Whincup v City of Mandurah - [2017] WASC 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WHINCUP -v- CITY OF MANDURAH [2017] WASC 89

CORAM: CORBOY J

HEARD: 6 OCTOBER 2016

DELIVERED : 4 APRIL 2017

PUBLISHED : 30 MAY 2017

FILE NO/S: SJA 1030 of 2016

BETWEEN: BRADLEY DOUGLAS WHINCUP
Applicant
AND
CITY OF MANDURAH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V EDWARDS
File No  :MH 2516 of 2013, MH 6018 of 2014

Catchwords:

Criminal law - Single judge appeal against conviction - Breach of Health Act 1911(WA) and Building Act 2011 (WA) - Whether honest claim of right

Legislation:

Builders' Registration Act 1939 (WA)
Building Act 2011 (WA), s 9
Building Regulations 1989 (WA)
Building Regulations 2012 (WA)
Building Services (Registration) Act 2011 (WA)
Criminal Code (WA), s 22, s 24
Criminal Procedure Act 2004 (WA)
Health Act 1911 (WA), s 3, s 143, s 144
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 364, s 374
Local Government Act 1995 (WA)
Town Planning and Development Act 1928 (WA)

Result:

Leave granted to extend time within which to appeal
Leave granted to amend notice of appeal to allege, in respect of Charge 1, that the appellant had an honest claim of right to use the shed as a dwelling and further, that the sentence imposed should be set aside and the appellant resentenced (the Amended Grounds)
Leave to appeal on the Amended Grounds allowed
Leave to appeal on all other grounds refused
Appeal against sentence on Charge 1 allowed and appellant resentenced
Appeal against conviction on all other charges dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr T L Beckett

Solicitors:

Applicant: In person
Respondent: McLeods Barristers & Solicitors

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

Interim Advance Corporation v Fazio [2008] WASCA 140
Investments (WA) Pty Ltd v City of Swan [No 2] [2013] WASCA 251
Narkle v The State of Western Australia [2011] WASCA 160
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Scolaro v Shephard [No 2] [2010] WASC 271
Shire of York v Rosmil Pty Ltd [2010] WASC 189
Walden v Hensler (1987) 163 CLR 561
CORBOY J:

Summary

The respondent (City) issued a prosecution notice in June 2013 alleging that:
(1)between 6 January 2013 and 7 May 2013 at lot 240, HN192 Pleasant Grove Circle, Falcon (the Property) within the district of the City, the appellant used as a dwelling a building not originally constructed as a dwelling-house without having first obtained the consent of the City, contrary to s 144 of the Health Act 1911 (WA) (Charge 1);
(2)in or about November 2012 at the Property, the appellant carried out building work without a building permit being in effect for that work, contrary to s 9 of the Building Act 2011 (WA) (Charge 2);
(3)in or about April 2013 at the Property, the appellant carried out building work without a building permit being in effect for that work, contrary to s 9 of the Building Act (Charge 3); and
(4)in about May 2013 at the Property, the appellant affixed barbed wire upon a fence surrounding property that was owned by him in a residential area, contrary to cl 9.4 and cl 20.23.1 of the City of Mandurah Consolidated Local Laws (the Local Laws) (Charge 4).
Those charges were heard by V Edwards M on 20 February 2014. Her Honour reserved her decision.
The appellant was subsequently convicted of each charge. He was fined $600 on Charge 1 and a daily penalty of $50 per day was also imposed (the total penalty for Charge 1 was $6,700). He was fined $5,000 on each of Charges 2 and 3 and $500 on Charge 4. He was ordered to pay the City's costs fixed at $10,225.15.
In December 2014, the City issued a further prosecution notice alleging that between 28 January and 1 December 2014, at the Property, the appellant had used, as a dwelling, a building not originally constructed as a dwelling‑house without having first obtained the consent of the City, contrary to s 144 of the Health Act (Charge 5). That charge was also heard by V Edwards M on 26 October 2014.
Her Honour reserved her decision until 4 November 2015. The appellant was convicted of the charge and fined $800. A daily penalty of $80 per day was also imposed (the total penalty was $3,120). Her Honour awarded costs to the City fixed at $8,944.90.
The appellant appealed against his conviction on all charges by an undated notice that was filed on 18 April 2016. The notice of appeal alleged that 'the magistrate did not properly decide some procedural matter such as refusing adjournment and that decision prevented us being able to present all the relevant evidence'. The ground of appeal did not identify in which hearing the magistrate had refused an adjournment. However, the appellant only sought an adjournment towards the end of the hearing of Charge 5.
The appellant subsequently filed two affidavits that, among other things, set out the evidence that he would have presented but for the magistrate's refusal to grant an adjournment. The affidavit stated matters that the appellant relied on as providing a defence to all of the charges for which he had been convicted and not merely Charge 5. The appellant also provided written submissions that annexed various documents that were said to establish that he had been wrongly convicted of all charges.
There were a number of irregularities in the appellant's approach to the appeal ‑ his notice of appeal only alleged a ground that related to Charge 5 yet he sought to appeal against his conviction on all charges; he gave evidence in the trial of Charges 1 ‑ 4 but provided no explanation for why he had not sought to present in the trial some of the evidence that was incorporated into his affidavits and submissions; much of the evidence that he sought to introduce in the appeal was irrelevant and/or inadmissible hearsay; and no satisfactory explanation was provided for why the appeals were commenced out of time (the appeal from Charges 1 ‑ 4 was commenced approximately two years after the appellant was convicted). The City adopted a pragmatic approach to most of the irregularities. However, it objected to the appellant being granted leave to extend the time within which to appeal, particularly from his conviction on Charges 1 ‑ 4.
Although the irregularities were significant, I have considered all of the material that was submitted by the appellant and concluded that he should be granted an extension of time within which to appeal from his conviction on all charges. I have reached that conclusion having regard to the findings that I have made on the substantive issues in the appeal, the lack of prejudice to the City from the delay and the fact that the appellant acted in person.
I have concluded that the appellant was not denied a fair trial as a result of the magistrate's decision to refuse an adjournment of the prosecution of Charge 5. I have further concluded that:
(1)The evidence that the appellant contended he was prevented from presenting, or which he failed to present, did not disclose a defence to the charges alleged by the City.
(2)The magistrate did not err in finding that the appellant was guilty of Charges 2 ‑ 5. The appellant will not be granted leave to appeal from his conviction on those charges.
(3)There was an issue that was not considered by the magistrate concerning whether s 22 of the Criminal Code (WA) applied in relation to Charge 1. The appellant could not have honestly believed that he was entitled to use the Shed as a dwelling after 28 February 2013. However, he may have had an honest belief that he was entitled to use the Shed as a dwelling prior to that date.
My preliminary view is that:
(a)the appellant should be granted leave to amend his notice of appeal to allege that he had an honest claim of right with respect to his use of the Shed;
(b)leave to appeal should be granted on that ground;
(c)the appeal should be allowed to the extent that Charge 1 alleged that the appellant had contravened s 144 of the Health Act between 6 January and 7 May 2013;
(d)the appellant's conviction on Charge 1 should not be set aside but the appellant should be resentenced on the basis that he contravened s 144 of the Health Act between 1 April and 7 May 2013.
However, neither party to the appeal canvassed the possible application of s 22 of the Criminal Code to Charge 1 in their written or oral submissions. Accordingly, I gave the parties an opportunity to make submissions on the orders to be made in light of the reasons that follow and were initially provided in draft. However, neither party filed further submissions in relation to Charge 1.

