged between the appellant and Mr Gillett (the solicitor retained by the respondent in relation to the prosecution) concerning disclosure of documents;
(s)transcript of proceedings in the Geraldton Magistrates Court on 26 February 2013 (the transcript records proceedings in the Magistrates Court minor case claim made by the appellant against Ms Armstrong and her mother).
The documents attached to Ms Shepherd‑Laurent's affidavit comprised:
(a)a letter dated 1 September 2011 from Ms Shepherd‑Laurent to the respondent requesting a refund of money paid by the appellant in respect of his application for a building approval certificate;
(b)a letter dated 5 December 2011 from Ms Shepherd‑Laurent to Ms Armstrong regarding the fence;
(c)emails to and from Ms Shepherd‑Laurent, Mr Wales and Ms Walker regarding removal of the fence sent between 11 and 14 November 2013;
(d)a letter dated 11 May 2012 from SGIO to the appellant and Ms Shepherd‑Laurent and enclosed certificate of insurance;
(e)residential valuation and security assessment for mortgage purposes prepared by Mr Stafford in respect of 2 Admiral Link, Wandina;
(f)a letter dated 27 July 2012 from the respondent to Ms Armstrong concerning the 'status' of the fence;
(g)a letter dated 1 April 2014 from Australia and New Zealand Banking Group Ltd to the appellant regarding a query on an application for finance;
(h)a document headed 'Meru Waste Disposal Facility Charges 2013/2014'.
(I will refer to the documents sought to be admitted by the appellant collectively as the Appeal Documents.)
Whether the Appeal Documents should be admitted
(proposed ground of appeal 12)
It is convenient to first consider whether the Appeal Documents should be admitted as evidence in the appeal. As has been noted, proposed ground 12 raised that issue. However, as Pullin JA observed in De La Espriella‑Velasco v R [2006] WASCA 31; (2006) 31 WAR 291, 'the availability of further evidence relevant to the issues in the appeal cannot be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial' [150(e)]. The use that may be made of evidence admitted in an appeal is further explained below.
The discretion to admit the Appeal Documents
Section 39(1) of the Criminal Appeals Act provides that an appeal must be decided on the evidence and material that was before the lower court. However, s 39(3) further provides that s 39(1) does not affect the power of an appeal court under s 40 to admit evidence (and see s 40(1)(e)). In Stavrianakos v The State of Western Australia [2011] WASCA 130, Mazza JA observed in relation to s 40(1)(e):
The discretion given to the court to admit evidence not before the lower court is plainly wide and is designed to serve the demands of justice. It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially. However, because Parliament conferred an appellate jurisdiction on the Court of Appeal, it is highly unlikely that Parliament intended to abolish the distinction between original and appellate jurisdictions: de la Espriella‑Velasco v The Queen [150] ([28]).
I will admit the Appeal Documents as evidence in the appeal in light of the appellant's proposed grounds of appeal that contend that a miscarriage occurred as he was denied a fair opportunity to present his case at trial. The proposed grounds of appeal cannot be properly determined without considering the Appeal Documents in light of the appellant's assertions and submissions. Accordingly, the documents are admitted for the purpose of determining whether a miscarriage of justice has occurred.
The principles to be applied
The distinction between fresh and new evidence was succinctly described by Mazza JA in Stavrianakos v The State of Western Australia [2011] WASCA 130:
[e]vidence is considered to be 'fresh' if it did not exist at the time of trial or it could not have been discovered with reasonable diligence. Evidence will be 'new' if it was available at the trial or could, with reasonable diligence, then have been discovered: DPJB v The State of Western Australia [2010] WASCA 12 [61]; and Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [411] ([21]).
An appeal will be allowed where the evidence is fresh if it is established that there was a significant possibility, having regard to all of the admissible evidence (including the evidence at trial), that a jury acting reasonably would have acquitted the appellant. However, an appellate court will not allow an appeal against conviction on the basis of new evidence unless the new evidence establishes that the appellant was innocent or it raises such a doubt that the court is satisfied that the appellant should not have been convicted: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12; Genovese v City of Perth [2012] WASCA 8. As Mazza JA noted in Stavrianokos, the rationale for the distinction was explained by Steytler P in Rinaldi v The State of Western Australia [2007] WASCA 53 [79].
It is apparent from their content that the Appeal Documents were not fresh evidence. The appellant did not explain why he did not have the documents at the trial. Accordingly, the appellant must demonstrate that the new evidence establishes that he is innocent or that the evidence raises such a doubt that I am satisfied that he should not have been convicted.
The statutory scheme
Section 374(1) of the Miscellaneous Provisions Act provided, among other things, that a person must not commence or proceed with a building on land in a district until he had caused to be submitted to the local government, and the local government had approved by the issue to the person of a building licence in the prescribed form, a copy of the specifications of, and a plan showing clearly, the building proposed to be built. It was not in issue that the appellant had been required to obtain a building licence prior to commencing construction of the fence.
Section 374AA of the Miscellaneous Provisions Act provided, so far as is relevant, that:
(1)In this section:
unauthorised building work means the erection of a building or the amendment, alteration, extension or enlargement of the structure of a building ‑
(a)which is carried out without the permission of the local government where that permission is required;
…
(2)The owner of a building on which unauthorised building work has been carried out may apply to the local government for the issue of a building approval certificate in respect of the unauthorised building work.
(3)An application under subsection (2) ‑
(a)is to be in the form prescribed by regulations;
(b)is to be accompanied by the documents and information prescribed by regulations or required by the local government; and
(c)is to be accompanied by the fee prescribed by regulations.
(4)The local government ‑
(a)may, if it is satisfied that the unauthorised building work substantially conforms with the requirements of this Act, issue a building approval certificate in respect of the unauthorised building work; or
(b)may refuse to issue a building approval certificate in respect of the unauthorised building work.
…
(6)Section 374(2a) and (2b) (with any necessary modifications) apply in relation to the issue or refusal to issue a building approval certificate as if it were the approval or refusal to approve specifications and a plan submitted to the local government under s 374(1).
Section 374(2a) and s 374(2b) specified time periods within which applications for a building licence were to be considered by a local government. Section 374B provided that:
(1)Where by reason of an emergency endangering any person, building or structure any building work must be performed without approval as required by this Act, it shall, notwithstanding any other provision of this Act, be lawful to perform the building work subject to the condition that as soon as practicable after its commencement written notice of the building work is served upon the local government.
(2) If the condition referred to in subsection (1) is not complied with the owner of the land on which the building work is performed shall be guilty of an offence and liable to a penalty not exceeding $5 000.
Part 4 of the Building Regulations 1989 (WA) dealt with applications for building approval certificates under the Miscellaneous Provisions Act. Regulation 24A (appearing in pt 6 of the Regulations) specified a scale of fees that was chargeable by and received by a local government in relation to an application for a building approval certificate. The fees were to be calculated according to the estimated current value of the unauthorised building work.
Section 401(1) of the Miscellaneous Provisions Act provided that:
A local government may, during or after the erection of a building in its district, give to the builder or owner of the building, written notice of anything, in the construction of the building ‑
…
(ba)which is a contravention of this Act; or
(c)which, where permission of the local government is required for carrying it out, has been carried out without that permission;
and requiring him to pull down or so alter the building as to remove the cause of the objection and on being served with the notice the builder or owner shall comply with the requisition, unless he applies to the State Administrative Tribunal under subsection (3) for a review of the decision to make the requisition and the State Administrative Tribunal sets aside the decision.
