The State of Western Australia v CC
[2024] WADC 52
•20 JUNE 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CC [2024] WADC 52
CORAM: BLACK DCJ
HEARD: 17 MAY 2024
DELIVERED : 20 JUNE 2024
FILE NO/S: IND 2273 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
CC
Catchwords:
No case to answer made prior to trial - Principles of statutory interpretation - Whether s 74(1) Criminal Code (WA) requires a public element to be read into the section - whether an offence contrary to s 32(1) Bush Fires Act 1954 (WA) needs to involve damage to or risk of damage to bushland
Legislation:
Bush Fires Act 1954 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Interpretation Act 1984 (WA)
Result:
Application refused
Representation:
Counsel:
| The State of Western Australia | : | Mr D A Lima |
| Accused | : | Mr M A Perrella |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Perrella Legal |
Case(s) referred to in decision(s):
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Doney v The Queen (1990) 171 CLR 207
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
R v Bilick (1984) 36 SASR 321
Spooner v The State of Western Australia [2008] WASCA 86
The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155
BLACK DCJ:
Introduction
The accused stands charged on the indictment with two offences laid contrary to s 74(1) of the Criminal Code (WA) (count 1), and s 32(2)(a) of the Bush Fires Act 1954 (WA) (count 2).
Both alleged offences relate to conduct said to have occurred on 5 May 2023 in circumstances where the accused is alleged to have threatened to damage his house with an intent to intimidate the complainant, and on the same day, wilfully lighting a fire under such circumstances as to be likely to injure a person or damage property.
The accused applies by written application that the court, in respect of counts 1 and 2 of the indictment:
(a)find the accused not guilty on the basis that as a matter of law he has no case to answer; and
(b)enter judgments of acquittal.
The court's power to make such orders is found in s 98(2)(c) and s 147(3) of the Criminal Procedure Act 2004 (WA) (CPA) respectively.
While it is more usual that a submission that an accused has no case to answer is made at the conclusion of the prosecution case, the provisions of the CPA entitle a judge to consider an application in this regard at any time.
Indeed, where the basis upon which the application is made relates to matters of jurisdiction or strictly legal propositions that do not rely on a jury's factual findings, it is entirely proper that an application of this type should be made prior to the commencement of a trial. Counsel for the accused is to be commended for raising these issues at this early stage.
When considering the application, to the extent it is necessary to consider the facts, the court will apply the usual principles for any submission of no case to answer.
The test to be applied on a submission that there is no case to answer is to ask whether the evidence of the prosecution, taken at its highest, is capable of establishing beyond reasonable doubt the guilt of the accused.[1] There must be evidence which, if accepted, would provide evidence of each elements of the charge. The question is not whether, on the evidence as it stands, the accused ought to be convicted, but whether, on the evidence as it stands, he or she could lawfully be convicted.
[1] R v Bilick (1984) 36 SASR 321; Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 489; The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155 [5] - [11].
If there is evidence, even if tenuous or inherently weak or vague, which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.[2]
[2] Doney v The Queen (1990) 171 CLR 207 [17].
Approach to interpretation
There is no doubt that when seeking to understand a legislative provision, the starting point is to look at the text of the relevant section itself. Where there is ambiguity or a lack of clarity in the text, it may become necessary for a court to look beyond the text and to consider other matters such as the purpose and object of the Act, the intention of Parliament and on occasions to consider extrinsic aids to assist in interpretation.
In Australian common law tradition, there were historically two general approaches to the interpretation of legislation, namely the literal approach and the purposive approach. It is necessary to consider both approaches, however, according to Pearce in his book Statutory Interpretation in Australia,[3] he states:
Despite the statutory intervention, the common law purposive approach has become the basis for statutory interpretation in Australia and indeed is more likely to be cited in a more modern form than the statutory requirements.
[3] Pearce D, Statutory Interpretation in Australia (10th ed, 2023) 41.
The modern approach to statutory interpretation is set out in the often‑quoted passage in CIC Insurance Ltd v Bankstown Football Club Ltd[4] where Brennan CJ, Dawson, Toohey and Gummow JJ observed that:
The modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as [reference to reports of law reform bodies], one may discern the statute was intended to remedy.
[4] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384.
Further, the court goes on to say that:
If the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.
Since this decision, Australian courts and tribunals have regularly treated these principles as encapsulating their fundamental responsibilities in relation to interpreting legislation.
