Sedgman v Kenly (WA) Pty Ltd - [2021] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SEDGMAN -v- KENLY (WA) PTY LTD [2021] WASC 107
CORAM:   TOTTLE J
HEARD:   4 MARCH 2021 & FURTHER WRITTEN SUBMISSIONS FILED ON 11 MARCH 2021
DELIVERED          :   6 MAY 2021
FILE NO/S:   SJA 1040 of 2020
BETWEEN:   MICHAEL SEDGMAN
Appellant
AND
KENLY (WA) PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L ATKINS
File Number            :   RO 4207 of 2019, RO 4209 of 2019, RO 4210 of 2019

Catchwords:

Liquor licensing - Juveniles - Respondent charged with being the licensee of a premises where juveniles entered or remained - Whether prosecution must establish an employee or agent of the licensee permitted the juvenile to enter or remain - Where Liquor Control Act 1988 (WA) attributes primary liability to licensee

Criminal law - Duplicity - Where appellant submits magistrate erred in construing 'or' in offence creating provision as conjunctive - Whether charge bad for duplicity if appellant's submission accepted - Whether charge should be amended on appeal

Legislation:

Criminal Procedure Act 2004 (WA), sch 1, s 132, s 178
Liquor Control Act 1988 (WA), s 3, s 121(4), s 165

Result:

Leave to appeal granted
Appeal allowed on grounds 1 and 2
Leave to amend charges granted

Category: B

Representation:

Counsel:

Appellant	:	Mr J Carroll
Respondent	:	No appearance

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Lavan

Case(s) referred to in decision(s):

City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227
Green v The State of Western Australia [No 2] [2014] WASCA 53
Jackson v Dyball (1993) 74 A Crim R 10
Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51
Mullaley v Western Australia Police [2016] WASC 53

TOTTLE J:

On 22 May 2020 the respondent was convicted of five offences under the Liquor Control Act 1988 (WA) (the Act). The respondent was acquitted of a further three offences charged under the Act and the appellant seeks leave to appeal against the acquittal on each of those three charges.
The appeal raises two issues concerning the construction of s 121(4) of the Act. Section 121(4) creates an offence when a juvenile enters or remains on licensed premises.
By a notice filed on 3 July 2020 the respondent stated it did not intend to participate in the appeal and would abide by the orders of the Court.

Background and magistrate's reasons

On 2 - 3 June 2018, the respondent was the holder of a tavern restricted licence issued under s 41(1)(c) of the Act in respect of a premises located in Rockingham (the Premises). For the purpose of the Act the respondent was a licensee by virtue of it holding the tavern restricted licence and the Premises was a licensed premises.
Each of the charges the subject of this appeal was a charge of a juvenile entering or remaining on any part of licensed premises, contrary to s 121(4) of the Act. The charges can be summarised as follows:
(1)Charge 1: On 2 June 2018, the respondent was the licensee of the Premises where a juvenile (Juvenile A) entered or remained.
(2)Charge 2: On 3 June 2018, the respondent was the licensee of the Premises where a juvenile (Juvenile B) entered or remained.
(3)Charge 3: On 3 June 2018, the respondent was the licensee of the Premises where a juvenile (Juvenile C) entered or remained.
The findings of fact made by the magistrate are not disputed in the appeal.
The magistrate was satisfied that the respondent was the corporate licensee of the Premises at the relevant times. In respect of Juvenile A the magistrate found:
(1)Juvenile A was born on 18 August 2001 and was a person under the age of 18 at the time of the offending. Juvenile A was therefore a juvenile for the purpose of the Act.[1]
(2)On 2 June 2018, Juvenile A entered the Premises where he stayed for approximately five minutes. He did not consume any alcohol but was asked to leave because he was not wearing shoes.
[1] Liquor Control Act 1988 (WA), s 3.
In respect of whether Juvenile A entered or remained on the Premises, the magistrate found that he had entered the Premises but did not make any positive finding concerning whether Juvenile A had remained on the Premises. Her Honour observed that no authority had been cited to her on the question of how long someone needed to be present to constitute 'remaining'.
Ultimately her Honour acquitted the respondent on Charge 1 on the basis that no‑one had permitted Juvenile A to remain on the Premises.
In respect of Juvenile B the magistrate found:
(1)Juvenile B was born on 29 April 2002 and was a person under the age of 18 at the time of the offending. Juvenile B was therefore a juvenile for the purpose of the Act.
(2)Juvenile B entered the Premises alone on 3 June 2018. Juvenile B was a friend of Juvenile A and Juvenile C. Juvenile B remained on the Premises for approximately five minutes before he left of his own volition.
Consistently with her finding in respect of Juvenile A, the magistrate found that she was not satisfied that Juvenile B was permitted by anyone to enter or remain on the Premises and acquitted the respondent on that basis.
In respect of Juvenile C the magistrate found:
(1)Juvenile C was born on 5 April 2002 and was a person under the age of 18 at the time of the offending. Juvenile C was therefore a juvenile for the purpose of the Act.
(2)Juvenile C entered the Premises on 3 June 2018. Juvenile C was on the Premises for approximately seven minutes before he left of his own volition. Juvenile C did not speak to any staff during this time.
Again the magistrate acquitted the respondent on the basis that no person had permitted Juvenile C to enter or remain on the Premises.