Section 401(7) provided that:
If the builder or owner on whom a notice mentioned in subsection (1) has been served does not -
(a)within 35 days of that on which the notice is served upon him, unless the requisitions in the notice are the subject of an application for review as described in this section; or
(b)if an application for review is made but is dismissed, within 14 days of the dismissal,
comply with the requisitions in the notice, the Magistrates Court, on an application by the local government … may order the person on whom the notice has been served to comply with the requisitions within a time to be fixed by the order …
Section 401(8) permitted a local authority to enter upon the land the subject of an order and give effect to the requisitions if the person to whom an order was made under s 401(7) had not complied within the time fixed by the order. The local authority could recover the cost of doing so in a court of competent jurisdiction. Section 670 provided that a person who did not do a thing which by or under the Act he was required to do committed an offence.
Section 374 and s 401 of the Miscellaneous Provisions Act appeared in pt XV of the Miscellaneous Provisions Act. That part of the Act was repealed by s 153 of the Building Act.
Section 190 of the Building Act provides that a notice given under s 401(1) of the Miscellaneous Provisions Act that was given to a person before the commencement day of the Building Act is, on and from commencement day, to be taken to be a copy of a building order served on that person. Section 190(4) provides that s 115 does not apply to a notice taken to be a building order under s 190(1) until 14 days have elapsed from finalisation of a review that had been sought under s 401(3) of the Miscellaneous Provisions Act.
Section 110 of the Building Act states:
(1)A permit authority may make an order (a building order) in respect of one or more of the following ‑
(a)particular building work;
(b)particular demolition work;
(c)a particular building or incidental structure, whether completed before or after commencement day.
(2) A building order must be in an approved form and must be
directed to any one or more of the following persons as is
appropriate in the case -
(a) if a building permit is in effect for the particular building
work, the person named as the builder on the permit;
(b) if a demolition permit is in effect for the particular
demolition work, the person named as the demolition
contractor on the permit;
(c) a person who is an owner of the land on which the
particular building or demolition work is being, or has
been, done;
(d) a person who is an owner or occupier of the land on
which the particular building or incidental structure is
located.
A local government is a 'permit authority' for the purpose of making a building order (s 6(3) of the Building Act).
Section 115 of the Building Act provides that a person who is served with a copy of a building order must not without reasonable excuse fail to comply with the order. A person who fails to comply with a building order commits an offence. The maximum penalty for the offence is a fine of $50,000 if the offence was a first offence committed by the offender.
Section 118 of the Building Act permits a permit authority to take any action specified in a building order where the order has not been complied with and the person on whom the order is served has not applied for a review. Unlike the Miscellaneous Provisions Act, there is no intermediate step requiring the permit authority to apply to the Magistrates Court for an order fixing a time for compliance (a building order must by its term specify a time).
'Reasonable excuse'
The meaning of the term 'reasonable excuse'
The appellant in Taikato v The Queen (1996) 186 CLR 454 was convicted of possessing in a public place a thing capable of discharging an irritant, contrary to s 545E(1) of the Crimes Act 1900 (NSW). Section 545E(2) of the Crimes Act provided that it was a defence to a charge under subsection (1) 'if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose'.
Brennan CJ, Toohey, McHugh & Gummow JJ observed, in relation to the term 'reasonable excuse':
The term 'reasonable excuse' has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of 'reasonable excuse' is an exception (464).
After considering what circumstances might constitute a reasonable excuse for the purpose of s 545E of the Crimes Act, their Honours continued:
However, the reality is that when legislatures enact defences such as 'reasonable excuse' they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence (466).
Dawson J also observed in Taikato that:
A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person. It is different from a lawful excuse but … it is difficult to conceive of an unlawful purpose which would constitute a reasonable excuse. Reasonableness provides a test which is well‑known in both criminal and civil law and, though it may involve a judgment of degree, has a ready application in widely differing circumstances. The fact that the test of reasonableness frequently involves a question of degree so that minds may differ upon the answer does not relieve a tribunal of the duty to apply the test where that is the test laid down and does not justify confining its scope for the sake of greater precision or certainty (470).
Consequently, what constitutes a 'reasonable excuse' as an exception to a statutory prohibition is to be objectively determined according to the circumstances of the case and the purpose of the prohibition. The term is not to be given a narrow meaning where it appears in a statutory provision that creates a criminal sanction for breach: Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423 (Kirby P, with whom Meagher JA & O'Keefe AJA agreed) (436).
The objective nature of the determination should be emphasised in light of the appellant's submissions in the trial and the appeal. The test is not whether the appellant thought that he had a reasonable excuse but whether there was, objectively determined, a reasonable excuse for his failure to comply with the Notice in the period specified in the prosecution notice. The appellant's failure to appreciate that difference presented difficulties for the magistrate in conducting the trial.
Section 78 of the Criminal Procedure Act 2004 (WA) applies to s 115 of the Building Act. Section 78 states that:
(1)In this section, unless the contrary intention appears ‑
exception includes a condition, excuse, exemption, proviso and qualification.
…
(3)If a written law creates a simple offence and provides an exception in respect of the offence, the exception is to be taken not to apply unless the accused proves, on the balance of probabilities, that it does.
The offence created by s 115 of the Building Act is a simple offence: s 67 of the Interpretation Act 1984 (WA). Accordingly, it was for the appellant to prove, on the balance of probabilities, that he had a reasonable excuse for not complying with the Notice (a matter that was referred to by the magistrate during the trial).
Reasonable excuse and s 374, s 401
It is necessary to further consider the purpose of s 374 and s 401(1) of the Miscellaneous Provisions Act having regard to the observations made by the High Court in Taikato on the meaning and effect of the term 'reasonable excuse'.
The Court of Appeal concluded in City of Kwinana v Lamont [2014] WASCA 112 that a primary object of s 374(1) of the Miscellaneous Provisions Act was the supervision of building work to ensure its 'quality, reliability and safety'. The section was not principally concerned with 'planning measures' as opposed to 'building supervision measures' [60]. Although the Court of Appeal left open other possibilities, that statement of the statutory purpose for requiring a person to obtain a licence before commencing to construct building is directly applicable to the circumstances of this matter.
Section 374AA was likewise concerned with the quality, reliability and safety of a building that has been constructed without the builder or owner having first obtained a licence.
The evident purpose of s 401(1) was to enable a local government to ensure that buildings constructed in its district complied with building codes and other requirements that were designed to maintain quality, reliability and safety. The section reflected Parliament's view of the desirability of requiring that all buildings were constructed with the approval and overall supervision of the relevant local authority. The absolute nature of the action that a local authority could require a builder or owner to take under the section - pulling down or altering the building - is obviously significant for determining what might constitute a reasonable excuse for non‑compliance. So also is the fact that the recipient of a notice could seek a review of the decision to issue the notice in SAT. The kind of circumstance that might constitute a reasonable excuse in any particular case will reflect the possibility of an independent review of the decision to serve a notice under s 401(1).
So, for example, a builder or owner might have a reasonable excuse for non‑compliance because some unforeseen event or circumstance prevented the the demolition or alteration within the time specified in the notice. However, it is difficult to see how a builder or owner could be reasonably excused from complying with the notice at all - that is, from pulling down or altering the building as required by the notice. That is especially as the decision to issue the notice could be (and in this case, has been) reviewed by SAT.
