FUJITA -v- CITY OF BAYSWATER [2022] WASC 101 (24 March 2022)

4 There are two grounds of appeal. The first ground alleges that the verdict of guilty was unreasonable or unsupported by the evidence, essentially because it is claimed that the land was not properly identified in the notice. The second ground alleges that the magistrate made an error of law in that he failed to make a finding as to whether the materials in question were rubbish or disused materials. For the reasons that follow, neither of the grounds can succeed and the appeal must be dismissed.

The accused lives in a duplex property at 17 Swan View Terrace in Maylands... a complaint was received in July 2020 about the accumulation of rubbish and materials on the property. Officers attended, inspected the property, spoke to [the appellant] about the materials and ultimately in - on 20 August 2020 issued a notice under section 3.25 of the Local Government Act....

That notice was served in a number of ways. It was served by post on 20 August 2020. A copy of that notice was then emailed to [the appellant] on 2 October 2020 and a copy put in the letterbox of the property on that same day. ... [The appellant] responded to that email saying that he would object to the notice. He was provided with the details and information in order to lodge an appeal to the State Administrative Tribunal. That didn't occur and subsequent inspection of the property revealed that the appellant hadn't complied with the notice - that is, he hadn't removed the material specified in the notice ... a subsequent and recent inspection of the property ... revealed that the material specified in the notice remained on the property.

6 The prosecutor commenced by tendering a certified copy of the certificate of title for the property and a certificate under s 9.41 of the LGA confirming that the property is within the district of the City of Bayswater. The certificate of title showed that the property was an undivided whole lot with a street address of 17 Swan View Terrace, Maylands. The appellant is not the registered owner, but the prosecution case was that he was an occupier of the land. Although the house on the land is a duplex residence the land is not subdivided or subject to a strata plan.

7 Paul Juma is an environmental health officer employed by the City of Bayswater. He has a post‑graduate diploma in environmental health obtained from Curtin University in 2017.[2]

8 He gave evidence that he attended the appellant's property at 17 Swan View Terrace in Maylands (the Maylands property) on a number of occasions. There is a duplex dwelling on the property. The appellant lives on the right‑hand side of the duplex dwelling as seen from the road.[3]

9 On 4 July 2020, Mr Juma, together with one of his colleagues, attended the Maylands property to inspect it, assess its condition and investigate a complaint that had been received in respect of it. The appellant was present at the property. Mr Juma and his colleague saw a significant accumulation of rubbish and disused materials under the veranda at the side of the dwelling, in the backyard of the property and at the rear of the property.[4]

10 The veranda area was full of disused materials. Mr Juma could barely walk through the area. The backyard contained a number of bicycles, rubbish, wheelbarrows, barbeques and various other materials. The area to the rear of the property contained timbers, bicycles, wheelbarrows, 44‑gallon drums, wheelie bins, milk crates, rubbish and overgrown vegetation. Photographs of these areas and aerial photographs of the property became exhibits at trial.[5]

11 The appellant confirmed that the materials were his and that he collects them from the Men's Shed in Subiaco. Mr Juma then explained to the appellant that the disused materials and rubbish would create a habitat for mosquitoes and vermin and would have to be removed.[6]

12 On 14 July, Mr Juma wrote to the appellant requesting the materials be removed within 21 days. On 13 August 2020, Mr Juma again attended the Maylands property, together with Mr Brittan, another officer of the City of Bayswater. The same materials that had been there in July were still there and the condition of the veranda area had become worse.[7]

13 As a result of Mr Juma and Mr Brittan's visit, the City of Bayswater issued a notice pursuant to s 3.25 of the LGA (the notice) to the appellant requiring him to remove the rubbish and disused materials from the property within 30 days from the date of service of the notice. The notice was posted under cover of a letter addressed to the appellant.[8]

14 The notice was tendered[9] and relevantly states:

TO: Yoshi Fujita

17 Swan View Terrace

MAYLANDS WA 6051

WHEREAS

A You are the occupier of the land described in Item 1 of the Schedule ('The Land').

B The land is within the district of the City of Bayswater ('The City').

C The land is considered by the City to be untidy, due to the presence on the Land of a significant amount of disused materials and overgrown vegetation specified in Item 2 of the Schedule ('The Materials').

THEREFORE TAKE NOTICE THAT:

You are hereby required to remove the Materials from the Land within 30 days from the date of service of this Notice upon you.

You may object to the council of the City or apply for a review of this Notice to the State Administrative Tribunal pursuant to the provisions of Section 3.25 of the Local Government Act 1995.

