HUNTER -v- CITY OF JOONDALUP [2015] WASC 444 (20 November 2015)

(b) 'The judge dismissed my affidavit without questioning named witnesses' (proposed ground of appeal 2).

3 An issue was raised as to whether it was reasonably arguable (that is, that the argument had a reasonable prospect of success) that the presiding magistrate had erred in holding that the City was not barred from proceeding with the prosecution as Mr Hunter had been previously convicted of the same offence. A direction was made that this issue should be further considered at the hearing of the appeal. The question of whether Mr Hunter should be granted leave to appeal on either of his proposed grounds of appeal was also deferred to the hearing of the appeal.

(a) Mr Hunter should be granted leave to amend his appeal notice to allege that the learned magistrate erred in holding that the City could prosecute him for failing to comply with the Notice (proposed ground of appeal 3);

(b) leave to appeal on proposed ground of appeal 3 should be granted;

(c) leave to appeal on proposed grounds of appeal 1 and 2 should be refused;

(d) the appeal should be allowed and Mr Hunter's conviction set aside.

5 Section 3.25(1) LGA provides that:

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.

6 Section 3.25(5) provides that a person who is given a notice under s 3.25(1) may apply to the State Administrative Tribunal for a review of the decision to give the notice. Section 3.25(6) creates an offence where a person fails to comply with a notice given pursuant to s 3.25(1).

7 Section 3.26(2) provides that if the person who is given a notice under s 3.25(1) fails to comply, the local government may do anything that it considers necessary to achieve, so far as is practicable, the purpose for which the notice was given. The local government may recover the cost of anything done under s 3.26(2) as a debt due from the person who failed to comply with the notice.

8 Item 5 of sch 3.1, div 1, permits a local government to issue a notice under s 3.25(1) for the purpose of ensuring that unsightly land is enclosed, to the satisfaction of the local government, with a fence or other means suitable to prevent the land, so far as is practical, from being unsightly. The term 'unsightly' is defined to mean 'having an appearance that, because of the way in which the land is used, does not conform with the general appearance of other land in the locality' (item 5(2)).

9 The City gave the Notice to Mr Hunter in April 2011. The Notice was undated, but was sent to Mr Hunter under cover of a letter dated 15 April 2011. The Notice stated, among other things, that:

(a) The City considered that Mr Hunter's property in Periwinkle Road, Mullaloo, was unsightly because it had an appearance that, because of the way in which the land was used, did not conform with the general appearance of other land in the locality.

(b) Pursuant to s 3.25(1)(a) and item 5 of sch 3.1, div 1 LGA, Mr Hunter was required, within 150 days of being given the notice, to construct a fence at the front (eastern) boundary of the land. The fence was to be constructed to a height of 1.8 m above natural ground level and in accordance with the Residential Design Codes.

(c) It was an offence to fail to comply with a notice issued under s 3.25(1).

(d) Pursuant to s 3.26 LGA, the City could do anything that it considered necessary to achieve, so far as practicable, the purpose for which the notice had been issued and to recover the costs of doing so if Mr Hunter failed to comply with the notice.

10 Mr Hunter did not comply with the Notice and the City commenced a prosecution alleging that he had, within the district of the City of Joondalup, failed to comply with a notice pursuant to s 3.25 LGA requiring him to construct a fence along the eastern boundary of the property, contrary to s 3.25(6). The 'period' of the offence was alleged to have been 'between 27 September 2011 and the date of signing of this prosecution notice, both dates inclusive'. Mr Hunter was convicted of that offence on 3 July 2012. He was fined $1,500 and ordered to pay prosecution costs.

11 The affidavit referred to in proposed ground of appeal 2 was received as an exhibit in the trial of the charge that is the subject of this appeal (exhibit 17). Mr Hunter stated in the affidavit that on 2 November 2012 he met with two representatives of the City, Mr Etherington and Ms Hoskisson. Mr Hunter further stated that Mr Etherington advised him that the front yard of Mr Hunter's property was tidy and that 'should I wish to store anything else in my front yard, it would be sufficient for me to cover any such items with a tarpaulin' (exhibit 17, par 1). However, on 27 March 2013, the City wrote to Mr Hunter, stating:

It has come to the City's attention that yet again your land is being used to store materials and is considered untidy.

As advised previously, the City would continue to monitor the situation and would proceed to a further prosecution in the event of ongoing noncompliance.

Your ongoing failure to comply with the City's notice requiring the land to be fenced constitutes an ongoing offence. The City has thus far elected not to commence a further prosecution against you, on the understanding that the property would be kept tidy.

The City would request that you advise us whether you intend to comply with the notice to erect a fence, or tidy/clear the land to the City's satisfaction.

Ultimately, the City will have no option other than to commence a further prosecution for the noncompliance with the notice if the land is not cleared within 28 days from this letter.

12 Subsequently, the City commenced proceedings by a prosecution notice signed on 16 May 2013 and lodged at the Joondalup Magistrates Court on 24 May 2013. As has been mentioned, the charge alleged that Mr Hunter had failed to comply with the Notice. Consequently, it was alleged that Mr Hunter had committed the same offence as the offence for which he had been convicted in July 2012, except that the period of alleged noncompliance was different.

13 Counsel for Mr Hunter submitted at the commencement of the trial that s 17 of the Criminal Code applied. Section 17(1) provides that:

It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment or prosecution notice on which he might have been convicted of the offence with which he is charged, or has already been convicted or acquitted of an offence of which he might be convicted upon the indictment or prosecution notice on which he is charged.

