Tan v City of Joondalup
[2025] WASC 383
•12 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TAN -v- CITY OF JOONDALUP [2025] WASC 383
CORAM: COBBY J
HEARD: 5 MARCH 2025
DELIVERED : 12 SEPTEMBER 2025
FILE NO/S: SJA 1012 of 2024
BETWEEN: YENNY TAN
Appellant
AND
CITY OF JOONDALUP
Respondent
ON APPEAL FROM:
For File No: SJA 1012 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E DE VRIES
File Number : JO 282/2023; JO 2610/2023
Catchwords:
Statutory interpretation - Statutory provision for service by post to last known address known to local government of owner or occupier of land or to address shown in the rate record kept by a local government pursuant to the Local Government Act 1995 - Local government's statutory obligation to keep rates record current - Alleged service of notice by posting to address local government advised outdated - Procedural fairness - Failure by prosecutor to comply with order for full disclosure - Failure by counsel for prosecutor to provide copies of exhibits to unrepresented litigant in course of evidence - Magistrate engaging in extensive questioning of unrepresented party - Party's right to have reasonable opportunity to present own case
Legislation:
Bush Fires Act 1954 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Local Government (Consequential Amendments) Act 1996
Local Government (Financial Management) Regulations 1996 (WA)
Local Government Act 1995 (WA)
Pastures Protection Act 1912
Result:
Application to adduce new evidence allowed
Leave to appeal granted
Appeal allowed
One charge dismissed
Conviction on one charge set aside and matter remitted to Magistrates' Court for trial before different magistrate
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | A Mell |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2103) 252 CLR 38
Brawn v R [2025] HCA 20; (2025) 423 ALR 69
Clarke v The State of Western Australia [2018] WASCA 14
Ellis v R [2015] NSWCCA 262
Garbin v Wild [1965] WAR 72
HT v R [2019] HCA 40; (2019) 269 CLR 403
Kioa v West (1985) 159 CLR 550
LEG v The State of Western Australia [2025] WASCA 129
Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4
Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344
COBBY J:
The appellant was convicted on 15 January 2024 after a trial in the Magistrates Court on 15 December 2023 of two charges of failing or neglecting to comply with fire break regulations contrary to s 33(3), Bush Fires Act 1954 (WA).
The appellant is the owner of 11 Tottenham Road, Joondalup, being a vacant block of land situated within the City of Joondalup with an area of approximately 500 m2. Charge JO 2610/2023 (the first charge) related to an alleged failure to or having neglected to comply with fire break regulations on that land on 4 November 2020, contrary to s 33(3) of the Bush Fires Act 1954 (WA). Charge JO 282 of 2023 (the second charge) related to an alleged failure to or having neglected to comply with fire break regulations on the same land on 1 December 2021, again contrary to s 33(3) of the Act.
For the reasons which follow, I find that the first charge ought to have been dismissed, because the City of Joondalup failed to give the appellant notice of the fire break requirements in accordance with the Act, and the failure to do so could not be rectified. In this regard, the City's failure to comply with an order for full disclosure made before trial directly contributed to the appellant's conviction on a charge the City could not have proved had it complied with the order.
Further, I find that the appellant did not receive procedural fairness in the conduct of the trial before the learned magistrate, with the consequence that leave to appeal should be granted, the appeal granted and the appellant's conviction in relation to the second charge quashed. As the appellant did not receive a fair hearing, that charge should be remitted to a different magistrate for rehearing should the City determine to pursue it.
Section 33 of the Bush Fires Act 1954 (WA) provides, so far as relevant to this appeal:
(1)Subject to subsection (2) a local government at any time, and from time to time, may, and if so required by the Minister shall, as a measure for preventing the outbreak of a bush fire, or for preventing the spread or extension of a bush fire which may occur, give notice in writing to an owner or occupier of land situate within the district of the local government or shall give notice to all owners or occupiers of land in its district by publishing a notice in the Government Gazette and in a newspaper circulating in the area requiring him or them as the case may be within a time specified in the notice to do or to commence to do at a time so specified all or any of the following things -
(a)to plough, cultivate, scarify, burn or otherwise clear upon the land fire-breaks in such manner, at such places, of such dimensions, and to such number, and whether in parallel or otherwise, as the local government may and is hereby empowered to determine and as are specified in the notice, and thereafter to maintain the fire-breaks clear of inflammable matter;
(b)to act as and when specified in the notice with respect to anything which is upon the land, and which in the opinion of the local government or its duly authorised officer, is or is likely to be conducive to the outbreak of a bush fire or the spread or extension of a bush fire, and the notice may require the owner or occupier to do so -
(c)as a separate operation, or in co-ordination with any other person, carrying out a similar operation on adjoining or neighbouring land; and
(d)in any event, to the satisfaction of either the local government or its duly authorised officer, according to which of them is specified in the notice.
