INVESTMENTS (WA) PTY LTD -v- CITY OF SWAN [2012] WASC 278 (3 August 2012)

3 On 28 January 2011, Blaxell J upheld the appeal and remitted the matter to the learned magistrate.

4 The matter came before the learned magistrate again on 23 May 2011. On that occasion, counsel for Investments WA sought to make submissions in respect of a defence under s 22 of the Criminal Code (WA) which he submitted arose on the evidence at the trial (the s 22 defence). (Although s 22 of the Criminal Code gives rise to an excuse, rather than a defence, I will continue to use the term defence in this case as a convenient shorthand.) The learned magistrate declined to hear submissions in respect of the s 22 defence and instead entered a conviction, sentenced Investments WA, and made orders for costs.

5 Investments WA now appeals against the decision of the learned magistrate, other than in respect of the penalty imposed and costs.

The learned Magistrate erred in law in failing to hear argument on, and consider, a defence of an honest claim of right on the part of the appellant pursuant to section 22 Criminal Code (WA), when determining the matter.

Leave to appeal was granted by Hall J on 26 August 2011.

7 These reasons for decision deal with the following matters:

1. the background to this appeal; and
2. the issues arising from the ground of appeal:

(b) was the learned magistrate required to deal with the s 22 defence following the remittal?;

(c) was the learned magistrate required to deal with the s 22 defence having regard to the way in which Investments WA ran its case?; and

(d) did the evidence give rise to a defence under s 22 of the Criminal Code?

8 In order to understand how the present appeal has come about, it is necessary to set out in a little more detail the history of the matter, which comprises the following:

(b) the trial before the learned magistrate on 20 August 2011;

(c) the appeal to Blaxell J from the decision of the learned magistrate;

(d) the hearing before the learned magistrate on 23 May 2011.

9 At the time of the offence, Investments WA was in the process of developing 38 strata titled units. It had obtained approval from the City for the development pursuant to the applicable local planning scheme. That approval was subject to a number of conditions, one of which (condition 5) imposed what I will refer to as the requirement to pay a drainage contribution. Condition 5 was in the following terms:

1. A drainage contribution at the rate of $25,000 per hectare shall be paid to the City of Swan, as the development falls within the Midland District drainage area. Payment shall be made before the development now approved is occupied.

10 Between 2004 and 2009, the development proceeded in stages (comprising eight or nine grouped dwellings) and the City issued separate building licences for each stage of the development. Each building licence required compliance with the conditions of planning approval.

11 At the time of the offence, construction of the first three stages of the development had been completed and the units constructed had been occupied by the strata owners. A further ten dwellings in the fourth stage of the development were still under construction.

(b) The trial before the learned magistrate on 20 August 2011

12 The offence was tried before the learned magistrate on 20 August 2010. It appears that Investments WA did not dispute the facts said to give rise to the offence, and in particular it did not dispute that it had not paid the drainage contribution (which involved a payment of $29,370). Its case was that on the proper construction of condition 5, payment of the drainage contribution was not due at the time of the offence. It appears that both counsel proceeded on the understanding that the sole issue in the trial was the construction of condition 5. Counsel for Investments WA told the learned magistrate that that was so:

[W]e would like to just cut to the chase, which is whether this contribution is due yet or not. It's a construction of one of the building licence conditions, condition 5. It really is as simple as that (ts 3, 20 August 2010).

13 The submissions made by both counsel at the conclusion of the evidence also focussed solely on the construction of condition 5. Counsel for Investments WA submitted that:

The central issue here is, is the accused liable to pay the contribution yet? We agree he's [sic] going to have to pay it. He has no hesitation in paying it, but it's the timing (ts 22, 20 August 2010).

14 However, although the facts were apparently not in dispute, and counsel approached the trial on the basis that there was only one issue in dispute, the way in which the trial was conducted left room for some confusion about what factual and legal matters required consideration, for two reasons.

15 First, although the relevant facts were, apparently, not in dispute, those facts were not clearly identified. A bundle of documents was tendered into evidence without objection, but those documents were (largely) not referred to by counsel. Counsel for the parties also apparently agreed a statement of facts. A copy of that statement of facts was provided to the learned magistrate but it was not tendered into evidence. Rather, counsel for the City indicated that he would read the statement of agreed facts to the court. Unfortunately, it does not appear that the entirety of that document was read out, and the facts agreed are somewhat unclear from the transcript of the hearing.