14 The presiding magistrate rejected the submission made on behalf of Mr Hunter, noting that different periods of non-compliance were alleged for each offence. His Honour considered that the direction contained in the Notice created an 'ongoing obligation' so that the failure to comply with the direction was an 'ongoing offence' (28 March 2014, ts 5 6):

It follows that the notice is not satisfied [until] there has been compliance, which certainly did not occur between the prosecution period dates that were before me, namely March and April of 2013. I further agree with the City that it necessarily follows that the one notice could give rise to multiple and successive offences as it seems was the case in the factual matrix of the case stated of Stewart v City of Belmont [2013] WASC 366, even though, as I have said earlier, there was no decision made on the discrete point of s 17 (ts 6).

15 The conclusion that s 3.25(6) LGA created a continuing offence reflected the submission made by counsel for the City at the trial and again, in the appeal.

16 The City called Ms Hoskisson as its only witness. She proved service of the Notice in April 2011 and confirmed that Mr Hunter had been previously prosecuted for failing to comply with the Notice. She stated that:

(a) The Notice had been given after the City had become aware that Mr Hunter had brought onto his property and stored disused items with the result that the property was unsightly.

(b) The property had been inspected again on 22 March 2013 and it was found that further and different items had been brought onto the property. Mr Hunter was advised that if he continued to bring materials onto the site, the City would 'go for a second prosecution for noncompliance with the Notice' (5 December 2013, ts 11).

(c) Further inspections were conducted in April 2013 and further items were found to have been brought onto the property. The City elected to proceed with a prosecution as a result.

(d) Mr Hunter's property was inspected again on 31 May 2013. Mr Hunter had commenced to build a fence but he had not applied for a building permit. The fence was inspected on 10 June 2013 and it was concluded that it had not been constructed according to the Residential Design Codes and did not comply with the Notice (which required a fence with a height of 1.8 m).

(e) A meeting was held between Mr Hunter, Mr Etherington and Ms Hoskisson and subsequently the City provided Mr Hunter with plans for a conforming fence. A building permit was issued. However, subsequent inspections disclosed that the fence did not conform to the City's requirements. It was also noted that further items had been brought onto the property.

17 The affidavit made by Mr Hunter (exhibit 17) was received as his evidenceinchief. Mr Hunter stated in the affidavit that, at the meeting with Mr Etherington and Ms Hoskisson, Mr Etherington had said that the City would draw up some plans for a fence if Mr Hunter could provide a rough sketch of a fence to be constructed to the required height. Ms Hoskisson advised Mr Hunter that the City would discontinue the prosecution if he did what Mr Etherington requested (an assertion that was denied by Ms Hoskisson in crossexamination; 5 December 2013, ts 25). Mr Hunter subsequently met with Ms Hoskisson and provided the sketch of the fence that he proposed to construct. A building permit was issued and he constructed the fence approximately two weeks after receiving the permit. He was not notified by the City that the fence did not comply with the plans that had been approved. He subsequently wrote to the City, complaining that they had continued the prosecution notwithstanding that he had completed construction of the fence.

18 In crossexamination, Mr Hunter again asserted that he had been told by Mr Etherington in November 2012 that he could store items in his front yard provided they were covered with a tarpaulin and the yard was kept tidy. He had brought further items onto the property for storage until they could be sold. However, he considered that he had kept the yard tidy following the discussion in November 2012.

19 His Honour found that Mr Hunter did not comply with the Notice during the period 22 March to 29 April 2013. The evidence established that he had not constructed a fence during that period. His Honour made no findings regarding whether Mr Hunter had reached an agreement with the City that they would not prosecute him if he maintained his property in a tidy state and/or he constructed a fence according to the building permit that had been issued in June 2013.

**The second prosecution of Mr Hunter (proposed ground of appeal 3)

20 Proposed ground of appeal 3 raises a number of issues:

(a) what is meant by characterising an offence as a continuing offence;

(b) does s 71 of the Interpretation Act 1984 (WA) apply where a person is charged with and/or convicted of an offence under s 3.25(6);

(c) does s 3.25(6) create a continuing offence either by itself or read with s 71 of the Interpretation Act;

(d) if s 3.25(6) does create a continuing offence, could the City prosecute Mr Hunter for failing to comply with the Notice or does s 17 of the Criminal Code apply?

21 The City submitted that s 3.25(6) LGA created a continuing offence that was committed over the period of noncompliance with a notice given under s 3.25(1). Section 17 of the Criminal Code did not apply as the City had brought a new charge that alleged a separate offence relating to a different period of non-compliance to that for which Mr Hunter had been previously convicted. Those submissions were said to be consistent with the reasoning of Martin CJ in Stewart v City of Belmont [2013] WASC 366 and Hall J in Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 (Able Lott).

22 It was also submitted that s 9.14 LGA was consistent with an intention that s 3.25(6) should create a continuing offence. Section 9.14 provides that:

If the penalty to which a person is liable for committing an offence against this Act, other than an offence against regulations or a local law, is not specified, the penalty is -

(a) a fine of $5,000; and

(b) if the offence is of a continuing nature, a further fine of $500 in respect of each day or part of a day during which the offence has continued.

23 It was contended that an alternative interpretation of s 3.25(6) would create the undesirable consequence that a local government would be unable to properly enforce compliance with a notice issued under s 3.25(1) after 'the initial noncompliance', reference being made to the decision of the New South Wales Court of Appeal in Environmental Protection Authority v Alkem Drums Pty Ltd [2000] NSWCCA 416; (2000) 121 A Crim R 152 and Randwick City Council v Athens [No 10] [2004] NSWLEC 332.

