Lebbos v O'Dea
[2012] WASC 95
•21 MARCH 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LEBBOS -v- O'DEA [2012] WASC 95
CORAM: HALL J
HEARD: ON THE PAPERS
DELIVERED : 21 MARCH 2012
FILE NO/S: SJA 1106 of 2011
BETWEEN: PAUL LEBBOS
Appellant
AND
TERRANCE DANIEL O'DEA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R D YOUNG
File No :MI 3973 of 2011
Catchwords:
Criminal law - Appeal against conviction - Offence of doing an act likely to cause a fire during a total fire ban - Total fire ban declaration not lawfully made - Plea of guilty entered to a charge for which appellant could not lawfully be convicted - Miscarriage of justice
Legislation:
Bush Fires Act 1954 (WA), s 22A, s 22B, s 22C
Fire and Emergency Services Authority of Western Australia Act 1998 (WA), s 3, s 15, s 16, s 38
Result:
Appeal allowed
Conviction set aside
Category: B
Representation:
Counsel:
Appellant: No appearance
Respondent: No appearance
Solicitors:
Appellant: Seamus Rafferty
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Borsa v The Queen [2003] WASCA 254
Hogue v The State of Western Australia [2005] WASCA 102
Liberti (1991) 55 A Crim R 120
HALL J:
Introduction
On 5 April 2011 the appellant pleaded guilty to a charge of carrying out an activity in the open air that causes or is likely to cause a fire during a period and in an area of the State in respect of which a total fire ban was in effect, contrary to s 22B(2)(b) of the Bush Fires Act 1954 (WA). He was fined $750 and ordered to pay costs of $119.20. The magistrate also made a spent conviction order pursuant to s 45 of the Sentencing Act 1995 (WA).
The appellant has sought an extension of time and leave to appeal against his conviction. There is one ground of appeal. It is that there has been a miscarriage of justice as the appellant could not in law have been convicted of the offence because there was no total fire ban in effect.
The respondent has conceded that the appeal should be allowed and that the conviction should be set aside. A consent notice to that effect has been filed. For the reasons that follow I am satisfied that that concession has been properly made and that the appeal must be allowed.
Background
On 12 February 2011 the Chief Executive Officer of the Fire and Emergency Services Authority (the Authority) purported to declare a total fire ban for Western Australia. The power to make such a declaration derives from pt III, div IV of the Bush Fires Act 1954. The declaration in this case was made pursuant to a purported exercise of delegated authority. If the authority was not properly delegated the fire ban was not valid.
On the evening of Saturday, 12 February 2011 the appellant drove to an area in the Kalamunda National Park with his wife. They had been to dinner in anticipation of Valentines Day, two days hence. To celebrate their evening he lit some sparklers. This was observed and reported to police. The appellant was charged with doing an act likely to cause a fire on the basis that a total fire ban was in effect at the time.
On 5 April 2011 the appellant appeared in the Midland Magistrates Court and pleaded guilty to the charge. The facts read to the court alleged that a total fire ban was in place at the relevant time. The appellant's plea of guilty was clearly entered on the assumption that the allegation regarding the fire ban was correct.
The power to declare a fire ban
The power to declare a total fire ban is contained in s 22A of the Bush Fires Act 1954. That section provides that the relevant minister may declare a total fire ban in respect of an area if the minister is of the opinion that existing or anticipated weather conditions are conducive to the outbreak or spread of bush fires or it is otherwise necessary to make such a declaration. Exemptions may be granted by the Minister pursuant to s 22C of the Act. The relevant Minister is the Minister for Emergency Services.
Section 15 of the Fire and Emergency Services Authority of Western Australia Act 1998 (WA) (the FESA Act) permits the Minister to delegate his functions under emergency services Acts to the Authority established by the FESA Act. The phrase 'the emergency services Acts' is defined in s 3 to include the Bush Fires Act 1954. The Authority can, with the authorisation of the Minister, sub‑delegate a function to the Chief Executive Officer, a member of the Authority or a member of the staff of the Authority. Any delegation or sub‑delegation must be in writing: s 16 FESA Act.
The Authority is a body corporate established by s 4 of the FESA Act. Section 38 of the FESA Act provides for the manner in which documents are to be executed by the Authority. That section provides as follows:
Execution of documents by Authority
(1)The Authority is to have a common seal.
(2)A document is duly executed by the Authority if -
(a)the common seal of the Authority is affixed to it in accordance with subsections (3) and (4); or
(b)it is signed on behalf of the Authority by a person or persons authorised to do so under subsection (5).
(3)The common seal of the Authority is not to be affixed to any document except as authorised by the board.
(4)The common seal of the Authority is to be affixed to a document in the presence of 2 members, and each of them is to sign the document to attest that the common seal was so affixed.
(5)The Authority may, by writing under its seal, authorise a member or members or a member or members of staff to sign documents on behalf of the Authority, either generally or subject to the conditions or restrictions specified in the authorisation.
(6)A document purporting to be executed in accordance with this section is to be presumed to be duly executed until the contrary is shown.
