Merrick v City of Armadale
[2013] WASC 175
•10 MAY 2013
MERRICK -v- CITY OF ARMADALE [2013] WASC 175
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 175 | |
| Case No: | SJA:1123/2012 | 15 MARCH 2013 | |
| Coram: | JENKINS J | 10/05/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Notice of contention dismissed | ||
| B | |||
| PDF Version |
| Parties: | GEOFFREY MERRICK CITY OF ARMADALE |
Catchwords: | Criminal law Appeal Conviction for littering Proof of exception Meaning of 'litter' in the definition of 'appointed area' |
Legislation: | Criminal Procedure Act 2004 (WA), s 78 Interpretation Act 1984 (WA), s 18 Litter Act 1979 (WA), s 5(1), s 23, s 24 |
Case References: | Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292; (1988) 38 A Crim R 412 R v Young (1999) 46 NSWLR 681; (1999) 107 A Crim R 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF ARMADALE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M M FLYNN
File No : AR 3305 of 2012
Catchwords:
Criminal law - Appeal - Conviction for littering - Proof of exception - Meaning of 'litter' in the definition of 'appointed area'
Legislation:
Criminal Procedure Act 2004 (WA), s 78
Interpretation Act 1984 (WA), s 18
Litter Act 1979 (WA), s 5(1), s 23, s 24
(Page 2)
Result:
Appeal allowed
Notice of contention dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr T Houweling
Solicitors:
Appellant : In person
Respondent : Cornerstone Legal
Case(s) referred to in judgment(s):
Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292; (1988) 38 A Crim R 412
R v Young (1999) 46 NSWLR 681; (1999) 107 A Crim R 1
(Page 3)
1 JENKINS J:
The decision under appeal
2 Geoffrey Merrick appeals against his conviction recorded in the Magistrates Court at Armadale on 12 September 2012 for the offence of littering. Mr Merrick was fined $150 and ordered to pay $1,500 costs. He does not appeal against the orders made on sentence.
Ground of appeal and notice of contention
3 The sole remaining ground of appeal states that the learned magistrate erred in law in deciding that the exception in the Litter Act 1979 (WA) (the Act) s 23(b) did not apply.
4 The respondent has filed a notice of contention which seeks to support the magistrate's decision on the alternative reasoning that the area in which Mr Merrick left his rubbish was an appointed area for the depositing of a particular type of litter, specifically scrap metal, and Mr Merrick committed an offence by depositing another type of litter in that area.
Details of charges and proceedings
5 Mr Merrick was charged that on 21 July 2011 at Hopkinson Road, Hilbert he did deposit or cause litter to be deposited on land or on waters of Western Australia, contrary to the Act s 23.
6 Mr Merrick was given an infringement notice in respect of this offence. He failed to pay the modified penalty in the infringement notice and the prosecution was subsequently commenced by the Fines Enforcement Registry.
7 Mr Merrick initially appeared in court on 20 April 2012. There were a number of adjournments and the matter finally came on for hearing on 12 September 2012 in the Magistrates Court at Armadale.
8 After confirming the not guilty plea, the charge was heard. The matter was concluded that day. After a short adjournment to consider his decision the magistrate then delivered reasons for convicting Mr Merrick of the offence. Mr Merrick was then sentenced.
(Page 4)
The facts
9 As there is no challenge to the facts as found by the magistrate, I will not summarise the evidence. I will simply refer to the facts as found by the magistrate. His Honour said:
I'm satisfied that on 21 July Mr Merrick drove a utility to the entrance of a facility operated by the Armadale City in Hopkinson Road, Hilbert. I'm satisfied that he had a conversation with Renita Coleman, a weighbridge operator. The conversation literally involved Ms Coleman confirming that Mr Merrick had sorted the rubbish to which he replied, 'Yes,' Mr Merrick handing over a ticket which referred to sorted rubbish and Mr Merrick entering the facility. As he entered the facility he passed a sign at the entrance to the weighbridge, a large sign, which said, 'Before unloading the vehicle, please see the landfill attendant.'
There is at least a reasonable possibility that Mr Merrick did not hear Ms Coleman when she asked him if he had sorted the rubbish. There's evidence of him suffering from some deafness and there was background noise at the weighbridge. There is a reasonable possibility that Mr Merrick did not read the ticket that referred to sorted rubbish and that he did not see the sign that referred to seeing a landfill attendant, that is, Mr Merrick may not have read or seen the sign. However, it must be said that at least so far as the sign is concerned, it is a large sign and it is clearly visible to anybody who's entering the facility.