24 Mr Hunter represented himself in the appeal and did not make any submission on proposed ground of appeal 3 having regard to the nature of the issues that were raised.

25 As O'Bryan and Gillard JJ explained in R v Industrial Appeals Court; Ex parte Barelli's Bakeries Pty Ltd [1965] VicRp 79; [1965] VR 615, the expression 'a continuing offence' is used in criminal law in two senses:

A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied. The question whether an offence is of a continuing or continuous nature generally arises in the case of statutory offences and the question is solved by ascertaining what is the precise nature of the offence (620).

26 The second sense in which the expression 'a continuing offence' is used recognises that it is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence, should take place once and for all on a single day: Hodgetts v Chiltern District Council [1983] 2 AC 120, 128 (Lord Roskill).

27 It is apparent that the presiding magistrate held that s 3.25(6) created a continuing offence in the first sense identified by O'Bryan and Gillard JJ. However, the City contended that that the offence was a continuing offence in the second sense. The City did not address that difference in its submissions.

28 It is not clear whether the magistrate considered that s 3.25(6) created a continuing offence in the first sense identified above when he referred to multiple and successive offences. However, the City contended that s 3.25(6) created a continuing offence in the second sense and this, in substance, was how the second charge alleged against Mr Hunter was prosecuted.

29 Whether a statutory provision creates a continuing offence is, selfevidently, a matter of construction. O'Bryan J observed in R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd [1980] VicRp 44; [1980] VR 459 that:

Whenever the expression, 'continuing offence' is applied to an offence which consists of a continuing failure to perform an obligation a limitation period will begin to run only from the time when the obligation is performed. Whether a particular offence is a continuing one, in this sense, turns upon the proper construction of the law creating the offence. If the true characterization of the law is that it imposes an obligation which continues until it is observed, then the offence may constitute a continuing one, but if on the other hand, the true characterization of the law is that it specifies a time for the doing of the act, then the limitation period commences to run from that specified time and this is so whatever the nature of the obligation (462).

30 That distinction accords with Lord Roskill's analysis of the statutory offence created by the Town and Country Planning Act 1971 that was considered in Hodgetts v Chiltern District Council. The Act made it an offence to not comply with an enforcement notice issued by a local authority. Lord Roskill observed that two types of enforcement notice could be issued: a notice requiring the owner of land to do something ('do notices') and a notice requiring the user of land to stop doing something ('desist notices'). The offence in the case of noncompliance with a 'do notice' was complete once and for all when the period for compliance had expired. The offence was not a continuous offence. However, noncompliance with a 'desist notice' constituted a single offence committed over a period of time (the period of noncompliance). Consequently, non-compliance with a desist notice constituted a continuing offence in the second sense identified earlier.

31 In Larking v Great Western (Nepean) Gravel Ltd [1940] HCA 37; (1940) 64 CLR 221, Dixon J drew a distinction between a covenant in a licence that premises be kept insured, which imposed a continuing obligation, and a covenant to put premises in repair, which was broken once and for all if a reasonable time for putting the premises in repair had elapsed without the licensee doing so. His Honour said:

If the covenant names a time for the doing or completion of a definite act, it is clear that failure to do the act within the time involves a breach once [and] for all, and ... the same conclusion will follow where no time is limited but a specified thing is to be done and a reasonable time elapses for the performance of the covenant (237).

32 Owen J provided one reason for why an offence that consists of a failure to act within a specified period is not a continuing offence in Sloggett v Adams (1953) 70 WN (NSW) 206. As the offence comprises a failure to do something within a period, the offender could never stop committing the offence if the offence was characterised as a continuing offence; there would be nothing that the offender could do after the period had expired in compliance with the direction to act within the specified period (208).

33 The New South Wales Court of Appeal further considered Sloggett v Adams and related authorities in Environmental Protection Authority v Alkem. The Environmental Protection Authority (EPA) had issued a notice to Alkem requiring the removal of drums from its premises by a specified date. The drums held chemicals, were in poor condition and were considered to be a potential source of water contamination. The notice was issued under cl 21(1) of the Clean Waters Regulations 1972 (NSW).

34 Alkem did not remove the drums. Clause 21(3) of the Clean Waters Regulations provided that:

An occupier of premises who does not comply with a requirement of a notice referred to clause (1) ... is guilty of an offence and is liable

(a) if a corporation - to a penalty not exceeding $4,000 and, in the case of a continuing offence, to a further penalty not exceeding $1,000 for each day the offence continues.

35 The EPA charged Alkem with an offence under cl 21(1) and cl 21(3) of the Clean Waters Regulations. The charge alleged that Alkem had not complied with the requirements contained in the notice issued by the EPA on and from the first day after the specified period had expired 'and continuing until' a date approximately 4 months later. Alkem pleaded guilty to the charge. The presiding judge held that the offence was not a continuing offence for the purpose of imposing a penalty. The EPA appealed by way of a stated case.

36 Foster AJA, with whom Dunford J agreed, held that the offence to which Alkem had pleaded guilty was not a continuing offence. The offence had been committed once and for all at the expiry of the period specified in the EPA's notice for compliance and, consequently, the charge as formulated could not be sustained (the prosecution was remitted to the Land and Environment Court to consider whether the EPA should be permitted to amend the charge).

37 Foster AJA considered that Sloggett v Adams, and an earlier decision to the same effect (Ex parte Schaefer; Re Field (1943) 60 WN (NSW) 99), stood in the way of the EPA's contention that the offence allegedly committed by Alkem was a continuing offence. His Honour cited extensively from the judgments of Street CJ and Owen J in Sloggett v Adams and noted that there had never been any departure from that case or from Ex parte Schaefer. He considered that the decisions were 'sound both in policy and logic' [11].