(2)A notice in writing under subsection (1) may be given to an owner or occupier of land by posting it to him at his last postal address known to the local government and may be given to an owner of land by posting it to him at the address shown in the rate record kept by the local government pursuant to the Local Government Act 1995, as his address for the service of rate notices.
(2a)The provisions of subsection (2) are in addition to and not in derogation of those of sections 75 and 76 of the Interpretation Act 1984.
(3)The owner or occupier of land to whom a notice has been given under subsection (1) and who fails or neglects in any respect duly to comply with the requisitions of the notice is guilty of an offence.
Penalty: $5 000.
The appellant represented herself throughout the proceedings. She pleaded not guilty to both charges.
In about December 2020 the City had issued an infringement notice to the appellant regarding an alleged failure to clear fire breaks on the land. By email dated 14 December 2020, the appellant advised the City that she had previously informed the City of her new address but the City continued to forward correspondence to its old address. She gave her new address in the email.
On 15 September 2023, prior to the commencement of the trial, the appellant obtained an order for an order that the City make full disclosure pursuant to s 138 of the Criminal Procedure Act 2004 (WA) (CPA).
At the commencement of the trial the learned magistrate gave a brief explanation of the manner in which the trial would be conducted to the appellant, including that the appellant did not have to give evidence if she did not wish to do so.
Both counsel for the City and the appellant gave opening addresses. Counsel for the City informed the learned magistrate, in effect, at the commencement of the trial that the City had complied with the order for disclosure.[1]
[1] ts 10.
At the trial, the City's case in relation to the first charge was that it had given a fire break notice for the 2020/21 year to the appellant by prepaid post to the appellant's address as shown in the City's rate record, and the appellant had failed to comply with the notice. Its case in relation the second charge was that a notice of the City's fire break requirements for the 2021/22 year had been given by publication in the Government Gazette on 21 September 2021 and the 'Joondalup Times' local newspaper on 2 September 2021, and that the appellant had also failed to comply with that notice.
There was no evidence at the trial as to whether the City had any policies or procedures regarding how persons were required to inform the City of changes in their address, how the City maintained the rate record nor of the City's rate record itself. Copies of the rates notices issued by the City to the appellant for the two years in question were tendered, both of which were addressed to the appellant's old address.
The appellant denied having received either fire break notice. Her case was that she had changed address in mid-2016. Her evidence was that for a number of years, she had only received rates notices from the City after telephoning them to ask for the notice to be sent to her current address. She said that she cleared fire breaks on the land by October 2021, prior to the date the subject of the second charge.
At the times relevant to the two charges, the appellant lived in East Perth, a considerable distance from the City's district and the relevant land.
During the trial, counsel for the City (who was not counsel for the City on appeal) did not provide copies of the documents shown to the witnesses and tendered as exhibits in the course of the City's case to the appellant. Nor did counsel provide any adequate opportunity for the appellant to identify the documents put to the City's witnesses.
Counsel adopted the course of handing documents to the City's witnesses, without identifying what they were by reference to previous disclosure of documents given to the appellant or providing some description of the document and without providing copies to the appellant as they were provided to the witness, so that the appellant did not know, and could not have been reasonably expected to be able to identify, any particular document about which the witness was being questioned.
An example of how counsel's failure to either identify the documents being tendered to the witness or provide copies of the documents to the appellant prior to them being provided to the witness is what occurred in relation to what became part of exhibit 3, a certificate of title for the property on which it was said that the appellant had failed to comply with the City's notices.