The defence argue that the court is required to consider the context in which the provision exists within the statute in the first instance, not at some later stage when ambiguity might be thought to arise. Further that 'context' should be understood in a broad way to include the existing state of the law and the mischief which one may discern the statute was intended to remedy.[5]
[5] CIC Insurance v Bankstown Football Club; Commissioner of Police v Thayli Pty Ltd [2020] WASC 43 [29] - [33].
It is submitted on behalf of the accused that when a purposive approach, in the sense described above, is applied to the relevant provisions, it is clear that the court should not interpret the legislation in its literal terms in the way the State submits.
It is undoubtedly the case that a literal interpretation of each of s 74(1) Criminal Code and s 32(2) Bush Fires Act would give rise to a conclusion by this court that there is a case to answer. The only way in which the defence submission can succeed is if the court is to apply a purposive approach and if the court is prepared to read into each of the sections words that have not been expressly included within each of the relevant sections.
The approach for a court to take is set out in the often-quoted passage from Project Blue Sky Inc v Australian Broadcasting Authority[6] as follows:
… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. …
[6] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.
The grammatical meaning nonetheless remains the foundational basis upon which an intermediate court ought to commence its consideration of the meaning of a legislative provision.
The Interpretation Act 1984 (WA) must also be considered when seeking to understand the appropriate approach to be taken to the interpretation of legislation.
Section 18 of the Interpretation Act provides:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
Further, s 19 of the Interpretation Act makes clear that the use of extrinsic material is only appropriate in circumstances where:
…
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
…
The appropriate principles to have regard to therefore are relatively uncontroversial in this instance. The application of them however is quite a different matter.
Arguments of the parties
Count 1 - s 74(1) of the Criminal Code
The State say that the clear and unambiguous elements of this offence are as set out in the grammatical meaning of the terms of s 74(1) of the Criminal Code, namely:
(a)it was the accused;
(b)he intended to intimidate the complainant; and
(c)he threatened to damage a dwelling as defined in s 1 of the Criminal Code.
The State say that the evidence contained on the brief, when taken at its highest, is sufficient to sustain each of the elements of the offence. The defence do not suggest that there is any deficiency in the evidence and I proceed on the basis that if I accept the State's interpretation of the provision then there is a case to answer on the available evidence.
What counsel for the accused contends is that when the section is interpreted having regard to a proper application of the purposive approach, that the court will need to do more than simply apply the literal or grammatical meaning of the text of the provision itself.
In particular, the defence contend that the threat to damage a dwelling must be read in the context of threatening to enter a dwelling. A threat to enter a dwelling presupposes one is outside the dwelling at the time the threat is made. A threat to damage a dwelling, the defence say, must also occur either outside the dwelling or where the public can see the person making the threat.
The defence submit that the context of the provision within which the relevant offence provision section appears in the Criminal Code relates squarely to offences that have a public nature to them.
By reason of the context the court should interpret the section so as to give effect to Parliament's concern of preventing breaches of the peace and regulating conduct that occurs in public not in private.
In simple terms, the accused says this justifies reading into the section words that do not appear in the text itself.
The accused submits that the requirement that there be a threat to 'enter or damage a dwelling' ought to be read as being:
(a)a threat to enter a dwelling, which necessarily means the maker of the threat must be outside the dwelling at that time; or
(b)a threat to damage a dwelling which must be made from outside or within the sight of the public.
In other words, the court should add words to the provision that are not there. The accused contends that the provision should not be read in its literal terms 'threaten to enter or damage a dwelling' but rather the prosecution must additionally prove that the threat possesses some public quality such that it would be capable of disturbing the peaceful use and enjoyment of public places by persons going about their lawful business in those places.
The accused argues that conduct occurring inside a dwelling by an occupier in the particular circumstances of this case does not form the type of conduct to which the offence provision was intended to relate. This is despite the fact that the alleged conduct does fall within the provision's literal terms.
Count 2 - s 32(2)(a) Bush Fires Act
In relation to count 2, the accused was originally charged contrary to s 444(1)(a) of the Criminal Code (arson). By reason of s 441 of the Criminal Code the law relating to arson has generally been interpreted in a way that results in a person being unable to be convicted of arson if the property that they are damaging is property that they own.
