MKP Management Pty Ltd v Shire of Kalamunda
[2020] WASCA 130
•20 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MKP MANAGEMENT PTY LTD -v- SHIRE OF KALAMUNDA [2020] WASCA 130
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 11 MAY 2020
DELIVERED : 20 AUGUST 2020
FILE NO/S: CACR 161 of 2019
BETWEEN: MKP MANAGEMENT PTY LTD
Appellant
AND
SHIRE OF KALAMUNDA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HILL J
File Number : SJA 1119 of 2018
Catchwords:
Criminal law - Appeal against conviction - Corporate appellant convicted after trial of contravening s 10(a) of the Building Act 2011 (WA) - Section 10(a) prohibits a person from doing demolition work unless a demolition permit is in effect for the demolition work - Demolition work carried out on corporate appellant's property without a demolition permit - Whether corporate appellant criminally responsible under s 7(a) or s 7(d) of the Criminal Code (WA)
Legislation:
Building Act 2011 (WA), s 3, s 10, s 15, s 16, s 25, s 28, s 29
Criminal Code (WA), s 7(a), s 7(d), s 36
Interpretation Act 1984 (WA), s 69
Result:
Leave to appeal granted on grounds 1 and 2
Appeal allowed
Judgment of conviction set aside
Judgment of acquittal substituted
Category: A
Representation:
Counsel:
| Appellant | : | Mr M D Williams |
| Respondent | : | Ms A M Wood |
Solicitors:
| Appellant | : | Vogt Graham Lawyers |
| Respondent | : | Kott Gunning |
Case(s) referred to in decision(s):
Attorney-General's Reference No 1 of 1975 [1975] QB 773
Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418
Cervantes Pty Ltd v State Energy Commission of Western Australia (1991) 5 WAR 355
Dean v Legal Practice Board [2016] WASCA 63
Dimer v The State of Western Australia [2020] WASCA 111
Director of Public Prosecutions Reference No 1 of 1996 [1998] 3 VR 352
Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477
G J Coles & Co Ltd v Goldsworthy [1985] WAR 183
Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129
Grain Sorghum Marketing Board v Supastock Pty Ltd; Ex Parte Grain Sorghum Marketing Board [1964] Qd R 98
Humphry v The Queen [2003] WASCA 53; (2003) 138 A Crim R 417
Hunt v Maloney; Ex Parte Hunt [1959] Qd R 164
Hutton v The Queen (1991) 56 A Crim R 211
Kehoe v Dacol Motors Pty Ltd; Ex Parte Dacol Motors Pty Ltd [1972] Qd R 59
M v Shire of Kalamunda [2019] WASC 340
R v Adams; Ex Parte Attorney-General (Qld) [1998] QCA 64
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v Beck [1990] 1 Qd R 30
R v Broadfoot (1976) 64 Cr App R 71
R v Calhaem [1985] 1 QB 808
R v Castiglione [1963] NSWR 1; (1962) 63 SR (NSW) 393
R v F; Ex Parte Attorney-General (Qld) [2003] QCA 70; [2004] 1 Qd R 162
R v Georgiou [2002] QCA 206; (2002) 131 A Crim R 150
R v Hawke [2016] QCA 144; (2016) 259 A Crim R 114
R v Jervis [1993] 1 Qd R 643
R v Kirkby [1998] QCA 445; [2000] 2 Qd R 57
R v Menniti [1985] 1 Qd R 520
R v Oberbillig [1989] 1 Qd R 342
Renwick v Bell [2001] QCA 316; [2002] 2 Qd R 326
Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Ward v The Queen (1997) 19 WAR 68
West v Suzuka [1964] WAR 112
Wilson v Dobra (1955) 57 WALR 95
JUDGMENT OF THE COURT:
On 12 September 2018, the appellant was convicted, after a trial before Magistrate Sharratt, of contravening s 10(a) of the Building Act 2011 (WA). The appellant was fined $5,000 and ordered to pay the respondent’s costs of $11,342. A spent conviction order was made.
The appellant appealed against its conviction to a single judge of the Supreme Court. Hill J heard the appeal. On 20 September 2019, her Honour dismissed the appeal pursuant to s 14(2) of the Criminal Appeals Act 2004 (WA), despite finding that the magistrate had made errors of fact and errors of law. Her Honour considered that no substantial miscarriage of justice had occurred. [1]
[1] M v Shire of Kalamunda [2019] WASC 340 [117] ‑ [118].
The appellant now appeals to this court against Hill J’s decision to dismiss its appeal.
The relevant provisions of the Building Act
Section 10 of the Building Act provides, relevantly:
A person must not do demolition work unless -
(a)a demolition permit is in effect for the demolition work;
The term 'demolition work' is defined in s 3 to mean, relevantly, 'the demolition, dismantling or removal of a building or an incidental structure'.
The term 'demolition permit' is defined in s 3 to mean a permit granted under s 21.
Section 15 provides, relevantly, that a person may apply for a demolition permit to do demolition work in respect of a building or an incidental structure.
By s 16, relevantly, an application for a demolition permit:
(a)must be made in an approved manner and form (s 16(a));
(b)must name, and be signed by, each owner of the land on which the building or incidental structure is located (s 16(b)); and
(c)must name, and be signed by, the person who proposes to be named as the demolition contractor on the demolition permit (s 16(c)).
Section 25 is concerned with, relevantly, the form and content of a demolition permit. By s 25(4), relevantly, a demolition permit must set out:
(a)the building or incidental structure to which it applies (s 25(4)(a));
(b)the prescribed details about the demolition contractor (s 25(4)(c)); and
(c)the prescribed details about each owner of the land on which the building or incidental structure is located (s 25(4)(d)).