Two documents were provided by counsel to the witness, a bush fire control officer employed by the respondent. The witness was asked to identify the documents, and gave evidence that 'it's just basically Landgate documents, one is showing where [the appellant] lives. There's a cert (sic) of title of the land saying that she owns the land and, basically, that's showing you where the land is from what I gather'.
The learned magistrate accepted the tender of those documents, describing them as 'Two documents from Landgate including showing where Accused lives and Certificate of Title for 11 Tottenham Road, Joondalup'.
The documents comprising exhibit 3 were certified copies of the certificate of title for 11 Tottenham Road, Joondalup and Deposited Plan 40003, which contained a diagram showing the location of that land relative to Tottenham Road and the area of the land.
The address shown on the certificate of title was not the appellant's residential address at the time of the trial, and had not been for some years. While the document established the appellant owned the land to which both charges related, there was no issue about that at trial. There was no suggestion that either document formed part of the City's rates record. I infer from the fact that the documents comprising exhibit 3 were certified copies that they had been obtained by the City for the purposes of the trial.
The appellant's evidence, which I accept, is that she was not provided copies of a number of exhibits during the trial. The failure to provide copies of exhibit 3 to the appellant during the trial meant that the appellant did not know that the bush fire control officer had given incorrect evidence as to her address, derived from a document she was not shown and which, based on the evidence and the learned magistrate's description of the exhibit, she would have had a great deal of difficulty in identifying.
The transcript of the trial records at least three occasions where the appellant requested copies of documents shown to witnesses or that the exhibits be identified to her and counsel for the City simply did not do so. In relation to exhibit 6, the transcript records the following:
[COUNSEL]: Yes. I seek to tender that document, your Honour. I'm going to hand you up another document?---Thank you.
Can you please identify that document for the court?---This is a notice for Ms Tan regarding the notice that the city has undertaken an annual inspection of the firebreak. It basically states what the owner of the land has to do to coincide with the – what the actual – how can I say – requirements are for the firebreak for that land, this land.
Okay. And when was that letter issued?---That issue – that was issued on 17 September 2020.
And to which address was that letter issued?---It was a Ms Y. Tan, [address redacted] in East Perth.
Yes. I seek to have that document tendered, your Honour.
HIS HONOUR: It will be exhibit 6. Can I just see that, orderly, please.
EXHIBIT 6 Prosecution DATE 17/09/2023 Rates notice for Ms Y. Tan
ACCUSED: May I speak, your Honour?
HIS HONOUR: Not just yet. No. Why?
ACCUSED: I would like to have the same copy that was given to the witness so I know what they were talking about.
HIS HONOUR: Yes, absolutely, yes, absolutely.
ACCUSED: But I don't know what they're talking about when I do not have any copy.
HIS HONOUR: No, no, you will be given a copy. [Counsel], this exhibit, exhibit 6, the letter dated 17 September.
[COUNSEL]: Yes.
HIS HONOUR: This then would be in relation to – yes, okay, this is in relation to 4 November.
[COUNSEL]: That's correct, your Honour, yes.
HIS HONOUR: Okay. Thank you.
[COUNSEL]: So in relation to that firebreak period.
HIS HONOUR: Yes.
I accept the appellant's evidence that, notwithstanding that the learned magistrate stated that she would be a given a copy of exhibit 6, that did not occur.
At the conclusion of the prosecution case, the magistrate asked the appellant whether she wished to give evidence, and she said that she did. The learned magistrate then said:
Ms Tan, I think it may be easier if I – sit down, please – if I ask you questions, all right, and you just answer them, because, otherwise, we're just not going to get this matter finished today.
His Honour then proceeded to examine the appellant, using both leading and non-leading questions. The appellant gave evidence that she had not lived at the address stated in the certificate of title comprising part of exhibit 3 since mid-2016.
The learned magistrate questioned the appellant on the basis that she should have written to the City advising it of the change in her address.[2]
[2] See, for example, ts 62, 78.
The extent to which the appellant was given an opportunity to adduce the evidence she wished to adduce was limited to his Honour asking the appellant, at the conclusion of his questioning of her in respect of the second charge, whether she wished to say anything further about that charge,[3] and similarly asking the appellant if there was anything further she wished to say about the first charge.[4] On each occasion, the appellant said she did not.
[3] ts 73.
[4] ts 74.