Charge 1

Charge 1 concerned a shed with a lean‑to (the Shed) that had been erected by the appellant at the Property. It was not in issue that the City had issued a building licence for the construction of the Shed in May 2010 and that it was a condition of the licence that the Shed was not to be used for habitable purposes. It was also not in issue that officers of the City had inspected the Property in January 2013 and that during the inspection the appellant had admitted that he was living in the Shed. Accordingly, the City alleged by Charge 1 that the Shed had not been constructed as a dwelling-house but the appellant had used the Shed as a dwelling without the City's consent, contrary to s 144 of the Health Act.

The Health Act and the Local Government (Miscellaneous Provisions) Act 1960 (WA)

Section 144 of the Health Act provides that:
No person shall convert into or adapt or use as a dwelling any building not originally constructed or erected as a dwelling‑house, and no person shall let, or lease, or sublet, or sublease, or otherwise permit, whether for any consideration or gratuitously, the use of, the building as a dwelling, without having first obtained the consent of the local government of the district in which the building is situated, and complied (in case a conditional consent is given) with such conditions as the local government has seen fit to impose.
The Health Act does not contain a definition of the terms 'building', 'dwelling' or 'dwelling‑house'. However, s 3 of the Act broadly defines the term 'house' to include 'any building or structure, whether temporary or otherwise'.
Section 143(1) of the Health Act provides that:
No building shall, after the commencement of this Act, be erected within any district unless and until plans and specifications thereof have, before the commencement of such building, been submitted by the owner or occupier to, and have been approved, in relation to ventilation, lighting and sanitary construction and also as to the area of the open space appurtenant to such building, by the local government.
The building licence for the construction of the Shed was issued pursuant to s 374(1) of Local Government (Miscellaneous Provisions) Act 1960 (WA) (the Miscellaneous Provisions Act) and reg 13(1)(d) of the Building Regulations 1989 (WA) (the 1989 Regulations). Section 374 was repealed on the commencement of the Building Act. The 1989 Regulations were replaced by the Building Regulations 2012 (WA) (the 2012 Regulations). The 2012 Regulations were made pursuant to the Building Act.
Section 374(1) of the Miscellaneous Provisions Act provided that:
No person shall -
(a)layout for building or commence or proceed with a building on, land in a district; or
(b)in respect of the structure of a building already erected on land in a district, amend, alter, extend, or enlarge, or commence or proceed with the amendment, alteration, extension, or enlargement of the structure of the building,
until he has caused to be submitted to the local government, and the local government has approved by the issue to the person of a building licence in the prescribed form and on payment of the prescribed fee, a copy of the specifications of, and a plan showing clearly, the building or the buildings proposed to be built, or the amendment, alteration, extension, or enlargement proposed to be made, as the case may be, and the area of land to be occupied by each building, or by the amendment, alteration, extension or enlargement of the existing buildings, as the case may be, and the position of the privies and drains and unless he complies with the conditions, if any, that are specified in the licence.
Section 374(1a) provided that a building licence may be issued subject to such conditions as are specified in it. The Miscellaneous Provisions Act did not define the term 'building' other than to provide in s 364(10) that the term excluded a fence.
Regulation 13(1) of the 1989 Regulations provided that:
(1)A builder shall not commence to construct, alter, add to or underpin any building and shall not commence any earthworks, necessary for, or incidental to, that construction, alteration, addition or underpinning until -
(a)the plans, drawings and specifications have been approved;
(b)the building surveyor of the local government has stamped the plans, drawings and specifications with the official stamp showing the number of the approval and the date of the approval;
(c)the builder has paid the appropriate fee prescribed in the Table to regulation 24; and
(d)a licence has been issued in the form of Form 4 or 5.
The term 'builder' was defined in reg 3 to mean:
[A] person employed to construct any building or to demolish, alter or execute any work on a building already constructed, and includes the owner or occupier of the land upon which any such building is intended to be constructed, or any other person for whom, or by whose order or under whose direction and control such alteration or work was done or is intended to be done, as the case may be.

Charges 2 and 3

Charge 2 alleged that the appellant contravened s 9 of the Building Act by erecting a large steel frame (the Steel Frame) on the Property without first obtaining a building permit. Charge 3 alleged that the appellant again contravened s 9 by installing a rainwater tank on the Property without first obtaining a building permit.

The Building Act

Section 9 of the Building Act provides that:
A person must not do building work unless -
(a)a building permit is in effect for the building work; or
(b)a building permit is not required for the building work under Part 5 or regulations or an order mentioned in Part 5 Division 1; or
(c)the work is done in accordance with a building order; or
(d)the work is done in the course of taking action under section 118(2).
Section 3 of the Building Act defines the term 'building work' to mean, among other things, 'the construction, erection, assembly or placement of a building or an incidental structure'. The section further defines the term 'incidental structure' to mean:
[A] structure attached to or incidental to a building and includes -
(a)a chimney, mast, swimming pool, fence, free‑standing wall, retaining wall or permanent protection structure; and
(b)a part of a structure.
Section 20 of the Building Act provides that a building permit is to be issued by a 'permit authority'. The local government in whose district a building or incidental structure is proposed to be located is the relevant permit authority: s 6(3) of the Building Act.
Paragraph (b) of s 9 provides that a building permit is not required for building work under pt 5 or by regulations made pursuant to the Building Act. Section 66 states that the regulations may provide that a building permit is not required for building work of a kind specified by the regulations. Regulation 41 of the 2012 Regulations provides that a building permit is not required for the building work specified in sch 4 to the regulations. Item 8 of that Schedule provides that a building permit is not required for the construction, erection, assembly or placement of a water storage tank with a capacity of 5,000 litres or less.

Charge 4

The City received complaints in about May 2013 that the appellant had erected a barbed wire fence on a boundary to his property. The appellant confirmed in a telephone conversation with an officer of the City, Mr Lucas, that he had erected the fence. Mr Lucas took photographs of the fence the day after the telephone conversation.

The Local Laws

The Local Laws were made pursuant to the Local Government Act 1995 (WA) and were published in the Government Gazette on 13 February 1998. The laws were amended in 2000; the amendments were published in the Government Gazette on 6 December 2000. Clause 9.4 of the Local Laws provided that:
A person shall not erect or affix or allow to remain upon any fence surrounding property owned or occupied by that person any barbed wire, broken glass or other wire with spike or jagged projections ‑
(a)in a residential area;
(b)in a commercial or industrial area except barbed wire which is not less than 1.8 m vertically above the level of the ground immediately thereunder; and
(c)in any other place, broken glass is not permitted on a fence situated on the alignment of a street or public place.
Clause 20.23.1 of the Local Laws provided that any person who failed to do any act directed to be done or did any act forbidden to be done by the Local Laws or any notice or order made under those laws committed an offence. Clause 20.23.2 provided that the maximum penalty for an offence involving a breach of the Local Laws was $5,000.