In this case the property in question, namely the relevant dwelling, was owned by the offender. Accordingly, it is arguable that the original charge against the accused alleging arson could not have been sustained. This would depend upon an interpretation of s 441 and s 444 of the Criminal Code.
In any event, in this case the State ultimately discontinued this charge and instead laid the charge, the subject of count 2 on the current indictment.
The State submits that the court should simply read s 32(2) of the Bush Fires Act in its express and unambiguous terms and if such an approach is taken then the defence submission must fail. The clear terms of the offence, when read literally, are that the State must prove that:
(a)it was the accused;
(b)he wilfully lit a fire; and
(c)he did so under such circumstances as to be likely to injure or damage a person or property. Property is defined to mean 'Personal or real property including Crown land and includes the bush and fauna as defined in s 32(1) of Bush Fires Act'.
The State brief discloses the evidence that it relies on to prove these elements. Given that the accused does not suggest that there is any deficiency in the evidence it is unnecessary to set out the State's case at this time.
Put simply, the accused accepts that if the elements are interpreted in the way the State submits, then the accused has a case to answer in relation to count 2.
The accused contends that the section must be read and understood in its proper context and when this is done he has no case to answer. The starting point is that the accused is charged with breaching a provision contained within the Bush Fires Act. The accused points out that the mischief that this Act was designed to deal with was the risk of bushfires and conduct pertaining to bushfires.
In keeping with their foundational submission regarding the asserted obligation of the court to consider the section in its proper context from the outset, the defence notes in particular:
(a)the stated objects of the Bush Fires Act, namely an act to 'make better provision for diminishing the dangers resulting from bushfires, for the prevention, control and extinguishment of bushfires … and for other purposes';
(b)the places s 32 operates within that Act, namely pt III which is concerned with 'prevention of bushfires', and
(c)the Act being a Bush Fires Act.
The accused submits that this is the case where the principles of interpretation should be applied in such a way as to read into s 32(2) of the Bush Fires Act an interpretation that reflects the mischief that the Act was designed to address.
The accused asserts that when read in this context, the relevant location of the dwelling in question, is not proximate to bushland. As the court, it is submitted, ought to read into the section a requirement that bushland is damaged or at risk of being damaged, this fact creates a problem for the State even if the evidence is taken at its highest.
The accused accepts that the term 'bushland' is not contained in s 32 and neither is it defined and this is in circumstances where a broad definition of 'property' that is not limited to 'bushland' is defined at s 32(1). The defence submit that the term 'bushland' should be understood with its ordinary and natural meaning, namely a 'fire that has broken out in forest, scrub or grassland' or 'an uncontrolled fire in the bush; a scrub or forest fire'.
The defence say it would be contrary to Parliament's intention and would give rise to a manifestly unreasonable or absurd result if a person could be convicted of damage by fire, contrary to this provision which is contained in the Bush Fires Act, in circumstances where there was no damage to nor threat to any bushland.
The defence submit that s 32 of the Bush Fires Act is concerned with the risk to the community, particularly those communities who are susceptible by virtue of their location to experience the risks associated with bushfires.
In short, the defence submits that although not expressly stated, the court should read s 32(1) of the Bush Fires Act as requiring that the offence is only committed if it occurs in the context of damaging or posing a risk of damage to bushland. The defence submits this is clearly what Parliament's purpose was when enacting the provision and that any other interpretation would give rise to a manifestly unreasonable or absurd outcome that was contrary to Parliament's intention.
Findings in relation to count 1
Section 74(1) of the Criminal Code is clear and unambiguous in its terms. The ordinary meaning conveyed by the text of these provisions, consistent with s 19 of the Interpretation Act in applying the definitions contained in s 6 of the Interpretation Act, is plain.
Parliament could have included in the express terms of the provision that before an offence could be committed, the prosecution must first prove additional matters such as there being a public component to the offending.
It is clear that ch IX of the Criminal Code does include provisions which do specifically require that an element of the offence or conduct has occurred in public such as s 68B, s 68C, s 71 and s 74A of the Criminal Code. There are other provisions that also refer to the offending being such as to disturb the peace or breach the peace.
Parliament did not include such a requirement in the express and clear terms of s 74 of the Criminal Code. That is, while having the option of requiring that the offence require that there be an element of public mischief, Parliament chose not to do so.