(7)When a document is produced bearing a seal purporting to be the common seal of the Authority, it is to be presumed that the seal is the common seal of the Authority until the contrary is shown.
The purported fire ban of 12 February 2011
The relevant facts in regard to whether a lawful fire ban was in effect have been agreed by the parties.
On 3 December 2009, pursuant to s 15(1) of the FESA Act the Minister executed an instrument of delegation delegating the power to declare a total fire ban to the Authority. That delegation, which I will referred to as the 'first delegation', also authorised the Authority, pursuant to s 16(1) of the FESA Act to sub‑delegate all the powers and duties delegated to it to the Chief Executive Officer of the Authority. On 25 January 2010 the Board of the Authority authorised the sub‑delegation of the powers and duties conferred by the first delegation to the Chief Executive Officer.
On 6 December 2010 the Minister executed an instrument which revoked the first delegation and again delegated to the Authority his powers and duties under s 22A and s 22C of the Bush Fires Act 1954. I will refer to the 6 December 2010 delegation as the 'second delegation'. The second delegation again authorised the Authority to sub‑delegate all the powers and duties delegated to it to the Chief Executive Officer or a member of the staff of the Authority.
On 16 December 2010 the chairman of the board of the Authority and a member of the board executed an instrument of sub‑delegation which purported to sub‑delegate all the powers and duties delegated to FESA by the second delegation to, amongst other people, the Chief Executive Officer. This purported sub‑delegation was not sealed with the common seal of the Authority in accordance with s 38(2)(a) of the FESA Act. Furthermore, neither of the persons who executed the purported sub‑delegation had been authorised to sign such a document on behalf of the authority pursuant to s 38(5) of the Act. For these reasons the purported sub‑delegation did not lawfully confer upon the Chief Executive Officer the power to declare the total fire ban on 12 February 2011.
The deficiencies in the purported sub‑delegation were identified by solicitors for the Western Australia Police Service while preparing for the prosecution of another person for having breached a total fire ban declared by the Chief Executive Officer on 6 February 2011. The prosecution against that person was discontinued. No instrument of sub‑delegation which would authorise the Chief Executive Officer to make the declaration on 12 February 2011 was made between 16 December 2010 and 7 September 2011. In these circumstances the total fire ban declaration was not valid.
By the time the invalidity of the total fire ban declaration was discovered the appellant had already pleaded guilty and been convicted in the Midland Magistrates Court. He was advised of the error by the police on 9 September 2011. He was advised that it was accepted that he should not have been convicted of the offence and that any appeal to set aside the conviction would not be opposed. The police also agreed to meet any reasonable legal costs of such an appeal.
Merits of the appeal
Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction where a plea of guilty has been made. However, an appellate court will approach an attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection': Liberti (1991) 55 A Crim R 120, 122 (Kirby P, Grove and Newman JJ agreeing). See also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA) and Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ and Hasluck J agreeing).
Before an appellate court will set aside a conviction based upon a plea of guilty the appellant must demonstrate that there has been a miscarriage of justice: Hogue [22]; Borsa [20]. In Borsa, Steytler J referred to three well recognised circumstances in which a conviction based on a plea of guilty will be set aside:
1.when the appellant did not understand the nature of the charge or did not intend to admit guilt;
2.if, upon the admitted facts, the appellant could not in law have been guilty of the offence;
3.where the guilty plea was obtained by improper inducement, fraud or intimidation and the like.
In this case, in the absence of a lawful declaration of a fire ban the appellant's actions on 12 February 2011 could not constitute the offence to which he pleaded guilty. In these circumstances, his conviction for doing an act likely to cause a fire during a total fire ban was a miscarriage of justice.
The delay in bringing the appeal was not due to any fault on the part of the appellant and an extension of time should be granted.
Costs
The appellant has also sought an order for the payment of his costs of the original prosecution and the appeal. Section 20(2) of the Criminal Appeals Act 2004 precludes the making of a costs order against a police officer. The respondent in this case is the police officer who signed the prosecution notice.
The Official Prosecutions (Accused's Costs) Act 1973 (WA) provides an alternative means by which a costs order can be made. Section 5(4) allows for an order to be made in favour of an appellant where the respondent is a police officer and the appellant has been successful in appealing a conviction and in obtaining an order that a judgment of acquittal be substituted. In such circumstances the court can make an order that a specific amount of costs be paid out of the consolidated fund: s 4(2) of the Official Prosecutions (Accused's Costs) Act 1973.
As the proposed order did not require that the respondent to this appeal pay the costs the respondent could not consent to it. However, it did not seek to oppose such an order being made if the court considered it appropriate to do so.
Accordingly, the following orders will be made:
1.An extension of time to commence the appeal is granted.
2.Leave to appeal is granted.
3.The appeal is allowed.
4.The conviction of the appellant on 5 April 2011 on charge MI 3973 of 2011 is set aside.
5.The appellant is acquitted of charge MI 3973 of 2011.
6.The appellant's costs fixed in the sum referred to in the consent notice dated 29 February 2012 be paid pursuant to s 5(4) of the Official Prosecutions (Accused's Costs) Act 1973.
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