The relevant time for determining whether there was a reasonable excuse
Section 401(1) of the Miscellaneous Provisions Act did not require a notice served pursuant to the section to specify a time for undertaking a requisition (compare s 112(2) of the Building Act). Presumably, that reflected the effect of s 401(7). Accordingly, the Notice did not specify a time within which the appellant was to remove the fence. Rather, the Notice warned that the appellant would commit an offence if the fence was not pulled down within the times specified in s 401(7) (and see s 670 of the Miscellaneous Provisions Act). Subject to the effect of s 190(4) of the Building Act, it might be argued that the Notice required the appellant to pull down the fence by 25 December 2014, being 14 days after the decision by SAT. That possibility raised a question about whether the time in which the appellant had failed to comply with the Notice was the 14 days following the decision of SAT and whether this was the relevant period for determining whether the appellant had a reasonable excuse.
Section 115 of the Building Act has a dual effect: it imposes an obligation to comply with a building order (albeit that the section is expressed as a negative - 'must not fail to comply') and makes it an offence to not comply. That raises a further question under s 190(4) as to whether the obligation imposed by s 115 takes effect on the expiry of the periods specified in s 190(4) (that is, that the requirement to undertake a requisition runs from when the specified periods have lapsed) or whether the obligation applies during the periods specified in s 190(4) so that the effect of the section is only to identify the time at which an offence under s 115 will have been committed.
The respondent contended for the former interpretation; it accorded with the formulation of the charge alleged against the appellant. I am inclined to the view that this is the interpretation that was intended. Section 190(4) provides that s 115 does not apply 'to a notice … until …'. That wording suggests that the obligation to comply with the notice imposed by s 115 does not apply until the periods specified in s 190(4) have lapsed.
There is a difficulty with that interpretation: when is the offence created by s 115 committed given that a notice served under s 401(1) may not stipulate a time for performance; by when will the recipient of the notice have failed to comply? However, the reasonable excuse defence can accommodate that difficulty. An accused would have a reasonable excuse for non‑compliance if the prosecution charged that the accused had failed to comply with a notice within an unreasonable time.
However, it has not been necessary to finally resolve this question. If the time to comply with the Notice was within 14 days of the decision of SAT, s 71(1) of the Interpretation Act 1984 (WA) would apply. The appellant would have been obliged by that section to comply with the Notice after the 14‑day period had expired. Further, the section would permit the respondent to prosecute the appellant for a breach of s 115 of the Building Act committed after that 14‑day period - in this instance, between 25 December 2012 and 23 January 2013.
If, on the other hand, the time for compliance with the Notice commenced to run from 14 days after the decision in SAT (that is, from 25 December 2012), the only question would be whether the appellant had breached the obligation imposed by s 115 by 23 January 2013. The appellant did not contend that the period between 25 December 2012 and 23 January 2013 was not a reasonable time within which to comply with the notice.
On either interpretation, the period of non‑compliance commenced on 25 December 2012 and it was on and from that date that the appellant was required to demonstrate that he had a reasonable excuse for not complying with the Notice. It would have been sufficient for the appellant to have established that the excuse applied at some time during the period of non‑compliance specified in the charge and that it excused him from pulling down the fence by the end of that period.
The appellant's excuses and the magistrate's findings
Consent to enter the property
The finding and the evidence
The magistrate found that Ms Armstrong had given her consent to the appellant entering her property for the purpose of removing the fence in her email sent on 28 February 2011 (exhibit 5). Ms Armstrong confirmed in her evidence that she had not subsequently 'deviated' from that position (9 October 2013, ts 45 ‑ 46). The appellant accepted that he had Ms Armstrong's consent to enter her property (ts 122).
Ms Armstrong also gave evidence that:
(a)The appellant did not ask her if he could enter her property to remove the fence in December 2012 or January 2013 (ts 26).
(b)She had sent an email to the appellant on 13 June 2013 requesting that he inform her of the date on which he intended to remove the fence. The appellant replied by an email sent on the same day advising that 'I may consider seeking consent to enter 4 Admiral Link, Wandina, from the occupants directly'. Ms Armstrong responded to that email by stating that it was her obligation to advise the tenants of the date on which the fence was to be removed and that she required seven days' notice to 'put procedures into place'. The appellant replied to that email by asserting that he required the tenants' consent to enter the property or he would commit a trespass. The appellant's email had continued:
I may also leave it to the magistrate to deal with. You must also settle payment I made due to your action which you also admitted before the magistrate ‑ kindly respond and pay, details are available upon request from you. I can send you correspondence sent to your lawyer as noted. Kindly remedy as soon as possible and don't ignore (exhibit 7).
(c)The appellant had first asked after the hearing in SAT if he could enter Ms Armstrong's property to remove the fence in July 2013. Ms Armstrong had informed him that she had no objection (ts 26) (and see exhibit 6).
(d)She had not met Mr Wales or Ms Walker as she had engaged a property manager to manage the lease. She had understood that it would be necessary for her to inform the property manager of the date on which the fence was to be demolished. The property manager would then liaise with her tenants for that purpose.
Ms Armstrong's evidence on the last point was apparently directed to the position at the time that she was giving evidence rather than as at December 2012/January 2013. However, the effect of her evidence was that she had not taken any step to arrange for Mr Wales and Ms Walker to be informed about the fence being removed because the appellant had not nominated a date on which that was to occur.
Mr Sorgiovanni's evidence was that the appellant had advised him on 17 June 2013 that he required access to Ms Armstrong's property for the purpose of removing the fence (9 October 2013, ts 108 and ts 115). Mr Sorgiovanni also stated that the appellant had not contacted him about the fence in the period 25 December 2012 to 23 January 2013 (ts 115).
The Appeal Documents included a copy of a note that had been apparently given or sent by the appellant to Mr Sorgiovanni and which was date stamped '17 June 2013'. The appellant stated in the note that he required entry to Ms Armstrong's property to remove the fence by 29 June 2013 (attachment 'I 20').
The appellant's evidence was that Ms Armstrong had leased her property in early December 2012 (ts 118). Mr Wales and Ms Walker were from Mandurah and they had travelled to and from Mandurah for a period of time after the lease commenced (see, for example, at ts 124). The appellant accepted at the hearing of his application for leave to appeal that the evidence established that Mr Wales and Ms Walker did not actually move into Ms Armstrong's property until 13 January 2013 (ts 25).
The appellant also stated that Mr Wales had informed him that he would not let him enter the property and that he had understood that the fence was to have been rendered (ts 127). The appellant did not state when Mr Wales had informed him about those matters. However, the Appeal Documents included a letter or email from Mr Wales to the appellant dated 17 June 2013 in which Mr Wales stated that he and Ms Walker did not intend to grant access to 4 Admiral Link for various reasons. The letter also stated that Ms Armstrong had said at a meeting held on 31 January 2013 that the fence was to be rendered (attachment 'I 32').
The Appeal Documents included a bundle of emails exchanged between the appellant, Mr Wales, Ms Walker, Ms Moore, Mr Sorgiovanni and others concerning the removal of the fence (attachments 'I 1' ‑ 'I 64'). The email sequence commenced with an email sent by the appellant to Ms Moore on 31 January 2013 in which he stated that he had spoken to Mr Wales 're fence issues' (attachment 'I 1'). Obviously, that email was sent after the period of non‑compliance specified in the charge.