The appellant was cross-examined about when and how she had given notice of her change of address to the City. She gave evidence in cross-examination that she had told the City of her new address by telephone in November 2016, and that she had contacted the City a few times about not having received a rates notice and (in effect) repeatedly told them of her change of address. She thought that the City had told her that they had updated their system as they spoke, which she thought was probably in 2020.[5]
[5] ts 77.
The appellant was specifically asked in cross-examination why she had not emailed the City to confirm her change of address.[6] Her evidence was to the effect that she expected the City to act on her having told them by telephone of the change to her address.
[6] ts 79 - 80.
In closing, counsel for the City contended that the City had established its case as to giving notice for the purposes of the Bush Fires Act beyond reasonable doubt in relation to the first charge by tendering a copy of the rates notice for the year relating to the notice the subject of that charge (which showed the appellant's old address) and the fire break notice, which showed that it had been sent to the same address.
Counsel noted that there was no record of the conversation the appellant had said occurred in November 2016 and 'no written follow up by [the appellant] to the City confirming that change of address', with the first time the appellant wrote to the City advising them of the change of address being on 14 December 2020. Further, counsel made the submission that the first time the appellant wrote to the City advising of the change of address was on 14 December 2020, after the issuing of the notice pursuant to s 33(1) of the act.
As the second charge, the City submitted that the giving of notice for the purposes of the Bush Fires Act was proved beyond reasonable doubt by the tender of copies of the Government Gazette and local newspaper containing the fire break notice.
The learned magistrate reserved his decision, which was delivered on 15 January 2024. His Honour found both charges to have been provided beyond reasonable doubt. In giving his reasons for coming to those conclusions, his Honour stated that 'found [the appellant's] evidence with respect to providing the City of Joondalup of her new address, before her new - before her email of 14 December 2020, to be unconvincing. It was vague and difficult to believe'.
Following her conviction, the appellant identified a number of emails in her records. Her explanation for not having done so for the purposes of the trial was that she had not expected to be 'attacked' about her evidence that she had notified the City of her change of address.
Of greatest relevance to the appeal were three emails. The first was from a Rating Services Officer of the City to the appellant dated 12 March 2018, which attached 'a copy of the current years (2017/2018) Rate notice' for the Tottenham Road property, and asked 'please email [email protected] and provide us with the correct postal address for future notices'.
The second was an email sent by the appellant to the email address specified in the first email, 36 minutes after the first email, in which the appellant stated her new address.
Another Rating Services Officer responded to the appellant's email the next day. She made no mention of the reference to the appellant's address in that email.
Taken together, the emails evidence that in March 2018 the appellant had asked for a copy of the current rates notice to be emailed to her, the City had done so and informed the appellant how to notify it of a change of her address, the appellant had done so and the City had received and responded to the email containing that information.
The emails also evidence, when read with the materials tendered by the City at trial, that the City failed to update the rate record to reflect the change in the appellant's address.
The appellant applied for leave to adduce the emails on the hearing of the appeal.
The three emails were always in the appellant's possession. The emails accordingly constitute new rather than fresh evidence.[7] It would seem that the only reason she did not tender them at trial was that she did not realise their significance, and because they were not disclosed to her by the City in accordance with the disclosure order she had obtained.
[7] Clarke v The State of Western Australia [2018] WASCA 14[237].
For the reasons I detail below, I consider that the three emails establish that the appellant should not have been convicted of the first charge. I therefore grant the appellant leave to adduce evidence of the three emails for the purposes of the appeal.
In considering whether to grant leave to adduce evidence of the three emails, I have had regard to the fact that the appellant obtained an order for full disclosure prior to the trial.
The content of an order for full disclosure is governed by s 42 of the CPA. Section 42(5)(b) provides that, as soon as practicable after a charge is adjourned under s 41(4) of the CPA, the prosecutor must serve the accused with, amongst other things, any evidentiary material that is relevant to the charge.
The term evidentiary material is defined by s 42(1) of the CPA to include a copy of every document or object that the prosecutor intends to tender in evidence at trial, and, importantly, a copy of every other document or object that may assist the accused's defence that is in the possession of the organisation or person who investigated the offence.
It is clear that the obligation is limited to the disclosure of evidentiary material relevant to the charge which is in the possession of the investigating organisation or person.[8]
[8] LEG v The State of Western Australia [2025] WASCA 129 [38].