I am not persuaded that there is any manifestly absurd or unreasonable outcome by interpreting the section in its literal, plain, and unambiguous terms. To the contrary Parliament's intention is made clear by the express terms of the provision and there is no proper basis to read into the section additional words that have not be included.
I further accept the State's argument that s 17 of the Interpretation Act, when applied to the phrase 'threatens to enter or damage a dwelling' makes plain that the word 'or' should be read disjunctively.
The defence acknowledge that its submission in relation to count 1 is dependent upon a preparedness of the court to read into the section requirements that Parliament has not expressly included in the section. In my view this is contrary to the proper application of the Interpretation Act and of the principles pertaining to the statutory construction. There is no good reason in this instance to go beyond the grammatical means of the words of the section itself.
In these circumstances I find that there is a case to answer in relation to count 1.
Findings regarding count 2
While I accept the State's submission that the terms of the section when read in isolation are plain and clear in their literal meaning, there is some force in the defence submission in this regard.
Clearly there is an offence of arson available under the Criminal Code, which is the provision most commonly utilised when a person is accused of damaging property other than bushland, by fire.
Further, it is unusual that an offence provision contained with an Act called the Bush Fires Act, with objects that relate to the dangers of bushfires and contained within a chapter concerned with preventing bushfires, should not contain any element that there be damage to bushland or a risk of damage to bushland.
While I accept that a literal reading in context is an appropriate approach to statutory interpretation, this does not mean a court should start by trying to determine what it was that Parliament intended to do. The starting point remains the words in the provision, albeit in the context of the legislation. Where those words are clear and unambiguous, a party will have a more difficult task in persuading a court that such a provision should be interpreted in a manner that is other than consistent with its grammatical meaning.
It is apparent that the Bush Fires Act was drafted to address issues pertaining to the dangers of bushfires. It is surprising that in an Act relating to bushfires there would be an offence provision that created an offence that did not require there be any connection between the prohibited conduct and bushland.
When one starts with the plain words of the statute here, they are clear in their grammatical meaning. Even if there was a basis to look to extrinsic sources it is notable to consider that Parliament has reviewed the legislation on several occasions since 1954. Importantly, Parliament recognised that the charge did not, in its original form, even extend to 'bush' after this was made clear in the decision of the Court of Appeal in Spooner v The State of Western Australia.[7] Parliament then amended s 32 in 2009[8] and did not amend it so as to require that the offence involve damage to or a risk to bushland.
[7] Spooner v The State of Western Australia [2008] WASCA 86.
[8] Bush Fires Amendment Bill 2009 (WA).
Further in addition to Parliament having failed to prescribe an element that the offending concern 'bushland', the amendment made to the definition of property was simply to add that property 'includes the bush'.
I accept that Parliament may not have specifically contemplated that s 32(2) of the Bush Fires Act would be used in the circumstances the State now seeks to use it. Further, the use of the section does appear on its face to be incongruous with the Act itself in terms of how one might more readily understand it to apply. I am not persuaded that interpreting the provision in a literal way is contrary to the purpose intended by Parliament nor that to do so is to interpret it out of context. This view is particularly strengthened by virtue of the 2009 amendments.
The words of s 32(2) of the Bush Fires Act are plain. The elements are easily discernible from the provision itself and are not obscure or ambiguous. When one has regard to the context of the Act, while I accept that the objects and purpose and the name of the Act and even the chapter in which the section is contained would all support the accused's interpretation, it is the case that Parliament has ultimately decided not to confine the section to circumstances in which a bushfire was caused or was likely to occur.
If the section is being inappropriately used in relation to matters that Parliament considers are not consistent with its intention then this is a matter for Parliament to address. There is no proper basis for the court to read into the section a requirement that Parliament did not include in the text of the section itself.
A court is not to engage in a hypothetical, speculative exercise in trying to work out what Parliament had been trying to achieve and then go back and read the section itself and see if they have succeeded. Regard to extrinsic materials occurs only in circumstances where the provision is ambiguous or obscure or where the result conveyed by the ordinary meaning of the text gives rise to a result that is manifestly absurd or unreasonable.
I accept that a result of a literal reading of s 32 of the Bush Fires Act gives rise to an outcome that is, to an extent, unexpected. The provision is however clear and unambiguous and the result of a grammatical interpretation is not manifestly absurd or unreasonable.
In these circumstances I find that the accused does have a case to answer in relation to count 2 on the indictment.
Order
The application is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Black
20 JUNE 2024
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