Prout v La Rosa
[2005] WASC 98
•19 MAY 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PROUT -v- LA ROSA [2005] WASC 98
CORAM: SIMMONDS J
HEARD: 16 MAY 2005
DELIVERED : 19 MAY 2005
FILE NO/S: SJA 1022 of 2005
MATTER :Justices Act 1902
BETWEEN: CHAD ANTHONY PROUT
Appellant
AND
FRANCESCO DOMENICO LA ROSA
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram :MR R K BLACK SM
File No :PE 46475 of 2003
Catchwords:
Criminal law - Offence of unlicensed dealing in vehicles - Duplicity - Whether complaint alleging unlicensed dealing over a specified period duplex - Whether complaint and particulars uncertain
Legislation:
Justices Act 1902 (WA), s 43
Motor Vehicles Dealers Act 1973 (WA), s 30(1)
Result:
Appeal allowed
Matter remitted to the Magistrate for re-hearing
Category: B
Representation:
Counsel:
Appellant: Mr R M J Lombardi
Respondent: No appearance
Solicitors:
Appellant: Department of Consumer & Employment Protection
Respondent: No appearance
Case(s) referred to in judgment(s):
Bastin v Davies [1950] 2 KB 579
Byrne v Baker [1964] VR 443
Caruso v Holtby [1999] WASCA 39
Director of Public Prosecutions v Merriman [1973] AC 584
Fisher v Firkins [2004] WASCA 26
Hodgetts v Chiltern District Council [1983] AC 120
Parkinson v Prout [2003] WASCA 320
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Case(s) also cited:
Nil
SIMMONDS J:
Introduction
This is an appeal, by leave granted by Miller J under Justices Act 1902 (WA), s 184, against a decision dismissing a complaint that, over a period specified in the complaint, the respondent engaged in unlicensed dealing contrary to Motor Vehicle Dealers Act 1973 (WA), s 30(1). The matter originally came before me on 27 April 2005, in the absence of the respondent, when I ordered it be adjourned and made an order for substituted service on him.
The learned Magistrate's dismissal of the complaint was on the basis that, as counsel for the complainant had indicated he would be relying upon a number of vehicle acquisitions and disposals over the period, the complaint was in a form contrary to s 43 of the Justices Act, which stipulates that a complaint be for one matter only.
The ground of appeal was simply that s 30(1) "allows for a single complaint of unlicensed dealing which was constituted by a course of conduct of buying and selling a number of vehicles and hence is not duplicitous".
I will first set out the relevant law in more detail, before considering the hearing before the Magistrate, his decision, and the merits of the appeal.
The law on duplicity under the Justices Act
The Justices Act s 43 reads in full as follows:
"Every complaint shall be for one matter only, and not for 2 or more matters:
Provided that—
(1)in the case of indictable offences, if the matters of complaint are such that they may be charged in one indictment; and
(2)in other cases, if the matters of complaint are substantially of the same act or omission on the part of the defendant,
such matters may be joined in the same complaint.
Provided also, that when several simple offences are alleged to be constituted of the same acts or omissions or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such offences may be joined in the same complaint against the same person; but if in any such case it appears to the justices that the defendant is likely to be prejudiced by such joinder, they may require the complainant to elect upon which of the charges he will proceed or may direct that the defendant shall be tried separately on each or any of the charges."
This provision has been said to embody the common law principle that a complaint alleging more than one offence is bad for duplicity, or as it is put bad for being "duplex". This is apparent from the leading authority from this Court on the matter, Vrisakis v Australian Securities Commission (1993) 9 WAR 395, at 403, per Malcolm CJ and at 438 ‑ 439, per Ipp J.
The vice of a duplex complaint has been said to be that, first, "it may prevent a defendant from understanding with precision the case that he or she must meet", and, second, "a subsequent prosecution may not be able to be defeated by a claim of autrefois convict or acquit as the case may be": Caruso v Holtby [1999] WASCA 39, McKechnie J, at [26].
In determining whether a complaint is duplex, primary regard is had to its form, as "duplicity is essentially a pleading point": Caruso, at [29], per McKechnie J. Regard should also be had to any "particulars provided": Vrisakis (supra), 440, per Ipp J. Regard should further be had to the terms of the legislation creating the relevant offence, and in particular to "whether the offence so created is of a compendious nature": Vrisakis, at 402, per Malcolm CJ.