38 Smart AJ dissented, holding that the offence was a continuing offence. His Honour considered that there were powerful policy reasons for construing cl 21(3) as creating a continuing offence; in particular, that the alternative construction could affect the ability of the EPA to enforce a requirement after a period specified for compliance had expired. However, Foster AJA considered that there were two persuasive answers to that concern. First, it had been open to the EPA to formulate the notice in such a way as to impose a continuing obligation rather than impose a requirement which 'if not complied with produced a once and for all offence' [13]. Second, the Land and Environment Court was empowered by the Environmental Offences and Penalties Act 1989 (NSW) to order a person who has been convicted of an offence to take steps to remedy any harm caused by the offence or to prevent the continuation of the offence.

39 In Welsh v Cornfoot [1973] VicRp 2; [1973] VR 21, Lush J observed that:

[A]s a general rule when a time for compliance with a statutory requirement is fixed, the offence of non-compliance is complete at the end of that time and the offence is not a continuing one (26).

40 That proposition encapsulates the effect of the cases discussed above. However, there are statements that might be thought as tending the other way. So, for example, King CJ in Leydon v Forrest (1980) 23 SASR 364 said:

In general, it is to be expected that a failure to do some act which the person is required by law to do will be a continuing offence. The offence of noncompliance with a continuing statutory duty will continue so long as the noncompliance continues. The provisions of the statute, however, may indicate, expressly or by implication, that the offence is a once and for all offence (375).

41 The respondent in Leydon v Forrest had been charged with failing to submit to the liquidator of a company within 14 days of the date of a windingup order a statement as to the affairs of the company, contrary to s 234(5) of the Companies Act 1962 (SA). Section 234 of the Act created the obligation to provide the statement and s 234(5) created an offence in the following terms:

Every person who, without reasonable excuse, makes default in complying with the requirements of this section shall be guilty of an offence against this Act.

42 King CJ and Sangster J held that the offence created by s 234(5) was a continuing offence. Their Honours emphasised the object of the obligation to provide a statement of affairs to the liquidator, Sangster J observing that 'I find it impossible to understand how the passing of 14 days or any other precise time can be regarded as eliminating the liquidator's need for the statement, or the officer's obligation to provide it' (380). The fact that the obligation was conditioned by the words 'without reasonable excuse' was also significant. The company officer would not be in breach of the obligation for so long as he or she had a reasonable excuse for failing to submit the statement. Their Honours could see no reason for construing the sentence in a way that would allow a person who had a reasonable excuse for failing to submit the statement within 14 days to neglect the obligation with impunity after the excuse had ceased (376).

43 The line of authority represented by Sloggett v Adams was cited to the court. King CJ explained the effect of that line of authority as follows:

Three of the cases cited to us, namely Nottage v Tarac Manufacturers (Adelaide) Ltd [[1941] SASR 102]; Ex parte Schaefer; Re Field and Sloggett v Adams, are cases of noncompliance with a notice. In each case, the offence created by the statute was noncompliance with a notice. In none of them was absence of an excuse an element of the offence. It was held in those three cases that the offence of non-compliance with the notice was complete at the expiration of the period of the notice and that the limitation period for the commencement of proceedings ran from that date. I think that the decisions are distinguishable from the present case. The offence was failure to comply with the notice. The notice did not seek to impose a continuing obligation, but directed that the required action be taken within the specified time. The prohibited omission therefore occurred immediately the time expired and the notice could not be complied with thereafter. The legal result might not be the same if the statute made absence of excuse an element of the offence (372).

44 In my view, the reasoning in Leydon v Forrest (which was followed by Mullighan J in Hopfner v Flavel (1990) 2 ACSR 295) is consistent with the conclusions that I have reached in this appeal.

Section 71 of the Interpretation Act

45 Section 71 of the Interpretation Act provides that:

(a) by or under a written law an act or thing is required or directed to be done within a particular period or before a particular time; and

(b) failure to do that act or thing within the period or before the time referred to in paragraph (a) constitutes an offence; and

(c) that act or thing is not done within the period or before the time referred to in paragraph (a),

(d) the obligation to do that act or thing continues, notwithstanding that that period has expired or that time has passed, until that act or thing is done; and

(e) where a person is convicted of an offence that, by virtue of paragraph (d), is constituted by failure to do that act or thing after the expiration of that period or after that time, as the case may be, that person is guilty of a separate and further offence in respect of each day after the day of the conviction during which the failure to do that act or thing continues; and

(f) unless otherwise provided, the penalty applicable to each separate and further offence is $50.

46 The City contended that the effect of s 71 was to create a single offence across any period of continuing non-compliance following a conviction. It was submitted that the purpose of the section was to provide a means by which daily penalties could be imposed 'where legislation does not specifically establish a daily penalty in respect of continuing offences' (the City's submissions, par 4.3.3). Accordingly, the section did not apply to the offence created by s 3.25(6) LGA as that section created a continuing offence for which a daily penalty could be imposed under s 9.14. The City did not explain in its submissions how a daily penalty would be imposed following conviction under s 3.25(6).

47 Section 17(1) of the Criminal Code provides that:

It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment or prosecution notice on which he might have been convicted of the offence with which he is charged, or has already been convicted or acquitted of an offence of which he might be convicted upon the indictment or prosecution notice on which he is charged.