Subsequent emails sent by Mr Wales and Ms Walker indicated that they were concerned about the removal of the fence and sought to delay its demolition until the term of their lease had expired. They put various proposals about the fence to Ms Armstrong (through Mr Sorgiovanni and Ms Moore) in June and July 2013. The email sequence did not disclose whether any agreement had been reached as a result of those proposals. However, the sequence included an email sent by Mr Wales to the appellant on 24 September 2013 in which Mr Wales stated, 'I would like to distance myself from this dispute. I do not wish to have any involvement whatsoever with court action against the City of Greater Geraldton or other' (attachment 'I 37').
The Residential Tenancies Act
Section 44 of the Residential Tenancies Act 1987 (WA) provides that it is a term of every residential tenancy agreement that the tenant is to have quiet enjoyment of the premises without interruption by the lessor, and that the lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
Section 46 of the Act concerns the lessor's right of entry. The section provides that it is a term of every residential tenancy agreement that the lessor may enter the premises for the purpose of carrying out or inspecting necessary repairs to or maintenance of the premises at any reasonable time after giving the tenant not less than 72 hours' notice in writing before the proposed entry. Section 47 further provides that it is a term of every residential tenancy agreement that the lessor may affix any fixture or make any renovation, alteration or addition to the premises with the tenant's consent. However, the tenant must not unreasonably withhold consent.
Trespass
Section 70A(1) of the Criminal Code (WA) defines 'trespass on a place' to mean:
(a)to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place; or
(b)to remain in the place after being requested by a person in authority to leave the place.
The term 'person in authority' is defined, so far as is relevant, to mean 'the owner, occupier or person having control or management of the place'.
Section 70A(2) makes it an offence for a person, without lawful excuse, to trespass on a place.
Ms Armstrong's email of 28 February 2011
The appellant asserted in the Application Affidavit that he was confused by Ms Armstrong's email of 28 February 2011 (exhibit 5) because it had been sent from the email address for Ms Armstrong's mother. The appellant suggested in the trial that there was doubt over who owned 4 Admiral Link and who could, therefore, permit him to enter the property to remove the fence.
Ms Shepherd‑Laurent stated in her affidavit that she was the owner of the property situated at 2 Admiral Link and that she was 'the owner and main financier of the house and fence build' (par 5). There was no evidence to that effect at the trial and Ms Shepherd‑Laurent did not give evidence (the Tribunal in its reasons on the review application described the appellant as a part‑owner of the property). Ms Shepherd‑Laurent further alleged that:
Gerald and I suspected that Barbara Armstrong [Ms Armstrong's mother] wrote documents pretending to be Cassandra Armstrong, making me believe that the documents were from Cassandra. This led me to give no value to the letters and confusion over Cassandra's requests due to change of mind (par 10).
The explanation given by Ms Armstrong as to why she had used her mother's email address was straightforward and obvious: she did not possess a computer at the time and so she was using her mother's computer and email address for the purpose of communicating with Mr Laurent. Further, and significantly, the 'email' of 28 February 2011 was in the form of a letter signed by Ms Armstrong (as was the earlier correspondence of 18 and 24 February 2011). Moreover, there could have been no doubt that Ms Armstrong was the owner of the property by the time that the proceedings in SAT had been completed (see the reasons for decision of the Tribunal [1]).
It is also relevant that the appellant apparently had no doubt in August 2011 that Ms Armstrong was the owner of 4 Admiral Link. He wrote to her on that date demanding that she pay for one‑half of the cost of constructing the fence (Appeal Documents, attachment 'S 8'; see also attachments 'S 11' and 'S 13').
The appellant's assertion that he did not know who was the owner of 4 Admiral Link as at December 2012 and January 2013 lacked creditability in light of those matters. It is also relevant in this context that the appellant sent an email about the fence to Ms Moore on 31 January 2013; that is, he knew by that date that Ms Moore managed the property for Ms Armstrong. Although the appellant raised questions concerning the involvement of Ms Armstrong's mother at trial, the gist of his defence was that he required the consent of Ms Armstrong's tenants, not that he did not know who he should approach to obtain consent to enter the property.
The appellant also claimed in his closing submissions at trial that he had not known Ms Armstrong's address to be able to contact her immediately after SAT delivered its decision (6 November 2011, ts 21 ‑ 22). Presumably, that submission was directed to the question of whether he had obtained the consent of Mr Wales and Ms Walker to enter the property as the appellant had earlier in the trial accepted that he had Ms Armstrong's permission to enter her property for the purpose of removing the fence (9 October 2013, ts 122 ‑ 123).
The appellant's allegation that he did not know how to contact Ms Armstrong in December 2012/January 2013 was not explored in the cross‑examination of Ms Armstrong. It was a matter that was raised in the proceedings in SAT, albeit in the context of an attempt by the appellant to serve a witness summons on Ms Armstrong by posting the document to Ms Armstrong's parents. Contrary to the submission made to the magistrate in the trial, the appellant did not have to follow a particular procedure to notify Ms Armstrong of when he proposed to remove the fence. He was able to communicate with Ms Armstrong's mother and with Ms Moore (as at 31 January 2013). The content of the appellant's first communication with Ms Moore on 31 January 2013 was inconsistent with him having made any attempt to contact Ms Armstrong during the period specified in the charge or with him having taken any step to comply with the Notice during that period. The cross‑examination of the appellant on this point confirmed that this was so (9 October 2013, ts 137 ‑ 139 and ts 141 ‑ 143).
Conclusion
As has been noted, the magistrate made two findings on the issue of whether the appellant was excused from complying with the Notice because he did not have consent to enter Ms Armstrong's property:
(a)the appellant was only required to obtain Ms Armstrong's consent ‑ he was not required to also obtain the consent of Mr Wales and Ms Walker; and
(b)Ms Armstrong had given her consent to the appellant entering her property for the purpose of removing the fence.
In my view, the magistrate did not err in making either of those findings. The evidence established that Ms Armstrong had given the appellant permission to enter her property for the purpose of removing the fence in the email sent on 28 February 2011 and that she had not subsequently withdrawn her consent. The effect of the Residential Tenancies Act was that the consent of Mr Wales and Ms Walker was required for the fence to be removed, but it was a matter for Ms Armstrong to obtain their consent (which could not have been unreasonably withheld). Ms Armstrong indicated (through Ms Moore) to Mr Wales and Ms Walker as early as mid‑February 2013 that she was aware of the need to take steps once the appellant had indicated when the fence would be removed (Appeal Documents, 'I 5').
The real difficulty for the appellant on the issue of consent was that there was no evidence that he took any step following the decision of SAT and during the period specified in the charge to notify Ms Armstrong that he wished to enter her property for the purpose of removing the fence (or that he took any other step towards complying with the Notice). He might have had a reasonable excuse for not complying with the Notice if he had sought Ms Armstrong's permission to enter her property but she had been unable to procure the consent of her tenants immediately following the decision by SAT. However, the evidence adduced in the trial established that he did not approach Ms Armstrong in the relevant period. Rather, the documents indicate that the appellant sent an email to Mr Wales and Ms Moore on 2 February 2013 (Mr Wales and Ms Walker having not commenced to reside at Ms Armstrong's property until 13 January 2013) stating that he had been advised that it was necessary to remove the fence; that the respondent had 'made its intention that it will seek Orders that the Fence be removed shortly' and that 'the matter [was] not within [his] control' (Appeal Documents, attachment 'I 2'). The Appeal Documents further disclosed that the appellant only sought to notify Ms Armstrong of his wish to enter her property for the purpose of removing the fence in June 2013. That was, of course, well after the respondent had commenced the prosecution and even at that time, the appellant stated that he might 'leave it to the magistrate to deal with' and demanded that Ms Armstrong pay him money in relation to the fence or the application for a building approval certificate.