A recent decision quashing a conviction on a complaint found to offend against s 43 is that in Fisher v Firkins [2004] WASCA 26, Heenan J. His Honour noted that successful appeals in such cases "generally" result in "orders quashing the convictions without reliance being placed on provisions such as s 191 of the Justices Act" (at [58]). The reference to "s 191" is, I believe, in fact one to s 199(1)(b), which permits the Court to "dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred". That is, the duplex complaint is to be seen as having of itself created injustice: see Vrisakis (to which Heenan J refers, among other authorities in this connection), at 416, per Malcolm CJ and at 439 ‑ 440, per Ipp J.
The proceedings before the Magistrate in this case
Counsel for the appellant before me also represented the complainant before the learned Magistrate. The respondent, who as defendant was unrepresented before the Magistrate, did not appear before me, notwithstanding compliance by the appellant with the order for substituted service I made when this matter first came before me.
Before the Magistrate, the defendant pleaded not guilty. Counsel for the complainant then explained to the Magistrate that the complaint should show amended dates. The complaint forming part of the appeal book before me showed the dates for the engagement in unlicensed dealing as 30 August 2002 to 29 May 2003 (AB 01). However, the transcript indicates that the first date needed to be understood as having been amended to show 31 August 2002 and the other date to 23 May 2003 (AB 10, AB 21).
The complaint with the original dates, as it was made available to me (AB 01), said that the defendant "BETWEEN 30 AUGUST 2002 AND 29 MAY 2003" (the "11" in the complaint's printed ending date of "11 May 2003" had been crossed out and replaced by "29"):
"(a):did engage in unlicensed dealing contrary to:
section 30(1) Motor Vehicle Dealers Act 1973 (as amended)."
Counsel before the Magistrate indicated it was alleged that over the amended period the defendant acquired 17 vehicles and then resold 15 of them (AB 10). Counsel handed up to the Magistrate a schedule which was apparently meant to summarise these transactions, and which he indicated would in due course be tendered into evidence.
At the hearing before me, I was provided by counsel with a copy of what he told me was the schedule. It shows a total of 20 transactions, with the name of the defendant for each, together with details of the vehicle concerned in each case, the date of its acquisition, the amount for which it was bought (indicating in most cases that it was acquired through an auction concern), the date of its disposal and the amount for which it was disposed of (with the exception of two vehicles, one a "current vehicle" and one for which the notation is "plates handed in"). Where the date of an acquisition or a disposal, as the case may be, lay between the dates in the amended complaint, the date appears in blue highlighting. One vehicle has no such highlighting for either its acquisition or its disposal date. It was included, I was told, because of an error made by the defendant in reporting his transactions concerning it. Of the 19 vehicles remaining, there are 17 vehicles acquired over the amended period, and indeed over the original period. But the schedule shows only 13 of these vehicles as having been disposed of over either period. In later submissions to the Magistrate, counsel appeared to indicate that, at least so far as the prosecution was relying on purchase and resale transactions of the same vehicle to make out the complaint, only those 13 would be relied upon (AB 28).
It was at the point of the tender of the schedule that the Magistrate raised a concern that the Justices Act s 43 had been contravened. He noted that the acquisitions and dispositions were "separate transactions", and counsel for the complainant responded that "particulars" of them had been provided to the defendant, apparently in the form of the schedule (AB 11). However, counsel indicated that the schedule was part of a much larger collection of material provided to the defendant at the same time (AB 20), a point to which I return. After hearing from the defendant, who expressed similar concerns (AB 25), the Magistrate said he found the schedule confusing, at least if it were considered as "particulars" of the case the defendant had to meet (AB 27), a matter to which I will also return.
After raising his concern in relation to s 43, and some brief argument, the Magistrate allowed a short adjournment to permit counsel to consider and make submissions on Firkins (supra), and the defendant to make submissions in reply.
After the adjournment, counsel for the complainant, referring to the authorities of Vrisakis (supra), and the authorities Ipp J referred to there (at 439) of Director of Public Prosecutions v Merriman [1973] AC 584 and Hodgetts v Chiltern District Council [1983] AC 120, submitted that the complaint in this case went to a single course of conduct, activity, transaction or criminal enterprise involving more than one act. He sought to distinguish Firkins on the basis it did not involve a complaint of an offence of such a course of conduct, a point to which I will return shortly.
In the course of argument the Magistrate raised an issue different from the duplex one when he drew to counsel's attention the repeal of the former prohibition of unlicensed dealing in the Motor Vehicle Dealers Act s 30 and its replacement with the current form of s 30, effective 1 September 2002. Counsel submitted that the complaint should be read to refer to transactions occurring after 31 August 2003 and before 23 May 2003. I note that the schedule's earliest transaction lying within that period is an acquisition on 1 September 2002, and its latest such transaction is a disposal on 8 May 2003.