By s 28(2), relevantly, a demolition permit document must be given to:
(a)the person who is named as the demolition contractor on the demolition permit (s 28(2)(a));
(b)each owner of the land on which the building or incidental structure is located (s 28(2)(b)); and
(c)the applicant, if the applicant is not a person mentioned in par (a) or (b) (s 28(2)(c)).
Section 29(2) provides, relevantly, that the person named as the demolition contractor on a demolition permit must ensure that the demolition work complies with the demolition permit including each condition that applies to the permit.
The elements of the offence created by s 10(a) of the Building Act
The elements of the offence created by s 10(a) of the Building Act are as follows. First, the accused has done 'demolition work' as defined in s 3. Secondly, when the demolition work was done a 'demolition permit' as defined in s 3 was not in effect for the demolition work.
The background facts and circumstances
The facts and circumstances of the alleged offending are as follows.
The appellant is a body corporate with one director, Michael Palm.
The appellant is the registered proprietor of 338 Holmes Road, Forrestfield (the Property).
The respondent is a local government. When the trial was held the respondent was the Shire of Kalamunda. It is now the City of Kalamunda.
The Property is located within the respondent's local government area.
On 7 September 2015, the appellant submitted an application to the Western Australian Planning Commission (the WAPC) for a proposed survey-strata plan in relation to the Property.
On 3 December 2015, the WAPC notified the respondent that it was prepared to endorse a survey-strata plan in accordance with the application, subject to certain conditions.
Condition 2 provided:[2]
Other than buildings, outbuildings and/or structures shown on the approved plan for retention, all buildings, outbuildings and/or structures present on the proposed lots and common property at the time of subdivision approval being demolished and materials removed from the lot(s). (Local Government)
[2] Statement of Material Facts, Combined Blue and Green Appeal Book (CAB) 221 - 222.
Advice Note 1 in WAPC's approval document stated:[3]
In regard to Condition 2, planning approval and/or a demolition licence may be required to be obtained from the local government prior to the commencement of demolition works.
[3] CAB 222.
On 14 December 2015, the appellant engaged Frank Raccuia to carry out a subdivision of the Property.
On 12 August 2016, the respondent’s Senior Building Surveyor received a telephone enquiry from a member of the public as to the identity of the demolition company working at the Property. The Senior Building Surveyor then checked the respondent’s records and found that no demolition permit had been issued for the Property.[4]
[4] CAB 222.
On 12 August 2016, the Senior Building Surveyor conducted a site inspection of the Property and saw that the residence on the Property and one of the outbuildings had been demolished.
On 15 September 2016, Mr Palm spoke by telephone with the Senior Building Surveyor. Mr Palm stated that:[5]
(a)the demolition contractor who carried out the demolition work at the Property was Mr Raccuia;
(b)he had no idea that Mr Raccuia had undertaken the demolition work without the necessary approvals; and
(c)he had trusted Mr Raccuia to obtain the necessary approvals.
[5] CAB 222.
Afterwards, Mr Palm sent an email to the respondent which set out details of the telephone conversation.[6]
[6] CAB 240.
On 21 September 2016, the respondent charged the appellant with contravening s 10(a) of the Building Act.
The trial before the magistrate
At the trial, the prosecution tendered a statement of material facts together with a number of annexures. During the trial, the appellant did not contest the prosecution's evidence. The appellant made a no-case submission at the conclusion of the prosecution case. The magistrate rejected the submission.
The appellant then called Mr Palm and Mr Raccuia to give evidence. Both parties made closing submissions. The magistrate reserved his decision.
On 12 September 2018, the magistrate found the appellant guilty of the charged offence.
Overview of the prosecution case at trial
The prosecution case at trial was as follows.[7]
[7] Trial ts 7 ‑ 10.
Mr Palm on behalf of the appellant engaged Mr Raccuia to carry out demolition work on the Property. Section 16(b) of the Building Act requires that an application for, relevantly, a demolition permit be signed by each owner of the land on which the building or incidental structure is located. The appellant or Mr Palm would therefore have been required to sign an application for a demolition permit. No such application was lodged with the respondent. It followed that the appellant or Mr Palm must have had actual knowledge that a demolition permit had not been issued.
By engaging Mr Raccuia to carry out the work, Mr Palm on behalf of the appellant had actual knowledge of the essential facts constituting the offence under s 10(a) of the Building Act.
The appellant was criminally liable pursuant to s 7(d) of the Criminal Code (WA) (the Code) in that the appellant procured the commission of the offence.[8] The appellant wanted the demolition work to be carried out. It could not contract out of its criminal liability by engaging Mr Raccuia.[9]
[8] Trial ts 8.
[9] Trial ts 46.
Overview of the appellant’s case at trial
The appellant accepted that the respondent had not issued a demolition permit for the Property and that the demolition work carried out by Mr Raccuia was therefore in breach of s 10(a) of the Building Act.[10]
[10] Trial ts 50.
The appellant denied knowing that a demolition permit had not been issued for the demolition work.
The appellant submitted that the prosecution had to establish beyond reasonable doubt that the appellant knew that a demolition permit had not been issued and that the prosecution had failed to prove that the appellant had the requisite knowledge.[11]
[11] Trial ts 51.
The appellant contended that, in the circumstances, it was not criminally liable, as a procurer, pursuant to s 7(d) of the Code.[12]
[12] Trial ts 50.
The appellant's evidence at trial
At trial, Mr Palm gave evidence that he had worked with Mr Raccuia on a number of development projects.[13] Mr Palm could not recall whether he had been required to sign applications for demolition permits in relation to the previous projects. He believed that this was not a requirement under the previous legislation.[14]
[13] Trial ts 20 - 21.
[14] Trial ts 20 - 21.