16 In addition, it became apparent in the course of submissions on the hearing of this appeal that there was some confusion about precisely what had been agreed, or whether there had been any concessions made on behalf of Investments WA that it did not dispute particular elements of the offence or rely on any defence other than its argument in relation to the construction of condition 5.

17 Formal admissions may be made pursuant to s 32 of the Evidence Act 1906 (WA). However, that section does not establish any procedure for making formal admissions. In the context of an adversarial and accusatorial proceeding, the making of admissions by an accused as to facts relevant to, or elements of, an offence, is a valuable process which avoids unnecessary cost and inconvenience to the community, to witnesses and other persons affected by, or involved in, a prosecution: R v Shalala [2007] VSCA 199 [21] [22]. If admissions or concessions are made, however, care should be taken to ensure that those admissions or concessions are set out in the clearest possible manner, so as to avoid confusion about what has been admitted or conceded, or disputes about the effects and consequences of informal admissions or concessions: cf Stubley v Western Australia [2011] HCA 7; (2011) 242 CLR 374, 400 [90] (Heydon J); The State of Western Australia v Wood [2008] WASCA 81 [25] (Steytler P, Miller JA agreeing), [28] [38] (Pullin JA). The present case illustrates the importance of carefully identifying precisely what is admitted or conceded by an accused.

18 Secondly, although the facts were not in dispute (and the sole issue in dispute was, apparently, the construction of condition 5), oral evidence was given by one witness for the prosecution (Mr Townsend, the Engineering Technical Officer for the City of Swan), and from Mr Joseph Tilli, a director of Investments WA. The purpose for which this evidence was led is not entirely clear.

19 However, in the course of Mr Tilli's evidenceinchief, the following exchange took place:

Now, when do you intend to pay the drainage contribution in this matter? - My intention to pay was once the final stage is complete and we've had a form 7 signed by the council for the strata plan that it's all complete and then I presume that we would get an invoice thereafter and pay [within] the normal payment periods with the council.

Do you have any intention not to pay the drainage contribution in due course? - No.

Why haven't you paid it to date? - Because it's not liable to be paid at this point in time (ts 12, 20 August 2010).

It is this evidence on which counsel for Investments WA relies as giving rise to the s 22 defence.

20 Having regard to the submissions of counsel, the learned magistrate understood that the sole issue for determination in the trial was the construction of condition 5, and that was the sole issue on which she focused in her reasons for decision. She did not refer to s 22 of the Criminal Code at all. The learned magistrate found that condition 5 was ambiguous as to the time for payment and for that reason found that Investments WA was not guilty of the offence.

(c) The appeal to Blaxell J from the learned magistrate

21 On 20 August 2011 the City appealed against the decision of the learned magistrate. Its two grounds of appeal concerned the learned magistrate's approach to, and conclusion on, the construction of condition 5.

22 The appeal was heard on 21 December 2010. Investments WA did not file a notice of contention contending that the decision of the learned magistrate should be upheld on a ground not relied upon by the learned magistrate (namely that a s 22 defence had been raised on the evidence and not negatived by the prosecution). Further, in the course of submissions on 21 December 2010, counsel for Investments WA did not make any mention of the fact that, by virtue of Mr Tilli's evidence, Investments WA considered that it had raised a s 22 defence which would also warrant a finding that the prosecution had not proved the offence beyond a reasonable doubt.

23 In appeals to the Court of Appeal, the rules require that if a respondent seeks to uphold the primary court's decision on a ground not relied upon by the primary court, the respondent's answer to an appellant's case must include a notice of contention to that effect: r 33(4)(c)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA). Although no similar rule applies in the context of appeals to the Supreme Court from the Magistrates Court under the Criminal Appeals Act 2004 (WA) (the CA Act), it is highly desirable that if a respondent to such an appeal seeks to uphold the primary court's decision on a ground not relied upon by the primary court, it should make that clear to the appellant and the appeal court at the earliest opportunity, so that the issue can be considered in the course of the appeal. This practice has been adopted on occasion: see for example Builders' Registration Board of WA v Keller Constructions (WA) Pty Ltd [2010] WASC 119 [7] (Murray J); Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194 [8] (Murray J). The filing of a notice of contention is particularly desirable given that the court is permitted to dismiss an appeal, even if a ground of appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred: s 14(2) of the CA Act. It is regrettable that prior to, or in the course of, the hearing of the appeal before Blaxell J, Investments WA did not raise its contention that the decision of the learned magistrate to find it not guilty of the offence was correct, on the basis that the prosecution had failed to negative the s 22 defence. Had it done so, the present appeal might not have eventuated.