It would appear counsel did not mean by this to be asking for the complaint to be treated as having been amended to show that new commencing date. Before me he explained this was based on the view of complaints of offences of this nature that the dates specified were exclusive ones, so that the offence was alleged to lie between them. There is clear authority for this position, in Parkinson v Prout [2003] WASCA 320, at [31], per Hasluck J. So far as I can tell from the record of proceedings before the Magistrate, he agreed to proceed on the same view.
The Magistrate's decision
The learned Magistrate rested his dismissal of the complaint as being duplex on two bases. Both appeared to draw heavily on his view of the schedule as particulars in relation to the offence. He said this (at AB 33):
"In my view and what is put before me, firstly, the defendant cannot really know what is alleged, given that it is said that the 20 vehicles set out in this part of the particulars is [sic] not really the transactions relied upon, some of them are.
And secondly, that if the defendant was convicted at the end of the day as to which of those particular transactions constituted unlicensed dealing, it may be that it's the 17 of those said that constitute the unlicensed dealing. It may be one, or it may be some number between one and 15, but who would know, who could know what the defendant was convicted of.
In my view the complaint as it stands offends against section 43, in that it is for more than one matter, it is duplex."
This analysis appeared to draw particularly on Firkins, where the offence was a breach of reg 50 of the Civil Aviation Regulations 1988 (Cth), which required a flight crew member of an Australian aircraft who had become "aware of the existence of a defect in the aircraft" to "enter on the maintenance release or other documentation approved for use as an alternative for the maintenance release" an "endorsement signed by him or her setting out the particulars of the defect".
The complaint in Firkins on which the defendant was convicted was that on becoming aware of the "existence of defects in the aircraft" he "failed to enter" on the release or the alternative documentation an endorsement signed by him setting out "particulars for the defects contrary to reg 50". As the Magistrate noted in this case, he was also the Magistrate whose decision in that case was quashed. At its trial, the prosecution confirmed that the defects in question were five, described in a handwritten list provided to the defence before trial and treated at trial as particulars of the complaint. It was alleged that these five had been noted by the defendant at a visual inspection of the aircraft he had carried out; but the defendant had failed to enter these five in the release or alternative documentation.
As the Magistrate in this case noted, Heenan J in Firkins had concluded (at [9]):
"There is, therefore, ambiguity as to whether the offence alleged was one failure to make an endorsement of all of the defects actually discovered; or one failure to make an endorsement of some or all of the defects discovered; or that there were as many failures to endorse a particular defect as there were particular defects discovered; or, for that matter, one failure to make an endorsement of all the five defects alleged to have been discovered."
It appears to be this analysis that the Magistrate applied to the complaint in this case, when the schedule was read with the complaint as particulars of it.
Whether the complaint in this case was duplex or uncertain
In my view the offence in Firkins is distinguishable from that in this case, and the complaint as it stands, when considered with the schedule against the terms of the statutory provision creating the offence it goes to, is not duplex.
In view of the way the Magistrate approached the complaint, I have also considered whether the complaint considered with the schedule was uncertain, which is a different matter. I have concluded that it was not uncertain.
Turning first to the duplex point and to Firkins, I note that, immediately after the passage from Heenan J's judgment I have quoted, he said this (at [9]) of reg 50 of the Civil Aviation Regulations:
"The regulation, as is apparent from its language, creates an obligation upon an operator or a flight crew member who becomes aware of the existence of a defect in the aircraft to enter on the maintenance release (or elsewhere) an endorsement signed by him setting out the particulars of that defect. In other words, the regulation creates a singular obligation in respect of each and every defect that may be discovered."
In Vrisakis (supra) the offence was one under s 229(2) of the Companies (Western Australia) Code, which required an officer of a corporation at all times to exercise a reasonable degree of care and diligence in the exercise of his powers or the discharge of his duties. It was concluded that, consistently with earlier authority, breach could only be shown by reference to identifiable acts or omissions, rather than by a failure to be a "reasonably careful and diligent director": at 402 and 408 ‑ 409, per Malcolm CJ; and see 442 ‑ 443, per Ipp J. In Vrisakis, the conduct complained of, as particularised, was represented by the omission to comply with the terms of a business plan for the director's company. Although the plan was singular, the terms were "discrete – each being independent of and unrelated to the others", and the "steps to be taken to ensure compliance with one term differed from the steps to be taken to comply with the others": at 444, per Ipp J. Thus, each failure to implement a different term was a separate "matter" for the purposes of s 43 of the Justices Act, and none of the provisos to the section applied.