With respect to the Property, Mr Palm testified that:[15]
(a)he expected Mr Raccuia to inform him about any necessary demolition approvals;
(b)he did nothing to obtain demolition approvals himself;
(c)he did not instruct Mr Raccuia to do any demolition work without any necessary approvals;
(d)he was not aware, until he passed by the Property and saw for himself, that demolition work had begun; and
(e)he was not aware that demolition work had been undertaken on the Property without a demolition permit until he received an infringement notice from the respondent.
[15] Trial ts 20 - 23.
It was not squarely put to Mr Palm in cross‑examination that he knew that demolition work was being undertaken on the Property without a demolition permit.[16] Mr Palm was merely asked in cross‑examination whether he had spoken to Mr Raccuia about obtaining a demolition permit and whether he had previously signed applications for a demolition permit in relation to other projects.[17]
[16] Trial ts 24 ‑ 29.
[17] Trial ts 26 ‑ 29.
With respect to the Property, Mr Raccuia testified that:[18]
(a)he was engaged by Mr Palm to assist with the subdivision of the Property;
(b)he had contacted the respondent, spoken to a planning officer, and subsequently understood, mistakenly, that demolition approval was not required because of the conditional approval granted by the WAPC and an exemption under s 157 of the Planning and Development Act 2005 (WA); and
(c)based on that mistaken understanding, he did not at any time discuss demolition approvals with Mr Palm.
[18] Trial ts 36 ‑ 39, 43 ‑ 45.
The statutory basis for the appellant's alleged criminal responsibility
The prosecution opened its case at trial on the basis that the appellant was criminally responsible under s 7(d) of the Code in that the appellant procured the commission of the offence.
After the prosecution and the appellant made closing submissions at the trial, the magistrate indicated that the parties should file written submissions as to whether the appellant was criminally responsible under s 7(a) rather than s 7(d) of the Code. The parties filed written submissions which addressed that issue.
The reasons of the magistrate
The magistrate found, relevantly, that:[19]
(a)the appellant hired Mr Raccuia as a consultant to develop the Property and oversee the work;
(b)Mr Raccuia believed that a demolition permit was not required because the exemption in s 157 of the Planning and Development Act applied;
(c)Mr Raccuia carried out the demolition work without a demolition permit because of that belief;
(d)Mr Raccuia did not speak to Mr Palm about Mr Raccuia's belief or about the demolition work before the work began; and
(e)the first occasion that Mr Palm and Mr Raccuia spoke about the demolition work was when Mr Palm received an infringement notice from the respondent.
[19] Trial ts 66 ‑ 67.
The magistrate reasoned as follows:[20]
Both prosecution and defence accept the offence is one of strict liability. A company, of course, is a piece of paper with something written on it. It can only operate throughout its officers and its agents …
The [prosecution] opened its case at the commencement of the trial on the basis that the company was a party to the offence pursuant to s 7(d) and, in particular, that it was – its guilt lay through counselling or procuring, which is one of the, sort of, subsets of 7(d). [Defence counsel] sought a no case to answer dismissal of the charge on the basis that the accused company had no knowledge or intent of the demolition by the secondary participant. [I] objected to the no case submission on the finding that the accused was a principal offender, which probably took them both by surprise.
But after hearing all of the evidence, I'm still of the view that the accused company is the principal offender. A company can only ever act through its officers or agents. [The accused company is] the applicant for the strata survey plan, the entity responsible for carrying out all aspects of the survey plan, including compliance with any statutory requirement and an omission to obtain a demolition licence is the omission of the entity whose responsibility it is to obtain a licence.
Should an agent of the company's officer neglect to obtain a licence, it's still an omission of the company. [Counsel for the accused company] submitted that as the prosecution opened on the basis the company was liable through s 7(d) and he had prepared his case on that basis … it would be unfair to convict on any other. I don't accept that proposition either. The defence has conceded all of the facts necessary for the Shire to prove its case. The facts were relied upon by the Shire when it opened its case. They remain exactly the same at the end of the [prosecution] case.
The characterisation of liability pursuant to s 7(d) was a submission by the Shire only. The court is not bound by a prosecutor's opening submission as to the effect of a law. I'm bound, of course, by the way in which the facts are characterised. The same facts as opened on prove the liability of the accused. There has been no change of course …
The obtaining of a demolition licence is a statutory requirement unmet by the [accused] company. Of course, ignorance of the law by an officer of the company is no excuse. The corporate applicant for a survey strata plan can’t cont[r]act out of its obligation to obtain a demolition licence prior to carrying out demolition work. [The accused company] instructed [Mr Raccuia] to, amongst other things, demolish those buildings and didn’t get a licence for it. So I find the charge against the company proven.
[20] Trial ts 67 ‑ 69.
It is apparent that the magistrate convicted the appellant on the basis that the appellant was criminally responsible under s 7(a) rather than s 7(d) of the Code.
The appeal before Hill J
The appellant relied upon four grounds of appeal before Hill J. The grounds were, in summary, as follows:
(a)the magistrate erred in finding that the conditional WAPC approval warned the appellant that separate local government demolition approval was necessary;
(b)the magistrate erred by failing to consider a defence of honest claim of right pursuant to s 22 of the Code;
(c)the magistrate erred in finding that the appellant was a principal offender pursuant to s 7(a), alternatively s 7(d), of the Code; and
(d)the magistrate erred in failing to consider a defence of honest and reasonable mistake of fact pursuant to s 24 of the Code.
The respondent conceded ground 1 [91]. Hill J said that the concession was appropriate [91]. However, her Honour found that, despite the magistrate having erred, no substantial miscarriage of justice had occurred. Her Honour was of the view that the magistrate's erroneous finding was not material to the magistrate's conclusions which culminated in the appellant's conviction [93].
As to ground 2, Hill J noted that the appellant had not at trial raised a defence under s 22 of the Code. Her Honour found, in effect, that there was insufficient evidence at trial to support such a defence [104].