An essential element of the offence created by s 33(3) of the Bush Fires Act is that the accused have been given a notice under s 33(1). It is noncompliance with the requirements specified in that notice which constitutes the offence under s 33(3). The City should be taken as having been on notice as a consequence of the appellant's email dated 14 December 2020, albeit in the context of a different infringement notice, that the appellant contended that she had previously informed the City of a change in her residential address and the City had failed to act upon it.
Even if the City was not to be regarded as having been on notice of the appellant's position, documents in the City's possession which showed that the appellant had notified the City of a change in her residential address prior to the issue of the fire break notices were documents which might assist the appellant's defence of the charge, because they went to establish that she had not been given notice as required by s 33 of the Bush Fires Act, with the consequence that the City was obliged to disclose them to the appellant pursuant to the disclosure order made on 15 September 2023.
The three emails were attached to the appellant's affidavit in the appeal filed 22 April 2024, nearly a year prior to the hearing of the appeal. The City therefore had sufficient time to consider its position in relation to the three documents.
There being no suggestion that the City did not receive the appellant's email dated 12 March 2018 or that the three emails were not in its possession at the time the disclosure order was made, I find that the City failed to comply with the disclosure order.
On that basis, the appeal against conviction on the first charge turns on whether the City had given notice to the appellant pursuant to s 33(1) of the Bush Fires Act.
Section 33(1) authorises a local government to give a written notice requiring an owner or occupier of land to take steps to prevent the outbreak, spread or extension of a bush fire.
The required notice may be given to the owner or occupier by posting it to he or she at the last postal address known to the local government in respect of that person[9] or by posting it to the address shown in the rate record kept by the local government pursuant to the Local Government Act 1995 (WA) (LGA) as the address for service of rate notices.
[9] Interpretation Act 1984 (WA) s 75(1), read with Bush Fires Act s 33(2a).
Section 75(1) of the Interpretation Act 1984 (WA) provides that, where a written law authorises of requires a document to be served by post, service is deemed to be effected if the document is addressed and posted by prepaid post as a letter to the last known address of the person to be served.
Clearly, the notice was not sent to the last known postal address for the appellant known to the City, because the City's employees had been given written notice of the appellant's change of address in March 2018.
On the appeal, counsel for the City (who was not counsel for the City below) maintained that the fire break notice had been provided to the appellant in accordance with the Bush Fires Act, because it had been sent to 'the address shown in the rate record kept by the local government pursuant to the Local Government Act 1995'. In substance, the City contended that it need do no more than maintain a rate record, and that the obligation to do so is met regardless of whether the record is correct.
The Court of Appeal recently summarised the principles relating to the statutory construction in Prichard v M 6:8 Legal Pty Ltd.[10] I apply those principles without repeating them here.
[10] Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4.
The ordinary meaning of the phrase 'pursuant to' is 'in accordance with' or 'consequent and conformable to'.[11] The phrase 'the rate record kept by the local government pursuant to the Local Government Act 1995' in s 33(2) of the Bush Fires Act is therefore to be understood to mean a rate record kept in accordance with the Local Government Act 1995 (WA) (LGA).
[11] Garbin v Wild[1965] WAR 72, 76.
The term 'rate record' is defined by s 6.25 of the LGA to mean 'the rate record required to be kept under section 6.39'.
Section s 6.39(1) of the LGA provides that, as soon as practicable after a local government has resolved to impose rates in a financial year, it is to ensure that the record is compiled, in the form and manner prescribed, for that financial year of all rateable land in its district, and all land in its district on which the service charge is imposed.
The form of a rate record is prescribed by reg 55 of Local Government (Financial Management) Regulations 1996 (WA), which requires the record to include particulars of all rateable land in its district.[12] Regulation 55(b)(i) requires that the rate record be in a form that sets out 'the full name and postal address of the owner of the land'.
[12] Local Government (Financial Management) Regulations 1996 (WA) reg 55(a)(i).
Section 6.39(2) provides:
(2)A local government -
(a)is required, from time to time, to amend a rate record for the current financial year to ensure that the information contained in the record is current and correct and that the record is in accordance with this Act; and
(b)may amend the rate record for the 5 years preceding the current financial year.