The statutory regime

The long title of the Act is as follows:
An Act to regulate the sale, supply and consumption of liquor, the use of premises on which liquor is sold, and the services and facilities provided in conjunction with or ancillary to the sale of liquor, to minimise harm or ill-health caused to people, or any group of people due to the use of liquor, to provide for orders that may prohibit persons from being employed at, or from entering, licensed premises, to repeal the Liquor Act 1970, and for related matters.
The Act constitutes a lengthy and comprehensive regulatory regime. Part 3 of the Act regulates licences and permits and includes provisions regulating the licensing of premises.
In the present case the respondent admitted it was the licensee of the Premises and that the Premises was a licensed premises.
Part 4 of the Act regulates a variety of aspects of the conduct of businesses for the sale and supply of liquor from licensed premises. Division 9 of Pt 4 regulates the presence of juveniles on licensed premises. Section 120 provides for the circumstances in which a juvenile is permitted to enter or remain on premises where the sale or supply of liquor is authorised. It was not suggested in this case that any of the provisions of s 120 were applicable.
The respondent was charged under s 121(4) of the Act which provides:
Subject to subsection (5), where a juvenile enters or remains on any part of the licensed premises -
(a)the licensee; and
(b)any employee or agent of the licensee who permits the juvenile to enter or remain on that part of the premises; and
(c)the juvenile,
each commit an offence.
Section 121(5) provides:
Subsection (4) does not apply -
(a) to a juvenile who is -
(i)accompanied by, and under the supervision of, a responsible adult; or
(ii)on the premises for the purpose of obtaining a meal;
or
(b)to the presence on a part of the licensed premises of a juvenile at a time at which -
(i)entertainment is, with the approval of the Director under section 126A, provided on that part of the premises solely for juveniles; and
(ii)liquor is not sold, supplied or consumed there;
or
(c)to a juvenile engaged in a training course approved by the Director, when so present in accordance with the requirements of that course; or
(d)to the presence of a juvenile employed on the premises otherwise than in the sale or supply of liquor, even if the place where the juvenile is present is a place which has for the time being been declared to be out of bounds to juveniles; or
(e)if section 120 applies.
It assists in understanding the statutory framework to contrast s 121(4) with s 121(2) which provides:
A licensee, and any other person by whom liquor is sold or supplied there, who permits a juvenile to consume liquor on the licensed premises, whether or not that liquor was sold or supplied there, commits an offence. (emphasis added)
Section 165 of the Act sets out the circumstances in which a licensee is liable for the acts of an employee and other persons who stand in a similar relationship with the licensee. It provides:
(1)Where, in contravention of this Act, an employee or agent of the licensee, or a person acting, or purporting to act, on behalf of the licensee, commits an offence for which the licensee would have been liable had it been committed by the licensee on the premises to which a licence or permit relates, the licensee shall be deemed also to have committed an offence and is liable to the same penalty as is prescribed for the principal offence.
(2)A licensee may be proceeded against and convicted under subsection (1) notwithstanding that the employee or agent has not been proceeded against or has not been convicted under this Act.
(3)It shall not be a defence to a charge of an offence against subsection (1) to show that the licensee did not know, or could not reasonably have been aware of or have prevented the offence committed by the employee or agent, or had taken reasonable steps to prevent the commission of that offence.
…