As Mr Merrick entered the facility he proceeded south. He went past on his right a large area comprising of some brick rubble with a sign in front of that saying, 'Brick rubble only. No other waste.' He then proceeded to a collection of material on his right. I'm satisfied that there was no sign in front of that material. He then proceeded to reverse his vehicle to that mound of material. There were other vehicles in the vicinity, and I'm satisfied that he left at that place items which have been photographed by the witness, Woodenberg, in exhibits 1 to 4. What was left was a collection of items. Those items include pieces of wood, plastic items, fabric, plastic, piping. Taken together, the collection of items are best described as rubbish. Mr Merrick, having left those items at that location, then left.
I'm satisfied that the City of Armadale, in operating the facility, present on that day was at least one attendant nearby. That was the evidence of Mr Woodenberg and I accept his evidence in that regard. I'm satisfied that Mr Merrick did not seek out the attendant before leaving his rubbish where he left it. I'm satisfied that the city in operating the facility at Hopkinson Road, Hilbert has in place a system, a system by which it intends that visitors to the facility either sort their waste into categories and leave it at places throughout the facility which are signposted. Alternatively, that the visitor leaves the unsorted material at a particular location set aside for unsorted waste. It must be said that there's no sign
(Page 5)
- which says in simple terms what I've just said, but that is the effect of the evidence, of particularly Mr Woodenberg and Mr Sutton.
The place where Mr Merrick left his rubbish, in the system which I've described by the City of Armadale, was a place set aside by it for what it considered to be steel or light steel. The system of the city was in fact, there were two places by which it intended steel to be separated and left by visitors to the site. One place was where what are referred to as drop-off containers, there was relatively small quantities of domestic quantity steel could be left, and another place where, at the direction of an attendant, larger quantities of steel could be left, and indeed Mr Merrick left his items which I've described at the other place for larger quantities of steel.
10 The 'facility' at which the incident occurred is the Hopkinson Road landfill and waste recycling centre.
Relevant provisions of the Act
11 The Act s 23 provides as follows:
Any person who deposits litter, or causes litter to be deposited, on any land or on or into any waters commits an offence unless the litter is deposited -
(a) on private land by consent; or
(b) in an appointed area; or
(c) in a place or receptacle set aside or provided for that purpose; or
(d) on land adjacent to private land by arrangement with, or at the invitation of, a public authority with a view to the litter being collected and removed by the public authority.
Penalty:
(a) for an individual, a fine of $5 000;
(b) for a body corporate, a fine of $10 000.
12 It is not in dispute that the respondent is a public authority.
13 The Act s 5(1) defines the term 'appointed area' to mean:
[A]n area set aside by a public authority on land under its control as an area for the deposit of litter.
14 The same subsection defines 'litter' as including:
(a) all kinds of rubbish, refuse, junk, garbage or scrap; and
(Page 6)
- (b) any articles or material abandoned or unwanted by the owner or the person in possession thereof;
but does not include dust, smoke or other like products emitted or produced during the normal operations of any mining, extractive, primary or manufacturing industry.
Magistrate's reasons for convicting the appellant
15 The magistrate found that Mr Merrick had deposited litter on land. His Honour identified the issue as being whether or not Mr Merrick had proven on the balance of probabilities that the place where he left the litter was an appointed area, being an area set aside by the respondent on land under its control as an area for the deposit of litter.
16 The magistrate's reference to the requirement for Mr Merrick to prove on the balance of probabilities that the place where he left the litter was an appointed area relied on the Criminal Procedure Act 2004 (WA), s 78(3). The subsection provides that an exception in respect of a simple offence is to be taken not to apply unless the accused proves, on the balance of probabilities that it does. The parties agree that the magistrate stated correctly the onus and standard of proof.
17 The magistrate found that the whole of the Hopkinson Road facility was land under the control of the respondent. He said that within that facility the respondent had set aside the area in which Mr Merrick left his rubbish as an area for steel which was capable of being used for some purpose. That is, it was set aside for steel which had some value, other than as litter. Thus, his Honour found that it was not an appointed area for the deposit of litter, as that term is defined in the Act.
18 His Honour came to this view on the basis that the steel which was to be deposited in that area was not rubbish, refuse, junk, garbage or scrap.