Charge 5

Officers from the City inspected the Property again on 14 October and 11 November 2014. It was alleged that the appellant had admitted during the inspection on 14 October 2014 that he was still living in the Shed. The City's officers entered the Shed during the inspection on 11 November 2014. They observed a number of facilities and personal items that indicated that the appellant was living in the Shed.
The appellant did not deny that he was living in the Shed at the trial of Charge 5. Rather, he contended that the Builders' Registration Board (the Board), and not the City, had authority to issue the building licence for the construction of the Shed. He applied for an adjournment of the trial in order to obtain a letter from someone associated with the Board, which he maintained would establish that only the Board could have issued the building licence. The magistrate refused the application, holding that the question of who had authority to issue the building licence was irrelevant to the charge.

The prosecution of Charges 1 - 4

The City's evidence

The City called three witnesses at the trial of Charges 1 ‑ 4: Mr Lucas, the senior town planner for the City; Mr Richardson, a building surveyor employed by the City; and Mr Parkes. Mr Parkes resided at a property adjacent to the Property.
Mr Lucas and Mr Richardson gave evidence that they had inspected the Property on 15 January 2013. Two structures were located on the property: the Shed and the Steel Frame.
The City had granted planning approval and issued a building licence for the construction of the Shed in May 2010 (exhibit H8 and exhibit H12 respectively). The planning approval was for a 'shed' and the building licence described the development as 'private garage (10a)'. The reference to '(10a)' was to class 10a of the Building Code of Australia.
The conditions attached to the licence included that the structure was not to be used for industrial, commercial or habitable purposes (exhibit H12, condition 13). However, the inspection of the interior of the Shed undertaken by Mr Lucas and Mr Richardson showed that it had been fitted out with a kitchen, bathroom and other facilities to enable it to be used for habitation (exhibit H9 was a bundle of photographs that included photographs of the interior of the Shed that showed the facilities described by Mr Lucas and Mr Richardson). According to Mr Lucas and Mr Richardson, the appellant admitted that he was living in the Shed at the time of the inspection.

No building permit had been issued for the erection of the Steel Frame (exhibit H9 included photographs of the Steel Frame). Mr Lucas and Mr Richardson gave evidence that the appellant had stated during the inspection that he believed that it had not been necessary to obtain a building permit for the structure.
The City wrote to the appellant on the day following the inspection of the Property by Mr Lucas and Mr Richardson (exhibit H13). The letter referred to a number of matters that had arisen during the inspection, including that the appellant had said that he was living in the Shed. The letter also noted the modifications that had been made to the Shed to enable it to be used for habitable purposes and to the fact that the Steel Frame had been erected on the Property.
The letter advised that:
(a)the construction of the Shed had been approved as a class 10a building - that is, as a non‑habitable building;
(b)the Shed was to be returned to its original approved use;
(c)the Steel Frame was a class 10b structure and was not exempt from the requirement that a building permit be obtained;
(d)the appellant was required to submit two forms that were attached to the letter - 'Application for Building Approval Certificate (Unauthorised Buildings)' and 'Request for Certificate of Building Compliance';
(e)the Application for Building Approval Certificate required the 'as constructed' Steel Frame to be certified as structurally sound by a professional structural engineer.
The City again wrote to the appellant by letter dated 21 February 2013 (exhibit H14) noting that he had not responded to the letter of 16 January 2013 and advising that prosecution action would be commenced if the City did not receive a satisfactory response within 7 days.
In May 2013, the City was contacted by neighbours of the appellant who advised that a barbed wire fence had been erected along the front boundary of the Property. Mr Richardson again inspected the Property. He observed that a barbed wire fence had been constructed along the eastern boundary of the Property.
Mr Richardson also observed that two large water tanks had been installed on the Property. He considered that the size of the tanks were such that a building permit had been required for their installation. In fact, the appellant had applied for approval to erect a 230,000 litre rainwater tank in December 2012 (exhibit H13). However, the application had been referred back to him for further information: confirmation of the value of the proposed tank and copies of the 'details/specifications including dimensions and materials of the water tank' (exhibit H17). The requested information was not received by the City and so the application had not been granted.

The appellant's evidence

The appellant gave evidence and called two witnesses, Mr Ingle and Mr Miller. Mr Ingle is the manager of statutory services for the City. He had previously been an environmental health officer and had dealt with the appellant in that capacity. Mr Miller had been present when a conversation had occurred between the appellant and Mr Ingle concerning the Shed.
The appellant admitted in his evidence that he had erected the barbed wire fence. He stated that he had erected the fence to stop people coming onto the Property and that other residents in the vicinity had fenced their properties using barbed wire.
The appellant admitted that two water tanks had been installed on the Property - one as a rainwater tank and the other to receive bore water. He stated that he had attempted to obtain a building permit for the rainwater tank but the City had refused to issue the permit as he did not know the actual size of the tank to be installed. It was installed a few months after he had first applied for the permit and he had forgotten that the permit had not been issued by the time that the tank had been installed.
The appellant also admitted that he had been living in the Shed between, at least, November 2012 and the date of the trial (ts 46). He intended to build a house on the Property but had not commenced the house as the build was contingent on another development being approved. That development had been delayed as a result of dealings with State Government authorities. He had installed a septic system in the interim and had been advised by an officer of the City, Mr Crossley, that the Shed had 'become' a dwelling as a result.
It is necessary to set out in some detail the appellant's evidence concerning his dealings with Mr Crossley. In his evidence‑in‑chief, the appellant stated that he had encountered difficulties in dealing with Mr Crossley and continued:
When we're finally getting close to getting the [installation] of the sewerage system, he said it changes the shed now, it's now a dwelling and if I ever referred to it as a shed, he used to go off his face. He said, "how many times have you got to be told it's a dwelling?" (ts 44).
The appellant accepted in cross‑examination that he had been told in January 2013 that he was not permitted to live in the Shed. He also agreed that he had received the letter from the City dated 16 January 2013. He was then asked why he had not responded to the letter. He replied:
The reason I didn't respond to the letter was because all the drama that we had gone through with Robert Crossley, and he's the one that told us that it's changed to a dwelling now, which was before that. He said it's now a dwelling. Now, everybody lives in dwellings (ts 46).
The evidence continued:
Right. So you believed that - that you had been told it was a dwelling. The City has told you you're going to get prosecuted. It didn't occur to you to go back to the City and say, "I've been told I can live in this, this is a dwelling"?---I told them on the day.
Well, why didn't you respond to the January letter?---Because it was a dwelling. He was most insistent it was a dwelling.
Okay. But you were aware that he was no longer with the City at that point?---No, I wasn't. Not till just recently (ts 47).
The appellant stated that he could not recall reading the building licence and planning approval issued by the City but he presumed that he would have done so. He accepted that the approval and licence were issued prior to the installation of the septic system (ts 47).
The appellant was subsequently asked what he had actually been told by Mr Crossley. The following exchange occurred:
Okay. What did Robert Crossley actually say to you, specifically?---He said on countless times, "It's a dwelling".
In what context?---Well, whatever I - when I - if I ever referred to as a building or a shed ‑ ‑ ‑
Yes?---He corrected me, and he corrected me in most unpleasant stuff, so it was just easier to say dwelling.
Were you living in the building at that time?---No.
No. And was Robert Crossley involved almost exclusively in the septic issue?---Yes, except towards the end. Mr Ingle was.
Right. So what you're saying is that Mr Crossley made those comments to you in the context of septic issues?---Yes. He said it changes its criteria.
Okay. So what he says is, it changes the criteria of the septic issues, and he didn't say that it means you have consent to live here in a dwelling?‑‑‑No, no, no. What he said to - by fitting the septic system, it now changes its criteria to a dwelling.
It changes the criteria to ‑ ‑ ‑?---To a dwelling.
The criteria of what?---Under the Health Act, he told me.
The criteria for what, though? For the building, for the septic?---Well, from a shed to a dwelling.
So you're saying there's different septic requirements ‑ ‑ ‑?---I took it in - what he's saying - well, a dwelling is a house, virtually, and it's got the same things as the house. It's got nothing different. A small house, I must admit, but that was the criteria of the situation that he said he changed that. I've ‑ ‑ ‑
Again, that's in the context of septic requirements. Is that correct?---He said the septic - the septic requirements change it to a dwelling, yes.
Okay. Right. And you haven't summonsed him to appear today?---Yes.
Robert Crossley?---I can't - I - I enquired at the council, and he didn't work there anymore. I asked him - I asked at the time, "Do you know where he is?" and they said no (ts 49 - 50).
The appellant also stated that Mr Lucas had advised him during the inspection of the Property in January 2013 that a building permit was not required for the Steel Frame, although an engineering report might be necessary (ts 51). However, the appellant did not give any evidence regarding his knowledge or belief about the requirement for a building permit at the time that he erected the Steel Frame.
Mr Miller stated that he had been present when a conversation had occurred between the appellant and Mr Ingle in May 2011. He had not paid close attention to the conversation but it had concerned whether the Shed was a dwelling. Mr Miller had previously been told by the appellant that the City had insisted that the Shed was a dwelling on the basis that it had been fitted with a shower and a toilet. He recalled that Mr Ingle had concluded the conversation by saying that he would get back to the appellant within 24 hours.
Mr Ingle stated that the City had received a complaint in November 2011 that the appellant had installed a septic tank at the Property. Mr Ingle had a number of conversations with the appellant about the installation of the tank.
Mr Ingle recalled meeting with the appellant on one occasion at which Mr Miller had been present. His recollection was that the meeting concerned whether the Shed could be connected to the sewer given that the septic system that had been installed by the appellant did not accord with the City's requirements for the area within which the Property was located. He did not recall any discussion about the classification of the Shed.
Reference was made during Mr Ingle's evidence to proceedings in the State Administrative Tribunal between the appellant and the City. Mr Ingle stated that following those proceedings he:
Was looking into further with the department - to look into further with the Department of Health to try and determine - I think on your title of your land it states that any dwelling house must be connected to a nutrient-retentive septic system, and I wanted to get further information about the definition of dwelling house, because it was clear that... that structure on the property was a shed and not a dwelling house, so that requirement, in a technical sense, only applied - the advice that we got from the department of health was that it only applied to dwelling houses and not to sheds, and so that was the reason why we didn't require, in the end, the connection to sewer or the alternative system, so we allowed Mr Whincup to sign a declaration that the - statutory declaration to say that the property wouldn't be used, if it was converted to a dwelling at any time that he wouldn't then decommission and connect the sewer (ts 65 ‑ 66).
The appellant then attempted to examine Mr Ingle to the effect that the evidence he had given was incorrect. The magistrate intervened, advising the appellant that he was attempting to impeach a witness that he had called as part of his case.