48 The first part of s 17 provides that it is a defence to show that the accused has already been convicted or acquitted on a charge on which there might have been a conviction of the offence which is now charged. The second part of the section provides that it is a defence to show that the accused has already been convicted or acquitted of an offence for which there might have been a conviction on the present charge. The two parts of the section give statutory effect to the common law rules relating to the pleas of autrefois convict and autrefois acquit.

49 The plea of autrefois convict reflects the application, in criminal proceedings, of the doctrine of merger that gives rise to a res judicata or cause of action estoppel in civil proceedings; autrefois acquit operates within its confines to prevent the prosecution from asserting the contrary to what has previously been judicially determined in favour of an accused: Rogers v The Queen (1994) 181 CLR 251, 277 (Deane and Gaudron JJ).

50 The criminal liability of an offender merges in his or her conviction and their liability to punishment is discharged by the punishment then imposed. What becomes res judicata is the offence of which the offender has been convicted. The plea can only be supported by proof of the final adjudication involving both conviction and sentence. The plea of autrefois convict is only available where the elements of the offences are identical or all the elements of one are included in the other. It focuses on the elements of the offences and not on the witnesses or their evidence: see K R Handley (ed), Spencer Bower & Handley, Res Judicata (4th ed) 23.01 23.05.

51 The appellant in Abel Lott had been convicted of, among other things, contravening a stopwork notice issued under s 401A of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (the Miscellaneous Provisions Act) in the period between February and August 2007, contrary to s 401A(5) of that Act: Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87; Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39. It performed further work at the subject site between February and July 2010 and was convicted of permitting work to be done in contravention of a stopwork notice, contrary to s 401A(5) of the Miscellaneous Provisions Act and of failing to comply with a direction to stop and not recommence development contrary to s 214(7) of the Planning and Development Act 2005 (WA).

52 The City submitted that the circumstances of the Able Lott prosecutions, and in particular, the judgment of Hall J \in Able Lott, demonstrated that a person could be successively prosecuted for noncompliance with a single notice given under planning legislation. However, there are, at least, three difficulties with that submission. First, no question concerning the characterisation of the offence created by s 401A(5) of the Miscellaneous Provisions Act or the possible application of s 71 of the Interpretation Act and/or s 17 of the Criminal Code were raised in the appeal. Second, it was not clear whether the second prosecution of the appellant was for noncompliance with the same stopnotice that was the subject of the first prosecution. Third, there are material differences in the circumstances that are relevant to the question of whether the offence in this matter was a continuing offence - the notice in the Able Lott prosecutions (assuming that there was only one) was a 'desist notice'. Hodgetts v Chiltern DC and Environmental Protection Authority v Alkem indicate that the form of the notice, as well as the offence creating provision, may determine whether the offence alleged is a continuing offence.

53 Stewart v City of Belmont involved multiple contraventions of a notice issued under s 3.25 LGA, requiring the appellant to remove rubbish and disused material from his property within a specified time period. The appellant was charged with having failed to comply with the notice on two particular days after the period had expired. It is to be inferred that those days corresponded with the dates on which officers of the City of Belmont inspected the property concerned. The appellant was convicted of failing to comply with the notice on each of the dates specified in the prosecution notice - that is, he was convicted of committing two offences under s 3.25(6) LGA.

54 The City of Belmont subsequently inspected the appellant's property and found that he had still not complied with the notice issued under s 3.25. He was again charged with having failed to comply with the notice. He was convicted in his absence pursuant to s 55 of the Criminal Procedure Act 2004 (WA). He unsuccessfully applied to set aside his conviction and then sought an order under s 36 of the Magistrates Court Act 2004 (WA) declaring convictions void on the grounds that he had been denied natural justice and that the orders made by the presiding magistrates were without jurisdiction.

55 It is clear that the appellant in Stewart v City of Belmont was convicted of multiple offences for failing to comply with a single notice issued under s 3.25(1) LGA. However, the question of whether he could be successfully prosecuted for noncompliance with a single notice was not raised in the appeal. Indeed, the focus of the appeal was on the circumstances in which the appellant had been convicted in his absence. The grounds of appeal raised were found to be entirely without merit.

56 It is to be noted that the first two convictions against the appellant did not reflect the notion of a continuing offence contended for by the City in this appeal; rather, the charges were consistent with the first sense referred to earlier in which the expression 'continuing offence' may be used in criminal law.

57 Finally, Randwick City Council v Athens [No 10] concerned the respondent's contempt of orders made by the Land and Environment Court. Understandably, Cowdroy J considered that the reasoning of the majority of the New South Wales Court of Appeal in Environmental Protection Authority v Alkem did not apply to the assessment of the penalty to be imposed for the contempt.

58 Section 3.25 LGA provides for both administrative review and enforcement of a notice by prosecution. That combination of procedures is unusual in other contexts but common for the enforcement of planning controls. The effect is that the factual basis for giving a notice and the reasonableness of the notice, including the time for compliance, are not matters that are relevant to enforcement proceedings. They are matters that can only be challenged by administrative review in the State Administrative Tribunal.

59 As has been noted, the City presented evidence in the second prosecution of Mr Hunter that his property was unsightly because of items that were stored in the front yard. It was apparent from the evidence that the items that were stored were different to those which had been located on the property at the time when the Notice was issued and Mr Hunter was first prosecuted for noncompliance. That is, the appearance of the front yard had altered. Mr Hunter claimed in his evidence that the yard had been maintained in a tidy state from, at least, November 2012.

