Re Her Honour E A Woods; Ex parte Hardie Finance Corporation Ltd
[2008] WASC 282
•3 DECEMBER 2008
RE HER HONOUR E A WOODS; EX PARTE HARDIE FINANCE CORPORATION LTD [2008] WASC 282
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 282 | |
| Case No: | CIV:1786/2008 | 11 NOVEMBER 2008 | |
| Coram: | BLAXELL J | 2/12/08 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Order that interested parties provide disclosure | ||
| B | |||
| PDF Version |
| Parties: | HARDIE FINANCE CORPORATION LTD (ACN 008 992 185) GRAHAM JOHN HARDIE HER HONOUR ELIZABETH ADELE WOODS, DEPUTY CHIEF MAGISTRATE OF THE MAGISTRATES COURT, PERTH MURRAY CLEMENT FISHER JUNE HUBBARD JEAN CHOWN |
Catchwords: | Magistrates Court Act 2004 (WA) Review order Private prosecution under s 79 of Environmental Protection Act 1986 (WA) Failure by prosecution to fully disclose evidentiary material relevant to charge Refusal of magistrate to order further disclosure |
Legislation: | Criminal Procedure Act 2004 (WA), s 42, s 60, s 61, s 138 Environmental Protection Act 1986 (WA), s 3(3), s 79 Magistrates Court Act 2004 (WA), s 36 |
Case References: | D v The State of Western Australia [2007] WASCA 272 Easterday v The Queen (2003) 143 A Crim R 154 R v Brown (Winston) [1994] 1 WLR 1599 R v Bunting (2002) 84 SASR 378 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
HARDIE FINANCE CORPORATION LTD (ACN 008 992 185)
First Applicant
GRAHAM JOHN HARDIE
Second Applicant
AND
HER HONOUR ELIZABETH ADELE WOODS, DEPUTY CHIEF MAGISTRATE OF THE MAGISTRATES COURT, PERTH
Respondent
MURRAY CLEMENT FISHER
JUNE HUBBARD
JEAN CHOWN
Interested Parties
(Page 2)
Catchwords:
Magistrates Court Act 2004 (WA) - Review order - Private prosecution under s 79 of Environmental Protection Act 1986 (WA) - Failure by prosecution to fully disclose evidentiary material relevant to charge - Refusal of magistrate to order further disclosure
Legislation:
Criminal Procedure Act 2004 (WA), s 42, s 60, s 61, s 138
Environmental Protection Act 1986 (WA), s 3(3), s 79
Magistrates Court Act 2004 (WA), s 36
Result:
Order that interested parties provide disclosure
Category: B
Representation:
Counsel:
First Applicant : Mr M J McCusker QC & Mr A J Papamatheos
Second Applicant : Mr M J McCusker QC & Mr A J Papamatheos
Respondent : No Appearance
Interested Parties : Ms K A Vernon (Appearance limited to question of costs)
Solicitors:
First Applicant : Maxim Litigation Consultants
Second Applicant : Maxim Litigation Consultants
Respondent : State Solicitor for Western Australia
Interested Parties : Metaxas & Hager
(Page 3)
Case(s) referred to in judgment(s):
D v The State of Western Australia [2007] WASCA 272
Easterday v The Queen (2003) 143 A Crim R 154
R v Brown (Winston) [1994] 1 WLR 1599
R v Bunting (2002) 84 SASR 378
(Page 4)
1 BLAXELL J: This is the return of a review order made under s 36(1) of the Magistrates Court Act 2004 (WA) in respect of a magistrate's decision. The applicants are defendants to a private prosecution which was commenced by the interested parties under s 79 of the Environmental Protection Act 1986 (WA). On 24 June 2008 the applicants applied to the Respondent Magistrate, but were refused an order that the prosecutors provide additional disclosure of evidentiary materials relevant to the charge against them. An order for review of this decision has been obtained on the grounds that:
1. The Respondent erred in law by failing to take into consideration the effect of section 60(4)(b)(i) of the Criminal Procedure Act 2004 (WA) the effect of which would have required that PE 17103 of 2008 be adjourned until the Interested Parties had given disclosure to the Applicants of material evidence.
2. The Respondent erred in holding that disclosure of material evidence was not required to be given by the Interested Parties under a general application for disclosure pursuant to section 138 of the Criminal Procedure Act 2004 (WA) or the common law.
3. By failing to order the Interested Parties to disclose to the Applicants evidentiary material pertaining to the charges, the Respondent has denied or limited the Applicants' ability to defend PE 17103 of 2008 and thereby denied the Applicants procedural fairness.