19 His Honour also said:
The definition of litter also includes articles unwanted by the owner, but on my assessment the reference to unwanted by the owner would only include items having no commercial value. It does not lend itself to what the city had done in setting aside the area for steel.
- His Honour then found that Mr Merrick had not proven that he left his rubbish in an area which had been set aside by the respondent for litter.
20 His Honour next considered whether Mr Merrick had made an honest and reasonable mistake of fact - the mistake being that he believed that the
(Page 7)
- area in which he had left his rubbish was an area which had been set aside for the deposit of litter. His Honour assumed in favour of Mr Merrick that the prosecution had to negative an honest and reasonable mistaken belief in this regard. His Honour found that because Mr Merrick did not read the advice on the ticket he gave to Ms Coleman, did not read the sign about seeing an attendant before depositing rubbish and did not hear what Ms Coleman said to him that although he honestly may have believed that the area was for the deposit of litter, it was not a reasonable belief.
21 The magistrate found that it was not necessary to make a finding as to whether or not the respondent had power to set aside different areas for recycling various types of waste. This was because he was satisfied that the respondent had not set aside the particular area where Mr Merrick left his rubbish as being an area for the deposit of litter.
Parties' submissions on appeal
22 Mr Merrick's primary submission is that the whole of the Hopkinson Road facility was an appointed area for the purpose of the Act s 23 and so he did not commit a littering offence by leaving his rubbish within the area of the facility.
23 Further, he says that the magistrate's reasoning was flawed in that if the magistrate's definition of litter is correct any article which is unwanted by an owner but which has commercial value will not constitute 'litter' under the Act. He says that this means that people can dispose of valuable items in any public place without offending under the Act.
24 Also in support of that submission Mr Merrick says that as 'scrap' falls within the definition of litter under the Act, it is clear that Parliament intended to include unwanted material which still has some commercial value in the definition of litter.
25 The respondent relies upon the magistrate's reasoning. In the alternative it relies on the notice of contention which it also relied on at the original hearing. That is, the respondent submitted that the area in which Mr Merrick left his rubbish was designated for a particular type of litter not being the type of litter which Mr Merrick deposited. Thus, it is said that Mr Merrick failed to prove the exception to the offence.
Resolution of the ground of appeal
26 I find that the magistrate erred in holding that light steel or steel which is unwanted by its owner is not litter as defined in the Act.
(Page 8)
27 The Act defines litter to include scrap. Scrap is defined in the Macquarie Dictionary as being 'anything discarded as useless, unwanted or worn out'.
28 Determining what is or is not litter is not as simple as saying that if an item has commercial value it is not litter. The common saying that what is one person's junk is another person's treasure is applicable.
29 Parliament has used, presumably deliberately, a wide definition of litter which includes not only items of no value but items of some value which are not wanted by the owner or person in possession. Thus, light steel or steel unwanted by its owner is litter for the purpose of the Act s 23(a).
30 Further, the area within the facility which was set aside for steel and light steel and where Mr Merrick deposited his rubbish was an appointed area for the purpose of the same section.
31 I reject Mr Merrick's argument that the whole of the site was an appointed area. An appointed area is only an area set aside for litter to be physically deposited and not any area nearby. To hold otherwise would be contrary to common sense and the evidence. For example, the respondent did not set aside the driveways or the staff areas of the Hopkinson Road facility as an area for the deposit of litter. Those areas existed to facilitate the deposit of litter in appointed areas within the site but they were not appointed areas.
Resolution of the notice of contention
32 Thus, the resolution of this appeal turns on whether the word 'litter' when used in the definition of 'appointed area' in the Act s 5(1) is to be read as meaning litter of a certain type specified by the public authority, or whether it is to be read as including any type of litter which falls within the definition of litter contained in the Act s 5(1).
33 Mr Merrick submits that if he proved on the balance of probabilities that he deposited his rubbish in any area set aside for litter, whether it be set aside for any sort of litter or a particular sort of litter, he did not commit this offence under the Act s 23.
34 The respondent submits that Mr Merrick was guilty because he failed to prove on the balance of probabilities that he deposited his rubbish in an area which was set aside by it for the particular type of litter which he deposited.
(Page 9)
35 Mr Merrick must succeed on his appeal unless 'litter' in the definition of appointed area has a more limited meaning than that provided for in the Act s 5(1), the general definition section. This is because the definition of litter in s 5(1) includes all types of litter.