The building licence and planning approval for the Shed

The City issued a planning approval in May 2010 for the construction of the Shed in addition to the building licence. The planning approval was issued pursuant to the City's District Town Planning Scheme No 3 (the Scheme). The Scheme was made pursuant to the Town Planning and Development Act 1928 (WA) (the TPD Act).
Attached to the building licence and the planning approval was a plan for the proposed development of the Property, including the erection of the Shed. It was apparent from the plan that the appellant proposed to erect a house and to install rainwater tanks on the Property at the time that the building licence and planning approval were issued. Accordingly, the planning approval expressly stated that 'the future house, lean-to and water tanks do not form part of this approval'. The plan attached to the building licence and the planning approval was further endorsed in hand with a note that 'water tanks are not part of this approval'.

The magistrate's decision

Her Honour identified three possible 'defences' raised by the appellant having regard to the admissions that he had made in his evidence‑that he:
(a)had the consent of the City to reside in the Shed as a result of the statements made by Mr Crossley (Charge 1);
(b)believed that it was not necessary to obtain a building permit to erect the Steel Frame (Charge 2) or the rainwater tank (Charge 3);
(c)further believed that he was entitled to erect a barbed wire fence as other property owners in the vicinity had erected similar fences (Charge 4).
In relation to Charge 1, her Honour stated that she was satisfied from the terms of the building licence that the Shed was not originally constructed as a dwelling-house. Further, the appellant had admitted that he had lived in the Shed during the period alleged in the charge. Accordingly, her Honour considered that the only real issue was whether the City had proved that the appellant had used the Shed as a dwelling without its consent.
Her Honour referred to the letters written by the City on 16 January and 21 February 2013 in which the appellant was advised that he was not permitted to reside in the Shed. The appellant's evidence concerning his exchanges with Mr Crossley did not cast doubt on the content of those letters and the evidence given by Mr Lucas and Mr Richardson that the appellant had been advised in January 2013 that he could not live in Shed.
As to Charge 2, the magistrate noted that s 9 of the Building Act provided that a building permit was required before a person could undertake building work. Section 3 of the Act defined the term 'building work' to include the construction, erection, assembly or placement of an incidental structure. Her Honour held that the Steel Frame was erected as part of a fruit and vegetable garden and was a structure that was incidental to the use of the land and the Shed. Consequently:
(a)a building permit was required for the erection of the Steel Frame;
(b)the appellant's belief that he did not require a building permit was mistaken;
(c)the appellant's mistake was a mistake of law and not fact and accordingly, s 24 of the Criminal Code (WA) did not apply.
Similarly, as to Charge 3, the rainwater tank installed by the appellant had a capacity that was greater than 5,000 litres and fell within the exemption created by reg 41 and sch 4 to the 2012 Regulations. Accordingly, the appellant's belief that a building permit was not required was also a mistake of law.
Finally, in relation to Charge 4, cl 9.4 of the Local Laws prohibited the erection of a barbed wire fence without the City's approval. Consequently, the appellant's belief that he did not require permission to erect the barbed wire fence was a mistake of law and not fact. That was so even though the appellant's belief was based on his observation that barbed wire fences had been erected on other properties in the area.

The prosecution of Charge 5

The City's evidence

The City called four witnesses: Mr Worth, the coordinator of building and development compliance for the City; Mr Richardson; Mr Tamblyn, the senior environmental health officer for the City; and Mr Parkes.
Mr Worth, Mr Richardson and Mr Tamblyn gave evidence that they attended at the Property on 14 October 2014. They observed that construction had commenced on a dwelling - as at the date of their inspection, the pad had been laid but the brickwork had not commenced. According to Mr Worth and Mr Richardson, the appellant had admitted that he was still living in the Shed and maintained that he was entitled to do so. However, he had refused permission for Mr Worth and Mr Richardson to enter and inspect the Shed.
Mr Worth, Mr Richardson and Mr Tamblyn returned on 11 November 2014 with a warrant authorising entry into the Shed. They gave evidence that the interior of the Shed was still fitted with facilities such as a bathroom, toilet and kitchen consistent with it being used as a residence (exhibit H3 was a bundle of photographs showing the interior of the Shed). They also observed clothing, dishes, a television and other items that indicated that the appellant was living in the Shed.
The appellant did not give evidence. However, he referred in the course of his closing submissions to his application for a building licence in respect of the Shed. He stated that he had estimated in the application that the value of the proposed work was $56,000 and alleged that the City had unilaterally amended the value of the work to be undertaken to $20,000 when issuing the licence. He further alleged that the City did not have the power to issue the licence and that he had been advised that only the Board could issue a building licence.
There followed several exchanges between the magistrate and the appellant during those submissions to the effect that the appellant could not give unsworn evidence from the bar table. The appellant responded that he had not understood the procedure that would be adopted in the trial. He sought an adjournment so that he could obtain a letter from the Board confirming that it, rather than the City, had authority to issue the building licence for the Shed. The City opposed the application and, as has been noted, it was refused on the basis that the question of whether the City had authority to issue the building licence was irrelevant to the issues to be determined on the charge.