60 It would have been open to Mr Hunter to challenge a fresh notice issued by the City prior to his second prosecution on grounds of reasonableness. However, the effect of the City's contention is that Mr Hunter was not entitled to challenge the Notice regardless of whatever changes might have occurred to the state and appearance of his property or the appearance of surrounding properties (given that the definition of 'unsightly' refers to an appearance that does not conform with the general appearance of other land in the locality). This illustrates the injustice that might arise if s 3.25(6) was to be construed as creating a continuing offence in the sense contended for by the City.

61 The other aspect of the statutory scheme that is relevant to the proper construction of s 3.25(6) LGA is the power conferred on a local government by s 3.26. That section enables a local government to remedy a failure to comply with a notice given under s 3.25. The local government may recover the costs of rectifying the noncompliance. Those provisions are consistent with the view that the offence created by s 3.25(6) is not a continuing offence where there has been a failure to comply with a notice requiring some action to be taken (a 'do notice').

The effect of s 71 of the Interpretation Act

62 There are, in effect, two limbs to s 71(1)(e) of the Interpretation Act when the section is read with the balance of s 71(1). The first limb is contained in the words 'where a person is convicted of an offence that, by virtue of paragraph (d), is constituted by failure to do that act or thing after the expiration of that period or after that time' (when those words are read with s 71(1)(a) s 71(1)(d)). The second limb is contained in the remainder of s 71(1)(e).

63 The second limb of s 71(1)(e) was the subject of submissions by the City and has been considered by this court. So, for example, it has been held that the section creates a statutory form of continuing offence. The section merely requires 'an omission to act in accordance with the statutory duty imposed and does not require the original act or omission to itself create a continuing state of affairs punishable in respect of each day during which the state of affairs continues': Tagliaferri v De Villiers (Unreported, WASC, Library No 950493, 15 September 1995) 8 (Murray J). The section is limited in its operation to cases in which the act or thing is required to be done 'within a particular period' or 'before a particular time' and does not extend to cases in which the act or thing is required to be done on a particular date or at a particular moment in time: Simto Pty Ltd trading as Simto Australia v Henry Thomas Neesham (Unreported, WASC, Library No 930419, 4 August 1993) 6 (Anderson J). It would seem that under s 71(1)(e) the 'separate and further offence' must be constituted by the continuation of the same conduct that led to the initial conviction so that a charge that alleged other conduct could not be sustained: Simto v Neesham (10).

64 I have been unable to find any authority on the meaning and effect of s 71(1)(d) of the Interpretation Act or that part of s 71(1)(e) that I have referred to as the first limb of the section. However, in my view a number of points can be made about s 71(1)(d) and s 71(1)(e), when read with the remainder of s 71:

(a) The words 'by a written law' in s 71(1)(a) plainly refer to a statutory requirement that an act or thing be done (see the definition of 'written law' in s 5 of the Act).

(b) Section 5 of the Interpretation Act provides that 'under, in relation to a written law, includes by "by", "in accordance with", "pursuant to" and "by virtue of"'. Accordingly, the words 'under a written law' when used in s 71(1)(a) refer to a requirement imposed by the exercise of a power conferred by a written law - for example, a requirement or direction given in a notice issued pursuant to a statutory power.

(c) Section 71(1)(b) refers to a failure to do the act or thing within the period or before the time referred to in s 71(1)(a) as constituting an offence. That is, the section contemplates that the offence to which it refers (the Primary Offence) is not constituted merely by failing to do the act or thing; the offence is failing to do the act or thing within the required time.

(d) Section 71(1)(d) read with s 71(1)(b), assumes that the obligation to do the act or thing by or under a written law to which s 71(1)(a) refers does not extend beyond the time specified for compliance (the Specified Time).

(e) The effect of the first limb of s 71(1)(d) is to extend the obligation to do the act or thing beyond the Specified Time if the failure to do the act or thing constitutes an offence (the offence to which s 71(1)(b) refers) and the act or thing was not done within the Specified Time.

(f) Section 71(1)(e) refers to a person who is convicted of an offence 'that, by virtue of paragraph (d), is constituted by failure to do ... the act or thing' after the Specified Time. Accordingly, s 71(1)(e) assumes that a person could not be convicted of the Primary Offence by failing to do the act or thing after the Specified Time but for s 71(1)(d); that is, that s 71(1)(e), read with s 71(1)(b) and s 71(1)(d), assumes that the Primary Offence would be complete once and for all on expiry of the Specified Time but for the effect of s 71(1)(d).

(g) On conviction of the Primary Offence, the offender may be guilty of a separate and further offence created by s 71(1)(e). Section 71(1)(e) assumes that a continuing failure by an offender to do the required act or thing following conviction for the Primary Offence does not constitute a further contravention of the written law that created that offence. Rather, a separate and further offence is created for each day that the failure continues which is to be punished according to the provisions of s 71(1)(f).

65 There are two further points to note about s 71 that are significant for this appeal.

66 First, it is not necessary to have recourse to s 71(1)(d) to extend the time within which a person may commit the offence of failing to comply with a requirement to do an act or thing. As has been noted, the Primary Offence is committed when the offender failed to do the act or thing within the Specified Time. In this case, Mr Hunter committed an offence under s 3.25(6) LGA when he failed to erect the fence within 150 days of being given the Notice - the offence being complete on the 151st day. Mr Hunter could have been prosecuted any time within two years after the offence had been committed: s 9.25(2) LGA. However, s 9.14 LGA would not apply as the offence would not be of a continuing nature - the offence is complete once and for all on expiry of the period specified for compliance.

67 In my view, s 71(1)(d) was intended to operate in such circumstances. The effect of the section is to preserve the obligation imposed by a notice given under s 3.25(1) beyond the expiry of the period specified for compliance in the notice. Accordingly, the offence committed under s 3.25(6) is of a 'continuing nature' within the meaning and for the purpose of s 9.14 even though the offence is complete on expiry of the period specified for compliance.

