Bush Fires Act 1954 (WA)

Criminal Procedure Act 2004 (WA)

Application under s 99(5) of the Criminal Procedure Act 2004 (WA) is dismissed

Birch v The State of Western Australia [2017] WASCA 19

Cochrane v The State of Western Australia [2021] WASCA 5

1. This case was listed before the court for hearing on 4 April 2025 to decide Mr White's application to set aside a plea of guilty. A plea of guilty had been entered in the Magistrates Court on 27 February 2024.
2. The application relied upon s 99(5) of the Criminal Procedure Act 2004 (WA) (the CPA).
3. At the commencement of the hearing, I raised with the parties whether, as a matter of law, s 99 of the CPA was engaged. After submissions were made by counsel upon this issue, I reserved my decision and permitted counsel to file additional written submissions.
4. The revised position of counsel for Mr White was that s 99(1) did not apply and therefore Mr White is not now required to have his plea of guilty in the Magistrates Court set aside before he could plead not guilty to a charge on indictment in the District Court. It was submitted the consequence was then that Mr White could be arraigned upon the charge contained in an indictment and, if he chose to do so, plead not guilty to that charge. The State's submission was that s 99(1) did apply to Mr White and therefore the court should proceed to deal with the application to set aside the plea of guilty.
5. The issue arises in this way.

Bush Fires Act 1954 (WA)

1. A prosecution notice was issued against Mr White dated 16 February 2024. It was in the prescribed form. The prosecution notice said the written law under which it was issued was s 32(2)(a) of the Bush Fires Act 1954 (WA).
2. Section 32 of the Bush Fires Act is in the following terms:
   1. Offences of lighting or attempting to light fire likely to injure

property means personal or real property, including Crown land, and includes the bush and fauna.

(a) wilfully lights or causes to be lit or attempts to light a fire; or

(b) places a match or other inflammable or combustible substance, matter or thing in a position so that it may directly or indirectly be ignited by the rays of the sun or by friction or other means, or be exploded or set on fire, or whereby a fire may be lit or caused and with the intent to cause a fire,

under such circumstances as to be likely to injure or damage a person or property, whether the fire be caused or not, is guilty of a crime.

1. Section 32(2)(a) applies in three circumstances. The first is where a fire is wilfully lit. The second is where a person causes a fire to be lit. The third is where a person attempts to light a fire. Section 32(2)(b) applies to a situation where, because of the actions of a person 'a fire may be lit or caused'.

1. The concluding words of s 32(2) are 'whether the fire be caused or not'.
2. There is obvious tension between this phrase and an allegation that a person has wilfully lit or causes to be lit, a fire. Where the allegation is that a person who has wilfully lit or causes to be lit, a fire, it does not make sense for a charge to state 'whether the fire be caused or not'. It is clear that the words 'whether the fire be caused or not' only apply to an allegation of an attempt to light a fire under s 32(2)(a) of the Bush Fires Act or, s 32(2)(b) which applies where a fire 'may be lit or caused', but does not necessarily have to have been lit or caused. It cannot have been the intention of the legislative, in my opinion, to enact an offence which is self-contradictory or does not make sense. This would be the position if there was an offence of 'wilfully lights ... a fire ... whether the fire be caused or not'.
3. Accordingly in my opinion there is no offence known to the law, under s 34(1)(a) of the Bush Fires Act, that a person wilfully lights a fire under such circumstances as to be likely to injure a person or property, whether the fire be caused or not. The gravamen of the offence of wilfully lighting a fire under the circumstances described in the section is, axiomatically the lighting of the fire in those circumstances. It is then contradictory to allege 'whether the fire be caused or not'.