The magistrate's decision

The magistrate recounted the evidence that had been presented by the City that was not disputed by the appellant and much of which had also been given in the trial of Charges 1 ‑ 4. The building licence for the Shed prohibited its use for habitable purposes and no subsequent approval had been given by the City for the appellant to reside in the Shed. Officers from the City had inspected the Property in January 2013 and had observed that the Shed was fitted out to accommodate its use as a dwelling. The City had written to the appellant requiring him to restore the Shed to its original approved use. However, the appellant had only sought retrospective approval for the internal alterations to the Shed in July 2014. That approval had been granted on 23 September 2014 but was subject to a condition that the Shed only be used as a 'shed': that is, as a Class 10a building.
Her Honour noted that the word 'dwelling' was not defined in the Health Act. However, s 1 of the Criminal Code defined the term 'dwelling' to mean any building or structure or part of any building or structure that is ordinarily used for human habitation. Her Honour considered that this definition could be applied to determine the meaning of the word 'dwelling' as it appeared in the Health Act and that the Shed had been used as a dwelling without the City's consent.
Charge 5 alleged that the Shed had been used by the appellant as a dwelling between 28 January and 1 December 2014. However, her Honour found that there was no evidence that the appellant had used the Shed as a dwelling between 28 January and 14 October 2014. Rather, the evidence only established that the appellant had used the Shed as a dwelling on and between the dates on which the Property had been inspected by officers of the City‑ that is, on and between 14 October and 11 November 2014. The penalty imposed by her Honour reflected that finding.

The appellant's evidence in the appeal

The appellant made two affidavits in the appeal. The first affidavit was made on 5 July 2016 (the First Affidavit). The affidavit contained eight paragraphs and was marked so as to indicate that pars 1 ‑ 5 related to Charges 1 – 4, par 6 concerned Charge 2, par 7 related to Charge 3 and par 8 related to Charge 4.

Paragraphs 1 ‑ 5 of the First Affidavit alleged that:
(a)the City did not have power to issue a building licence for the construction of the Shed; rather, a building licence could only have been issued by the Board;
(b)the City unilaterally altered the value of the work to be undertaken pursuant to the licence from $50,000 to $20,000;
(c)the City advised the appellant after issuing the building licence that he had 12 months in which to build a house on the Property but the appellant successfully applied to the State Administrative Tribunal to extend the period for construction of the house to 2 years 6 months;
(d)the appellant had hooked up a shower and toilet in the Shed to the septic system and Mr Crossley inspected the Property and indicated that the 'shed was a dwelling‑house'.
As to Charge 2, par 6 of the First Affidavit alleged that Mr Lucas had advised that it was not necessary to obtain a building permit for the erection of the Steel Frame but that it might have been necessary to obtain an engineer's report. Further, the appellant alleged that he had 'checked' with the City of Cockburn and 'they' had agreed that a building permit was not necessary.
As to Charge 3, par 7 of the First Affidavit alleged that the appellant had applied for a permit for the rainwater tanks but his application had been refused as the City required the measurements of the proposed tank. He had not been in a position to provide those measurements.
As to Charge 4, the appellant alleged by par 8 of the First Affidavit that fences were required due to the fact that he was using machinery on the Property. The appellant referred in par 8 to a case involving the City of Stirling where 'they' had been fined for not having a fence around operating machinery.
The second affidavit (the Second Affidavit) made by the appellant deposed to the evidence that he contended he would have presented at the trial of Charge 5 had the magistrate granted him an adjournment. The appellant stated in the affidavit that:
(a)He had served witness summonses on the Chief Executive Officer of the City, Mr Ingle and a councillor, Mr Riebling. However, the summonses had been cancelled by the magistrate 'because she said our meetings were not long enough'.
(b)He had not been personally served with the prosecution notice issued by the City for Charges 1 ‑ 4. Rather, the notice had been sent by post to an address at which his daughter had once resided. The occupant of that house had sent the notice to the appellant's daughter who had then passed the notice to the appellant.
The appellant's submissions also annexed various documents. The documents have been referred to in the reasons that follow to the extent that they further explained the appellant's submissions.
I will first consider the matters raised by the appellant in the First and Second Affidavits and then turn to the issue of whether the magistrate was required to consider the application of s 22 of the Criminal Code in determining whether the City had proved the appellant's guilt of each of the charges alleged against him.

Pars 1 – 5 of the First Affidavit

The City's authority to issue the building licence

As has been noted, the appellant contended in the trial of Charge 5 and in the appeal that the Board, and not the City, was authorised to issue a building licence for the construction of the Shed.
The Board was created by the Builders' Registration Act 1939 (WA). That Act was repealed as at 29 August 2011 by the Building Services (Registration) Act 2011 (WA).
Section 4 of the Builders' Registration Act generally prohibited an unregistered builder from carrying out building construction work. Section 4A provided that it was unlawful for any local government to issue to any person who was not registered under the Builders' Registration Act a building licence to commence or proceed with any building unless:
(a)the total fee or charge payable in respect of carrying out the building work did not exceed $6,000;
(b)the person to whom the building licence was issued proposed to construct the building for himself and not for the purpose of immediate sale and:
(i)the building to which the building licence related was a dwelling house;
(ii)the person to whom the building licence was issued had satisfied the local government that he had furnished the Board with a statutory declaration verifying the fact that he had not, within the preceding 6 years, obtained from any local government any other building licence pursuant to s 4A;
(iii)the person to whom the building licence was issued had certified to the local government that a fee had been paid to the Board (the fee was imposed by s 4B).
Section 2 of the Builders' Registration Act defined the term 'building' to mean:
[A]ny building of a permanent nature used or intended to be used for residential, professional, manufacturing, trading, commercial, hospital, institutional, assemblage, or public purposes, but does not include a farm building, and the term used as an abstract noun means the erection or structural alteration of any such building.
The term 'building licence' was also defined by s 2 to mean a building licence issued under pt XV of the Miscellaneous Provisions Act. The balance of the Builders' Registration Act provided for matters such as the operation of the Board, the supervision of registered builders and building work and the creation of the Building Disputes Tribunal.
The Builders' Registration Act did not confer any power on the Board to issue building licences; that power resided with the relevant local government under the Miscellaneous Provisions Act. Any advice that the appellant received to the effect that the Board could (and indeed, was the only body that could) issue a building licence for the construction of the Shed was wrong.
The appellant did not identify who had provided the advice concerning the purported effect of the Builders' Registration Act and it is not easy to see the basis for the advice having regard to the terms of the Act, even allowing for the possibility of misunderstandings. Section 4 and s 4A were concerned with regulating builders. Section 4A did not relieve any owner/builder from the obligation to obtain a building licence. Rather, the section authorised a local government to issue a licence to a person who is not a registered builder provided that the conditions specified in the section were satisfied.
Further, as the magistrate held, the question of who had authority to issue the building licence for the Shed was irrelevant to the offence created by s 144 of the Health Act. It was not in issue that the Shed had not been originally constructed as a dwelling-house, regardless of the reason why that may have been so.
The appellant attached to his submissions a document that referred to the qualifications required by WorkSafe Western Australia for workers supervising the construction of tilt‑up concrete structures. He contended that the document established that the City did not have power to issue the building licence. As with the contention relating to the Board, the requirement identified in the document concerned a matter that was different to the issue of a building licence even if the Shed used tilt‑up concrete panels.

