File No : AR 5778 of 2004, AR 5779 of 2004, AR 5780 of 2004

Appeal - Justices - Town planning - Use of land without town planning approval - Whether non­conforming use of land

Criminal procedure - Corporation represented by officer - Obligations of judicial officer - Whether denial of natural justice

Corporations Act 2001 (Cth), s 9

Criminal Appeals Act 2004 (WA), s 30(3)(c), s 40, s 40(1)(e)

Criminal Procedure Act 2004 (WA), Div 6, s 152, s 153

Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(2)

Supreme Court Act 1935 (WA), s 57

Town Planning and Development Act 1928 (WA), s 10AB

Arbuthnot Leasing International Ltd v Havelet Leasing Ltd [1991] 1 All ER 591

Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149

De La Espriella-Velasco v The Queen [2006] WASCA 31

Deen v Stronghearts Pty Ltd (1998) 8 Tas R 432

MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512

Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129

Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Singh v Krafter, unreported; FCt SCt of WA; Library No. 8434; 15 August 1990

Tobin v Dodd & Ors [2004] WASCA 288

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Club Flotilla (Pacific Palms) Ltd v Isherwood (1987) 12 ACLR 387

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372

Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121

Holpitt Pty Ltd v Swaab (1992) 33 FLR 474

House v The King [1936] HCA 40; (1936) 55 CLR 499

Hubbard Association of Scientologists International v Anderson [1972] VicRp 37; [1972] VR 340

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666

Miorada & Anor v Miorada & Ors [2005] WASCA 105

O'Toole v Scott [1965] AC 939

Re Hoffman [2004] WASCA 238; (2004) 187 FLR 263

Re Martin; Ex parte Dipane [2005] WASCA 111; (2006) 222 ALR 358

Ridge v Baldwin [1963] UKHL 2; [1964] AC 40

Saloman v Saloman & Co (1897) AC 22

Sparks v Bellotti [1981] WAR 65

Talbot v Lane (1994) 14 WAR 120

University of Ceylon v Fernando [1960] 1 WLR 223

1 MILLER J: The appellant is a registered company, the registered office of which is 53 Gilwell Avenue, Kelmscott in the State of Western Australia. That location is also its principal place of business. Its directors are Clara Anna Mann, Graham Keith Mann and Eliza Clara Knapman. Its secretary is Frederick Alfred Keith Mann. He was appointed secretary on 14 November 1994, but had previously been secretary between 19 December 1988 and 28 February 1992. He had also been a director of the company during the periods 15 February 1975 and 28 February 1992 and again 14 November 1994 to 18 July 2001.

2 The appellant is the successor in name as the operator of a motor vehicle and machinery repair business which has traded for many years under the name "Mann's Garage". The precise location of where that business traded is in issue, but since approximately 1966 it has traded at least at a location at Lot 2 Gilwell Avenue, Kelmscott. There are three adjoining lots at this location being Lots 2 and 3 Gilwell Avenue and Lot 1 Clifton Street. A structure perhaps best described as a shed exists on Lot 2 Gilwell Avenue and it is there that various motor vehicle repairs have been carried out on motor vehicles of customers of the business. The extent to which "Mann's Garage" has actually traded over the years is the matter in issue.

Complaints, Legislation and Town Planning Schemes

3 On 31 August 2004, the respondent, senior liaison & compliance officer at the City of Armadale, swore three complaints against the appellant alleging that between 1 September and 31 December 2003 at Lot 1 Clifton Street, Kelmscott and at Lots 2 and 3 Gilwell Avenue, Kelmscott respectively, all being addresses within the City of Armadale, the appellant contravened a Town Planning Scheme of the City of Armadale. The City of Armadale is herein after one word referred to as "the City". The body of each complaint was in the same terms. It alleged that the appellant:

"Contravened a Town Planning Scheme, in that it used land (such land not being the subject of part 6 of the City of Armadale Town Planning Scheme No. 2) for a Depot or Storage use without the town planning approval of the City of Armadale, contrary to clauses 7.7.1 and 7.7.3 of that Scheme and section 10AB of the Town Planning & Development Act 1928 as amended."

4 Section 10AB of the Town Planning and Development Act 1928 (WA) ("the TPA Act") is as follows:

"(1) A person who contravenes -

(a) a town planning scheme; or

(b) any condition imposed with respect to a development by a responsible authority pursuant to its powers under a town planning scheme, commits an offence.

Penalty: $50 000 and a daily penalty of $5000."

5 Each of the addresses at which it is alleged the offences occurred fall within the boundaries of the City. The City has promulgated a number of Town Planning Schemes. Town Planning Scheme 1 ("TPS 1") was gazetted on 5 April 1973. Town Planning Scheme 2 ("TPS 2") was gazetted on 18 October 1985.

6 The appellant is the owner of each of the locations, Lot 1 Clifton Street, Kelmscott and Lots 2 and 3 Gilwell Avenue, Kelmscott and was bound by the provisions of the respective Town Planning Schemes.

7 TPS 1 provided in Pt VII for "non-conforming uses". Clause 7.1.1 made reference to the non-conforming uses permitted within the City. It was in the following terms.