The prosecution notice and hearing before the magistrate

1. The prosecution notice against Mr White had a section for the 'written law' to be included. This was stated to be s 32(2)(a) of the Bush Fires Act section of the notice. It also had a box, where the 'description' was specified as 'wilfully light or cause to be lit a fire likely to injure or damage' was written. The prosecution notice set out the date as being 15 February 2024 and the place as Greenmount. The charge was then described as 'wilfully lit a fire under such circumstances as to be likely to injure or damage a person or property, whether the fire was caused or not'.
2. Accordingly, the prosecution notice in setting out the charge contained the problem identified earlier. That is, it alleges both that a fire was wilfully lit and also pleads 'whether the fire was caused or not'.
3. At the hearing in the Magistrates Court on 27 February 2024 Mr White was represented by counsel, Mr Sklarz.
4. The charge as read to Mr White by the magistrate was '15 February 2024 at Greenmount, you wilfully lit a fire under such circumstances likely to injure or damage a person or property whether the fire was caused or not'. This was substantially in the form of the prosecution notice save that the words 'as to be' were not included in the magistrate's reading of the charge. However nothing turns upon this.
5. His Honour then asked Mr White if he understood the charge and he said 'Yes'. Mr White was then asked how he would plead and he said guilty.
6. There was no suggestion by Mr White or Mr Sklarz that there was any lack of clarity in or failure to understand the charge put to Mr White. But this is not the critical issue. Here, that is whether Mr White pleaded guilty to a charge of an offence known to the law. In my opinion that did not occur.
7. Mr White was then committed to the District Court for hearing on 3 May 2024.

Indictment and proceedings in the District Court

1. The indictment in the District Court was dated 29 May 2024. The indictment alleged that Mr White:

On 15 February 2024 at Greenmount ... wilfully lit a fire under such circumstances as to be likely to injure a person or damage property.

1. Accordingly, the problem with the way in which the prosecution notice was pleaded, was corrected. There is nothing wrong or problematic with the terms of the charge contained in the indictment. I note that both the prosecution notice and the indictment cited the Bush Fires Act s 32(2)(a) as being part of the details of the charge. The indictment also referred to MI 1690/24 which seems clearly to be a reference to the court number specified in the prosecution notice as being 'MC MID240001690'.
2. Both the statement of material facts in the Magistrates Court, the amended statement of material facts filed in this court allege that Mr White did actually light a fire. But again this is not critical to deciding the present issue.
3. This court has not as yet entered a conviction against Mr White. He was arraigned before Tovey DCJ on 12 December 2024. Mr White then said 'guilty, yeah'. Her Honour sought clarification of that and the transcript records Mr White as saying, 'yeah, sure, yeah (indistinct) guilty'. Her Honour then asked defence counsel whether she needed to speak to Mr White. Mr White is then recorded in the transcript as saying something else that is indistinct. A short adjournment occurred and upon resumption counsel advised her Honour that 'an issue had arisen'. This was explained and counsel said a 'further application may need to be made'. An application for an adjournment was granted. Before this occurred, her Honour said she had not 'entered a conviction', she had concerns about 'how the plea was actually entered', was going to ask for a re-arraignment 'because I had some concerns about how the plea was actually entered by Mr White ... because it seemed to be a guilty - not guilty type of a plea'.
4. The matter was adjourned until 18 December 2024, when Mr White's counsel informed Judge Tovey that an application would be made to set aside the plea in the Magistrates Court.

The Criminal Procedure Act 2004 (WA)

1. Section 99(1) of the CPA sets out when that section applies as follows:
   1. Unconvicted accused committed for sentence, procedure on

(a) an accused pleads guilty to an indictable charge before a court of summary jurisdiction (the lower court); and

(b) the lower court, without convicting the accused, commits the accused to a superior court for sentence on the charge; and

(c) the accused is subsequently charged with the charge in an indictment.

1. Accordingly s 99(1)(a) of the CPA applies where an accused pleads guilty to an indictable charge before the lower court, and the lower court does not convict the accused. Here, the magistrate did not convict Mr White.
2. 'Indictable charge' is defined in s 3(1) of the CPA as follows:

indictable charge means a charge of an indictable offence;

1. In turn, 'charge' is defined in s 3(1) of the CPA as follows:

charge means an allegation in a prosecution notice or indictment that a person has committed an offence;

1. Clearly then, a plea of guilty to an 'indictable charge' is predicated upon their being an 'indictable offence'. Section 32 of the Bush Fires Act is an indictable offence as it is a crime.[1]
2. Section 99(5) of the CPA is as follows:
   1. Unconvicted accused committed for sentence, procedure on

(5) Irrespective of whether the accused does or does not plead guilty to the charge in the indictment, the court, despite subsections (3) and (4), may enter a plea of not guilty on behalf of the accused if -

(i) the material served on the accused under section 35 or 95; and

(ii) the facts stated by the prosecutor under section 129,

the court is satisfied that the accused could not have or may not have committed the offence charged; or

(b) having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings.