24 Blaxell J allowed the appeal and concluded that on the proper construction of condition 5, Investments WA was obliged to pay the drainage contribution prior to any stage of the development becoming occupied and lived in: City of Swan v Investments (WA) Pty Ltd [2011] WASC 17 [29].

25 I was informed by counsel that Blaxell J provided an advance copy of his reasons for decision to counsel, and a hearing was held on 28 January 2011 for the purpose of making orders to give effect to his Honour's reasons for decision. Unfortunately, no transcript of the hearing on 28 January 2011 is now available. However, according to the court file, just prior to the hearing on 28 January 2011, the City filed a minute of proposed orders in which it sought that Blaxell J make orders (other than orders in relation to costs) in the following terms:

1. The appeal is allowed.
2. The dismissal of the prosecution be set aside and a conviction be entered of the offence charged in the Prosecution Notice
3. The matter otherwise be remitted to the Magistrates Court in Midland for the imposition of a penalty.

26 I was informed by counsel for Investments WA (and this was also borne out in submissions made by both counsel before the learned magistrate on 23 May 2011) that at the hearing before Blaxell J on 28 January 2011, counsel for Investments WA submitted that a s 22 defence was raised on the evidence before the learned magistrate. Counsel for Investments WA submitted that having heard that submission, Blaxell J determined to remit the matter to the learned magistrate for her to deal with all outstanding issues.

27 I note that Blaxell J made orders (other than in relation to costs) in the following terms:

1. The appeal is allowed.
2. The dismissal of the prosecution be set aside and the matter otherwise be remitted to the Magistrates Court in Midland to be dealt with according to law.

(d) The hearing before the learned magistrate on 23 May 2011

28 The learned magistrate dealt with the prosecution again on 23 May 2011. On that occasion, counsel for Investments WA submitted that Mr Tilli's evidence at the hearing on 20 August 2010 was sufficient to found a s 22 defence, although no submissions in respect of that defence had been made at the trial.

29 Counsel for Investments WA sought to make submissions in respect of the s 22 defence before the learned magistrate proceeded to make her decision on the prosecution notice. Counsel for Investments WA submitted that the existence of the defence was adverted to before Blaxell J and that was one of the reasons why his Honour had remitted the matter back to the learned magistrate, rather than making orders disposing of the matter. Counsel for the City opposed this application, characterising it as an application to re-open the defence case.

30 The learned magistrate declined the application by counsel for Investments WA to be heard in relation to the s 22 defence. The learned magistrate held:

So it's true that the issue of [the] section 22 defence was not raised at the hearing nor in the matter before Blaxell [J] during the course of argument. I'm told that it was raised on the day of the handing down of the decision after the decision was made, so even that is after the decision was made to allow the appeal and to remit it back to this court to be dealt with according to law and not to be reheard but to be dealt with according to law. ...

So the defence now wants to re-open the matter in the sense by arguing [a] defence under section 22 on this claim of right and according to the prosecution, if that were to be allowed then further evidence would need to be called because - and it's not denied that when this matter went to hearing in the first place, it wasn't on the normal basis that any defence might have been raised but that it was made clear by counsel that the only defence was going to be the construction defence and so a limited amount of evidence was called on that behalf. Now the defence wants to argue a section 22 defence of honest claim [of] right which not only wasn't mentioned in the first hearing nor during the argument on appeal but in circumstances where the first - to the prosecutor in the first hearing, it was made clear that the only defence would be the construction defence.