The relevant background
2 The interested parties (the prosecutors) each own or occupy a home unit in a 63 unit residential building situated on The Esplanade at South Perth. Adjoining that building is a commercial complex which is owned and/or occupied by either or both of the applicants. A restaurant is situated on the top floor of that complex and it has an exhaust fan system which is mounted on one of the walls and the roof.
3 Commencing in about April 2007 one or more of the prosecutors made regular written complaints to the City of South Perth about the level of noise emitted by the restaurant's exhaust fan. Following those complaints, certain remedial work on the exhaust system was carried out by either the owners of the restaurant or the applicants. However this remedial work failed to alleviate the concerns of the prosecutors, and they then engaged solicitors to act on their behalf.
(Page 5)
4 On 26 February 2008 the prosecutors lodged a prosecution notice in the Magistrates Court at Perth alleging that the applicants had committed the following offence:
From on or about 5 November 2007 the accused did, without lawful excuse, use or caused or allowed to be used, mechanical plant equipment located on the roof and on the eastern wall of the building occupied and/or otherwise controlled by the accused, being the South Shore Centre, 85 The Esplanade, South Perth, in such a way as to cause or allow that mechanical plant equipment to emit, or otherwise emit or cause or allow to be emitted, unreasonable noise from the premises, contrary to section 79(1) of the Environmental Protection Act 1986 and Environmental Protection (Noise) Regulations 1997.
5 Attached to that prosecution notice was a statement of material facts which included the following:
3. In or about May 2007, the City of South Perth gave notice to the accused requiring that it remedy, within 8 weeks, unreasonable noise emanating from an extractor fan on the roof of the Premises ('First Notice').
4. On 5 November 2007 the solicitor for the first-named prosecutor gave notice to the accused that unreasonable noise levels continued unabated ('Second Notice'). Attached hereto and marked 'Attachment 1' is a true copy of the letter.
5. Notwithstanding the First and Second Notices, unreasonable noise continues to emanate from the mechanical plant located on the roof of the accused's Premises, contrary to section 79(1) of the Environmental Protection Act 1986 and the Environmental Protection (Noise) Regulations 1997, as particularised in the attached report from Herring Storer Acoustics dated 14 January 2008, attached and marked 'Attachment 2'.
6 By a letter dated 11 April 2008 the applicants' solicitors requested that the prosecutors' solicitors provide further particulars of the charge in the prosecution notice. That request was in the following terms:
The prosecution notice alleges breaches of s.79 of the Environmental Protection Act 1986 (WA). There is a requirement of 'unreasonable noise' being emitted. Section 3(2) of the Act defines 'unreasonable noise'. To summarise that definition section, noise is unreasonable if any one of the following is satisfied:
(i) it comes from equipment which is being operated in contravention of the Act or the regulations to the Act: s.3(3)(a);
(Page 6)
- (ii) 'having regard to the nature and duration of the noise emissions, the frequency of similar noise emissions from the same source (or a source under the control of the same person or persons) and the time of day at which the noise is emitted, the noise unreasonably interferes with the health, welfare, convenience, comfort or amenity of any person': s.3(3)(b); or
(iii) it is prescribed to be unreasonable by the Act: s.3(3)(c)
At this stage, your clients' prosecution notice does not provide any specific basis, in line with the three possibilities above, as to how unreasonable noise is said to have occurred by law. We seek particularisation of this aspect of the prosecution notice. Until we are informed of the charges contained in the prosecution notice, we are unable to properly advise our clients as to entering a plea.
7 The prosecutors' solicitors initially declined to provide the requested particulars, but as a result of further correspondence, their response was as follows:
In my opinion on the facts alleged your clients conduct could be found to have caused unnecessary noise as defined under section 3(3)(a), (b) or (c) of the Act.
8 The applicants' solicitors' letter of 11 April 2008 also requested disclosure 'of all materials that your clients possess in relation to this prosecution', and stated:
Because this charge concerns acoustics measurements for commercial machinery or equipment and that it may be considered technical and complex, our clients could not now be expected to be in a position to understand whether they were ever in breach of any written law. Unlike other charges where an accused person could immediately determine their guilt or innocence and then determine what plea to enter, our clients are not in a position to understand whether they were, in the technical sense, in breach of any written law until some investigation is undertaken.
Moreover, our client[s] may suffer considerable prejudice should they be forced to enter a not guilty plea at this stage then change that plea to guilty, should they choose to do so upon a review of the material disclosed at a later date. This prejudice may be the loss of a discount on sentence owing to a failure to enter a plea of guilty at the earliest possible opportunity.
9 The initial response to this request for prosecution disclosure was as follows:
I do not believe there is any prosecution material to be disclosed beyond the experts' report about the noise exceeding the permitted levels.