1. The questions in the circumstances of this case are, firstly whether Mr White did plead guilty to an indictable offence before the lower court. This turns upon whether the charge constituted by the prosecution notice which was before the lower court, was a charge known to the law.
2. Secondly, if that was so, whether Mr White had subsequently been charged with 'the charge' in an indictment.
3. The charge means the same charge as referred to in s 99(1)(a) of the CPA.[2] This issue is whether Mr White had subsequently been charged with the same charge as in the lower court, when the charge was differently phrased with the omission of the words 'whether the fire was caused or not'.

Schedule 1 of the Criminal Procedure Act

1. The State submitted that the charge was adequately described in the prosecution notice and s 99(1)(a) did apply. This contention was said to be supported by s 23 and cl 5 of div 2 of sch 1 of the CPA.
2. Section 23 of the CPA provides:
   1. Prosecution notice, formal requirements of

(1) Schedule 1 has effect in relation to prosecution notices and charges in them.

(d) be signed by the person who is commencing the prosecution.

1. Clause 5 of div 2 of sch 1 of the CPA provides:
   1. Alleged offence to be described

(1) A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -

(a) describe the offence with reasonable clarity; and

(b) identify the written law and the provision of it that creates the offence; and

(i) the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and

(d) if the offence is one against a person, identify the person concerned in accordance with clause 6(2); and

(e) if the offence relates to property, comply with clause 6(4) and (5).

(a) it is sufficient to describe an offence in the words of the written law that creates it; and

(b) if that written law states that alternative acts, omissions, capacities, or intentions, constitute the offence, the alternatives may be set out; and

(c) a charge is not defective only because an element of the offence is not stated; and

(i) any matter, or any particulars as to a person or thing, that need not be proved; or

(ii) the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence.

1. Clause 5 sets out the way in which the charge constituting an alleged offence must be described in a prosecution notice or indictment. Importantly however the clause repeatedly refers to 'the offence', or 'an offence'. The chapeau section cl 5(1) refers to 'the alleged offence'. Clause 5 does not apply to a situation where there is not an 'offence'.
2. This is the position where the alleged offence is not one known to the law. Here, the prosecution notice did not in accordance with cl 5(1)(a) describe the 'offence' with reasonable clarity. This is because what was described as an offence, was not actually an offence. The description was of something which was self-contradictory and in my opinion did not constitute an offence under s 32(2)(a) of the Bush Fires Act. Although in accordance with cl 5(1)(b), the prosecution notice did set out s 32(2)(a) as being a written law and the provision of it that created the offence, the language of the charge did not replicate an offence created by that paragraph of the Bush Fires Act.
3. The State relied in particular upon cl 5(2)(a). It was submitted that via this sub-clause, the prosecution notice complied with sub-clause (1) because the words used in the prosecution notice replicated the words, or at least some of them, of the Bush Fires Act. Whilst this is so, cl 5(2)(a) is again predicated on there being 'an offence'. As I have said in my opinion there is no offence created by s 32(2)(a) of the Bush Fires Act in the terms described in the Bush Fires Act, which were contained in the prosecution notice. Merely to replicate words used in the Bush Fires Act, which together did not create an offence, did not comply with cl 5(1) or cl 5(2)(a). In the terms of cl 5(2)(a) the prosecution notice did not describe an offence in the words of the written law which created it. This is because the words of the Bush Fires Act did not create an offence as described in the prosecution notice.
4. Clause 5(2)(b) has no present application. Nor do pars 5(2)(c) or (d). These paragraphs both refer to things that need not be included in the description of a charge to comply with cl 5(1). They apply to omissions not inclusions. The clauses do not apply to a situation where the prosecution notice describes something other than an offence known to the law.