The driveway
The appellant's allegation that the driveway located on Ms Armstrong's property would have been damaged if the fence was demolished was relevant to whether the respondent's decision to serve the Notice was reasonable. However, the appellant did not make an allegation to that effect in the proceedings in SAT.
The appellant could not have been reasonably excused from complying with the Notice because of the possibility of damage to the driveway once it had been determined by SAT that the preferable and correct decision was to require the fence to be pulled down. In any event, as the magistrate observed, there was no evidence that the demolition of the fence would cause subsidence and damage to Ms Armstrong's driveway apart from the appellant's assertions to that effect (and there was no evidence that the appellant possessed building, engineering or other relevant expertise). The appellant's allegation merely reflected his opinion. Accordingly, there was no evidence capable of establishing that there was a real risk of subsidence if the fence was removed and no basis for finding, objectively, that the possibility of subsidence provided a reasonable excuse for the appellant's failure to comply with the Notice.
The appellant submitted at the leave hearing that removing the fence would have damaged the swimming pool constructed on his property adjacent to the fence (ts 29). That submission merely emphasised that the question of whether the retaining wall and fence could be removed without causing undue damage to surrounding structures was a matter that was relevant to the reasonableness of the respondent's decision to serve the Notice. Moreover, there was no evidence to substantiate the allegation - it was merely an assertion made by the appellant - and it was not a matter to which the appellant referred when he was asked by the magistrate to identify all of the matters that he relied on to contend that he was reasonably excused from complying with the Notice.
The Tribunal found in the review proceedings that the fence was a 'considerable danger' as a result of the manner in which it had been constructed [97]. The appellant made reference to the safety of the fence at the trial and in the appeal (see for example, 6 November 2013 ts 23 and the leave hearing, ts 26). As I understood the submission, the appellant contended that he required but was never given control over Ms Armstrong's property to safely remove the fence. However, that merely raised the issue of consent in a different context - the appellant not having taken any step towards removing the fence during the period specified in the prosecution notice. The finding by the Tribunal, on the other hand, made it clear that the fence needed to be pulled down immediately following its decision. The finding was also inconsistent with the proposition that the fence should remain because of the risk of damage to the surrounding structures.
Reimbursement of expenses incurred by the appellant
The provisions of the Building Regulations requiring a fee to be paid to a local government for an application for a building approval certificate were summarised above. There is no basis for contending that the respondent was obliged to refund the fees merely because the application was refused.
The appellant suggested that he had been misled or induced into making the application. However, the evidence was that the appellant had made the application after:
(a)the respondent had informed him that the retaining wall on which the fence had been built was located on Ms Armstrong's land so that it was for Ms Armstrong to apply for retrospective approval if she wished; and
(b)Ms Armstrong had advised the appellant that she would apply for a building approval certificate provided that he obtained engineering certificates and rendered the fence.
It is not apparent why the appellant applied for the building approval certificate in light of those matters. However, there was no objective basis for his assertion that the respondent was obliged to refund him the expenses incurred in making the application and its refusal to do so could not excuse his failure to comply with the Notice. Further, and in any event, the allegation that the respondent had behaved unlawfully or improperly in relation to the application for a building approval certificate or the construction of the fence could not provide the appellant with a reasonable excuse for not complying with the Notice. At most, they were matters that might have been pursued elsewhere.
His Honour's comment could not provide a basis for alleging actual or apprehended bias on the part of the magistrate. The observation was correct as a matter of law and a comment of the kind that might be made during a prosecutor's opening by a magistrate concerned to identify the real issues to be determined.
The appellant also complained about a further comment made by the magistrate at the end of the hearing on 6 November 2013. The magistrate advised the parties that a copy of his reasons would be provided prior to delivering his decision in court. The appellant stated that he would collect the reasons from the court and the magistrate replied, '[a]nd can I suggest in the meantime, there's probably no more need for you to, each day, come to the registry here and file any further papers' (ts 33).
The appellant's complaint about that comment was that:
The parties should have been made aware of these claims, because they are actual bias and further wrong in law ‑ having an invested interest in me lodging documents because it appears to affect the magistrate. Doing what I have to do in law affects the magistrate and he seek to interfere with the evidence and my case to arrive to this summary other matters err in law. If this was disclosed I would have in trial ‑ I would have taken the appropriate action given this was before and during trial ‑ not disclose to the parties. I seek the matter be dismissed ‑ the elementary defence preferred by the magistrate and respondent is before the Court for determination in the hope to save the rate payers or me greater financial burden in full appeal trial. Further I am open for any evidence or issues the Court would like to deal with at any time (Transcript Document, 3).
There are several points to be made about that submission. The appellant did not identify the documents that he filed with the court and which he contended might have unfairly prejudiced the magistrate. He also did not state his purpose in filing the documents to which the submission referred. There was one document in the Appeal Documents (attachment 'T 18') which was a letter from the appellant to the Magistrates Court at Geraldton stating why he had sought to have the prosecution stayed on the ground that he had a reasonable excuse for not removing the fence. It is apparent from its contents that the appellant intended that the letter would be brought to the attention of the magistrate.
The appellant frequently sent emails to this court before and after the hearing of his application for leave to appeal. I assume that the magistrate may have been referring to a similar practice before and after the hearing on 9 October 2013. However, the magistrate would properly have had access to the court file and have been aware that documents had been filed by the appellant. His Honour could not, of course, have regard to the documents that were filed to the extent that they contained submissions or material that ought to have been presented in the trial. There was no evidence that the magistrate did have regard to material that did not form part of the trial or that his Honour was affected in any way by the appellant's practice of filing further documents with the court.
The final part of the appellant's submission reproduced above provided an example of the difficulty referred to earlier in the reasons that the appellant apparently considered that this court would conduct some form of trial or inquiry if he was granted leave to appeal. That misunderstanding was also reflected in proposed ground of appeal 16 which sought, among other things, a 'judicial review in circumstances I was involved in that will cause vocational damage due to the action of the authorities that has crossover of legislative act such as Fence Act, Building Act and other that involves a fence structure and manner land property development is conducted and approved by local authority that makes building a fence structure not unattainable'.
Another submission made in the Transcript Document was that:
I wish to recall myself as respondent was allowed with his witnesses to re‑examine evidence of defences I preferred in trial. I was not allowed. Raising concern that magistrate was malicious he denies my evidence and seek to torment with malicious claims and matter that involves ultra vires (2).
The appellant repeatedly said in the course of his cross‑examination on 6 November 2013 that he had not completed his evidence. The trial transcript suggested that this was a reference to the appellant's wish to introduce further documents apparently relating to his allegation that the respondent had engaged in unlawful or improper conduct and to summons Mr Wales. However, the appellant stated in the Application Affidavit that:
I had extensive evidence in my possession that involved financial hardship. I said word[s to] the effect 'I have not given my evidence' repeatedly. Transcript dated 6 November 2013, page 19 (par 5).
The appellant provided no explanation for why he had not given that evidence in his evidence‑in‑chief or for why he had not explained to the magistrate on the resumption of the trial that he had with him documents relating to his financial position that he wished to tender as evidence.