(Page 7)
10 However, on 18 April 2008, and as a result of further correspondence, the interested parties' solicitor provided the applicants with copies of calibration certificates which had been referred to in the expert report dated 14 January 2008.
11 On 18 April 2008 the parties appeared before Magistrate Crawford in the Perth Magistrates Court. The applicants applied for orders that they be provided with further particulars of the charge together with disclosure of prosecution materials. It would appear from the transcript that the Magistrate did not finally determine those applications. At the conclusion of the hearing, the Magistrate recorded a plea of not guilty and adjourned the matter to 24 June 2008 for allocation of trial dates.
12 On 24 June 2008 the applicants renewed their application for prosecution disclosure before the respondent Magistrate and provided her Honour with written submissions in support of that application. The prosecuting counsel contended that there was nothing further to be disclosed, and there was then the following exchange between the Magistrate and defence counsel:
HER HONOUR: Okay, well according to the prosecutor they have disclosed everything they need to disclose.
PAPAMATHEOS, MR: Yes, your Honour.
HER HONOUR: So I'm not making any orders for an additional disclosure.
PAPAMATHEOS, MR: Your Honour, perhaps if I could be heard in respect to that?
HER HONOUR: I'm just reading your submissions so you'll just need to wait.
PAPAMATHEOS, MR: Certainly.
HER HONOUR: The prosecution will lead the evidence they think they need to prove their case beyond reasonable doubt so there we go. They've given you what disclosure they've got. If they come along to the trial and they have other matters that have not been disclosed then you will be able to make your case then.
13 Notwithstanding this adverse ruling, defence counsel persisted with his application, as a result of which the following occurred:
PAPAMATHEOS, MR: Your Honour, if I could be heard in respect to my submissions first and then as to the time the potential trial - - -
(Page 8)
- HER HONOUR: Let's get on with it.
PAPAMATHEOS, MR: Your Honour, certainly. My friend is probably asking what is the legitimate forensic purpose for which he's seeking - - -
YOUR HONOUR: She's not asking that. You know, we don't need to start evidence 101.
PAPAMATHEOS, MR: Certainly, your Honour. There's procedures for testing regulations, we're concerned they haven't been followed. The report doesn't stipulate the procedure followed, we're entitled to a witness statement at least - - -
HER HONOUR: You can ask them - you can cross-examine him and ask him.
PAPAMATHEOS, MR: Your Honour, the document sent to the shire of South Perth weren't provided to us, it goes to the character and credibility of Mr Fischer.
HER HONOUR: Subpoena the City of South Perth for the records they've got.
PAPAMATHEOS, MR: Your Honour, but with respect, your Honour, it passes the obligation upon the accused.
HER HONOUR: They have to prove their case beyond reasonable doubt, okay? They will call what evidence and what witnesses they think they need to get to that point. If that's not going to get them up it doesn't get them up.
PAPAMATHEOS, MR: Your Honour - - -
HER HONOUR: You need to look after your case, not worry about what they're doing.
PAPAMATHEOS, MR: That's right, your Honour, but with respect to - - -
HER HONOUR: If you want this material then subpoena it. Do a witness summons.
- The Magistrate then directed that the matter be listed for trial on 20 November 2008, and adjourned the proceedings until that date.
14 On 31 July 2008 the applicants obtained the review order in the present matter. On 22 September 2008 the prosecutors filed a notice of intention to abide by the decision of this court, but 'on the basis that there be no order as to costs'. On the same date their solicitors wrote to the applicants' solicitors maintaining that they were under no obligation to
(Page 9)
- make further disclosure, but nevertheless disclosing some 44 pages of correspondence with the City of South Perth and Herring Storer Acoustics. Copies of that correspondence were served on the applicants' solicitors on the following day.
The prosecution's obligation of disclosure
15 It is trite law that any defendant to criminal proceedings who enters a plea of not guilty is entitled to a fair trial. One of the essential requirements for a fair trial, is that the defendant be informed beforehand of the case that he has to meet, and of all of the evidence which is relevant (or which may possibly be relevant) to an issue at trial (Easterday v The Queen (2003) 143 A Crim R 154 [194]. The right of the accused to obtain full disclosure is an 'inseparable part' of his right to a fair trial (R v Brown (Winston) [1994] 1 WLR 1599, 1606) and the prosecutor accordingly plays a central role in ensuring that a fair trial occurs (R v Bunting (2002) 84 SASR 378, 394).