As to ground 3, Hill J observed that:
(a)the magistrate decided that the obligation under s 10 of the Building Act was 'a non-delegable duty' which the appellant could not contract out of;
(b)consequently, the magistrate held that the failure to obtain a demolition permit before beginning the demolition work was a failure by the appellant; and
(c)the magistrate considered that the appellant's criminal liability arose under s 7(a) of the Code [71].
Hill J held that the magistrate had erred in law in deciding that the obligation under s 10 of the Building Act was 'a non‑delegable duty'. Her Honour was of the view that the only basis upon which the appellant could be convicted of an offence under s 10 of the Building Act was if the appellant was vicariously liable for the acts of Mr Raccuia (under s 7(a) of the Code) or if the appellant procured the commission of the offence (under s 7(d) of the Code) [72].
Hill J noted that the magistrate did not make any findings as to the terms of the consultancy agreement between the appellant and Mr Raccuia. Mr Palm's evidence was that Mr Raccuia was engaged to 'go through the approval, work out what needed to be done (including making any enquiries and investigations), report back to the appellant on what needed to be done, bring to the appellant any forms that needed to be signed, and then proceed with the work' [83].
Hill J then reasoned as follows:
The appellant did not sign any document which gave [Mr Raccuia] the authority to lodge applications on his [sic] behalf. [Mr Palm's] evidence was that he did not speak to [Mr Raccuia] to understand whether permits were required.
It is clear from this evidence that the appellant had not transferred to [Mr Raccuia] the responsibility of carrying out all work associated with the sub-division. [Mr Palm] expected [Mr Raccuia] to report back to him on what was required to be done and to bring to him all forms that needed to be signed. In my view, this included any application for a demolition permit that was required under s 10 of the Building Act.
As the appellant had not transferred to [Mr Raccuia] the obligation to obtain a demolition permit before carrying out work, in my view, the appellant is vicariously liable for the acts of [Mr Raccuia] in carrying out demolition work without a permit in breach of s 10 of the Building Act.
Accordingly, notwithstanding the error of law by the learned magistrate, the appellant should still have been convicted of a breach of s 10 of the Building Act. For this reason, I do not consider there has been any substantial miscarriage of justice.
Given this finding, it is unnecessary for me to consider whether the appellant could also have been convicted as procuring the offence under s 7(d) of the Code. For completeness, it is my view that the conviction of the appellant could have been upheld as a party who procured the commission of the offence by [Mr Raccuia].
When a person is charged as a secondary party with an offence under s 10 of the Building Act relying on s 7(d) of the Code, the prosecution is required to prove that the accused counselled or procured the demolition works. It does not have to establish that the accused knew that a demolition licence had not been issued. Specifically, the prosecution is required to prove that the accused knew that demolition on the Property was contemplated, that the accused approved or assented to it and that this approval or assent encouraged the principal offender to undertake the demolition.
In this case, the prosecution has proved that the appellant was aware from the approved plans of the survey strata development that demolition of buildings was required, that the appellant retained [Mr Raccuia], the principal offender, to undertake the work on the Property, including the demolition, and that by retaining [Mr Raccuia] to carry out the development, this caused [Mr Raccuia] to undertake the demolition works [84] ‑ [90] (citations omitted). (emphasis added)
The critical aspects of Hill J's reasoning in that passage are as follows:
(a)The appellant did not transfer to Mr Raccuia the obligation to obtain a demolition permit before the demolition work commenced. The appellant was therefore 'vicariously liable for the acts of [Mr Raccuia] in carrying out demolition work without a permit in breach of s 10 of the Building Act'. Accordingly, notwithstanding the magistrate's error of law in deciding that the obligation under s 10 of the Building Act was 'a non-delegable duty', the appellant should still have been convicted, on the basis of s 7(a) of the Code, of a breach of s 10. No substantial miscarriage of justice had occurred [86] ‑ [87].
(b)Although it was unnecessary, given that conclusion, for her Honour to consider whether the appellant might also have incurred liability under s 7(d) of the Code for procuring Mr Raccuia to commit the offence, being the basis upon which the prosecution opened its case at trial, her Honour expressed the view that the appellant was liable under s 7(d). The prosecution had proved that the appellant was aware that demolition of buildings on the Property was required as part of the development; the appellant retained Mr Raccuia to undertake the work on the Property, including the demolition work; and the appellant, by retaining Mr Raccuia to carry out the development, 'caused Mr Raccuia to undertake the demolition works'. The prosecution did not have to establish that the appellant knew that a demolition licence had not been issued [88] ‑ [90].
As to ground 4, Hill J found, in effect, that the appellant 'did not know … that a demolition permit had not been obtained when one was required' [111]. However, 'this mistake was a matter of law not fact' [113]. Her Honour said that it was apparent that 'the appellant did not have any belief about whether the demolition works could be carried out without [a permit]' [114]. Her Honour added:
[Mr Raccuia's] evidence did not … amount to a claim that he or his agents were entitled to carry out demolition on the Property. In my view, for an accused to have a defence under s 24 of the Code, it is necessary for the accused to have a mistaken belief and not an imputed belief [114].
Her Honour added that even if she was wrong in concluding that '[Mr Raccuia's belief could not] be attributed to the appellant', the defence under s 24 of the Code was not available because, in her Honour's view, 'the question as to whether the demolition work fell within [the exemption under s 157 of the Planning and Development Act] or not was a matter of law not fact' [115] ‑ [116].
As we have mentioned, Hill J dismissed the appeal pursuant to s 14(2) of the Criminal Appeals Act.
The appellant's grounds of appeal before this court
The appellant relied upon two grounds of appeal before this court.