....

If you fail to comply with this Notice then you commit an offence and upon conviction you would be liable to a penalty not exceeding $5,000 and a further penalty for each day during which the offence continues.

....

DATED this 20th day of August 2020

SCHEDULE

Item 1: The Land

Lot 501 on Plan 2646 being the whole of the land comprised in Certificate of Title Volume 910 Folio 159 being the land situated at 17 Swan View Terrace, Maylands 6051.

Item 2: The Materials

The overgrown vegetation (including long grass and weeds) and disused materials on the Land which include, but are not limited to:

[Here followed a long detailed list, including milk crates, chemical drums, plastic sheeting, shade cloth, metal fencing, pallets, bicycles, baskets, barbeques, furniture, electrical appliances, packaging, cardboard, sports equipment, household items, pet beds and building materials]

15 On 30 September 2020, Mr Juma contacted the appellant by telephone to see what action he was taking to rectify the issues and comply with the notice. The appellant responded by saying that he did not receive the notice. Mr Juma attended the Maylands property that day and placed a copy of the notice in the letterbox outside. Mr Juma also sent a further copy of the notice via email on 2 October 2020.[10]

16 On 6 October 2020, Mr Juma received an email from the appellant stating that he had received the notice for the first time that day and that he wished to appeal. Mr Juma was not aware of any appeal proceedings having been taken.[11]

17 On 12 November 2020, Mr Juma attended at the Maylands property with Mr Brittan. He took photographs. Nothing material had changed. If anything, things were getting worse. There had been an attempt to cover some items in the garden with a tarpaulin and other items had been pushed under a parked car.[12]

18 On 10 December 2020, Mr Juma attended the Maylands property again and observed the accumulation of materials was getting worse. More photographs were taken.[13]

19 Mr Juma said that he had also attended the Maylands property again on 3 August 2021, just prior to the trial. More photographs were taken. The materials had not been removed and there were more materials than there had been previously. At the time of trial, the appellant had not complied with the notice.[14]

20 In cross‑examination, the appellant (representing himself) put to Mr Juma that most of the items listed are commonplace household items that most people had. Mr Juma did not accept that proposition and said that some of the items were damaged and others appeared to have not been moved and were, therefore, disused. The appellant put to Mr Juma that the items were not damaged or disused and that he had used some of them. Mr Juma responded that since his first visit in July 2020 most, if not all, of the items had not been moved.[15]

21 In cross-examination, the appellant suggested that Mr Juma had sent the notice to the incorrect address. The notice was sent under cover of a letter addressed to 17B Swan View Terrace, Maylands, but the appellant said that his address is 17A Swan View Terrace, Maylands. In re‑examination, Mr Juma clarified that when he attended the Maylands property on 30 September 2020, he placed the letter in the letterbox marked '17AB'. A photograph taken by Mr Juma at the time of the delivery shows a small brick letterbox with a single letter slot with the number '17AB' on top and the number '17' below. There is no separate box for 17A and 17B. The letter and the notice were addressed to the appellant and the notice referred to 17 Swan View Terrace, Maylands as this was the information obtained from the land title.[16]

22 Matthew Brittan is an environmental health officer for the City of Bayswater. He completed a master's degree in environmental health at Curtin University in 2011 and has worked in local government since then.[17]

23 Mr Brittan first attended the Maylands property on 13 August 2020, together with Mr Juma. He observed that at the front of the property, between a parked vehicle and the front of the dwelling, there was a number of household items, wheelie bins, general rubbish and disused materials. At the side of the property there were containers, tarpaulins, building materials, scrap metal, scrap timber, a number of barbeques, wheelbarrows, general household items and rubbish.[18]

24 Given the state of the property, a notice under s 3.25 of the LGA was issued to the appellant. The notice was given because of the accumulation of materials on the property and health issues associated with the state of the property. The materials provided potential harbourage for rodents and created the potential for pooling of water that would allow mosquito breeding. The condition of the property and the number of items there posed an increased fire risk.[19]

25 Mr Brittan spoke with the appellant by telephone on 30 September 2020. The appellant said that he had not received a notice and disputed the address to which the notice was sent. Mr Brittan confirmed the appellant's email address following which he sent an email containing the notice to that address.[20] The appellant replied to the email, disputing the notice and asking how it could be appealed. In response, Mr Brittan sent the appellant a link to the State Administrative Tribunal. The appellant did not lodge an application for review in the State Administrative Tribunal.[21]

26 Mr Brittan attended the Maylands property in November and December 2020. During these visits, Mr Brittan saw that none of the materials specified in the notice had been removed. His most recent attendance at the Maylands property was on Tuesday, 3 August 2021.[22] On this visit, he saw that the items listed in the notice had not been removed, other items had accumulated on the property and a number of items listed on the notice had increased in number (for example, there was a greater number of wheelbarrows, scrap metal and timber).[23]

27 In cross‑examination, Mr Brittan was asked whether the amount of material was excessive. He said that it was excessive in his experience and when compared to other properties. When asked how he concluded that the materials were disused, Mr Brittan said that the overgrown vegetation demonstrated that some of the materials had not been moved for some time. He also said that the fact that other materials had been moved did not imply that they were being used.