The circumstances surrounding the issue of the building licence

The appellant's allegation that the City had unilaterally altered the value of the work to be performed in constructing the Shed was irrelevant to the offence created by s 144 of the Health Act. The appellant's allegations concerning the time permitted by the City and the State Administrative Tribunal for construction of a house on the Property were also irrelevant.

The statement allegedly made by Mr Crossley

The issues raised by the appellant's evidence concerning the statement made by Mr Crossley are further considered below. It is convenient at this point to merely note that the credibility of the appellant's evidence given in the trial of Charges 1 ‑ 4 was not challenged and the magistrate made no finding to the effect that his evidence should not be accepted or that any belief about which he gave evidence was not an honest belief.

Par 6 of the First Affidavit

Mr Lucas denied that he had advised the appellant that it was not necessary to obtain a building permit for the erection of the Steel Frame. It is to be noted that the City's letter of 16 January 2013 stated that a building permit was required for the structure. Nevertheless, the magistrate did not find it necessary to resolve the inconsistency between the appellant's evidence and that given by Mr Lucas. Rather, her Honour held that the Steel Frame was an incidental structure for which a building permit was required on a proper construction and application of the relevant provisions of the Building Act. That finding was consistent with what the appellant had been advised by the City in its letter of 16 January 2013.
Mr Lucas' opinion on whether a building permit had been required for the construction of the Steel Frame was irrelevant to the issue of whether a permit was, in fact, required under the Building Act. Further, his opinion could not have induced a belief in the appellant that was relevant to any possible defence to Charge 2 - the Steel Frame was erected without a building permit prior to Mr Lucas' alleged statement so that the second limb of s 22 of the Criminal Code could not apply and, as the magistrate found, any mistaken belief the appellant held that he did not require a permit was a mistake of law (see below).

Par 7 of the First Affidavit

The appellant understood that it was necessary to obtain a building permit for the construction and installation of the rainwater tank. He was advised that it was necessary to submit plans and specifications for the tank so that the City could determine whether to grant the permit for which he had applied. The appellant's evidence that he did not know the measurements at the time that he made the application and when he received the request from the City provided no defence to Charge 3.
Further, the appellant stated in his evidence that he had forgotten that he had not obtained a permit at the time that the rainwater tank was actually installed. The appellant admitted by that statement that he had always understood that a permit was required.

Par 8 of the First Affidavit

As to the matters stated by the appellant in par 8 of the First Affidavit, the appellant did not state in his evidence that he had erected the barbed wire fence because he was using machinery on the Property. This was raised for the first time in the appellant's affidavit. It is difficult to understand why it would not have been raised at the trial even allowing for the fact that the appellant had represented himself.
In any event, that explanation does not provide a defence to Charge 4 nor does a vague reference to a case involving a failure to fence machinery indicate that the magistrate erred in law in finding the appellant guilty of the charge. The appellant was not charged with having failed to fence machinery; he was charged with having utilised barbed wire as a fencing material contrary to the Local Laws. The appellant emphasised in his submissions that he had added the barbed wire to the fence out of a concern for safety. However, the relevant Local Law is expressed as an absolute prohibition. Moreover, the danger presented by barbed wire is obviously the reason for the prohibition (a point that was apparent from a note left by a neighbour about the fence that was an exhibit in the trial).

The Second Affidavit

The witness summonses

The appellant did not raise the 'cancellation' of any witness summons with the magistrate in the course of either trial. Further, his affidavit did not state the circumstances in which the summonses had been cancelled and what evidence he anticipated the recipients would have given.
The City stated in its submissions that the summonses had been set aside by the magistrate at a directions hearing prior to the trial of Charges 1 ‑ 4 on the ground that the evidence proposed to be led from the recipients was irrelevant. Indeed, the appellant advised her Honour at the commencement of the trial that he had no witnesses that he proposed to call. The appellant did not refer to the Chief Executive Officer of the City, Mr Ingle or Mr Riebling or any evidence that they might have provided at any time in the trial and he did not state in the Second Affidavit what evidence he anticipated they would have given had they been called as witnesses.
The appellant referred in the course of an exchange with the magistrate at the completion of the evidence in the trial of Charge 5 to a letter that he had apparently obtained from a neighbour, Mr Gray. The City accepted as a result of that exchange that there was a period of time during which the appellant had not resided in the Shed. No doubt, that concession explained the magistrate's finding regarding the period during which the appellant had contravened s 144 of the Health Act for the purpose of Charge 5.

Service of the 'original summons'

The appellant stated that the 'original summons' was not personally served on him but sent by post to his daughter's previous rental address and that the occupier of that address sent the summons to her new address. The appellant's daughter received the 'summons' the day before the first hearing date for the prosecution, which was 16 July 2013. The appellant contended that it was 'a condition of law that a summons must [be] served personally'.
It is to be inferred that the document received by the appellant's daughter was the court hearing notice and that the appellant attended court on the first hearing date. The trial of Charges 1 ‑ 4 did not occur until February 2014.
Section 33(3) of the Criminal Procedure Act 2004 (WA) provides that a court hearing notice is to be served in accordance with the provisions of sch 2 to the Act. Clause 3 of sch 2 provides for service of a court hearing notice by post to the last known residential, work or business address of the accused person. The appellant did not state in his affidavit whether or not he had given his daughter's address as his postal address. However, the appellant received the notice and it was not suggested that he was prejudiced by the manner in which it had been served. Any irregularity in the service of the notice would not have invalidated the prosecution notice.
There was nothing raised by the appellant in the Second Affidavit that indicated that a miscarriage of justice had occurred in his conviction on each of the charges.

The notice of appeal

The sole ground in the appellant's notice of appeal was that the magistrate erred in not granting the appellant's application for an adjournment. That ground related to the trial of Charge 5. The purpose of the application was to obtain evidence that the Board, and not the City, had power to issue the building licence for the construction of the Shed.
The magistrate did not err in refusing the application. The question of who had power to issue the licence was irrelevant to the determination of Charge 5 and, in any event, the City and not the Board was empowered to issue the licence. Leave to appeal on the ground proposed in the notice of appeal will be refused.