Section 5.42(e) of the LGA imposes a statutory obligation upon the Chief Executive Officer of a local government to ensure that records and documents of the LGA are properly kept for the purposes of the LGA and any other written law.
One purpose of the rate record, by virtue of s 33(2) of the Bush Fires Act, is to provide an address for service of an owner of land in respect of a notice issued under s 33(1) of the Bush Fires Act.
The obligation imposed by s 6.39(2) is to maintain the rent record for the current financial year to ensure that the information in the record is 'current and correct'. The Macquarie Dictionary defines 'current' to mean (relevantly) prevalent, while the Oxford English Dictionary defines 'current' to mean 'existing or occurring now; at this time; present'.
It follows that the ordinary meaning of the text of s 6.39(2) is that a local government is required to take steps, during the course of an existing financial year, to amend its rate record for that year to reflect the information presently available to it, so that the information recorded is 'correct' in the sense of not being outdated or no longer applicable.
The City submitted, in effect, that the power to amend a rate record for the 5 years preceding the current financial year conferred by s 6.39(2)(b) meant that the LGA contemplates that there will be errors in the rate record. Further, it was submitted that if a 'defect or error in a rate record means that a rate record for a financial year was not kept pursuant to the' LGA, that would lead to 'absurd of outcomes for the purposes of financial management of local governments, including uncertainty as to the liability to pay rates for that financial year'.
I reject those submissions. The legislative purpose underlying s 33(2) of the Bush Fires Act is to provide for notices issued under s 33(1) to come to the attention of the persons required to comply with them. The City's submissions ignore that the question in issue is whether the local government can rely upon an inaccurate address for service stated in the rate record in a prosecution for failure to comply with a notice, in circumstances where the local government has failed, in breach of its statutory obligation, to update that address to reflect the information in its possession and ought to be taken to have known that service at the address stated in that record would likely not come to the notice of the owner or occupier.
The consequence of a local government failing to keep its rate record 'pursuant to the' LGA is, in the context of the provisions for service contained in s 33 of the Bush Fires Act and in the absence of evidence of an ongoing and systematic failure of on the part of the local government to comply with its obligations more widely, no more than the local government cannot rely upon s 33(2) to establish service upon a particular individual.
As the emails between the City and the appellant on 12 and 13 March 2018 demonstrated that the City knew that the address stated in its rate record was incorrect, the City is, once regard is had to that evidence, unable to prove that it gave a notice under s 33(1), to the appellant, and the first charge cannot be made out.
I would therefore grant leave to appeal in relation to the first charge, allow the appeal, and set aside the conviction on that charge.
Turning to the balance of the appeal, the appellant contends, in substance, that she was denied procedural fairness in the course of the trial.
The obligation to give a fair hearing is one of the defining characteristics of a court, the critical question being what is required in order to give a party a fair hearing in the circumstances of the particular case. Procedural fairness is an essential attribute of a court's procedure.[13]
[13] Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2103) 252 CLR 38 [156] (Pompano); Kioa v West (1985) 159 CLR 550, 585.
Procedural fairness will ordinarily require that a party will be adequately informed of the case to be advanced by the opposing party and have a reasonable opportunity to respond.[14] Whether a hearing was fair, in this sense, requires consideration of the wider circumstances of the hearing.
[14] Pompano [157].
There are three aspects of the trial which give rise to the concern:
(a)the City's failure to comply with the order for full disclosure;
(b)the failure of the City's counsel to provide copies of or otherwise adequately identify the documents put to witnesses in the course of the trial; and
(c)the extent to which the learned magistrate conducted the examination of the appellant.
The first concern is not exhausted by the dismissal of the first charge, since the appellant's failure to adduce the emails of 12 and 13 March 2018 clearly impacted upon the learned magistrate's assessment of the appellant's credibility.
As to the second concern, the City submits that 'there was no unfairness to the appellant, because she had been provided with copies of at least some of the exhibits prior to the appeal, and other documents were, it submits, not in issue'.
I reject those submissions. It is standard practice for counsel in a trial to identify a document being provided to a witness to opposing counsel or the opposing party, and, in the ordinary case, to provide them or at least show the opposing party the document before it is provided to the witness.