Grounds of appeal

There are five grounds of appeal. Grounds 1 and 2 are as follows:
1.The Learned Magistrate erred in law in finding that a corporate licensee could only contravene s 121(4) of the Liquor Control Act 1988 (WA) (Act) if an employee of that licensee permitted a juvenile to enter or remain on licensed premises.
2.The Learned Magistrate erred in law in finding that a person could only contravene s 121(4) of the Act in circumstances where a juvenile both entered and remained on licensed premises, as opposed to where the juvenile merely entered.
Each of the remaining three grounds of appeal is directed to a specific charge and, by reference to the magistrate's findings of fact (to which reference has been made earlier in these reasons), contends that the magistrate erred in acquitting the respondent on the charge to which the ground is directed.

Ground 1

In respect of each charge the magistrate formed the view that the respondent should be acquitted because the juveniles had not been 'permitted' to enter or remain on the Premises. Her Honour relied upon the following statement of Owen J in Jackson v Dyball:[2]
The licensee is not liable under section 121(4), simply because he or she is the licensee (or would be the case under section 121(1)) but because he or she is personally implicated in the conduct that constitutes this offence. So can only be guilty by virtue of section 165.
[2] Jackson v Dyball (1993) 74 A Crim R 10, 18.
The appellant submits that this approach is erroneous for two reasons:
(1)When Jackson v Dyball was decided, s 121(4) of the Act provided 'a licensee, and any employee or agent of the licensee, who permits a juvenile to enter or remain on any part of the licensed premises where liquor is at that time sold or supplied commits an offence.' Therefore at the time Jackson v Dyball was decided 'permits' was an element of the offence. This is no longer the case.
(2)In its present form s 121(4) provides that a licensee is subject to primary liability where a juvenile enters or remains on a licensed premises. Section 165 provides for the attribution of liability to a licensee by the conduct of an employee or agent of the licensee. Section 165 has no application where the licensee is already guilty of an offence as a primary offender.
I accept the appellant's submissions in respect of ground 1 - the magistrate erred in relying on Owen J's statement in Jackson v Dyball because there has been a material change in the statutory provision creating the offence since that case was decided. As a consequence the magistrate erred in considering reliance on s 165 was necessary to establish criminal liability on the part of the licensee and that in order to establish liability by reference to s 165 it was necessary to establish that an employee or agent of the licensee had permitted the juveniles to enter or remain on the premises. When a juvenile enters or remains on licensed premises (subject to any relevant exceptions) the licensee commits an offence. Section 165 is of no application in that situation. Section 121(4) is capable of operating in a manner some may consider harsh but it reflects the importance that Parliament and the community place on protecting juveniles from the harm that may flow from exposure to the consumption of alcohol before reaching adulthood.
I grant leave to appeal in respect of ground 1.