28 The appellant gave evidence that he is retired and lives at 17A Swan View Terrace, Maylands.[24]

29 The appellant said that the address on the notice was wrong. He said that 17 Swan View Terrace, Maylands encompasses both sides of the duplex on the property. However, he said that he was only renting part of that property and 'has no jurisdiction' over the whole land.[25]

30 The appellant said that until the day of the trial no environmental health officer had provided to him a 'reasonable explanation or any credible reason' as to why the materials needed to be cleared. The notice was, he claimed, the result of a 'vexatious complaint from next door neighbour'.[26]

31 The appellant disputed that the materials were disused and said that the bins referred to in the notice were storage bins.[27]

32 In cross-examination, the appellant said that the property was owned by his partner who lives in the duplex unit with him. He agreed that he was the occupier of part of the property and that the notice was addressed to him at 17 Swan View Terrace, Maylands. He agreed that he received the notice by email on 2 October 2020 and understood it was addressed to him. He accepted that he speaks and reads English well, but he claimed that 'the devil was in the detail' and because the covering letter was addressed to 17B 'it was not my problem'.[28]

33 When asked whether he considered his land to be tidy the appellant said 'It's all the beholder, isn't it [sic]. Things could be improved, yes, or some aspects could be improved'. Later, when shown a photograph, he said 'My goodness, it's untidy. Just accumulate. Actually, I use them all. That's the whole point.' Shown another photograph he said that what was depicted was 'exceptional and unacceptable' and that a wall had collapsed so he had been moving things. Shown a photograph of metal scaffolding he said it was used as a base for welding and that 'You see it as rubbish, but this is actual asset'.[29]

34 The magistrate identified the three things that the prosecution had to prove beyond reasonable doubt as being:

(a) that at all material times the appellant was the occupier of land within the district of the City of Bayswater;

(b) that the appellant was given a notice pursuant to s 3.25 of the LGA; and

(c) that the appellant failed to comply with the notice.[30]

35 The magistrate then dealt with the appellant's claim that the material was not rubbish or disused. His Honour said that was not the issue and referred to the fact that the appellant could have lodged an objection to the notice, or sought a review, and did not do so. His Honour then said, 'It is not for me to determine whether the materials stated in the notice were rubbish or disused materials. My only task is to determine whether the prosecution have proved each of the elements to which I have previously referred'.

36 In respect of the second element, the magistrate noted that 17A and 17B Swan View Terrace shared a letterbox and that copies of the notice were personally delivered to that letterbox and sent by email to the appellant. In particular, the appellant sent an email to Mr Juma on 6 October 2020 which acknowledged that he had received and sighted the notice. The City of Bayswater had chosen that day as the day of service for the purpose of the prosecution.[31]

37 In respect of the third element, the magistrate referred to the bundles of photographs tendered as exhibits 6, 7, 10 and 11 which demonstrated that no effort had been made by the appellant to rectify the City of Bayswater's concerns and that the amount of rubbish and disused material on the property was getting worse.[32]

38 His Honour found that Mr Juma and Mr Brittan were honest, accurate and reliable witnesses who gave clear and concise evidence. Both were certain about dates and times and what occurred when. Each had a good recollection of events. Their evidence was both convincing and persuasive. In contrast, the appellant's evidence was 'somewhat rambling' and at times 'he simply missed the point'. His Honour said that the appellant emphasised that the materials were not rubbish or disused and that whilst he did not consider that he had to make a finding in that regard 'one only need look at (the photographs) to see that really in that regard (the appellant) is living in fairyland'.[33]

39 The magistrate found the charge proved. The appellant was fined $800, an additional penalty of $50 a day, and costs in the sum of $6,641.80.[34]

40 The first ground of appeal is that the verdict was unreasonable or unsupported by the evidence. The particulars to the ground assert that because the notice specified the whole of the land, the charge required proof beyond reasonable doubt that the appellant occupied the whole of the land. As the appellant only occupied a part of the land, it is alleged that the charge was 'doomed to fail'.