So it wasn't raised then or then, this decision has now been made on appeal and the decision that it's now being - the appeal decision, the final outcome of the appeal is to be remitted, to be dealt with according to law, in my view, is not an indication by the appeal judge that it can now be re-opened in a form[al] or limited sense by arguing further defences that weren't raised in the first hearing but simply to be dealt with by entry of a conviction [and] sentence so for those reasons, I'm not prepared to re-open an argument on the matter of a defence that wasn't raised in the first place (ts 20, 23 May 2011).

The learned magistrate then proceeded to enter a conviction for the offence and to sentence Investments WA and make an order for costs.

31 It thus appears that the learned magistrate refused to consider the s 22 defence either because she did not consider that that was required, having regard to the scope of the remittal of the matter to her, or because the defence had not been raised by counsel for Investments WA at the trial, or because of the way Investments WA had run its case in that its counsel had clearly relied solely on the construction of condition 5 at the trial, and had not raised the s 22 defence on the hearing before Blaxell J.

2. The issues arising from the ground of appeal

32 I turn now to deal with the issues that arise in relation to the ground of appeal.

33 As I have noted above, his Honour was invited by counsel for the City to set aside the decision of the learned magistrate on 20 August 2010 and to substitute a decision that could have been made by the Magistrates Court, namely to convict Investments WA of the offence alleged in the prosecution notice. That course was open to his Honour under s 14(1)(d) of the CA Act, but his Honour did not make an order of that kind. Instead, his Honour made an order remitting the matter to the learned magistrate. Order 2 of the orders made by Blaxell J reflected the terms of s 14(1)(c) and s 14(1)(e) of the CA Act.

34 In order to ascertain whether the learned magistrate erred in failing to consider the s 22 defence it is necessary first to ascertain the effect of the order made by Blaxell J because that order determined the scope of the learned magistrate's authority to deal with the prosecution when it was remitted back to her on 23 May 2011.

35 The scope of the authority of a court to deal with a matter remitted to it has been examined in several cases in the context of remittals from the High Court to State Supreme Courts pursuant to s 37 of the Judiciary Act 1903 (Cth). Those cases have established that the court to which the matter is remitted cannot make any order nor undertake any task inconsistent with the order of remittal: Peacock v DM Osborne & Co [1907] HCA 42; (1907) 4 CLR 1564, 1567 1568 (Griffith CJ), R v Weiss (No 2) [2006] VSCA 161; (2006) 164 A Crim R 454, 472 [99] [102] (Maxwell P, Vincent & Nettle JJA); R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45, 52 [27] (Allsop P & Johnson J, Spigelman CJ, Kirby & Howie JJ agreeing).

36 The Magistrates Court has authority 'to take any steps that are necessary to give effect to any decision of the Supreme Court of a kind mentioned in section 14(1)(e)': s 15(2) of the CA Act. Although s 15(2) is not expressed in identical terms to s 37 of the Judiciary Act, for present purposes the meaning of s 15(2) is not materially different. Accordingly, the Magistrates Court is empowered to take any steps necessary to give effect to the decision of the appeal court, but necessarily could not make an order or undertake a task inconsistent with the order of remittal.

37 In order to determine the scope of the authority of the primary court to deal with a matter remitted to it, it is necessary to ascertain precisely what was remitted by the appeal court: see Carroll (52 53) [28] (Allsop P & Johnson J, Spigelman CJ, Kirby & Howie JJ agreeing). The effect of an unlimited remittal of a matter is that the primary court is obliged to determine all questions of fact and law arising in the matter and is not obliged to make the same findings as it made on the first occasion: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518, 522 523 [7] 525 [16] (Gleeson CJ), 533 [45] (McHugh J), 539 [67] (Gummow & Hayne JJ). Indeed, in order to act consistently with the decision of the appeal court when an appeal has been upheld, the primary court may have to make a finding different to that which it made at first instance. If the remittal order requires the court below to have a rehearing then that is what it must do, and in a situation of that kind the parties will not be limited to the original bases on which they argued the matter: cf Carroll (53) [29] [30] (Allsop P & Johnson J, Spigelman CJ, Kirby & Howie JJ agreeing).