Ground 2

The appellant contends that the magistrate erred in law by concluding that a person only contravenes s 121(4) in circumstances where a minor enters and remains on licensed premises as opposed to where the juvenile merely enters licensed premises.
The appellant acknowledged that the magistrate's construction was supported by the statements of Owen J, in obiter dicta, in Jackson v Dyball,[3] in which his Honour stated:
Counsel for the respondent pointed out that the conduct prohibited by the section was permitting a juvenile to enter or remain on licensed premises. On one view of it the offence would be complete once the juvenile had set foot inside the door. That cannot be right. It would lead to a situation where no owner of licensed premises could afford to do other than have a doorman on duty at all times. It would be commercially unrealistic and cannot be what the legislature intended. In my opinion this section should be interpreted so that the term 'entry' bears a temporal connection to the word 'remain' and the two concepts go together to make up the offence. The word 'or' is usually understood in a disjunctive sense but this is not always the case: see Re The Licensing Ordinance (1968) 13 FLR 143 at 146-147.
[3] Jackson v Dyball, 17.
The appellant advances a number of contentions why this construction should be rejected. In summary the appellant contended:
(a)The ordinary and natural meaning of the text of s 121(4) is that 'or' is to be read disjunctively.
(b)A disjunctive construction is supported by the principle that every word in a provision has work to do, so that each word should be given effect as far as possible. In order for a person to 'remain' at a place, it is logically necessary for the person to have first entered that place. If the proper construction of s 121(4) were that it means 'enters and remains', the term 'enter' would be redundant, and would have no work to do above that of the term 'remain'. As is apparent from the statutory context (see (d) below) if the phrase is read disjunctively, there is work to be given to both the word 'enters' and the word 'remains'.
(c)A disjunctive construction is consistent with the apparent object of s 121(4), which, in conformity with one of the primary objects of the Act (to minimise harm or ill health caused to people due to the use of liquor) appears to be directed to ensuring that, subject to limited exceptions, juveniles should not be present on licensed premises at all.
(d)The statutory context supports a disjunctive construction. In particular:
(i)There are a number of exceptions to the application of s 121(4), such as when a juvenile is accompanied by, and under the supervision of, a responsible adult. Whilst an excepting circumstance may exist when a juvenile enters a premises, it is possible for the excepting circumstance to cease to exist whilst the juvenile remains on the premises. If 'enters or remains on' was to be read 'enters and remains', such conduct would not amount to an offence. This is because the juvenile would have entered the premises in circumstances where s 121(4) does not apply (even though he or she remains on the premises without any of the circumstances which except the operation of s 121(4)). Such an approach is inconsistent with the apparent intention of s 121(4). If 'enters or remains on' is read disjunctively, in such a situation, an offence would be committed by the licensee because the juvenile would have remained (or stayed) on the premises when the responsible adult had left the juvenile's company and was no longer providing supervision.
(ii)Section 120(1) provides a number of circumstances where div 9 of the Act (relating to juveniles, and in which s 121(4) appears) does not prohibit juveniles from being 'permitted entry to, or remaining on, a place where the sale of liquor is authorised'. Section 120(1) concludes by providing that 'the provisions of [Div 9] shall be construed accordingly'. This language within s 120 indicates a disjunctive construction of 'enters or remains on' within s 121(4) in two respects. First, s 120(1) includes a comma after the words 'entry to' indicating that the two actions ('entry to' versus 'remaining on') are not meant to be read conjunctively. Secondly, s 120(1) makes the addition of the word 'to' after the word 'entry', which further indicates that the action of 'entering' is intended to be read as distinct from the action of 'remaining'. Both s 120 and s 121 form part of Div 9 of the Act, and as stated in s 120(1), 'the provisions of [Div 9] shall be construed accordingly.' Further, s 121(4) states that it is subject to s 121(5), which in turn states at s 121(5)(e) that s 121(4) does not apply if s 120 applies. Read together, this language indicates that s 120 and s 121 operate closely together and logically, the reference to 'entry to, or remaining on' in s 120 should bear a similar meaning as the reference to 'enters or remains on' in s 121(4).