The appellant submitted at the hearing of his application for leave to appeal that he had been denied the opportunity to present evidence relating to why he constructed the fence and why Ms Armstrong had given 'consent in the letter for the fence' (ts 22). The first of those matters concerned the appellant's claim that he had constructed the fence in response to an emergency. Although the appellant referred at trial to the need to question officers of the respondent about the building licence for his house and the construction of the fence, he did not indicate that he wished to argue that he did not require a building licence for the fence. In any event, that matter was irrelevant to the charge alleged against him for the reasons given below.
The second matter on which the appellant submitted he had been prevented from presenting evidence concerned whether Ms Armstrong had initially consented to the construction of the fence (or more accurately, the fence remaining) at about the time that she had purchased 4 Admiral Link. Again, that was a matter that was irrelevant to the charge alleged against the appellant. Ms Armstrong could not have consented to a breach by the appellant of the provisions of the Miscellaneous Provisions Act. At most, she might have co‑operated with the appellant by making an application for a building approval certificate if that had been her wish.
In my view, the magistrate did not err in refusing the appellant's various applications for an adjournment and in any event, the Appeal Documents and his submissions did not disclose that the appellant had a reasonable excuse for not complying with the Notice. I should add that the appellant alleged in the Application Affidavit that the prosecutor and the respondent had prevented him from presenting evidence about his financial position at the trial. I have been unable to find any basis for that allegation from my review of the trial transcript.
The appellant made a number of submissions in the Transcript Document regarding an exchange that occurred between the magistrate, the prosecutor and himself about witnesses who had been summonsed by the appellant (officers of the respondent) and a witness, Ms Armstrong's mother, who had been summonsed by the respondent at the request of the appellant (the exchanges are recorded at ts 14 ‑ 18). Essentially, the appellant made two complaints about those exchanges:
(a)the prosecutor ought to have called the witnesses as part of the prosecution case; and
(b)the magistrate indicated during the exchange that the matters that the appellant intended to raise in his defence were irrelevant and (by inference), the magistrate had erred in forming that view.
As to those complaints:
(a)The magistrate questioned the appellant about the relevance of the evidence that he anticipated would be given by the witnesses who had been summonsed to appear. At the conclusion of that exchange his Honour advised the prosecutor that none of the witnesses could be excused (ts 18).
(b)It was for the appellant to decide whether to call the officers from the respondent that he had summonsed.
(c)It was not apparent from the transcript or from the appellant's comments in the Transcript Document why Ms Armstrong's mother was not called by the prosecutor and made available for cross‑examination by the appellant. However, the appellant advised the magistrate that he anticipated that Ms Armstrong's mother could give evidence about correspondence in which she had identified herself as the owner of 4 Admiral Link; that she 'also liaised with the [respondent] in relation to costs that I've paid to progress the fence'; that she wrote correspondence that was signed by Ms Armstrong and that she told Ms Armstrong's tenants that the fence was to be rendered (ts 15). Those matters are dealt with elsewhere in the reasons but they were not relevant to the issue of whether the appellant had a reasonable excuse for not removing the fence in the period specified in the charge. The appellant's wish to pursue those matters was a further example of his unwillingness or inability to separate issues that may have been relevant to the respondent's decision to serve the Notice (matters for his applications in SAT) and matters that could provide a reasonable excuse for failing to comply with the Notice.
(d)It was apparent from the appellant's explanation to the magistrate that the officers of the respondent who had been summonsed to appear had been involved in the respondent's decision to require the fence to be removed or with the building licence for the house that was built at 2 Admiral Link or were thought by the appellant to be relevant to his allegation that he had built the fence in response to an emergency or, perhaps, to his assertion that he was not the builder of the fence. None of those matters were relevant to the charge for the reasons given below.
(e)The prosecutor had a duty to call material witnesses. However, the prosecutor alone had the responsibility for deciding who should be called as a witness in the prosecution case. The magistrate could only call a witness in the most exceptional circumstances. A decision by a prosecutor not to call a particular person as a witness can only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, it was seen to give rise to a miscarriage of justice: The Queen v Apostilides [1984] HCA 38; (1984) 154 CLR 563.
Another complaint by the appellant concerned a comment by the magistrate that, 'I'm guessing here that you're wanting the court to trawl over matters that precede the issue of the notice' (ts 15). Read in context, it was apparent that the magistrate was referring to matters concerning the respondent's decision to give the Notice ‑ that is, matters that were the subject of the review proceedings in SAT. The magistrate rightly regarded those matters as being irrelevant having regard to the provisions of s 401(1) of the Miscellaneous Provisions Act.
The appellant also complained in the Transcript Document that the respondent had been permitted to adduce evidence of matters that had occurred prior to service of the Notice (and by inference, that he had been unfairly prevented from doing likewise). Ms Armstrong gave evidence of events that had occurred prior to the Notice as they were relevant to the question of whether she had given her consent to the appellant to enter her property for the purpose of removing the fence. Mr White gave evidence regarding the application made by the appellant for a building approval certificate. That evidence formed part of the narrative that was necessary to explain the circumstances in which the Notice was given.
The appellant did, of course, give evidence about events that had been the subject of evidence given by Ms Armstrong and Mr White. However, the matters about which the appellant submits he ought to have been permitted to give evidence were irrelevant to the charge alleged against him.
As to the balance of the allegations of bias and a denial of natural justice that were made in the Transcript Document:
(a)Transcript 2 - 19 records exchanges between the magistrate, the prosecutor and the appellant prior to the prosecutor calling the first witness. The appellant complained about various comments made by the magistrate in those exchanges. A number of the appellant's complaints have already been considered. The balance of the exchanges largely comprised questions by the magistrate that were intended to assist in identifying the issues to be determined in the trial and explanations by the magistrate about the procedure to be followed. The magistrate's comments were appropriate when read in context and did not form a basis for alleging bias or a departure from any of the requirements for a fair trial.
(b)At ts 37 the magistrate intervened in the cross‑examination of Ms Armstrong to observe that the question of whether the tenants had consented to the appellant entering Ms Armstrong's property was not relevant. The magistrate's observation overstated the position. However, the appellant was permitted to ask Ms Armstrong questions about that matter and the magistrate also asked a question which he considered (correctly) summarised what the appellant was endeavouring to establish. The magistrate dealt in his reasons with the allegation that the appellant was excused from complying with the Notice because he could not obtain the consent of Mr Wales and Ms Walker. His Honour's intervention did not provide a basis for alleging bias or that the appellant had been denied a fair trial as a result. I have reached the same conclusion in relation to the appellant's complaints about the magistrate's comments at ts 39 and ts 40.
(c)The magistrate attempted at ts 44 ‑ 45 to explain to the appellant the issues to be determined in the trial. The comments were appropriate when considered in the context of the appellant's cross‑examination of Ms Armstrong to that point.
Errors of fact and law
(proposed grounds of appeal 4 ‑ 7)
The appellant's allegations that the magistrate made errors of fact or law were largely contained in the Transcript Document. Most of the allegations have been considered elsewhere in these reasons. As for the remaining matters:
(a)The matters submitted about Ms Armstrong's evidence did not disclose any error of fact or law made by the magistrate. Much of what the appellant submitted was in the form of a commentary on Ms Armstrong's evidence. As has been explained, Ms Armstrong's evidence provided some necessary context for the prosecution case. However, the dealings between the appellant and Ms Armstrong prior to her complaint to the respondent were not directly relevant to the question of whether the appellant had a reasonable excuse for not complying with the Notice. Accordingly, the appellant's submissions about those dealings confused matters that might have been relevant to his proceedings in SAT or the Magistrates Court with the issues that were to be determined in the prosecution (for example, the submissions about the appellant's evidence at ts 23 - 29).