Charges 1 and 5 - the statement made by Mr Crossley

The elements of the offence created by s 144 of the Health Act

The City did not allege that the appellant had converted into or adapted the Shed as a dwelling. Charges 1 and 5 alleged that the appellant had used the Shed as a dwelling without first obtaining the City's consent. Accordingly, the City was required to prove beyond a reasonable doubt that:
(a)the Shed had not been originally constructed or erected as a dwelling‑house;
(b)the appellant had used the Shed as a dwelling (the charge particularised the use as being between 6 January and 7 May 2013 for Charge 1 and 28 January and 1 December 2014 for Charge 2);
(c)the appellant had not first obtained the City's consent to use the Shed as a dwelling.
Proof of the first two elements of the offence was not in issue in either trial. As to the question of consent, the only evidence that the City had consented to the use of the Shed as a dwelling (a use that was contrary to the terms of the planning approval and building licence) was the appellant's evidence concerning the statement made by Mr Crossley.
The appellant appeared, at times, to misunderstand the nature of the offence created by s 144 of the Health Act. For example, he attached to his submissions a letter from a Member of Parliament advising on the outcome of inquiries that had been made on his behalf with the City about the septic system that he had installed on the Property. The letter stated that the City regarded the Shed as a dwelling‑house for the purpose of determining whether the system that had been installed contravened covenants attached to the title to the Property. The appellant emphasised that part of the letter in his submissions.
The letter also provided context for the appellant's evidence concerning the statement made by Mr Crossley. I will return to that aspect of the letter. However, the point to be emphasised is that the offence created by s 144 of the Health Act is not using as a dwelling a building that was not, in fact, a dwelling. Rather, the gist of the offence is converting into or adapting or using a building as a dwelling without first obtaining the consent of the relevant local government. The fact that the City considered that the Shed was a dwelling did not mean that the appellant was entitled to live in the Shed as he apparently thought. Rather, it meant that the appellant was in breach of s 144 of the Health Act unless he had first obtained the City's consent to the conversion, adaption or use of the Shed as a dwelling.

The effect of Mr Crossley's statement

Three points should be made about the appellant's evidence concerning Mr Crossley's statement to the effect that the installation of the septic system and its connection to the Shed meant that the Shed was a dwelling (according to the appellant, the statement was repeated by Mr Crossley on a number of occasions).
First, the appellant did not state when he had dealt with Mr Crossley. However, the appellant's evidence was that he communicated with Mr Crossley during the installation of the septic system and prior to his dealings with Mr Ingle. The letter from the Member of Parliament referred to inquiries having been made with the City by no later than early 2011. Accordingly, Mr Crossley's statement was made well prior to the appellant commencing to use the Shed as a dwelling in about November 2014.
Second, the statement made by Mr Crossley was not, of course, relevant to whether the appellant had actually contravened s 144 of the Health Act. At most, the statement could have induced a mistaken belief in the appellant about whether he was entitled or permitted to use the Shed as a dwelling.
Third, Mr Crossley's statement that the Shed had been converted to a dwelling on the installation of the septic system was ambiguous. The appellant contended that the effect of the statement was that the Shed had been reclassified as a dwelling for the purpose of the Health Act so that he was permitted to reside in the Shed. On the other hand, it appears from the letter written to the appellant by the Member of Parliament that Mr Crossley intended no more than to indicate to the appellant that the City considered that the Shed was a dwelling-house for the purpose of determining the type of septic system that was required for the Property. It is most unlikely that Mr Crossley intended to convey that the City consented to the use of the Shed as a dwelling (that is, for habitable purposes) having regard to the conditions attached to the building licence, the requirements of s 143(1) of the Health Act, the basis on which the City gave the appellant planning permission and the provisions of the TPD Act (which required local government approval for any 'development' on the Property). There was no evidence concerning Mr Crossley's authority‑in particular, that he could unilaterally consent, on behalf of the City, to a significant variation to the building licence and planning approval. However, the appellant's evidence concerning what he was told, and his understanding of the effect of Mr Crossley's statement, was only challenged on the ground of reliability‑that is, as to the accuracy of the appellant's recollection and evidence given the effluxion of time.

Further, and more significantly, the magistrate did not make any adverse finding about the appellant's evidence on this or any other matter and her Honour did not consider that it was necessary to assess the reasonableness of the appellant's belief for the purpose of s 24 of the Criminal Code. Accordingly, the appeal is to be determined on the basis that the appellant's evidence concerning his dealings with Mr Crossley was truthful and reliable.

Consent

As the magistrate noted, the appellant's evidence concerning the statement made by Mr Crossley raised an issue concerning whether the City had given its consent to the Shed being used as a dwelling. In my view, it was open to her Honour to find that the City had proved beyond a reasonable doubt that it had not given its consent having regard to the following matters:
(a)The form and terms of the building licence and planning approval. The building licence and planning approval were written documents issued by the City pursuant to statutory provisions that regulated the use and development of land within the City's boundaries. The licence and approval included the non-habitation condition and were issued at a time when the appellant contemplated developing the Property by building a house. The approval expressly referred to the fact that it did not extend to the proposed house, the lean‑to or the rainwater tanks that were to be installed. The licence was issued on terms that were intended to conform with a particular category of the Building Code.
(b)The fact that the appellant dealt with Mr Crossley in relation to the septic system ‑ a matter that did not directly concern the use of the Property or related planning matters so that it could not be inferred that Mr Crossley had, or was likely to have, authority to give the City's consent to a change in the use of the Shed and accordingly, a variation in the conditions on which planning approval had been given and the building licence had been issued.
(c)The terms of the statement made by Mr Crossley. The statement was ambiguous but, in any event, there is a significant difference between a statement that the Shed was a dwelling for the purpose of the Health Act and a statement that the City consented to the use of the Shed as a dwelling. The fact that the Shed might have met the requirements for a dwelling for the purpose of the Health Act, does not mean that the City was required to or had given its consent to the appellant using the Shed for that purpose.
(d)The fact that the City conducted the inspection of the Property in January 2013, which presumably it would not have done if it had previously agreed to the appellant using the Shed as a dwelling or to the Shed being converted into a dwelling.
(e)The terms of the letters of 16 January and 21 February 2013.

Section 22 and s 24 of the Criminal Code

Section 22 of the Criminal Code must be read with s 24: see Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 [10] (Gleeson CJ & Kirby J). Section 22 is concerned with mistakes of law, which generally provide no defence, whereas s 24 provides a defence of an honest and reasonably held but mistaken belief of fact. However, s 22 also provides that a person is not criminally responsible for an act or omission that was done with respect to any property in the exercise of an honest claim of right and without intention to defraud. The act or omission must constitute an element of the offence alleged; that is, what is claimed or believed must, if it were a fact, negative an element of the alleged offence or constitute a defence to it: Walden v Hensler (1987) 163 CLR 561 (581); Investments (WA) Pty Ltd v City of Swan [No 2] [2013] WASCA 251 [57]. An accused person has an onus to adduce evidence to raise the issue of whether s 22 applies; the prosecution carries the onus of negating the application of the section beyond a reasonable doubt.
Section 22 may apply to the offence created by s 144 of the Health Act; in particular, the appellant would not be criminally responsible for using the Shed as a dwelling if he did so in the honest exercise of a claimed right. The Shed is property for the purpose of s 22 (see the definition of the term 'property' in s 1 of the Criminal Code) and the use of the Shed as a dwelling is an act done 'with respect to' the Shed.
It is not necessary to identify the principles relevant to the application of s 24 of the Criminal Code other than to note the comments of Hall J in Shire of York v Rosmil Pty Ltd [2010] WASC 189 that:
There is ample authority for the proposition that a mistaken belief that a person has a licence or approval can be a mistake of fact where the licence or approval depends upon the exercise of a discretionary power: Ottobrino v Espinoza (1995) 14 WAR 373, 385 ‑ 386; Wroblewski v Starling [1987] WAR 233; Proudman v Dayman (1941) 67 CLR 536, 540 (Dixon J). However, where the licence or approval is one that depends upon the application of the law to accepted facts, a mistake as to the application of the law is mistake of law: Ostrowski v Palmer (2004) 218 CLR 493; Dodd & Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37 [57].