(iii)Section 120(2) provides that div 9 does not prohibit a juvenile from being in a place where the sale or supply of liquor is authorised if the juvenile is there solely for the purpose of 'passing to or from some part of the premises' where liquor is not authorised to be sold or the juvenile is not prohibited from being present 'and to and from which there is no other convenient means of passage'. Section 121(4) has no application where s 120(2) applies. This exception would only be required if 'passing' through the premises would otherwise contravene s 121(4). This provision therefore provides support for a disjunctive construction because if the proper construction was that juvenile needed to 'enter and remain' on the premises, it is difficult to see how mere 'passing' through the prohibited area would constitute 'remaining' on the premises, in order to establish the conjunctive element of entering and remaining. That is, an offence against s 121(4) could not be established where a juvenile passed directly through licensed premises (and thus did not remain on those premises) if the prosecution needed to prove both entering and remaining. That Parliament still provided an exception for such passage suggests that the offence could be established solely by the juvenile entering that portion of the licensed premises.
(e)Contrary to the observations in Jackson v Dyball, a disjunctive construction does not produce an absurd result such that Parliament must have intended that the word 'or' means 'and'. This is for two reasons:
(i)A conjunctive construction would itself produce an absurd result in that a juvenile could enter a premises under circumstances captured by s 121(5), (that is lawfully) and he or she could then lawfully remain on the premises after those excepting circumstances were removed. This would undermine the objective intent of the provisions and produce strange (even absurd) outcomes.
(ii)Secondly, Owen J observed that a disjunctive construction would require all licensees to have a doorman on the duty at all times, which would be commercially unrealistic. However, the lack of 'commerciality' is overstated and, in any event, given the objects of the Act, construing the section on the basis of a lack of commerciality is not the preferred approach to construing the section.
(A)As to any lack of commerciality - where a premises has good sight lines to the entry from the bar service area, during periods of low patronage, it is not apparent that a doorman would be necessary to meet the obligations required by the Act. When a premises is busy, given the revenue created from such custom it is not obvious that having a doorman on duty would be 'uncommercial'. Indeed, if to comply with a licensee's obligations under the Act a doorman is required, one would expect, 'commercially' speaking, the cost of such arrangements would flow through to the product which is sold by the licensee.
(B)As to whether it is relevant to consider the commerciality of such arrangements, the Act is not solely focussed on the commerciality of the liquor industry. Rather, it is a piece of social legislation that recognises that while there is public interest in having a vibrant liquor industry, harms arise from the use of liquor, and therefore the commerciality of the industry is to be balanced against minimising the harms that arise from the use of liquor. Division 9 of Pt 4 of the Act is directed towards minimising harm, by placing tight restrictions around the extent to which juveniles have access to licensed premises. This reduces the likelihood of juveniles having access to liquor itself, and also reduces the likelihood that juveniles' attitudes to liquor will be shaped in a way that could lead to harmful consumption. Accordingly, the proper approach to construe s 121(4) is not to focus on the commercial result. Rather the proper approach is to determine the ordinary meaning of the words, in their context, with due consideration given to the mischief to which the provision is directed.