(b)The magistrate was correct to observe at ts 31 that the cross‑examination of Ms Armstrong on the number of times that she or her mother may have complained to the respondent about the fence was irrelevant. Similarly, the allegations at ts 32 and ts 33 that Ms Armstrong wanted a fence for free or that she had misled the appellant into obtaining an engineer's certificate for the fence (allegations that were disputed) were also irrelevant.
(c)There was no basis for the allegations made in relation to the evidence given by Ms Armstrong and recorded at ts 38. Further, the matters raised by the appellant in respect of that evidence were irrelevant to the charge alleged against him.
(d)As to the submissions made in respect of the evidence and exchanges between the appellant and the magistrate at ts 46, there was a discussion recorded over the next pages of the transcript between the appellant and the magistrate about whether the appellant had a letter that he could produce that would show that either Ms Armstrong had withdrawn her consent for the appellant to enter her property or that Ms Armstrong did not want the fence removed. The letter was not produced. In any event, whether Ms Armstrong wanted the fence to remain was not relevant, as the allegation was that the appellant had failed to comply with a requirement to pull down the fence that had been erected without the respondent's approval. Further, there was no basis in the evidence for the appellant's submission that Ms Armstrong's testimony lacked credibility. The primary purpose of her evidence was to prove the email correspondence that was tendered by the prosecutor.
(e)The magistrate's comment at ts 54 regarding the use of a qualified fencing contractor to remove the fence was a passing comment made in the course of the exchanges with the appellant. The magistrate immediately followed that comment with the observation, '[t]hat's not for me to decide'. There was no basis for alleging that the magistrate exceeded his jurisdiction by making the comment or that it disclosed bias on his part.
(f)There was no evidence in the trial or the Appeal Documents to support the allegation made in the Transcript Document relating to the exchanges recorded at ts 56. Further, the magistrate was right to observe at ts 57 that the appellant's allegation that SAT had erred in reaching its decision was irrelevant.
(g)The matters submitted in respect of Mr White's evidence at ts 59 ‑ 63 did not disclose any error. The appellant's allegations about the conduct of Mr White and the respondent were irrelevant to the issues to be determined in the charge against the appellant (see the reasons below on the proposed grounds of appeal relating to the respondent's conduct).
(h)The magistrate did not err in permitting the tender of documents relating to the building application. There was no objection by the appellant to the tender of the documents. Mr White did not purport to give expert evidence about building matters in connection with the plans that were submitted with the application and received as an exhibit. The application and the plans were tendered as part of the narrative ‑ the plans out of an abundance of caution in case the appellant wished to cross‑examine Mr White on some aspect of the application.
The matters raised by the appellant in the Transcript Document about the hearing on 6 November 2013 have been considered elsewhere in these reasons, except to note the appellant's complaint about the comment made by the magistrate at ts 18. The appellant's submission about the magistrate's comment was based on a misreading of the transcript. The magistrate did not indicate that further evidence from the appellant would assist this court in an appeal. Rather, the magistrate indicated that written reasons for his decision would assist the court if there was an appeal.
The appellant submitted at the directions hearing that the magistrate had erred in law in that, in effect, his Honour ought to have found that the appellant did not require a building licence to construct the fence as s 374B of the Miscellaneous Provisions Act applied. There are two points to be made about that submission. First, and most importantly, the question of whether the appellant required a building licence for the fence was not relevant to the charge having regard to the provisions in the Act for a review in SAT of the respondent's decision to serve the Notice. The decision could not have been the correct or preferable decision if, as a matter of law, the appellant had not required a building licence to construct the fence. Consequently, the question of whether a licence was required was a matter to be considered in the proceedings in SAT.
Second, and in any event, there was no evidence at trial or in the appeal that the fence had been built in response to an emergency for the purpose and within the meaning of s 374B of the Miscellaneous Provisions Act, apart from the appellant's assertion to that effect. The appellant did not refer to the matter as a defence to the charge when requested by the magistrate to identify the matters that he alleged reasonably excused his failure to comply with the Notice (9 October 2013, ts 122 ‑ 23). Further, there was no evidence in the Appeal Documents that substantiated the allegation or established that the appellant had given the respondent the written notice required by s 374B.
It is convenient to note a related matter that was raised by the appellant in the trial but which was also irrelevant - that he was not the builder of the retaining wall and fence and that this provided a defence to the charge alleged against him. As has been explained, that was a matter raised by the appellant in the review proceedings in SAT and on which the Tribunal made a finding that was adverse to him.
Ridgeway and the respondent's conduct
(proposed ground of appeal 8)
The gist of this proposed ground of appeal is an allegation that the prosecution of the appellant was the product of the respondent's conduct in engaging in 'countless' offences against the Criminal Code. The appellant referred to Ridgeway in that context.
The appellant in Ridgeway was convicted of possession, without lawful excuse, of a trafficable quantity of heroin contrary to s 233B of the Customs Act 1901 (Cth). The heroin had been imported into Australia with the involvement of the Australian Federal Police as part of an operation that it had conducted against the appellant. The importation was, itself, a contravention of s 233B. The High Court held that, while there was no substantive defence of entrapment in Australia, there was a discretion to exclude, on public policy grounds, evidence of an offence or an element of an offence obtained through the unlawful conduct of law enforcement officers. Mason CJ, Deane and Dawson JJ held that the discretion extended to circumstances where a criminal offence had been induced by improper, though not unlawful, conduct on the part of law enforcement authorities.
With one possible exception, the appellant did not complain at the trial that evidence on which the prosecution intended to rely had been unlawfully or improperly obtained or that the respondent had committed any criminal offence in connection with the prosecution of the charge. The possible exception concerned the appellant's allegation to the effect that he had been induced by the respondent to make the application for the building approval certificate for the improper purpose of obtaining an admission that a building licence had been required for the fence.
The appellant did not identify in the materials submitted in the appeal the offences that he alleged had been committed by the respondent. Further, he did not object to the admissibility of any of the evidence adduced by the respondent in the trial or raise any issue concerning the application of the principles identified by the High Court in Ridgeway (except, possibly, in relation to the application for the building approval certificate).
The allegation that the respondent had engaged in unlawful or improper conduct in relation to the construction of the fence or the application for a building approval certificate is considered in the next section of the reasons. However, there was no basis for the allegation that the respondent had contravened the Criminal Code or had engaged in conduct that would have required the magistrate to consider the application of the principles identified in Ridgeway.
The respondent's conduct and the allegations of 'altered facts'
(proposed grounds of appeal 8 ‑ 10 and 14)
The appellant alleged that the respondent engaged in unlawful or improper conduct in relation to the construction of the fence, the application for a building approval certificate and the decision to serve the Notice. He further alleged that the respondent had presented 'altered facts' at the trial of the charge.
My understanding of those allegations was that the appellant contended that:
(a)The respondent had known that he had constructed the fence in response to an emergency and that, accordingly, a building licence had not been required. It was not clear whether the appellant contended that the respondent was acting improperly by 'altering the facts' when it subsequently asserted that the fence had been constructed in contravention of the Miscellaneous Provisions Act.
(b)The respondent induced the appellant to make an application for a building approval certificate. That was done for the improper purpose of enticing the appellant to, in effect, admit that he had required a building licence for the fence. Further, the respondent had told Ms Armstrong not to sign the application prepared by the appellant and, in effect, had colluded with Ms Armstrong so that she could get a fence for free (6 November 2013, ts 27).