There are obvious reasons for doing so. First, it allows the opposing party the opportunity to know what evidence is sought to be adduced from the witness, and thereby enable the opposing party to have the opportunity to object to the use of the document. Secondly, it allows the opposing party the opportunity to understand, in context, the evidence being adduced. Thirdly, it provides the opposing party the opportunity to consider the evidence as it is being given, free of the distraction of having to search for and identify the particular document which is proposed to be the subject of the witness' evidence.
Each of those factors is of obvious importance where the opposing party is self-represented, as here.
The City also submits that there was no unfairness in the trial, because the appellant knew she could ask for documents to be provided to her. That submission ignores that on a number of occasions in the course of the trial, the appellant pointed out that she did not know what document was being provided to the witness and to what that person's evidence related, and the documents were not provided to her. Nor did the learned magistrate take steps to ensure that the document was provided or identified to the appellant, with the important consequence that in various respects, the appellant was not given fair notice of the evidence against her.
As to the third point, the appellant was denied the opportunity to present her own case.
Whether judicial intervention gives rise to procedural unfairness or an apprehension that there was not a fair trial depends not only on the extent and manner of a judge's intervention, but the nature of the trial and the circumstances in which the intervention occurs.[15]
[15] Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 [62].
This court appreciates that magistrates have substantial workloads, and there is a need to conduct hearings expeditiously, with as little delay and inconvenience as possible.
In this case, the learned magistrate assumed the conduct of the appellant's evidence in chief from the outset. His Honour therefore limited, no doubt unintentionally, the scope of the appellant's evidence to issues his Honour considered relevant to the issues he was to decide, but the consequence was that the appellant did not have the opportunity to advance the case she wished to run.
The position was not corrected by asking the appellant at the conclusion of her evidence whether there was anything she wished to add.
In Galea v Galea Kirby ACJ said:
Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and 'into the perils of self-persuasion'. (citations omitted)
In Ellis v R[16] the New South Wales Court of Criminal Appeal stated that a miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case, although that statement of principle needs to be considered in the light of Brawn v R,[17] where the High Court held that where an error or irregularity is alleged to constitute a miscarriage of justice which is not of a 'fundamental' nature, the error or irregularity must be material in the sense that it could realistically have affected the reasoning of the jury to a verdict of guilty.[18]
[16] Ellis v R [2015] NSWCCA 262 [65].
[17] Brawn v R [2025] HCA 20; (2025) 423 ALR 69 (Brawn).
[18] Brawn[10].
Counsel for the City submitted that it was not unusual for the magistrates to take the course which occurred in this case and that there was no denial of procedural fairness arising from what had occurred.
It is not necessary to consider the first submission, as I am only concerned with the present case.
I do not accept the second submission. The difficulty, once the judicial officer conducting the hearing adopts the position of examining counsel, is that the judicial officer enters into the frame. The risk is that he or she becomes an inquisitor, rather than a judge.
In the present case, the emphasis placed by the learned magistrate on whether the appellant had given written notice of her change of address to the City, in addition to having given notice orally, gives rise to concern because there was no evidence of the City having such a requirement and no identification of any statutory basis for a requirement to that effect.
Considering the trial as a whole, the combined effect of the three matters identified in paragraph [76] above was such that the appellant was denied procedural fairness in the course of the trial.
Further, I consider that the denial of procedural fairness gave rise to a fundamental miscarriage of justice, because the court breached a fundamental condition of its authority to determine the matter before it, namely that the appellant be given a reasonable opportunity of presenting her case.[19] There is consequently no occasion to consider the application of the proviso in s 14(2), Criminal Appeals Act 2004 (WA).[20]
[19] HT v R [2019] HCA 40; (2019) 269 CLR 403 [17] - [18]
[20] See Brawn [9].
Accordingly, while I consider a verdict of acquittal should be entered on the first charge because the City could not make it out on a rehearing, the appellant's conviction on the second charge should be set aside and the matter remitted to the Magistrates Court to be heard by a different magistrate.
For those reasons, I will grant leave to appeal in relation to both convictions, set aside the appellant's conviction in relation to both charges, and remit the second charge to the Magistrates Court for determination according to law before a different magistrate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Hon Justice Cobby
12 SEPTEMBER 2025
0
10
7