In this case, however, it seems to me that the offence is one of the general characterisation of the conduct of the defendant over a selected period. It was just such a characterisation which was rejected in Vrisakis as appropriate for the conduct made an offence by s 229(2) of the Companies Code: see 443, per Ipp J, quoting with approval from Byrne v Baker [1964] VR 443, at 453. The general characterisation of the conduct constituting the offence in this case emerges when the relevant legislative provisions are considered.
The offence created by s 30(1) of the Motor Vehicle Dealers Act, when read with s 30(3), is as follows:
"30. Dealers to be licensed and premises to be authorised
(1)A person shall not engage in unlicensed dealing.
Penalty:$50 000 and a daily penalty of $1 000.
…
(3)For the purposes of subsection (1) a person engages in unlicensed dealing if he carries on any class or description of business as a dealer otherwise than –
(a)under and in accordance with a dealer's licence for that class or description of business; and
(b)in accordance with any condition or restriction attached to the licence."
The Act defines "dealer" as follows, in s 5(1):
"In this Act, unless the contrary intention appears … 'dealer' means
(a)a person who carries on any class or description of business of –
(i)buying or selling vehicles; or
(ii)acting as agent for other persons in relation to the buying or selling of vehicles,
(including a business of selling vehicles by auction) that is prescribed by regulations referred to in section 5A;
(b)a financier; or
(c)a car hire operator;"
Apart from the definition of "vehicles" in s 5(3), I note that s 5(1) defines "buying or selling", "unless the contrary intention appears" as follows:
"In relation to vehicles, includes acting as agent for persons in connection with the buying or selling of vehicles."
At first blush, it seems to me that, on the definition of "buying or selling", there is no need for the definition of "dealer" (a) to distinguish as (a)(i) and (ii) do. However, I do not need to explore the constructional issue that raises. That is because the description of business being relied upon here involves acting as a principal.
The Act s 5A provides for regulations to be made prescribing "different classes or descriptions of business" for the purposes of s 5(1) "dealer" with a "different category of dealer's licence (i) for each class or description of business; or (ii) for any combination of them". The Motor Vehicle Dealers (Licensing) Regulations 1974 (WA), reg 8 prescribes "a class of business described in the Fourth Schedule, Column 2" for "the purposes of section 5A", and also prescribes a category of dealer's licence in column 1 for the description of business appearing in column 2 opposite that category of licence.
The Fourth Schedule's relevant table is as follows:
"Classes and descriptions of business and categories of dealer's licence
Column 1
Column 2
Category of licence
Description of business
A
Buying, selling and auctioning vehicles other than motor cycles, caravans or campervans.
B
Buying, selling and auctioning motor cycles.
C
Buying, selling and auctioning caravans and campervans.
D
Buying any vehicles for the purpose of dismantling them and selling off the parts.
E
Acting as an agent to facilitate the selling or purchase of any vehicles on behalf of members of the public.
F
Hiring out vehicles, buying vehicles for hiring out, and selling and auctioning any vehicles that have been hired out by the dealer.
Any combination of A, B, C, D, E and F, as nominated by the dealer.
The businesses subject of the nominated categories."
I note the use of the conjunction "or" in Act s 5(1) "dealer" (a)(i) and (ii), as well as between those sub‑paragraphs, and in the Fourth Schedule's description of business for the category E licence. I also note the use of the conjunction "and" in the Fourth Schedule business descriptions for category A, B, C, D and F licences. No argument was put to me on these differences. However, it seems to me that the labels "class or description of business" in s 5 and s 5A in the Act, and "description of business" in the regulations, indicate that both "and" and "or" in the business descriptions should be read as a "hybrid of conjunctive and disjunctive", so that both should be read as applying to each of the terms they connect in the sense of "or, or as well": see Pearce, D C and Geddes, R S, "Statutory Interpretation in Australia", 5th ed, at [2.26]. This it seems to me emerges most clearly from the way the Fourth Schedule includes "auctioning" for category A, B, and C licences, when this is read with Act s 5(1) "dealer" (a). There is an exception to this constructional approach that needs to be made for the description of business opposite class D in the Fourth Schedule, where the business described is it seems to me characterised by reference to a single purpose.
The complaint had particularised the offence as one occurring between specified dates. When the schedule of transactions I described earlier is read with the provisions of the Act and the regulation just set out, it appears the prosecution have further particularised the offence as that form of unlicensed dealing represented by carrying on business as a "dealer" under s 5(1) "dealer" (a) requiring a class A licence under the Fourth Schedule to the Regulations. In particular, it appears from the schedule provided to the defendant, which shows the defendant's name for each vehicle identified as well as their acquisition and (for most of them) disposal dates, that it is being alleged the defendant carried on business buying and selling, as principal, vehicles other than motor cycles, caravans or campervans.