Ground 1 alleged, in essence, that Hill J had erred in finding that, despite the magistrate's error of law, there was no substantial miscarriage of justice because the appellant:
(a)had not transferred to Mr Raccuia the obligation to obtain a demolition permit before the demolition work was commenced; and
(b)was vicariously liable for the acts of its contractor, Mr Raccuia, in circumstances where Mr Raccuia acted outside the terms upon which the appellant engaged him by failing to make an application for a demolition permit.
Ground 2 alleged, in essence, that her Honour erred in holding that the appellant's conviction could have been sustained under s 7(d) of the Code, as a party who had procured the commission of the offence by Mr Raccuia, in that neither the appellant nor its officers had actual knowledge that:
(a)a demolition permit had not been issued with respect to the demolition work at the Property; or
(b)the demolition work was about to be commenced by Mr Raccuia.
On 8 December 2019, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
The appellant's grounds of appeal before this court: the appellant's submissions
As to ground 1 of the appellant's appeal before this court, counsel for the appellant submitted, relevantly, that Hill J erred in finding that the appellant maintained a requisite standard of control over the work to be performed by Mr Raccuia and in holding that criminal responsibility for Mr Raccuia's failure to obtain a demolition permit should be imputed to the appellant pursuant to the doctrine of vicarious liability.
As to ground 2 of the appellant's appeal before this court, counsel for the appellant submitted, relevantly, that Hill J erred in holding that it was possible to uphold the appellant's conviction on the basis that the appellant was liable as a procurer under s 7(d) of the Code. It was argued, in essence, that the appellant could not be liable as a procurer under s 7(d) because the appellant did not have actual knowledge of all of the elements of the offence created by s 10(a) of the Building Act (in particular, actual knowledge that the demolition work was to be undertaken without a demolition permit) and there was no evidence that the appellant actively encouraged Mr Raccuia to carry out the demolition work without a demolition permit.
The appellant's grounds of appeal before this court: the respondent's submissions
As to ground 1 of the appellant's appeal before this court, counsel for the respondent submitted that Hill J was correct in deciding that the appellant had not authorised or transferred to Mr Raccuia the ability to sign as owner any forms required to obtain a demolition permit before the demolition work was undertaken and in holding that the appellant was vicariously liable for Mr Raccuia's failure to obtain a demolition permit.
As to ground 2 of the appellant's appeal before this court, counsel for the respondent submitted that, on the basis of Mr Palm's evidence at the trial:
(a)Mr Palm knew that it was necessary for the owner of a property on which demolition work was to be carried out to sign an application for a demolition permit;
(b)Mr Palm (and, therefore, the appellant) knew that a demolition permit could not have been issued because the appellant had not signed an application for a demolition permit and had not authorised Mr Raccuia to sign an application on the appellant's behalf; and
(c)although Mr Palm may not have known that demolition work on the Property was about to commence, Mr Palm became aware of the demolition work after it had commenced and before it was completed, and he took no action to halt the demolition or to obtain a demolition permit. According to counsel, it could not be said that Mr Palm (and, therefore, the appellant) 'did not know [of] and did not intend to engage [Mr Raccuia] to carry out the [demolition] works' [53].
It was submitted that a person may counsel or procure an offence under s 7(d) of the Code if the person has knowledge of all of the essential facts pertaining to the relevant unlawful act or omission. It is unnecessary for the person to know that the relevant act or omission constitutes an offence. Hill J was correct, generally for the reasons her Honour gave, in deciding that the appellant's conviction could be upheld under s 7(d) of the Code on the basis that the appellant had procured Mr Raccuia's commission of the offence.
Ground 1 of the appellant's appeal before this court: its merits
Section 69(1) of the Interpretation Act 1984 (WA) provides that every enactment relating to an offence punishable on indictment or on summary conviction shall be taken to refer to bodies corporate as well as to individuals. The term 'individual' is defined in s 5 to mean a natural person.
By reason of s 69(1) of the Interpretation Act, the 'person' referred to in s 10 of the Building Act includes a body corporate.
Section 7(a) of the Code provides, in effect, that '[w]hen an offence is committed', a person is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' if the person 'actually does the act or makes the omission which constitutes the offence'.
Section 7 of the Code has general application to all offences against the statute law of Western Australia. See Wilson v Dobra;[21] West v Suzuka;[22] Hunt v Maloney; Ex Parte Hunt;[23] Renwick v Bell;[24] Humphry v The Queen;[25] Dean v Legal Practice Board.[26]
[21] Wilson v Dobra (1955) 57 WALR 95, 96 (Dwyer CJ; Wolff & Jackson JJ agreeing).
[22] West v Suzuka [1964] WAR 112, 117 (Wolff CJ), 120 ‑ 121 (Hale J).
[23] Hunt v Maloney; Ex Parte Hunt [1959] Qd R 164, 169 (Stanley J), 179 (Mack J), 184 (Hanger J).
[24] Renwick v Bell [2001] QCA 316; [2002] 2 Qd R 326 [12] ‑ [28] (Davies JA; McMurdo P & Thomas JA agreeing).
[25] Humphry v The Queen [2003] WASCA 53; (2003) 138 A Crim R 417 [47] (Malcolm CJ; Anderson & Miller JJ agreeing).
[26] Dean v Legal Practice Board [2016] WASCA 63 [85] (Mazza JA; McLure P & Buss JA agreeing).
The Building Act does not evince an intention that s 7 of the Code does not apply to the offences created by the Building Act. Section 7 of the Code therefore applies to the offence created by s 10(a) of the Building Act.
By s 36 of the Code, the provisions of ch V, which is concerned with criminal responsibility, apply to 'all persons charged with any offence against the statute law of Western Australia'. Section 36 applies the provisions of ch V to all persons, including bodies corporate, charged with criminal offences in this State. Section 36 is not confined in its application to criminal offences created by the Code. See Grain Sorghum Marketing Board v Supastock Pty Ltd; Ex Parte Grain Sorghum Marketing Board.[27]
[27] Grain Sorghum Marketing Board v Supastock Pty Ltd; Ex Parte Grain Sorghum Marketing Board [1964] Qd R 98, 109 ‑ 110 (Stable J), 111 ‑ 112 (Gibbs J).