41 The second ground of appeal is that the magistrate made an error of law in stating that he was not required to make a finding as to whether or not the materials on the property were rubbish or disused. The particulars to the ground assert that a finding that the appellant failed to comply with the notice necessarily involved making a factual finding that there were disused materials that the appellant did not remove.

Ground 1 - Was the appellant an occupier of the land?

42 Although ground 1 is expressed in terms that the verdict was unreasonable or unsupported by the evidence, it is not suggested that the determination of this ground requires an assessment of the whole of the evidence to determine whether it was capable of supporting a guilty verdict. Rather, the verdict is said not to have been open due to a specific alleged deficiency in the prosecution case.

43 The simple point raised by this ground is that because the notice referred to the whole of the land, and the appellant only occupied part of it, the charge could not be proved. Put another way, the appellant submits that in order to prove non‑compliance with the notice the prosecution had to prove that he was an occupier of all of the land. It was insufficient, the appellant says, that he occupied only part of the land. In circumstances where there was never any misunderstanding as to what materials or what land the notice related to, this argument appears to be concerned with a mere technicality that was of no practical significance to the substantive issues.

44 The description of the land contained in the notice accurately reflected the certificate of title.[35] The land at 17 Swan View Terrace is not subdivided nor is it the subject of a strata plan. The fact that it contains a duplex dwelling and that the registered owner may have designated areas for the sole use of each part of the duplex is not something recorded on the certificate of title. Further, the only evidence as to which part is 17A and which is 17B was that of the appellant. In these circumstances, it is difficult to understand how the notice could have more accurately described the land than in the way it did.

45 The plain fact is that the land as described in the notice includes an area that the appellant, by his own admission, occupied. He was, therefore, an occupier of at least part of the land specified in the notice. It was that part of the land that contained the relevant materials. There was no suggestion that there were any materials on the part that he said he did not occupy.

46 The purpose of the designation of the land in the notice is to ensure that the recipient of the notice is informed as to the location of the materials that they must remove. There is no doubt that those materials were on the land designated in the notice. Nor is there any doubt that the appellant was an occupier of that part of the land where the materials were located. The prosecution was not required to prove that the appellant had rights to occupy the whole of the land. It was sufficient to prove that he was an occupier of the land, either in whole or part, provided that he occupied that part that contained the relevant materials.

47 Had the disused material been in a part of the property that the appellant did not occupy then he would have had good grounds for saying that he was not relevantly the occupier. But that was not the case here. The appellant said that he was the occupier of the part designated as 17A and there was no dispute that the material was all in that part of the property.

48 Even if, which I do not accept, the land was misdescribed in the notice, that description was not likely to mislead and did not in fact mislead. Section 9.54 of the LGA provides that:

A document is not ineffective, nor is it to be regarded as having been not properly given, only because of an error, misdescription, or irregularity in the document or the way it is addressed that is not likely to mislead or does not in fact mislead.

49 This ground does not have a reasonable prospect of success and leave in respect of it must be refused.

50 This ground essentially alleges that the magistrate, by failing to make a finding that the material was in fact disused, erred in concluding that the element of non‑compliance with the notice had been proved. The appellant submits that in order to find that he had not complied with the notice the magistrate had to be satisfied that, at the end of the specified period, material remained on the property that met the description of being disused material.

51 Section 3.25 of the LGA relevantly provides as follows:

Notices requiring certain things to be done by owner or occupier of land

(1) A local government may give a person who is the owner or, unless Schedule 3.1 indicates otherwise, the occupier of land a notice in writing relating to the land requiring the person to do anything specified in the notice that -

(a) is prescribed in Schedule 3.1, Division 1; or

(b) is for the purpose of remedying or mitigating the effects of any offence against a provision prescribed in Schedule 3.1, Division 2.

...

(4) A person who is given a notice under subsection (1) is not prevented from complying with it because of the terms on which the land is held.

(5) A person who is given a notice under subsection (1) may apply to the State Administrative Tribunal for a review of the decision to give the notice.

(6) A person who fails to comply with a notice under subsection (1) commits an offence.

52 Schedule 3.1, div 1 of the LGA is headed 'Things a notice may require to be done' and cl 5A provides:

5A. (1) Ensure that overgrown vegetation, rubbish, or disused material, as specified, is removed from land that the local government considers to be untidy.

(2) In this item -

disused material includes disused motor vehicles, old motor vehicle bodies and old machinery.