There is authority that an offence of the sort represented by the complaint in this case is one that is singular, even although proof of the complaint involves proof of activity conducted over time, whether continuously or intermittently, and even although such proof involves proof of a series of acts. What appears to be the principal authority in this connection, one which is cited both in Vrisakis (supra) (at 439, per Ipp J) and Caruso (supra) (McKechnie J, at [34] ‑ [36]), is Hodgetts (supra). There the offence was that the respondents had on and after a particular date permitted land to be used in contravention of an enforcement notice.
There is an example, closer to this case, which is given by Lord Roskill in Hodgetts (at 582), and which is also referred to by McKechnie J in Caruso (at [36]), of an offence that may "take place over a period". That example is holding a Sunday market.
In Caruso itself the offence was that of using premises zoned rural for a purpose, a motor repair station, being one not permitted at such premises by the relevant town planning scheme. In holding that the complaint for the offence in that case was not duplex, McKechnie J said this, which appears to me to be applicable to this case, substituting "business of an unlicensed dealer" for "motor repair station" and ignoring the reference to the "at the premises"(at [25]):
"In my opinion the complaints as framed are not duplicitous. They assert that the appellants carried on at the premises a motor repair station. The start and end dates are particulars. A conviction will be sustained upon proof that for a period of time between those dates, not necessarily encompassing the whole of the dates, a motor repair station was 'carried on.' The business of a motor repair station may be carried on even though the work proceeds intermittently or occasionally."
He added (at [30]):
"A conviction of the appellants on the charge as laid would necessarily preclude any prosecution for carrying on a motor repair station between the same dates, even if the actual evidence called in support supplied proof of carrying on a motor repair station over a less period or in a way different from that alleged in this charge."
Having concluded that the complaint is not duplex, I turn to consider whether it was uncertain. Uncertainty as to the offence charged by the complaint is a different issue from that of it being duplex: Bastin v Davies [1950] 2 KB 579, at 581, Goddard LCJ, referred to in Caruso, at [27]. Uncertainty was one of the concerns referred to in Firkins, at [9], in the language from that case adopted by the Magistrate in this case and quoted above. In Firkins the uncertainty was in part evident on the face of the complaint.
In Caruso it appears there was no disclosure to the defendant corresponding to the schedule in this case, but rather simply that a motor repair station was carried on between the particularised dates (at [28]). However, the offending conduct in that case appears to have had only one form, unlike unlicensed motor dealing under the Act, when the definition of "dealer" in s 5(1) is read.
I have already indicated that the schedule provided to the defendant shows a number of acquisition and disposal transactions highlighting any (whether acquisition or disposal) that fell between the amended dates in the complaint. I have also indicated that this would have made it apparent to the defendant that the form of unlicensed dealing contrary to Act s 30(1) complained of was carrying on that class or description of dealing requiring a class A licence under the Fourth Schedule to the Regulations.
There was some discussion between counsel for the complainant and the Magistrate as to which transactions involving both an acquisition and a disposal of the same vehicle would be relied upon, and as I have previously indicated counsel pointed to those 13 occurring between the relevant dates (AB 28). Before me, counsel indicated that in fact it had been planned also to refer to other highlighted acquisition and disposal transactions where either the acquisition or disposal but not both fell between the relevant dates. As indicated by the other material including witness statements provided to the defendant with the schedule (see AB 18), the complainant would lead evidence to show, by such matters as the manner of acquisition (such as at auction) and the advertising engaged in by the defendant in relation to the disposal, that he was carrying on a business, rather than engaged in a series of private transactions, in relation to the buying and selling of vehicles.
It seems to me, for the reasons I have already given, that the schedule did remove any risk of injustice that the defendant would be left uncertain as the form of unlicensed dealing lying between the particularised dates complained of he had to meet. The different matter, of the particular transactions to be relied upon, a matter the defendant himself raised with the Magistrate (AB 25), is, I consider, satisfactorily addressed by the highlighting of the transactions I have referred to when the schedule is read with the other material provided to the defendant.
However, it also seems to me it would have been preferable to have had the matter of the form of unlicensed dealing relied upon evident on the face of the complaint, or provided by more formal particulars. This would have made the function of the schedule rather more evident. However, in the circumstances of this matter, as I have indicated, I have concluded there was no uncertainty fatal to the complaint.
Conclusion and order
I have concluded that the complaint in this case was not duplex, nor was it uncertain when read with the schedule and other material supplied to the defendant, the respondent on the appeal.
The appropriate order is that the appeal be allowed, the Magistrate's decision dismissing the complaint be quashed, and the matter be remitted to him for hearing in the light of these reasons.
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