1. In the subsequent written submissions of the State the charge in the prosecution notice was sought to be characterised as having a 'superfluous phrase whether the fire was caused or not'. I do not accept this characterisation. In my opinion the charge did not contain a superfluous phrase. As I have said the prosecution notice described an offence in terms which were self-contradictory and not known to the law. The State submitted that the addition of the 'superfluous ending' did not render the remainder of the charge incomprehensible. It was submitted that 'quite clearly', the allegation was that the accused wilfully lit a fire under such circumstances as to be likely to injure or damage a person or property. With respect I do not find this to be 'quite clear'. The prosecution notice alleged the accused wilfully lit a fire but then said 'whether the fire was caused or not'.
2. The State also relied upon Mr White saying before the magistrate that he understood the charge and that no issue was raised with the wording of the charge by the presiding magistrate, defence counsel or the prosecutor. However, as I have earlier said, this is not the critical issue. The critical issue is, I repeat again, whether the prosecution notice contained an offence known to the law.
3. The State also submitted that the 'allegation must be a charge known to law, because it uses the terms of the section that is the law'. I have already referred to the problems with that argument.

1. The State also sought to draw support from Cochrane v The State of Western Australia.[3] However, Cochrane did not apply to a situation like the present. There the issue was the maximum penalty which applied to the offence. The indictment contained a charge of possession of methylamphetamine with intent to sell or supply but did not plead that the quantity constituted a trafficable quantity and therefore the appellant was liable to a higher maximum penalty. The court held that the appellant was liable to the higher maximum penalty despite the way in which the indictment was pleaded. That issue only needs to be described to show that it is a very different issue from the present. The court was not there concerned with whether an indictment had described an alleged offence in terms of an offence not known to the law.
2. The Court of Appeal in Cochrane decided that alleging s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) in the margin of the indictment was sufficient to mean that the accused was charged with the circumstance of aggravation that the offence involved a trafficable quantity of methylamphetamine. Again, that is very different to the situation here.
3. The State referred to the observation by the Court of Appeal in Cochrane that 'a proper understanding of a prosecution notice or indictment will commonly (if not invariably) require some knowledge that must derive from outside the document itself'.[4] I do not think this assists the State. Whilst to understand the prosecution notice in the present case required outside knowledge of the contents of s 32(2) of the Bush Fires Act, this would not, on a proper construction of the prosecution notice, as a whole, lead to a conclusion that the prosecution notice described an offence.
4. The State also referred to a paragraph Cochrane[5] where the court said that the purpose of the requirement under cl 5 to identify the written law is to direct an accused to the legislative provision that creates the offence so as to understand the charge. Again however this observation is predicated upon there being legislative provision that creates the offence charged.

1. Accordingly in my opinion Mr White did not, in terms of s 99(1)(a) plead guilty to an indictable charge before a court of summary jurisdiction. Instead he pleaded guilty to a prosecution notice containing a purported charge which was not known to the law.
2. Due to this conclusion the second issue, identified above, as to whether Mr White had subsequently been charged with 'the charge' in the indictment, need not be decided.
3. The consequence is that Mr White does not need to apply to change his plea of guilty in accordance with s 99(5) of the CPA.

1. The State submitted that if I found the prosecution notice of charge MI 1690/24 did not describe a charge at law, and therefore there was no valid plea to and committal of the charge, s 83(4) of the CPA did not apply. However under s 83(2) of the CPA, the lodging of an indictment is the originating process that enlivens the jurisdiction of the District Court to deal with indictable offences. The State then refers to the present prosecution in the District Court being commenced by the lodging of the indictment on 29 May 2024.
2. The State then submits that s 83(6) of the CPA could apply. This provides that the commencement of a prosecution for an indictable offence does not require a person to have been committed to a superior court on a charge of the offence. This subsection is what gives rise to charges that are characterised as being 'ex officio'. Therefore, if charge MI 1690/24 is considered not to be a charge at law, the charge on indictment 335 of 2024 will need to be an ex officio charge.
3. There is force in those submissions. In my opinion the appropriate course is to provide these reasons to the parties and then reconvene to make any appropriate consequential orders.
4. However, the application of Mr White under s 99(5) of the CPA will be dismissed, on the basis set out earlier. That is, because s 99(1) of the CPA did not apply to Mr White.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Interpretation Act 1984 (WA), s 5 and s 67(1a).

[2] Birch v The State of Western Australia [2017] WASCA 19 [201] (Mazza JA).

[3] Cochrane v The State of Western Australia [2021] WASCA 5 (Cochrane).