38 In this case, the whole of the decision of the learned magistrate was the subject of the appeal to Blaxell J. Although it was open to Blaxell J to have made orders as to how the Magistrates Court was to deal with the matter on remittal (see s 14(1)(e) of the CA Act), the remittal order his Honour made did not confine in any way the issues the learned magistrate was to consider or her discretion as to how she was to deal with the case. It is true (as the learned magistrate observed in her reasons for decision on 23 May 2011) that Blaxell J did not remit the matter for rehearing according to law, when he could well have done so. However, that is not the end of the matter in this case. That his Honour remitted the matter to be dealt with according to law, rather than proceeding to enter a conviction, and confining the remittal to sentencing, supports the conclusion that the order was an unlimited remittal of the matter to the Magistrates Court.

39 To the extent that the learned magistrate's reasons for decision suggest that she understood that the effect of the remittal order was to confine her task to entering a conviction and sentencing Investments WA, in my respectful view that was an erroneous understanding. The learned magistrate had to consider the evidence, in light of the decision of the appeal court, and to determine how to deal with the prosecution notice. If the parties applied to make further submissions or to adduce further evidence, then the learned magistrate was obliged to determine those applications, as would ordinarily be the case in the course of a trial before her.

40 That then gives rise to the question whether the learned magistrate erred in concluding that, effectively, Investments WA wanted to reopen its case in order to make further submissions about the s 22 defence, and that it should not be permitted to do so.

(b) Was the learned magistrate required to deal with the s 22 defence following the remittal?

41 As I have noted above, although the facts relevant to the offence appear to have been agreed or were not disputed, and the parties appear to have understood that the only issue in dispute was the construction of condition 5, Investments WA nevertheless led evidence from Mr Tilli, which included evidence as to why Investments WA had not paid the drainage contribution. In his closing submissions at the trial on 20 August 2010, counsel for Investments WA did not rely on that evidence as giving rise to a possible s 22 defence. In view of the submissions of counsel for Investments WA, it is clear that the s 22 defence was not relied on by Investments WA as part of its defence at the trial. Counsel for the City also did not make any reference to the s 22 defence.

42 If, however, the evidence of Mr Tilli gave rise to a possible s 22 defence, it was incumbent upon the learned magistrate to consider that defence, irrespective of whether it was expressly raised by the parties.

43 It is well established that the authority and responsibility of a judge is to instruct a jury on questions of law, and to put every lawfully available defence open to an accused on the evidence to the jury, even if counsel for the accused has not raised that particular defence or even if counsel has expressly abandoned it: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117 118 (Barwick CJ); Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166, 199, 206 207 [84], [107] (McHugh J); Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434, 452 453 [32] (French CJ, Crennan & Kiefel JJ). The obligation to consider every lawfully available defence extends to a magistrate dealing with a summary prosecution: cf Mickelberg v Barrett [2011] WASC 101 [22] (Commissioner Sleight).

44 When the matter came before the learned magistrate on 23 May 2011 following the remittal from the Supreme Court, it was incumbent on the learned magistrate to consider whether the prosecution had proved its case and in the course of doing so, to consider whether the prosecution had negatived any defences which were open on the evidence. As the learned magistrate had already heard Mr Tilli's evidence (in the course of the trial on 20 August 2011), the learned magistrate was obliged to consider whether that evidence (viewed in the totality of the evidence at the trial) gave rise to any defences or excuses, including a possible s 22 defence. The learned magistrate was obliged to do so irrespective of whether counsel for Investments WA specifically relied on the s 22 defence in the course of his submissions. To the extent that the learned magistrate's reasons for decision on 23 May 2011 suggest that she held the view that she was not bound to consider the s 22 defence, even if it had been raised on the evidence, then in my respectful view the learned magistrate erred in reaching that conclusion.

(c) Was the learned magistrate required to deal with the s 22 defence having regard to the way in which Investments WA ran its case?

45 The learned magistrate also refused to consider the s 22 defence because she was of the view that Investments WA was bound by the way it ran its case. She concluded that Investments WA had not run a s 22 defence at the trial, and in fact had made it clear that it relied only on the construction of condition 5. Nor had it raised the s 22 defence in the course of the hearing of the appeal before Blaxell J. In those circumstances, the learned magistrate appears to have concluded that Investments WA should not be permitted to be heard in relation to the s 22 defence on the remittal of the matter to her.