Disposition

Section 22 and s 24 may both apply where an accused person had an honest and reasonable belief that they had approval from a regulatory body such as a local government to do an act with respect to property. In this case, there may be a real issue as to whether any belief held by the appellant that he was entitled to use the Shed as a dwelling was a reasonable belief given some of the matters identified earlier that were relevant to the question of consent. However, s 22 does not require that the accused's belief was reasonable. An honest claim of right may be established even though the claim was unfounded - 'what is important is the honest belief that one is legally entitled to do to the property that which one is doing': Interim Advance Corporation v Fazio [2008] WASCA 140 [78] (Buss JA, Miller JA & Newnes AJA agreeing).
Buss JA (McLure P & Hall J agreeing) stated in Narkle v The State of Western Australia [2011] WASCA 160 [41]:
If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the tribunal of fact, the relevant question, in a case where … the legal burden is on the State and the evidential burden is on the accused, will be: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable tribunal of fact, properly instructed, to have a reasonable doubt that each of the elements of the offence had been negatived?
That test also applies to a magistrate hearing a criminal charge and it applies even if the accused has not raised the possible defence. In my view, the magistrate was required to consider whether s 22 applied to Charge 1 in light of the appellant's evidence concerning the statement made by Mr Crossley.
I also consider that the City did not prove beyond a reasonable doubt that the appellant did not honestly believe that he was entitled to use the Shed as a dwelling as a result of Mr Crossley's statement prior to the inspection of the property in January 2013.
However, I do not consider that the appellant could have honestly believed that he was entitled to use the Shed as a dwelling following the inspection of the Property and receipt of the City's letter of 16 January 2013. He did not reply to the letter. He also did not reply to the City's further letter of 21 February 2013. The City's second letter advised that a prosecution would be commenced if no satisfactory response was received by 28 February 2013. In those circumstances, the appellant was entitled to believe that he had the City's implied consent to continue using the Shed while he was given a reasonable opportunity to contest the matters raised by the City's officers during the inspection of the Property and in the City's letter of 16 January 2013. However, the appellant must have known that the City did not consent to the use of the Shed as a dwelling on and from 28 February 2013. The City's letters of 16 January and 21 February 2013 left open the possibility that the appellant was entitled to use the Shed as a dwelling by inviting him to respond to the assertions made in the letter of 16 January 2013. The appellant could have honestly believed that the City would permit him to reside in and use the Shed as a dwelling during the time that he was given to reply to the letters. However, he could not have honestly held that belief once the time allowed for his reply had expired and he had not provided a response that was accepted by the City.
Accordingly, the magistrate was not required to consider whether s 22 of the Criminal Code provided a 'defence' to Charge 5. Her Honour could not have held a reasonable doubt that the appellant had an honest claim to be entitled to use the Shed as a dwelling after 30 March 2013.
The dates between which it was alleged that the appellant used the Shed as a dwelling were a particular of Charge 1. The function of particulars in a criminal case is to provide the accused person with sufficient knowledge of the case brought by the prosecution to adequately understand and answer that case. A failure to prove a particular will not ordinarily be fatal to the prosecution of a charge: see, for example, Scolaro v Shephard [No 2] [2010] WASC 271 [63] ‑ [67] (Martin CJ). The application of those principles is illustrated by the magistrate's findings on Charge 5. Her Honour found that the City had failed to prove that the appellant had used the Shed as a dwelling throughout the period particularised in the charge but found that the appellant had used the Shed for that purpose for some time within the particularised period. Accordingly, her Honour held that the appellant was guilty of the offence alleged.
The appellant's conviction on Charge 1 should not be set aside but he should be found to have contravened s 144 of the Health Act between 1 April and 7 May 2013. It is then necessary to resentence the appellant to reflect the shorter period during which he contravened s 144.
Obviously, this reasoning cannot apply to Charge 5. The appellant knew in 2014 that the City did not consent to him using the Shed as a dwelling. He could not have held an honest belief that he was entitled to use the Shed in that way.

Charges 1 and 5 - no other error

The matters referred to in the First and Second Affidavits did not disclose any error by the magistrate in determining Charges 1 and 5 or that a miscarriage of justice had occurred.

Charges 2 - 4

The magistrate considered whether the appellant held a mistaken belief that he was entitled to erect the Steel Frame and install the rainwater tank without first obtaining a building permit. As has been noted, her Honour concluded that any mistaken belief held by the appellant was as to a matter of law and accordingly, s 24 of the Criminal Code did not apply. The appellant did not directly challenge that finding. I agree with her Honour's conclusion. The issue of a building permit for the construction of the Steel Frame and the rainwater tank did not involve the exercise of a discretion by the City. Section 24 is not concerned with mistakes about whether there is a law against conduct of a certain kind.
As to Charge 2, as has been previously noted, the opinion allegedly expressed by Mr Lucas that a building permit was not required for the erection of the Steel Frame (an allegation that was denied by Mr Lucas) was irrelevant to the question of whether, as a matter of fact and law, a building permit was required. Further, the Steel Frame had been erected prior to Mr Lucas' inspection of the Property. Accordingly, any opinion expressed by him could not have engendered any belief in the appellant for the purpose of s 22 or s 24 of the Criminal Code.
In any event, the appellant did not give evidence that he believed that a building permit was not required at the time that the Steel Frame was erected. Further, any belief that the appellant held that he did not require a building permit would be no more than a 'claim to freedom (under criminal law) to act in a particular manner‑to the absence of a prohibition': Walden v Hensler (1987) 163 CLR 561, 592 (Dawson J). An honest claim of right must have 'a foundation in some event, transaction, status or relationship, and is not founded merely on a claim to immunity (whether by ignorance or mistake) from the operation of the criminal law': Walden v Hensler (608) (Gaudron J). There was no evidence that would have provided a foundation for a belief that a building permit was not required for the Steel Frame at the time that the structure was erected. As a matter of law, a permit was required and the first limb of s 22 of the Criminal Code would have applied had the appellant stated in his evidence that he had believed that a permit was not required at the time that the Steel Frame was built.
As to Charge 3, the magistrate found that the appellant's belief that he was not required to obtain a building permit before installing the rainwater tank was a mistake of law and, therefore, s 24 of the Criminal Code did not apply. That finding was overly generous to the appellant. Plainly, he knew that a building permit was required for the rainwater tank as he made an application to the City for a permit.
The matters referred to in the First and Second Affidavits did not disclose any error by the magistrate in determining Charges 2 ‑ 4 or that a miscarriage of justice had occurred.

Resentencing on Charge 1

The appellant was convicted of breaching s 144 of the Health Act between 6 January 2013 and 7 May 2013. He was fined $600 and a daily penalty of $50 per day was applied.
I have found that the appellant ought to have been convicted for a breach of s 144 between 1 April 2013 and 7 May 2013 - a total of 37 days. The appellant will be resentenced to a fine of $200 and a daily penalty of $50 per day for 37 days ($1,850).

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WHINCUP -v- CITY OF MANDURAH [2017] WASC 89 (S)