53 The word 'rubbish' is not defined and the term 'disused material' is not exclusively defined. Thus, these words must be given their ordinary meaning. The Shorter Oxford English Dictionary defines rubbish as 'waste material; rejected and useless matter of any kind; debris, litter, refuse; worthless material or articles, trash'. The word disused is defined to mean something which has ceased to be used. A thing may be disused even if it is not derelict or in a state of disrepair. Items are disused if they are not being used or held ready for use. They may be disused even if the owner intends to make use of them at some point in the future. Disuse is concerned with the current state of a thing, not with its value.

54 As exemplified in the opening sentence of this judgment, people may have different views as to whether something is rubbish. What is rejected or useless matter to one person may have value to someone else. If a notice did no more than state that all rubbish or disused material was to be removed from a property, there may well be an issue as to exactly what it related to. But a notice under s 5A of sch 3.1 must do more than that. What is required is that the overgrown vegetation, rubbish or disused material be specified.

55 In this case the notice did not refer to rubbish, rather it referred to overgrown vegetation and disused material. It then clearly specified, in considerable detail, all of the material that was required to be removed. The appellant did not claim, either at trial or on appeal, that there was any lack of clarity as to what material the notice related to. His position was that at least some of the material was not disused and that, therefore, he was not obliged to remove it.

56 I accept that in order to establish failure to comply with the notice it was necessary to prove that the appellant had not done what he was required to do. What he was required to do was ensure that overgrown vegetation and disused material, as specified in the notice, were removed from the land. That requirement did not depend on any acceptance by the appellant that the materials specified were disused.

57 The magistrate expressed the view that it was not necessary for him to make a finding that the materials were rubbish or disused. He noted in that respect that the appellant had not sought a review of the notice in the State Administrative Tribunal. The implication was that unless such a review had been sought the issue was moot. In my view, the magistrate was correct, but not for the reason he gave. Whether or not the appellant had sought a review of the notice was irrelevant.

58 The fact that a notice of this type must specify the materials to be removed and cannot simply require the removal of rubbish or disused materials generally is significant. Provided that the materials specified can reasonably be characterised as rubbish or disused materials then a notice is valid, and non-compliance is established if the specified materials are not removed. This does not require proof beyond reasonable doubt that the materials meet some objective or subjective standard of what constitutes rubbish or disused materials. This conclusion is supported by the fact that cl 5A refers to the removal of material from land that the local government considers to be untidy.

59 As the notice in this case did not refer to rubbish no issue of whether any of the material was rubbish arose for determination by the magistrate. As to whether the materials on the property, as specified in the notice, were disused, that was a reasonable characterisation of the material as described. There was no requirement for the magistrate to make a finding that each item had ceased to be used. For these reasons, in my view, ground 2 cannot succeed.

60 In the alternative, if there was a material error by the magistrate, no substantial miscarriage of justice occurred.[36] While there is no single universally applicable description of what constitutes 'no substantial miscarriage of justice', an appellate court is precluded from concluding that no substantial miscarriage of justice actually occurred unless the court itself is persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt.[37] In addressing that question, it is necessary to consider the nature and effect of the error.[38] The appellate court in such a case is not predicting the outcome of a hypothetical error‑free trial but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had.[39] Some errors may prevent the appeal court making its own assessment of the evidence because there has been a significant denial of procedural fairness at the trial.[40]

61 In this case the alleged error did not involve a denial of procedural fairness and does not prevent an assessment of the evidence by this court. The evidence of Mr Juma, Mr Brittan and, in particular, the photographs of the property provide overwhelming evidence that the accumulated material was overgrown vegetation and disused items. As the magistrate noted, the appellant's claims to the contrary were fanciful. I am satisfied that the guilt of the appellant was proved beyond reasonable doubt on the evidence adduced at the trial. Thus, there was no substantial miscarriage of justice in any event.

62 For the reasons I have given, leave to appeal is refused in respect of ground 1. Whilst leave is granted in respect of ground 2, that ground cannot succeed. The appeal must, therefore, be dismissed.

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

[35] See LGA s 9.69

[36] Criminal Appeals Act 2004 (WA), s 14(2).

[37] Orreal v The Queen [2021] HCA 44 at [41]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 317 [44] ‑ [45]; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 at 104 [29]; Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62 at 69 ‑ 70 [12] - [13]; Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196 at 206 ‑ 207 [38]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at 951 [59], 955 ‑ 956 [84], 965 [131] ‑ [132].

[38] Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62 at 71 [15]; Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196 at 206-207 [38]- [39]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at 951-952 [60], 965-966 [133].