A body corporate exercises its powers and performs its functions through natural persons.
An employer is liable in a civil action for a wrongful act or omission done by an employee in the course of his or her employment, including a wrongful act or omission done or omitted to be done by the employee which has been expressly forbidden by the employer. That common law rule applies to bodies corporate as well as to natural persons. Liability is vicarious, not direct. See Grain Sorghum Marketing (111) (Gibbs J).
The criminal responsibility of a body corporate under s 7(a) of the Code must be resolved, in each particular case, by determining whether, having regard to the nature of the alleged offence and the facts of the particular case, the act or omission and, if relevant, the state of mind of the natural person in question is to be taken to be the act, omission or state of mind of the body corporate itself. The criminal responsibility of a body corporate under s 7(a) is direct, not vicarious.
Accordingly, the determination of the criminal responsibility of a body corporate under s 7(a) is not to be determined by applying the common law rule governing the liability of a body corporate for the wrongful acts or omissions of its employees in a civil action at common law. See, generally, in relation to the common law rule, Director of Public Prosecutions Reference No 1 of 1996.[28]
[28] Director of Public Prosecutions Reference No 1 of 1996 [1998] 3 VR 352, 354 (Callaway JA; Phillips CJ & Tadgell JA agreeing).
The act or omission and, if relevant, the state of mind of a natural person will be attributed to a body corporate, for the purposes of criminal responsibility under s 7(a), if the natural person was not merely acting as an employee, agent, representative or delegate of the body corporate, but as the directing mind or will or the embodiment of the body corporate, in relation to the matter in question. See Geraldton Fishermen's Co-operative Ltd v Munro;[29] Grain Sorghum Marketing Board (109 ‑ 110) (Stable J), (111 ‑ 112) (Gibbs J); Kehoe v Dacol Motors Pty Ltd; Ex Parte Dacol Motors Pty Ltd;[30] G J Coles & Co Ltd v Goldsworthy;[31] Cervantes Pty Ltd v State Energy Commission of Western Australia;[32] Environment Protection Authority v Caltex Refining Co Pty Ltd.[33]
[29] Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129, 135 (Hale J, delivering the judgment of the Full Court of the Supreme Court of Western Australia).
[30] Kehoe v Dacol Motors Pty Ltd; Ex Parte Dacol Motors Pty Ltd [1972] Qd R 59, 61 ‑ 62 (Kneipp J), 72 ‑ 75 (Andrews J).
[31] G J Coles & Co Ltd v Goldsworthy [1985] WAR 183, 185 ‑ 189 (Burt CJ), 190 ‑ 191 (Brinsden J), 192 ‑ 194 (Smith J).
[32] Cervantes Pty Ltd v State Energy Commission of Western Australia (1991) 5 WAR 355, 360 ‑ 363 (Murray J).
[33] Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477, 514 ‑ 515 (Brennan J).
In Tesco Supermarkets Ltd v Nattrass,[34] Lord Reid explained that, ordinarily, the board of directors, any managing director and perhaps other superior officers of a company carry out the functions of management and 'speak and act as the company'.
[34] Tesco Supermarkets Ltd v Nattrass [1972] AC 153, 171.
However, the question whether, in a particular case, a natural person was acting as the directing mind or will or the embodiment of a body corporate in relation to the matter in question is not to be answered simply by ascertaining whether the natural person held an office of the kind specified by Lord Reid in that passage. See, generally, Director of Public Prosecutions Reference No 1 of 1996 (355).
Rather, that question is to be answered, in each particular case, having regard to the nature of the alleged offence and the facts of the particular case, including:
(a)the seniority of the natural person and his or her management functions within the body corporate's organisation;
(b)the character and quality of the natural person's act or omission;
(c)the nature and extent of the natural person's discretion in relation to his or her management functions, including in relation to the relevant act or omission; and
(d)whether the natural person did the relevant act or made the relevant omission within the scope of his or her authority or employment.
In the present case, the magistrate did not find as a fact that Mr Raccuia was the directing mind or will or the embodiment of the appellant in relation to the demolition work performed by Mr Raccuia at the Property or the failure of Mr Raccuia to obtain a demolition permit in respect of that work.
Mr Palm was the sole director of the appellant. The only finding reasonably open on the evidence was that Mr Palm was the directing mind or will or the embodiment of the appellant generally, including in relation to retaining Mr Raccuia to perform the demolition work and develop the Property.
Mr Raccuia was responsible, as between himself and the appellant, for carrying out the demolition work and for obtaining any necessary approvals to enable that work lawfully to be done. The only finding reasonably open on the evidence was that, at all material times, Mr Raccuia was acting as an independent contractor who had been engaged by the appellant to achieve specified results in relation to the development of the Property. Mr Raccuia was not an officer of the appellant and he did not have any management functions within the appellant's organisation. He was not the directing mind or will or the embodiment of the appellant in relation to carrying out the demolition work or obtaining any necessary approvals to enable that work lawfully to be done.
The conduct of Mr Raccuia in performing the demolition work on the Property without having obtained a demolition permit was not the conduct of the appellant. The act and omission of Mr Raccuia which constituted the offence under s 10(a) of the Building Act was not the act and omission of the appellant. Consequently, the appellant was not criminally responsible under s 7(a) of the Code for carrying out the demolition work on the Property without a demolition permit.
That aspect of ground 1 of the appellant's appeal before this court has been made out.