46 The considerations referred to by the learned magistrate in reaching this view (including that if the s 22 defence were raised the prosecution would wish to call further evidence) are reminiscent of the considerations to which appeal courts sometimes refer in considering whether exceptional circumstances exist to warrant a party being permitted to raise an issue not raised in the court below: cf Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, 172 174 [13] [20] (Gleeson CJ). However, this was not a case where a party sought to raise a new issue on appeal. The submissions made on behalf of Investments WA were to the effect that the s 22 defence had already been raised on the evidence at the trial. In those circumstances, as I have already explained, it was incumbent on the learned magistrate to consider that s 22 defence.

47 Accordingly, in my respectful view, to the extent that the learned magistrate's refusal to deal with the s 22 defence was informed by considerations of how Investments WA ran its case, the learned magistrate was in error.

48 However, for the reasons which follow, I am not persuaded that the evidence given by Mr Tilli was capable of founding a defence under s 22 of the Criminal Code.

(d) Did the evidence give rise to a defence under s 22 of the Criminal Code?

Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

50 It is now well established that by s 36 of the Criminal Code, the provisions of ch V of the Criminal Code, which deals with criminal responsibility and includes s 22, apply to all persons charged with any offence against the statute law of Western Australia: Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562, 567 [16] (Malcolm CJ), 575 579 [72] [101] (McKechnie J, Templeman J agreeing); Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 [75] (Buss JA, Miller JA & Newnes AJA agreeing).

51 The offence with which Investments WA was charged was an offence against s 218 of the PD Act. It is convenient to set out that provision in full:

A person who -

(a) contravenes the provisions of a planning scheme;

(b) commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme or improvement scheme otherwise than in accordance with the provisions of the planning scheme; or

(c) commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,

commits an offence.

52 Nothing in the PD Act indicates any intention to exclude the application of s 22 of the Criminal Code.

53 A defence under s 22 of the Criminal Code may be capable of application to an offence under s 218 of the PD Act, because one of the elements of that offence will be either commencing, continuing or carrying out any 'development'. 'Development' is defined in s 4(1) of the PD Act to mean 'the development or use of any land', and by s 1(1) of the Criminal Code, the term 'property' is defined to include real property.

54 Whether a defence under s 22 of the Criminal Code was open in the present case depended on whether there was evidence that Investments WA continued the development of the Land in the exercise of an honest claim of right to do so. In my view, the evidence of Mr Tilli did not raise a defence under s 22 of the Criminal Code.

55 An honest claim of right must be an honest claim by the accused to an entitlement in, or with respect to, property: see Interim Advance Corporation v Fazio [76] (Buss JA, Miller JA & Newnes AJA agreeing) citing Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 568 569 (Brennan J), 580 581 (Deane J), 592 (Dawson J), 600 601 (Toohey J); R v Waine [2005] QCA 312; [2006] 1 Qd R 458, 461 [23] (Keane JA, McMurdo P & Wilson J agreeing). An honest claim of right may be made, not only as a claim to a proprietary or possessory right in property, but also as a claim to be entitled to act in respect of property. What is important is the honest belief that one is legally entitled to do to the property that which one is doing: Interim Advance Corporation v Fazio [78] (Buss JA, Miller JA & Newnes AJA agreeing) citing Waine (461) [23] (Keane JA, McMurdo P & Wilson J agreeing).

56 The belief may involve a claim as to the (civil) law or it may involve a mixed claim of law and fact: R v Pollard [1962] QWN 13, 29 (Gibbs J, Stanley & Hanger JJ agreeing); Molina v Zaknich (575 576) [78] (McKechnie J, Templeman J agreeing). By way of example, the belief as to entitlement may come from the consent of the owner of the property, or from a person believed to be the owner, or from a mistaken belief by the accused that he or she has title in the property: Mitchell v Norman, Ex parte Norman [1965] Qd R 587, 594 595; Walden v Hensler (568) (Brennan J); R v Williams [1988] 1 Qd R 289, 295 (Macrossan J); R v Jeffrey & Daley [2002] QCA 429; (2002) 136 A Crim R 7, 12 13 [21] [23] (Jerrard JA, McMurdo P & Atkinson JA agreeing).

57 However, a claim which amounts to no more than a claim to freedom (under the criminal law) to act in a particular manner - in other words, to the absence of a prohibition from acting in a particular way in relation to property - is not a claim of right for the purposes of s 22: Walden v Hensler (592) (Dawson J).