68 The second point to be made about s 71 is that it recognises the effect of s 17 of the Criminal Code; that is, that the criminal liability of the offender for the offence to which s 71(1)(b) refers - the Primary Offence - merges in his or her conviction and punishment for the offence. Accordingly, s 71(1)(e) creates a 'separate and further' offence where there is continuing noncompliance following conviction.

69 The elements of the Primary Offence and the elements of the separate and further offence created by s 71(1)(e) will be different. In particular, the elements of the s 71(1)(e) offence commence with proof that the offender was convicted of an offence that, by virtue s 71(1)(d), was constituted by a failure to do the required act or thing after the time to which s 71(1)(a) refers - the Specified Time.

70 The words 'is constituted by' in the first limb of s 71(1)(e) create some difficulty for determining the intended operation of the section. The failure to do the act or thing to which s 71(1) refers must necessarily have occurred within the Specified Time. It cannot have been intended that s 71(1)(e) would apply where the failure to do the act or thing first occurred after the expiry of the Specified Time - that would be a nonsense. Accordingly, an offence that, by virtue of s 71(1)(d), is constituted by failure to do a required act or thing after the Specified Time must refer to a situation in which an offence is committed by the failure to do the act or thing within that time and the failure to do the act or thing after the time continues to attract criminal liability by reason of s 71(1)(d).

71 The Notice required Mr Hunter to erect a fence within 150 days. Mr Hunter failed to comply with the Notice when he did not erect a fence within that period. The offence committed by Mr Hunter was complete once and for all on expiry of the period specified in the Notice if s 3.25(6) LGA is read without reference to s 71(1) of the Interpretation Act. Standing alone, s 3.25(6) does not create a continuing offence where the notice given under s 3.25(1) requires the person to whom the notice is given to do some act or thing.

72 A notice given under s 3.25(1) requiring an act or thing to be done will accord with the provisions of s 71(1)(a) of the Interpretation Act. The offence created by s 3.25(6) is an offence to which s 71(1)(b) refers. Section 71(1)(d) of the Interpretation Act applies to s 3.25 LGA in those circumstances. Accordingly, Mr Hunter was still required to erect the fence on the eastern boundary of his property after the period specified in the Notice had expired. His failure to do so meant that his offence was of a continuing nature for the purpose of s 9.14. He could have been charged, as he first was, with a failure to comply with the Notice for a period after the 150 days allowed for compliance because of the operation of s 71(1) of the Interpretation Act. A daily penalty could have been imposed under s 9.14 LGA (it appears that no penalty was imposed).

73 However, s 17 of the Criminal Code provided Mr Hunter with a defence to the further charge that he had failed to comply with the Notice contrary to s 3.25(6). He had already been convicted of that charge - his criminal liability for that offence had merged in his conviction and sentence. Contrary to the City's submissions, that did not mean that Mr Hunter could not have been charged with an offence (or offences) alleging that he had failed to comply with the obligation to erect the fence after his conviction in July 2012 - he could have been charged with an offence under s 71(1)(e) of the Interpretation Act. However, he was not charged with that offence.

74 There are difficulties with the application of s 71(1)(e) where the prosecution of the separate and further offence is commenced some considerable time after conviction. It may be that it would be an abuse of process to unduly delay a prosecution, particularly where, as with s 3.25 LGA, the prosecuting authority has an express power to remedy the failure so that there is an effective alternative to a further prosecution. Moreover, it may be unfair to commence a further prosecution where the circumstances that gave rise to the requirement have changed with the effluxion of time. The preferable course in that case may be to give a fresh notice imposing a new requirement. That would entitle the recipient to challenge the reasonableness of the notice in the State Administrative Tribunal if that was thought to be an appropriate course. However, it is not necessary to further explore those matters in this appeal.

75 Mr Hunter alleged, in effect, that he had reached two agreements with the City over any further prosecution for failing to erect a fence on the eastern boundary of his residence - one agreement prior to the commencement of the prosecution (the City would not prosecute him if he kept the front yard of his property tidy) and a second agreement after the prosecution had been commenced (the prosecution would be withdrawn if he built the fence according to the building approval). The City contended in this court that the evidence did not establish that either agreement had been made.

76 The decision whether to prosecute is a discretion vested in the prosecuting authority. The exercise of the discretion will not be reviewed by a court unless the prosecution would be an abuse of process: Connelly v Director of Public Prosecutions [1964] 1 AC 1254; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 and Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; (2012) 41 VR 81. The court may stay a prosecution if it is oppressive or unfair - in particular, if a prosecution has been commenced for an improper purpose: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509.

77 There is a public interest in the enforcement of the criminal law and in the administration of justice. Accordingly, 'any contract or engagement having a tendency, however slight, to affect the administration of justice' is illegal at common law: Egerton v Brownlow (Earl) [1853] EngR 885; (1853) 4 HLC 1; 10 ER 359; A v Hayden [1984] HCA 67; (1984) 156 CLR 532, 553 (Mason J). Any agreement that might have been reached between Mr Hunter and the City not to prosecute him would have been unenforceable as a matter of public policy. That is so, even though it is understandable that a layperson in Mr Hunter's position might regard such an agreement as significant.

78 This ground of appeal has no reasonable prospect of success.

79 Mr Hunter was represented at the trial. His counsel cross-examined the only witness called by the City. The magistrate accepted the City's evidence that the front yard of Mr Hunter's residence was not in a tidy state. His Honour found that Mr Hunter had not constructed a fence as required by the Notice.