(c)The respondent acted unlawfully or improperly by indicating that the appellant would be required to bear the cost of an application for a building approval certificate or the cost of demolishing the fence.
(d)The respondent prevented the appellant from presenting evidence at the trial by 'interfering' with witnesses. Further, the respondent had 'altered the facts' by only producing in evidence a limited number of the emails that had been exchanged between the appellant and Mr White (leave hearing, ts 45)
(See the appellant's submissions dated 20 July and 8 September 2015.)
The first of those matters has already been considered. There was no evidence to substantiate the appellant's allegation that the fence had been constructed in response to an emergency for the purpose of s 374B of the Miscellaneous Provisions Act and in any event, the allegation was only relevant to whether the respondent's decision to serve the Notice was reasonable. The allegation was not relevant to the charge given the outcome of the appellant's applications in SAT.
The second matter has also been considered. The evidence did not establish that the appellant had been misled into making the application for a building approval certificate; indeed, the evidence was to the contrary. Further, the appellant acknowledged, without equivocation or protest, that he required a building licence when the respondent first raised the matter with him in February 2011 (exhibit 11). The allegation that he had been misled into making the application was also inconsistent with his subsequent application to SAT. The appellant contended that the correct or preferable decision was that the respondent ought to have granted the application for a building approval certificate.
The third matter was irrelevant to the question of whether the appellant had a reasonable excuse for not complying with the Notice in December 2012/January 2013. The allegation that Ms Armstrong wanted a fence for free was inconsistent with the evidence that she had offered to pay for half the cost of the fence once her house was constructed, provided that the fence was certified as being structurally sound and was completely rendered. The allegation was inconsistent with Ms Armstrong's subsequent desire to have the fence demolished.
As to the final matter, reference has already been made to the witnesses who were summonsed to attend the first day of the trial. In addition, the Appeal Documents included material that indicated that the appellant had summonsed various officers of the respondent to produce documents or attend the trial. The respondent made an application to set aside the summonses on several grounds (attachments 'T 1 - 7' and 'T 9' and 'T 10'). The Appeal Documents and the affidavits filed by the appellant did not indicate what orders were made on the respondent's application but I infer that it was granted (the inference is drawn from the witnesses who did attend the first day of the trial).
In relation to the emails exchanged with Mr White, the prosecutor proved and tendered so many of the emails as he considered to be relevant. It was open to the appellant to put further emails that he considered to be also relevant to Mr White in cross‑examination. Further, the Appeal Documents do not include documents that, in my view, ought to have been but were not produced by the prosecutor at trial. There were no emails between the appellant and Mr White in the Appeal Documents that would assist the appellant to establish that he had a reasonable excuse for not complying with the Notice.
Finally, I should note that I have also been unable to find any evidence in the materials submitted by the appellant in the appeal or in the trial transcript to support the allegation that the prosecution by the respondent was an abuse of process. Accordingly, there is no merit in the allegations made in proposed grounds of appeal 8 ‑ 10 or 14.
Other matters
Proposed grounds 13, 15 and 16
The allegations made by the appellant in proposed grounds of appeal 13, 15 and 16 have largely been dealt with in the reasons given above. However, it should be further noted that there was no evidence in the Appeal Documents that the respondent interfered with witnesses or with the appellant's evidence (proposed ground 13). It was apparent from his emails to the appellant that Mr Wales was unhappy about the dispute over the fence and that he had eventually stated in emphatic terms that he did not wish to be involved in the prosecution. There was no evidence that the respondent had any part in Mr Wales taking that position. Indeed, it appears that it was the appellant's fault that Mr Wales did not attend the trial pursuant to a witness summons.
Ms Armstrong and her mother
The appellant made a number of allegations about the involvement of Ms Armstrong and her mother at the trial and in the appeal. Most of those allegations have been considered already in the reasons. The allegations made by the appellant included that Ms Armstrong had agreed to the fence remaining when she had purchased her property; that she had agreed to the application for a building approval certificate; that she was motivated by a desire to get a fence for free; that she or her mother had told Mr Wales that the fence would be rendered; and that she and her mother had made a number of complaints about the fence to the respondent and had communicated with Mr White. The allegations were not relevant to the charge. As has been noted, Ms Armstrong could not consent to a breach of the Miscellaneous Provisions Act ‑ the breach was a matter for the respondent. Further, whether or not Ms Armstrong had consented to the application for a building approval certificate was not to the point given that the application had been refused and the respondent's decision had been upheld in SAT. The appellant was bound to comply with the Notice following the Tribunal's decisions. The issue in the trial was whether he had a reasonable excuse for not having done so during the period specified in the charge.
Similarly, the allegation that Ms Armstrong had induced the appellant and/or Ms Shepherd‑Laurent to 'progress the fence' in the belief that she wanted the fence to remain (affidavit of Ms Shepherd‑Laurent, par 8) was irrelevant to the prosecution. So also, was the fact that there had been negotiations between the appellant and Ms Armstrong to resolve the dispute over the fence while the proceedings in SAT remained on foot (Ms Shepherd‑Laurent annexed to her affidavit a letter dated 22 March 2012 that was written by Ms Armstrong following a mediation in the SAT proceedings and which contained an offer to resolve the dispute by replacing the fence with a 'Colorbond' fence).
The original owner of 4 Admiral Link
The appellant alleged that the owner of 4 Admiral Link prior to Ms Armstrong had agreed to the construction of the retaining wall and fence. There was no evidence at trial to that effect and I could not locate any material in the Appeal Documents that related to the allegation. However, the allegation was considered and rejected by SAT and was not relevant to the charge. The previous owner could not consent to a breach of the Miscellaneous Provisions Act.
Mr Golding's property
The appellant submitted for the first time in his closing address that he could not gain access to Ms Armstrong's property without accessing the property of another neighbour, Mr Golding (ts 25). He claimed that he did not have Mr Golding's consent for that purpose. Those matters were not put to Ms Armstrong or Mr White nor were they referred to when the appellant was asked by the magistrate to identify his defence. The Appeal Documents included a letter that was apparently written by Mr Golding in October 2013 and addressed to 'whom it may concern' (attachment 'R').
The letter stated that Mr Golding had declined to grant the appellant access to his property but the letter continued that 'if any fences joining my property need to be removed provision will need to be made to ensure my yard is sealed off in order to contain my dog'. That indicated that Mr Golding recognised that the fence might need to be removed and only required some measure to be taken to ensure that his property was fenced off. That was a matter for the appellant to consider in pulling down the fence but, as has been explained, it was a matter that had been acknowledged by Ms Armstrong so that her tenants were not adversely affected.
Putting aside the fact that the appellant did not raise the matter until after the evidence had been completed, the need to access Mr Golding's property could not provide a reasonable excuse for the appellant failing to comply with the Notice.
The Notice and the Building Act
The second issue raised at the leave hearing concerned whether s 110 of the Building Act applied to the service of the Notice. Section 110 does not refer to the builder of a building; rather, it refers to the person named as the builder in a building permit or to the owner or occupier of land on which the building is located. However, s 115 of the Building Act applies to a person who is served with a copy of a building order. Section 190(1) provides that a notice given under s 401(1) of the Miscellaneous Provisions Act to a person is taken to be a copy of a building order served on that person (and see The State of Western Australia v Olive [2011] WASCA 25 on the use of the words 'is to be taken to be' as a drafting expression). Accordingly, s 115 applies to a person who was served with a notice under s 401(1) as the builder of the unauthorised building.
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