58 Counsel for Investments WA submitted that the honest claim of right raised by Mr Tilli's evidence was as follows:

In this case the honest claim of right was, 'It was my property. I was developing it. I had a building licence. I had develop[ment] approval and I believed that I was entitled to continue' - because there's no argument that the development was entitled to start - 'but I believe that I was entitled to continue, because the drainage contribution wasn't yet payable under the condition' and if that state of facts had been correct, there was no offence (ts 48).

59 However that was not what Mr Tilli's evidence was. That part of his evidence which was relied on by counsel as giving rise to the s 22 defence was much more confined. It was concerned solely with the fact that Investments WA had not paid the drainage contribution at the date of the offence because Mr Tilli believed that payment was not required by that time. At no point did Mr Tilli give evidence that he believed that Investments WA was authorised to continue the development of the Land for some reason, irrespective of the payment of the drainage contribution. Accordingly, his evidence did not, in my view, amount to a claim to an entitlement, arising in some way under the civil law, to continue the development of the Land.

60 Furthermore, because the other evidence before the court was very confined in its scope, and because the agreed facts did not touch on the question of Investment WA's authority to develop the Land, there does not exist a basis for inferring that Mr Tilli believed that Investments WA had authority to develop the Land at the time of the alleged offence.

61 Counsel for Investments WA submitted that Mr Tilli's evidence supported the conclusion that Investments WA believed that condition 5 did not, at the time of the offence, require Investments WA to have paid the drainage contribution and if that belief had been true, one of the elements of the offence under s 218 would not have been proved. Counsel relied on an observation by Buss JA (with whom Miller JA & Newnes AJA agreed) in Interim Advance Corporation v Fazio that a defence under s 22 'will not be available unless what is claimed or believed would, if it were the fact, have negatived an element of the alleged offence or constituted a defence to it' [77]. However, that statement cannot be read in isolation from the rest of the judgment of Buss JA in Interim Advance Corporation v Fazio. In particular, it cannot be read in isolation from the other aspects of his Honour's discussion of the principles in relation to s 22 of the Criminal Code where his Honour emphasised that the belief must constitute an honest claim of right in respect to property. An honest but mistaken belief as to the general law is not an excuse for the purposes of s 22. That amounts to no more than ignorance of the law, which, as the first paragraph of s 22 makes clear, is no excuse.

62 In my view, although the learned magistrate erred in refusing to consider the s 22 defence, no miscarriage of justice occurred as a result of that error, and in the circumstances the appeal should be dismissed pursuant to s 14(2) of the CA Act.

63 I will hear the parties in relation to the orders which should be made in view of my decision.

CITATION : INVESTMENTS (WA) PTY LTD -v- CITY OF SWAN [2012] WASC 278 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Costs - Factors relevant to the exercise of discretion - Turns on own facts

Criminal Appeals Act 2004 (WA)

1 PRITCHARD J: On 3 August 2012 I published my reasons for decision in which I concluded that this appeal should be dismissed, and I made an order to that effect. At the same time, I made orders that the parties file written submissions in relation to the question of costs, with a view to making a determination on the papers as to the costs orders which should be made. The parties filed and exchanged submissions pursuant to those orders.

2 For the reasons set out below, in my view the proper order is that there be no order as to costs. These reasons should be read in conjunction with my earlier reasons for decision, particularly insofar as those reasons set out the background to the appeal.

3 Counsel for the City of Swan (the City) submitted that the appropriate order in relation to costs would be that Investments (WA) Pty Ltd (Investments (WA)) should pay the City's costs of the appeal.

4 Notwithstanding that his client was ultimately unsuccessful on the appeal, counsel for Investments (WA) made the rather bold submission that nevertheless the City should pay his client's costs of the appeal, and of the hearing before the learned magistrate on 23 May 2011, or a substantial proportion of those costs.