80 There is no merit in this proposed ground of appeal.

CITATION : HUNTER -v- CITY OF JOONDALUP [2015] WASC 444 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal appeal - Costs of trial where convicted appellant successful on appeal - No new principles

Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5

Respondent ordered to pay appellant's costs of the trial fixed at $5,000

The appellant's claims for costs and 'compensation'

1 The appellant was convicted following trial of an offence against the Local Government Act 1995 (WA). He was fined $3,000 and ordered to pay $5,000 in prosecution costs.

2 The appellant appealed against conviction. I granted leave to appeal and allowed the appeal. I held that the appellant had a defence to the offence alleged under s 17 of the Criminal Code (WA): Hunter v City of Joondalup [2015] WASC 444.

3 The appellant represented himself in the appeal. However, he was represented by a legal practitioner at the trial in the Magistrates Court.

4 The appellant now claims the following costs and 'compensation' in connection with his trial and appeal:

(a) costs and disbursements payable to the practitioner who represented him at the trial;

(b) compensation for time spent in the Magistrates Court and this court (eight days claimed at $400 per day);

(c) compensation for time spent in obtaining legal advice and undertaking research (10 days claimed at $400 per day);

(d) compensation for emotional distress caused to the appellant's children by the publication in a community newspaper of an article relating to the charge alleged by the respondent ($2,000); and

(e) compensation for stress and mental suffering caused to the appellant by the demands made by the respondent and the prosecution of the charge alleged against him and for the what the appellant characterised as the respondent's unreasonable and oppressive conduct - the appellant contended that the respondent had for several years threatened him with fines of $200,000 plus daily penalties of $25,000 and that he ought to receive, as compensation, an amount of $200,000.

5 The power to award costs is statutory: Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 and Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182. Section 67(1) of the Criminal Procedure Act 2004 (WA) provides that a successful party to a prosecution is entitled to the party's costs, subject to the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the Official Prosecutions Act).

6 Section 5 of the Official Prosecutions Act provides, so far as is relevant:

(1) Subject to this Act, a successful accused is entitled to his costs.

...

(4) Where an accused is successful by reason of the appeal court reversing a decision of the summary court, the appeal court shall make an order as to the amount of the costs in the appeal court and in the summary court.

(5) The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a costs determination (as defined in the Legal Profession Act 2008 section 252).

7 As s 5 of the Official Prosecutions Act makes clear, an accused person's entitlement to costs is subject to the ordinary rule that the costs of legal proceedings are confined to money paid or liabilities incurred for professional legal services - the entitlement is to an amount determined according to the scale fixed by a costs determination made under the Legal Profession Act 2008 (WA). A costs determination is made pursuant to s 275 of the Legal Profession Act. That section provides for costs determinations to be made to regulate the amount that may be charged by 'law practices' for contentious and non-contentious business. A law practice is a practice comprising legal practitioners: see the definition of the term 'law practice' in s 3 of the Legal Profession Act.

8 As has been noted, the provisions of the Official Prosecutions Act reflect the long established common law rule that an order for costs is a partial indemnity for the costs incurred by a successful party in engaging legal representation in proceedings. Accordingly, an in person litigant is not entitled to compensation for the time spent in preparing and conducting his or her case: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. As the majority in Cachia observed:

It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, 'but not to the costs and expences of his travell and losse of time' (410 411).

9 The majority referred to the judgment of Bowen LJ in London Scottish Benefit Society v Chorley (1884) 13 QBD 872 to provide one explanation for why a litigant in person is not entitled to costs:

Professional skill and labour are recognised and can be measured by the law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual. Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs (877).

10 Accordingly, the appellant is entitled to an order for costs to the extent that he has incurred a liability to pay the practitioner who appeared for him at the trial in the Magistrate's Court. The appellant is not otherwise entitled to 'compensation' for the time he spent in preparing for and appearing at the trial or the hearing of the appeal or for stress to himself or family members caused by the prosecution of the charge alleged by the respondent. He is also not entitled in these proceedings to compensation or damages as a result of any dealing that he may have had with the respondent.

11 Section 14(1)(h) of the Criminal Appeals Act 2004 (WA) provides that, in deciding an appeal, this court may make an order as to the costs of the proceedings in the court of summary jurisdiction.

12 The appellant has provided a copy of the account of the legal practitioner who appeared for him at trial. The account is for work undertaken between November 2013 and May 2014. The applicable costs determination is the Legal Practitioners (Magistrates Court) (Criminal) Determination 2012 (WA) (the Determination). The account itemised the work done on particular dates and the amount charged for that work, but the time spent completing each item of work was not specified. Accordingly, it is not possible to ascertain whether the amounts charged accord with the hourly and daily rates specified in the Determination.

13 The magistrate fixed the respondent's costs at $5,000. My review of the trial transcript indicates that the practitioners acting for the appellant and the respondent were required to consider similar issues for the trial and to prepare evidence that traversed common matters. In particular, the primary issue in the trial was whether the offence alleged was a continuing offence (the appellant submitted that he could not be convicted of the offence alleged as he had been previously convicted of the same offence; the respondent contended that the offence alleged was a continuing offence for which the appellant could be convicted on more than one occasion).

14 The magistrate was well placed to fix the reasonable costs of the trial according to the Determination. There is no reason to depart from his assessment given the issues raised in the prosecution and the conduct of each party's case in the trial.

15 Accordingly, an order will be made that the respondent pay the appellant's costs of the trial fixed at $5,000. That is less than the amount charged by the practitioner retained by the appellant but an award of costs is inevitably only a partial indemnity.