(f)The secondary materials support a disjunctive construction. Section 121(4) in its present form was enacted by the Liquor Licensing Amendment Act 1998 (WA). During the Second Reading speech, the Deputy Premier stated:
With the introduction of the Proof of Age Card in December 1996, licensees now have a reliable means of ascertaining the presence of juveniles and of effectively preventing their entrance to licensed premises. The Bill creates a new offence for unaccompanied juveniles who enter licensed premises. (Appellant's emphasis)
The Deputy Premier also observed that the Bill was premised on the recommendations outlined in the Minister for Racing and Gaming's June 1995 Report to Parliament on the review of the Liquor Licensing Act (Report). The Report has a section dealing with juveniles, which relevantly provides:
Juveniles
…
[104] From the industry perspective, the introduction of a non‑forgeable proof of age, or 18 plus card, and the strengthening of legislation by making it an offence for a juvenile to be on licensed premises unaccompanied have been proposed.
…
[106] I support these measures. (Emphasis added.)
These materials provide support that the mischief to which s 121(4) is directed is to prohibited juveniles from being present upon licensed premises, except for in the specifically defined circumstances. The disjunctive construction gives better effect to such purpose.
(g)Support for a disjunctive construction in observations of a number of justices in the High Court case of Kuczborski v Queensland.[4] In that case the High Court considered whether provisions in the Liquor Act 1992 (Qld) were constitutionally valid.
[4] Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51.
Sections 173EB and 173EC of that Act relevantly provided:
173EB Exclusion of persons wearing or carrying prohibited items
The following persons must not knowingly allow a person who is wearing or carrying a prohibited item to enter or remain in premises to which a licence or permit relates -
(a) the licensee or permittee for the premises;
…
173EC Entering and remaining in licensed presumes wearing or carrying a prohibited item
A person must not enter or remain in premises to which a licence or permit relates if the person is wearing or carrying a prohibited item
The Chief Justice observed at [48] that the provisions 'prevent persons being on licensed premises while wearing or carrying an item of clothing or jewellery or an accessory that displays the name, club patch, insignia or logo of a declared criminal organisation'.
Crennan, Kiefel, Gageler, and Keane JJ observed at [250]:
Section 173EB of the Liquor Act prohibits a licensee from knowingly allowing entry of a person wearing or carrying certain items onto licensed premises. Section 173EC prohibits the wearing or carrying of such items on premises … where those items are apparently linked with a declared criminal organisation.
These observations provide support for the view that the ordinary meaning of 'enter or remain' is disjunctive, and that the mere entry into premises is sufficient to contravene the provision. The observations also provide support for the view that merely being 'on' premises is sufficient to have either 'entered or remained'.
(h)As to the term 'remains' within s 121(4) - the appellant relied on the dictionary definition, that is, 'to stay in place' read in the full context of Div 9 of Pt 4 of the Act. When that context is understood the appellant contended that the words 'remains on' are included within s 121(4) to capture those cases where a juvenile enters premises in circumstances when it is not unlawful for a juvenile to enter licensed premises (eg, where s 121(5) applies), but does not leave the premises when those excepting circumstances cease to exist whilst the juvenile is already 'on' the premises. The words 'remains on' should be understood to refer cases to where a juvenile 'stays' on the premises after any excepting circumstances cease to exist. Such a construction would allow reasonable time for the juvenile to remove himself of herself from the premises when the excepting circumstances cease to exist. As it could not be said that the juvenile has 'stayed' on the premises if, once the excepting circumstances cease to exist, he or she takes steps to remove himself of herself from the premises. However, other than allowing for such reasonable time for the juvenile to take such steps, if the juvenile is otherwise on the premises, it can be said that they have 'stayed' or 'remained' on the premises.