5 Both counsel sought costs orders pursuant to s 14(1)(h) of the Criminal Appeals Act 2004 (WA), which permits the court to make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction. The provisions of the Criminal Appeals Act in respect of costs should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Rather, the Act should be construed as conferring a general and unconstrained discretion with respect to the award of costs in relation to an appeal from a magistrate, to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest.[1]

6 I turn then to the considerations relevant to the exercise of my discretion to award costs in this case.

Factors relevant to the exercise of the discretion to award costs in this case

7 The factors relevant to the exercise of the discretion to award costs in this case appear to me to be as follows.

8 First, the appeal was dismissed, and the City was necessarily put to the expense of dealing with an appeal which was unsuccessful.

9 Secondly, this appeal was the second appeal arising from the trial of the offence the subject of the prosecution notice. The offence was tried before the learned magistrate on 20 August 2011. The learned magistrate acquitted Investments (WA) on the basis of the construction of the condition of planning approval with which it was alleged Investments (WA) had failed to comply. The City successfully appealed that decision and the matter was remitted to the learned magistrate. At the second hearing before the learned magistrate on 23 May 2011, Investments (WA) sought to raise for the first time a defence of an honest claim of right under s 22 of the Criminal Code (WA) (the s 22 defence). As I observed in my earlier reasons,[2] counsel for Investments (WA) did not make any mention of the fact that Investments (WA) considered that the evidence gave rise to a s 22 defence which would also have warranted the learned magistrate's finding that the prosecution had not proved the offence beyond reasonable doubt. The first mention of the s 22 defence occurred in the course of the hearing before Blaxell J when his Honour delivered judgment and made orders disposing of the appeal. Had the s 22 defence been raised prior to, or in the course of, the hearing of the appeal before his Honour, the present appeal may not have eventuated.

10 Thirdly, Investments (WA) succeeded in demonstrating that the learned magistrate was in error in declining to hear its submissions in relation to the s 22 defence.

11 Fourthly, the appeal was dismissed because I concluded that the evidence did not give rise to a s 22 defence, so that even had the learned magistrate heard and considered the submissions of Investments (WA) in relation to the s 22 defence, it would nevertheless have been convicted. In those circumstances, I concluded that no substantial miscarriage of justice had occurred. However, the basis upon which the appeal was dismissed was not a basis which had been advanced by the City in its written or oral submissions.

12 Fifthly, although counsel for Investments (WA) submitted that this appeal raised important issues, in my view the appeal did not involve a significant public interest. No novel application of the law was involved, and the outcome of the case was entirely dependent upon its rather unusual factual circumstances.

13 I turn then to Investments (WA)'s submissions that the City should pay its costs, or a substantial portion of those costs, both on this appeal and in the Magistrates Court on 23 May 2011. Although Investments (WA) did establish that the learned magistrate had erred in declining to consider the s 22 defence, the appeal was dismissed, and the second and fifth considerations also militate against an order that the City pay Investment (WA)'s costs of the appeal.

14 Further, as the outcome of this appeal was that the learned magistrate's decision (including her decision as to costs) was not set aside, and as the learned magistrate's decision on 23 May 2011 (to order that Investments (WA) pay the City's costs) was not itself the subject of a separate appeal, it is not immediately clear how the Court could now make an order interfering with the costs order below. In any event, the considerations to which I have referred would not warrant the making of an order in favour of Investments (WA) with respect to the hearing below, in any event.

15 The first and second considerations set out above support the City's submission that its costs of the appeal should be paid by Investments (WA). However, the third, fourth and fifth considerations suggest that such an award would not be just in all of the circumstances. Although ordinarily a court will be slow to dissect the issues in a case to identify who succeeded on which issue, as a basis for a costs order, an approach of that kind is warranted in the present case.[3] Although it is to be expected that a successful party may not succeed on all issues,[4] this was a case where the appeal was dismissed for a reason not advanced by the City, and where the City's submissions in relation to the other aspects of the appeal were not successful.

16 Weighing all of the considerations to which I have referred, in my view the proper exercise of the general discretion with respect to costs in this case is that there be no order as to costs.

[1] Wilson v McDonald [2009] WASCA 39 (S) [10] (Martin CJ, Beech AJA agreeing).

[3] See McKay v Commissioner of Main Roads [No. 7] [2011] WASC 223 (S) [179] (Beech J) and the cases cited therein.

[4] McKay v Commissioner of Main Roads [No. 7] [2011] WASC 223 (S) [179] (Beech J).