16 In Western Australia, the prosecution obligation of disclosure is governed by both statute and common law. In respect of summary proceedings, the statutory duty is to be found in s 61 of the Criminal Procedure Act 2004 which lays out differing requirements for an 'either way charge', a listed simple offence, or any other simple offence. In the present instance, the charge alleged against the applicants is a 'listed simple offence' (see reg 12 and sch 4 of the Criminal Procedure Regulations 2005 (WA). Accordingly, and pursuant to subs 61(5), the prosecutors were required to serve on the applicants (inter alia) any evidentiary material that is relevant to the charge. Pursuant to subs 61(1) 'evidentiary material relevant to the charge' has the same meaning as in s 42, namely:
(a) a copy of -
(i) every statement that has been made in accordance with Schedule 3 clause 4 by;
(ii) every recording that has been made in accordance with Schedule 3 clause 6 of evidence given by;
(iii) every recording that has been made under the Evidence Act 1906 of; and
(iv) every other statement by,
- any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor’s case or the accused’s defence;
- (b) if there is no statement or recording referred to in paragraph (a) of a person who the prosecutor intends to call as a witness, a written summary of the evidence to be given by the person;
(c) a copy of any document or exhibit to which a statement or recording referred to in paragraph (a) refers;
(d) a copy of every other document or exhibit that the prosecutor intends to tender in evidence at trial; and
(e) a copy of every other document or exhibit that may assist the accused’s defence,
that is in the possession of the organisation or person who investigated the offence;
17 It should be noted that although disclosure under subs 61 is mandatory (in that the prosecutor 'must' serve the materials), s 138 provides the court with a discretion to dispense with the whole or part of a disclosure requirement if satisfied that there is good reason to do so and that no miscarriage of justice will result.
18 At common law there is a less prescriptive duty of disclosure, and it is largely coextensive with the statutory obligation. In that regard, in D v The State of Western Australia [2007] WASCA 272, Buss JA (with whom Miller JA agreed) held at [4] that:
At common law, the prosecution must disclose to an accused all relevant evidence in its possession or available to it. Evidence should be disclosed if it is relevant to:
(a) a fact in issue;
(b) a fact relevant to a fact in issue; or
(c) the credit or reliability of a prosecution witness.
The prosecution's duty of disclosure is an incident of an accused's right to a fair trial.
19 In D v The State of Western Australia, Le Miere AJA (with whom Miller JA agreed) similarly held at [30] - [40] that:
The duty of disclosure at common law stems from the concept of a fair trial. Fairness requires that the prosecution disclose to the defence any
(Page 11)
- information that is or might become relevant to the issues at trial. (See Steytler J's summary of relevant case law in Easterday v The Queen[2003] WASCA 69 [194].) The prosecution has a general duty to disclose any material 'which can be seen on a sensible appraisal by the prosecution … to be relevant or potentially relevant to an issue in the case': Mallard v The Queen [2003] WASCA 296; 28 WAR 1 [18]. The accused should not have to 'fossick' for information to which they would otherwise be entitled in the course of a proper prosecution against them: Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 [23].
This obligation of disclosure extends to information affecting the credibility of prosecution witnesses.
Whether the Magistrate's decision should be set aside
20 In the present instance, it is very clear from the facts that I have outlined, that at all material times the prosecutors had failed to comply with their statutory and common law obligations of disclosure. In this regard, the only evidentiary material that had been disclosed was the report dated 14 January 2008 and calibration certificates, from Herring Storer Acoustics.
21 The transcripts of proceedings on 18 April and 24 June 2008 also make it clear that the prosecutors did not at any time apply for an order under s 138 of the Criminal Procedure Act 2004 dispensing with all or part of their disclosure requirements. Accordingly, at the time of the decision refusing further disclosure the prosecutors remained under a continuing obligation to disclose all 'evidentiary material relevant to [the] charge' as defined in s 42.
22 The material that was relevant included witness statements and/or written summaries of all of the evidence that the prosecutors relied on to establish the charge as particularised by their solicitors. This included not just the results of acoustical testing, but also witness statements and/or written summaries of evidence intended to prove that the nature and duration of noise emissions unreasonably interfered with the health, welfare, convenience, comfort or amenity of any person.
23 It necessarily follows that on 24 June 2008 the applicants were entitled to apply for an order that the prosecutors provide full disclosure, and I am unable to discern any reasonable basis on which that application could have been refused. With due respect to the Magistrate, the stated reasons for her Honour's somewhat peremptory refusal of the application did not amount to good reasons at law. In that regard, it was no answer to the prosecutors' failure to meet their disclosure obligations, that some of
(Page 12)
- the relevant materials could be adduced by way of cross-examination of prosecution witnesses, or by subpoenaing the production of the same at trial.
Conclusion
24 For the above reasons, the decision by the Respondent Magistrate on 24 June 2008 refusing the application for an order for disclosure will be set aside. In lieu thereof, there will be an order that the interested parties provide disclosure in accordance with their statutory and common law obligations. (I will hear further submissions from the parties as to the precise terms of that order).
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