Ground 2 of the appellant's appeal before this court: its merits
Recently, in Dimer v The State of Western Australia,[35] this court considered some aspects of the proper construction and application of s 7(d) of the Code. It is convenient to reproduce the relevant parts of the reasons for judgment in that case.
[35] Dimer v The State of Western Australia [2020] WASCA 111 [71] ‑ [84] (Buss P, Mazza & Vaughan JJA).
Section 7(d) provides, in effect, that '[w]hen an offence is committed', a person is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' if the person 'counsels or procures another person to commit the offence'.
Section 7(d) is predicated upon and operates '[w]hen an offence is committed'. An offence is committed, for the purposes of s 7(d), when the relevant acts or omissions by 'the counsellor or procurer' and 'the principal' (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur, and not when 'the principal' is convicted. Also, the deeming provisions in s 7(d) are engaged when the relevant acts or omissions by 'the counsellor or procurer' and 'the principal' (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur. That is, an alleged 'counsellor or procurer' is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' when those relevant acts or omissions (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur, and not when 'the principal' is convicted. See s 7 read with the definition of 'offence' in s 2 of the Code. See also Birdsall v The State of Western Australia.[36]
[36] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [158] (Buss P & Mazza JA).
The effect of s 7(d) is to deem 'the counsellor or procurer', as the case may be, to have done the relevant acts or made the relevant omissions which 'the principal' has done or made, and not to deem 'the counsellor or procurer', as the case may be, to be liable to the same extent as 'the principal'. See R vBarlow.[37]
[37] R vBarlow [1997] HCA 19; (1997) 188 CLR 1, 10 (Brennan CJ, Dawson & Toohey JJ).
The term 'counsel' in s 7(d) and s 9 (and cognate forms of that term in those provisions) connotes 'to urge' or 'to advise' another person to commit an offence. See Stuart v The Queen;[38] R v Oberbillig;[39] R v Georgiou;[40] R v Hawke.[41]
[38] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 445 (Gibbs J; Mason J agreeing).
[39] R v Oberbillig [1989] 1 Qd R 342, 345 (Moynihan J; Kelly SPJ & Ryan J agreeing).
[40] R v Georgiou [2002] QCA 206; (2002) 131 A Crim R 150 [78] (McPherson & Williams JJA & Atkinson J).
[41] R v Hawke [2016] QCA 144; (2016) 259 A Crim R 114 [36] ‑ [39] (Fraser JA; Philippides JA & Jackson J agreeing).
The term 'counsel' in s 7(d) and s 9 (and cognate forms of that word in those provisions) may also, if appropriate in the circumstances, connote 'to solicit'. See R v Calhaem;[42] Oberbillig (345); Georgiou [78].
[42] R v Calhaem [1985] 1 QB 808, 813 (Parker LJ delivering the judgment of the Court of Appeal of England & Wales).
However, a person does not 'counsel' another person to commit an offence, within s 7(d) or s 9, if he or she merely 'instigates' the commission of an offence, in the sense of suggesting it, without urging, advising or soliciting the commission of the offence. See Hutton v The Queen.[43] Hutton was overruled in R v Kirkby,[44] but not on this point.
[43] Hutton v The Queen (1991) 56 A Crim R 211, 214 ‑ 215 (Ryan J).
[44] R v Kirkby [1998] QCA 445; [2000] 2 Qd R 57.
The term 'procure' in s 7(d) (and cognate forms of that term in that provision) connotes 'to produce by endeavour'. A person procures something 'by setting out to see that it happens and taking the appropriate steps to produce that happening'. A person cannot procure another person to commit an offence unless 'there is a causal link between what [the person does] and the commission [by the other person] of the offence'. See Attorney-General's Reference No 1 of 1975.[45] See also R v Broadfoot;[46] R v Castiglione;[47] R v Menniti;[48] R v F; Ex Parte Attorney-General (Qld).[49]
[45] Attorney-General's Reference No 1 of 1975 [1975] QB 773, 779 ‑ 780 (Lord Widgery CJ delivering the judgment of the Court of Appeal of England and Wales).
[46] R v Broadfoot (1976) 64 Cr App R 71, 74 (Cusack J; Shaw LJ & Slynn J agreeing).
[47] R v Castiglione [1963] NSWR 1; (1962) 63 SR (NSW) 393, 399 (Sugerman J).
[48] R v Menniti [1985] 1 Qd R 520, 532 (Derrington J).
[49] R v F; Ex Parte Attorney-General (Qld) [2003] QCA 70; [2004] 1 Qd R 162 [33] ‑ [36] (Williams JA).
In R v Adams; Ex Parte Attorney-General (Qld),[50] Fitzgerald P stated that, in the context of the Queensland equivalent of s 7(d) of the Code, 'procure' means more than 'mere encouragement' to commit an offence. Procurement requires successful persuasion to do something. A person will not procure another person to commit an offence merely by attempting to induce. The person must have induced the other person actually to have committed the offence. See also Hawke [58] ‑ [59] (Philippides JA).
[50] R v Adams; Ex Parte Attorney-General (Qld) [1998] QCA 64.
Although s 7(d) does not expressly state a mental element for counselling or procuring, it has been held that it is implicit in the provision that a person will not be criminally responsible under s 7(d) unless the person knew all of the essential facts that constitute the offence committed by 'the principal' and the person intentionally counselled or procured the commission by 'the principal' of that offence. See R v Beck;[51] R v Jervis;[52] Ward v The Queen;[53] Hawke [39] (Fraser JA), [61] (Philippides JA).
[51] R v Beck [1990] 1 Qd R 30, 38 (Macrossan CJ; McPherson J agreeing).
[52] R v Jervis [1993] 1 Qd R 643, 648 (McPherson ACJ).
[53] Ward v The Queen (1997) 19 WAR 68, 72 ‑ 75 (Steytler J; Kennedy & Franklyn JJ agreeing).