I have reproduced the appellant's contentions in support of a disjunctive construction at some length because I consider they are cogent and persuasive. In my view, and with respect to the obiter comments made by Owen J in Jackson v Dyball, when the phrase 'enters or remains' is considered in its statutory context - in particular when regard is had to the circumstance that a juvenile may enter licensed premises lawfully but subsequently remain unlawfully - the commercial consideration to which Owen J referred does not justify departing from the orthodox view that the word 'or' is interpreted as being disjunctive.
In reaching this conclusion I have placed particular importance on the structure of the offence creating provisions under the Act. A disjunctive interpretation most appropriately gives effect to those provisions consistently with Parliament's intention as discerned from the text read in context. As the appellant rightly points out s 121(4) is expressed to be subject to s 121(5).
In the course of engaging with counsel for the appellant at the hearing of the application I raised the issue of whether if I accepted the appellant's argument on the proper construction of the phrase 'enters or remains' in s 121(4), this had the consequence that the charge, which was expressed in terms of 'enters or remains' suffered from patent duplicity. I gave the appellant leave to file written submissions on this issue, and if the charge was duplex, what consequences followed. The appellant filed further written submissions on the issue of duplicity on 11 March 2021.
Duplicity occurs where there is a single charge which on its face (patent duplicity) or on the evidence adduced or to be adduced at trial (latent duplicity) gives rise to more than one offence.[5] In this instance the duplicity, if any, would be patent.
[5] Green v The State of Western Australia [No 2] [2014] WASCA 53 [3] (McLure P); City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 [47] (Buss JA).
In this jurisdiction the starting point in considering duplicity in the context of a criminal prosecution is the statutory framework.[6] As McLure P stated in Green v The State of Western Australia [No 2] the Criminal Procedure Act 2004 (WA) covers the field in relation to patent duplicity.[7] The common law principles may inform the appropriate application of the statute.
[6] Green [8].
[7] Green [12].
Clause 2(4) of sch 1 of the Criminal Procedure Act states:
A charge must allege one offence only, unless clause 8 or another written law permits otherwise.
Clause 8 does not provide an exception relevant to this case.
Section 132 of the Criminal Procedure Act confers power on a court in relation to the amendment of a 'charge', defined in the Criminal Procedure Act to mean a written allegation in a prosecution notice or indictment that a person has committed an offence. The power to amend may be exercised at any time before or during a trial (s 132(1)). Section 132 also relevantly provides:
(5)If one charge alleges 2 or more offences and a court is satisfied that the one charge is not permitted by Schedule 1 clause 8, it may amend the prosecution notice or indictment containing the charge so that each of the offences is the subject of a separate charge.
(6)If one charge alleges 2 or more offences and a court is satisfied -
(a)that the charge is permitted by Schedule 1 clause 8; and
(b)that the trial of the accused on the charge would be unfair because it alleges the two or more offences; and
(c)that it is reasonably practicable for any of those offences to be the subject of a separate charge; and
(d)that the separate charge would be in accordance with Schedule 1, the court may amend the prosecution notice or indictment containing the charge so as to include one or more separate charges.
The first question is whether the charges alleges one offence only, if they do not, they are patently duplex. This is ultimately a question of interpreting the statute creating the offences charged.
In my view the charges are duplex on their face, they allege two possible offences in the single charge. Ultimately the appellant accepted that for the reasons advanced under ground 2, this reflected the proper construction of the Act. Entering or remaining are not merely different ways of describing the same offence, they are distinct offences under the Act. This conclusion is supported by the same reasoning that supports the conclusion that the phrase 'enters or remains' is to be construed disjunctively. Additionally, I am confirmed in this view by the fact that a person charged with an offence of 'enters or remains' would be uncertain as to the case put against them, and therefore disadvantaged in the presentation of their defence or their decision to enter a plea.
The next question is what is to be done on this appeal in respect of the duplex charges. Under s 178 of the Criminal Procedure Act an objection to the charge on the basis that it is defective should be made prior to the prosecution's opening address. The appellant relies on authority in this State to the effect that a conviction can be entered even where a charge is patently duplex where the accused makes no objection at trial.[8]
[8] Mullaley v Western Australia Police [2016] WASC 53 [31] - [41] (Martino J).
Further, the appellant submits that the appropriate course is for the duplicity to be removed by allowing the appellant to amend the charge on appeal to delete the words 'or remained' in each of the relevant charges.
In City of Swan v Bayblue Holdings Pty Ltd,[9] (a prosecution appeal under div 3 of pt 2 of the Criminal Appeals Act 2004 (WA) from a decision of a single judge quashing a conviction entered in the Magistrates Court) the Court of Appeal granted leave to amend a prosecution notice in the absence of any relevant prejudice to the respondent. The amended charge was put to the respondent in the course of the appeal hearing and a plea to the amended charge was entered.
[9] City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227.
Section 14(1)(i) of the Criminal Appeals Act 2004 (WA) provides the court may when deciding an appeal, in addition to making various other orders, 'make any other order it thinks fit'. The power conferred by this provision is sufficiently wide to permit the amendment to each of the relevant charges by the deletion of the words 'or remained'.
The appellant submits that there can be no doubt that on the facts found by the magistrate the charge of 'entering' was established and that the charge should be amended to remove the words 'or remained'. It is said this would not prejudice the respondent. On the facts as they relate to the relevant charge, and having regard to the way the respondent's case was argued at trial, I am satisfied that permitting the appellant to amend the charge in the manner I have described will not prejudice the respondent.
I will grant leave to appeal in respect of ground 2, I will order that the appellant be permitted to amend charges RO 4207 of 2019, RO 4209 of 2019 and RO 4210 of 2019 by deleting in each case the words 'or remained'.

Conclusion

I will allow the appeal and set aside the judgements of acquittal. In my view the amended charges should be put to the respondent to give the respondent an opportunity to enter a plea to the amended charges. It will be necessary to adjourn the hearing in respect of grounds 3, 4 and 5 to enable this to occur.
If pleas of guilty were to be entered I would be minded to complete the sentencing exercise in this Court. The appellant submits that a nominal fine would be appropriate in the circumstances.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
6 MAY 2021