36 The same principles of statutory construction apply whether the construction of the Act s 23(b) favoured by the respondent is characterised as requiring the implication of words into the definition of appointed area or whether it is characterised as reading down the definition of litter, in the Act s 5(1).
37 In Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292; (1988) 38 A Crim R 412 McHugh JA said that only if certain conditions were adhered to could the reading in of missing words in legislation be a legitimate means of construing the meaning of the statute. His Honour identified the conditions in the following passage:
First, the court must know the mischief with which the act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect (302).
38 In R v Young (1999) 46 NSWLR 681; (1999) 107 A Crim R 1 Spigelman CJ said that it was not whenever the above three conditions were satisfied that the court was at liberty to supply the omission of the legislature. Rather, it was a case that in the absence of any one of these three conditions, the court could not construe a statute with the effect that certain words appear in it (687 - 688).
39 The construction which the respondent places on the meaning of litter in the definition of appointed area is in some respects attractive. It would mean that if a local government designates a particular area for the deposit of certain types of litter and a person deposits a different type of litter in that area they will be guilty of littering offence under the Act s 23. This interpretation would facilitate waste management by public authorities.
40 However, to come to this view I would have to be satisfied that Parliament intended the Act to provide a remedy to public authorities, by way of a sanction for the offence of littering, when members of the public left waste in an area set aside by a local government for a different type of waste. I am not so satisfied. In accordance with the Interpretation Act
(Page 10)
- 1984 (WA), s 18, I am required to adopt a construction of the Act in accordance with its purpose. The Act provides for the abatement of litter (see the long title to the Act) as opposed to its purpose being to assist local governments to manage waste.
41 The limited purpose of the Act is confirmed by the Second Reading Speech of the Litter Bill 1979. The Hon Minister said:
This Bill is concerned with litter as it is generally understood by the public, but it allows the council to take an active role in developments in the field of rubbish disposal which is generally accepted as a separate issue and is, therefore, not covered in this legislation: Western Australia, Parliamentary Debates, Legislative Assembly, 16 October 1979, 3615 (Mrs MJ Craig, Minister for Local Government).
42 The 'council' referred to by the Hon Minister for Local Government was the Keep Australia Beautiful Council. Nevertheless, Mr Merrick has pointed out that a number of local governments have enacted local laws to deal specifically with waste management.
43 Next, I am not satisfied that Parliament overlooked providing a sanction for littering where rubbish was left in any area other than an appointed area for that particular type of litter. I note, for example, that in the Act s 24, which deals with an offence of breaking glass in public, there is a similar exception to that provided for in s 23. However, the exception requires proof that the glass is broken 'in an appointed area with the consent of the public authority by which the area was set aside'. This indicates that Parliament was alive to the fact that in order to excuse the prohibited conduct, the accused would have to prove more than that the glass was broken in an appointed area. There is no reason for me to assume that Parliament overlooked adding a requirement for the consent of the public authority to the exception in s 23 or overlooked qualifying the meaning of litter in the definition of appointed area.
44 Thirdly, the respondent has not articulated the words that would have to be read into the definition. The words I have referred to in 32 above are my words. The words suggested by the respondent are that an appointed area is one that is an area for depositing 'particular types of litter'. However those words would not achieve the purpose that the respondent seeks. The words to be implied or to be used to read down the meaning of 'litter' in the definition of appointed area would have to be something of the nature to which I have referred to above.
(Page 11)
45 For these reasons I am not satisfied that I should construe the definition of appointed area in the manner as sought by the respondent in the notice of contention.
46 Given the broad definition of an appointed area, the findings of the magistrate and my decision that the magistrate erred in holding that unwanted steel or light steel was not litter, it follows that Mr Merrick proved on the balance of probabilities that he had deposited his litter in an appointed area. The appeal should be allowed.
Proposed orders
47 As I have already granted Mr Merrick an extension of time within which to appeal, I propose that I make the following orders:
1. The appellant be granted an extension of time within which to appeal to the date of the hearing of the appeal.
2. The appeal be allowed.
3. The notice of contention be dismissed.
4. The conviction of Mr Merrick be set aside.
5. The charge of littering in prosecution notice AR 3305/12 be dismissed.
6. The matter of costs in the Magistrates Court and in the appeal be determined on the papers.
48 The parties have until 24 May 2013 to make submissions in regard to the proposed orders and to make submissions in regard to the appropriate costs orders, after which I will make the final orders.
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