In the present case, the prosecution ran its case under s 7(d) of the Code on the basis that the appellant procured Mr Raccuia to commit the offence under s 10(a) of the Building Act.
As we have mentioned, the magistrate convicted the appellant on the basis that the appellant was criminally responsible under s 7(a) rather than s 7(d) of the Code.
Hill J upheld the magistrate's conviction of the appellant on the basis of s 7(a), notwithstanding her Honour's finding that the magistrate had made an error of law. Her Honour decided that no substantial miscarriage of justice had occurred.
As we have mentioned, although it was unnecessary, given that conclusion, for Hill J to consider whether the appellant might also have incurred liability under s 7(d) for procuring Mr Raccuia to commit the offence, her Honour expressed the view that the appellant was liable under s 7(d), in that:
(a)the appellant was aware that demolition of buildings on the Property was required as part of the development;
(b)the appellant retained Mr Raccuia to undertake the work on the Property, including the demolition work; and
(c)the appellant, by retaining Mr Raccuia to carry out the development, caused Mr Raccuia to undertake the demolition works.
Although, as we have mentioned at [56] above, Hill J found, in effect, that the appellant did not know that a demolition permit for the demolition work on the Property had not been issued, her Honour held, in effect, that the appellant's absence of knowledge was irrelevant. As we have mentioned at [55(b)] above, her Honour said that the prosecution did not have to establish that the appellant knew that a demolition licence had not been issued.
A person will not be criminally responsible, as a procurer, under s 7(d) of the Code unless the person knew all of the essential facts that constitute the offence committed by 'the principal' and the person intentionally procured the commission by 'the principal' of that offence. See [96] above.
In the present case, it was an element of the offence committed by Mr Raccuia under s 10(a) of the Building Act that a demolition permit had not been issued when the demolition work was performed. The absence of a demolition permit was an essential fact that, together with the carrying out of the demolition work, constituted the offence committed by Mr Raccuia.
The appellant was not criminally responsible, as a procurer, under s 7(d) unless, relevantly, the prosecution proved beyond reasonable doubt that the appellant knew that Mr Raccuia was carrying out demolition work on the Property without a demolition permit. Although Mr Palm gave evidence that he became aware, when he passed by the Property, that demolition work had begun, he said that he was not aware that demolition work had been undertaken without a demolition permit until he received an infringement notice from the respondent. It was not squarely put to Mr Palm in cross‑examination that he knew that demolition work was being undertaken on the Property without a demolition permit. He was merely asked in cross‑examination whether he had spoken to Mr Raccuia about obtaining a demolition permit and whether he had previously signed applications for a demolition permit in relation to other projects. Neither the magistrate nor Hill J made a finding that the appellant, through Mr Palm, knew when Mr Raccuia was carrying out the demolition work that a demolition permit had not been issued. Generally for the reasons we have given at [83] ‑ [85] above, in the course of considering ground 1, Mr Raccuia was not the directing mind or will or the embodiment of the appellant in relation to carrying out the demolition work or obtaining any necessary approvals to enable that work lawfully to be done. His knowledge at the material time that a demolition permit had not been issued was not the knowledge of the appellant.
Further, neither the magistrate nor Hill J made a finding that the appellant intentionally procured Mr Raccuia to carry out the demolition work without obtaining a demolition permit. The fact that this court has not seen or heard the witnesses at trial precludes this court from making any finding as to the appellant's intention.
Ground 2 of the appellant's appeal before this court has been made out.
The respondent's notice of contention before this court
The respondent filed a notice of contention before this court.
The notice asserted that Hill J was in error in deciding that s 10 of the Building Act does not impose 'a non‑delegable duty' on the owner of the land.
It was submitted on behalf of the respondent that her Honour failed to consider the interaction of s 10 with s 16(b), s 25 and s 28 of the Building Act.
According to counsel for the respondent, on a proper construction of the Building Act as a whole, the Act imposes a liability or duty on the owner to ensure that a demolition permit is obtained before any demolition work is undertaken.
In our opinion, counsel for the respondent's submission that, on a proper construction of the Building Act as a whole, the Act imposes a liability or duty on the owner to ensure that a demolition permit is obtained, before any demolition work is undertaken, is without merit.
Section 10(a) prohibits '[a] person' from doing demolition work unless a demolition permit is in effect for the demolition work. Other provisions of the Building Act, including s 16(b), s 25 and s 28, refer to the owner of the land on which demolition work is proposed to be done. The Act distinguishes between the owner of the land and the demolition contractor in the context of demolition work. The text of s 10(a) is unambiguous. The prohibition is imposed on '[a] person'. If a person does demolition work and a demolition permit is not in effect for the demolition work then the person commits an offence under s 10(a). The prohibition in s 10(a) is not directed to or imposed upon the owner (in the owner's capacity as owner) of the land on which demolition work is proposed to be done.
Criminal responsibility for the offence created by s 10(a) is to be determined in accordance with s 7 of the Code and any other provisions of the Code which may, in a particular case, apply. Section 10(a) does not, on its proper construction having regard to the Building Act as a whole, impose a liability or duty, by reference to the owner of the land, to ensure that a demolition permit is obtained. Section 10(a), on its proper construction having regard to the Building Act as a whole, imposes that liability or duty on the person who is proposing to do the demolition work. Any accessorial liability for the owner in respect of demolition work done by a person contrary to s 10(a) is imposed by the Code and not by the Building Act.
Conclusion
We would grant leave to appeal on grounds 1 and 2. The appeal must be allowed. The judgment of conviction entered by the magistrate should be set aside and a judgment of acquittal should be substituted. We would hear from counsel in relation to costs, including the costs of the proceedings before the magistrate and the costs of the appeal before Hill J.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss20 AUGUST 2020
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