"7.1.1 If at the gazettal date any land, building or structure is being lawfully used for a purpose not permitted by the foregoing provisions of the Scheme (hereinafter called a 'non-conforming use'), or if any land is built on or any buildings or structure is built in a manner not permitted by the Scheme, such land, building or structure may continue to be used for that purpose or in that manner, but no such land use shall be altered except to conform with the Scheme and no such building or structure shall be added to or altered or any additional building erected, unless approval to do so is granted by the Council."

8 Clause 7.7 required the registration of a non-conforming use and was in the following terms:

"Register of Non-conforming Uses: Any person carrying on a non-conforming use shall, within six calendar months of the gazettal date or within such extended time as the Council may allow, give to the Council in writing full information of the nature and extent of the non-conforming use."

9 It does not appear that the appellant or any of its predecessors in name ever complied with the provisions of cl 7.7 of TPS 1, but that fact is not fatal to the appellant.

10 TPS 2 dealt with non-conforming uses of land in Pt 6. Clause 6.1 was in terms similar to cl 7.1.1 of TPS 1. It read:

"If at the gazettal date, any land, building or structure is being lawfully used for a purpose or in a manner not permitted by the Scheme, or if permits lawfully required to authorise a development or use not permitted by the Scheme have been duly obtained and are current (hereinafter called 'a non-conforming use'), the non-conforming use may continue subject to the following restrictions:

a) the non-conforming use shall not be extended beyond the boundaries of the lot or lots upon which it was carried on at the gazettal date;

b) if the buildings in which the non-conforming use is carried on are wholly within one lot only then such buildings shall not be extended beyond the limits of that lot;

c) if the building or buildings in which the non-conforming use is carried on are constructed on more than one lot, such non-conforming use shall be restricted to the land on which the building stands or the buildings stand and such land which is adjacent to the building or buildings and not being used for any other purpose authorised by the Scheme as is reasonably required for the purpose for which the building or buildings is or are being used;

d) a building shall not be altered or extended otherwise than in conformity with the relevant development standards contained in the Development Table and with the provisions of the Scheme."

11 Clause 6.2 and cl 6.3 where in the following terms:

"6.2 If a non-conforming use or a use permitted by Council under Clause 6.3 shall after the gazettal date be discontinued for a period of six months or more no person shall thereafter use the land or any other building or structure on which the non-conforming use was carried on for any purpose not permitted by the Scheme.

6.3 The Council may, upon such conditions as it thinks fit, permit the change of a non-conforming use to another non-conforming use if in its opinion the latter use is less prejudicial to the amenity of the area and is in the opinion of the Council closer to the intended use of the zone."

In the present case there is no question of the City having permitted the change of any non-conforming use in relation to the appellant.

12 TPS 2 zoned the land owned by the appellant as rural land. The use which was being made of the land was categorised as industrial, although there is an issue as the extent to which industrial use was being made on what portions of the land.

13 The prosecution of the appellant was heard in the Court of Petty Sessions at Armadale on 24 November 2004 and 15 February 2005. The case had to be adjourned after the first day of hearing because the appellant's case had not been completed.

14 On 15 March 2005 the appellant was convicted on each of the three charges and fined a total of $30,000 with costs of $8880. The fine of $30,000 was described as a "global penalty". The fine and costs were not apportioned between the three charges but apparently related to them all.

15 The learned Magistrate gave oral reasons for his decision. These were transcribed. He first traced the history of the business known as "Mann's Garage" and then made reference to the provisions of the relevant Town Planning Scheme (TPS 2) noting that the Scheme prohibited the use of storage use for a depot on land zoned rural unless approval was given by the City to that use.

16 The learned Magistrate noted that the respondent conceded that non-conforming use rights existed over Lot 2, but not Lots 1 and 3. He concluded that it was unnecessary to resolve over exactly what pieces of land non-conforming use rights existed. He found that any non-conforming use rights had been extinguished prior to 1 September 2003. That conclusion was based upon the evidence of Mrs C A Mann. The learned Magistrate's conclusion was in the following terms:

"The evidence of Mrs Mann is that Frederick Mann ceased to operate Mann's Garage in 99 and at best he gave advice to his son from time to time. The defence produced no evidence at trial, to establish the business was indeed operating at the relevant period and prior, with all financial records being tendered in to the court at hearing, relating to the year 2004. This was further aggravated by the fact the defendant company does not operate any alleged business - - doesn't - - does not operate the - - the alleged business, or has any interest in that business.

The defendant did not call the operator of the business and hence there is no evidence, frankly, of its operation. The evidence of Mrs Mann was that on occasions her son came to the lots after 6.00pm and on occasions visited her. The evidence of Mr Mann that whilst the shed doors were not open to the public, research and development was carried on behind those closed doors, frankly is a nonsense.

The evidence of Mr Arrowsmith, that over an extended period of some 8 years, he has not viewed any activity or business operated and materials remain unmoved over a period of 8 years. The proposition is supported by photographic evidence which speaks for itself. I find that since 99, the business on Lot 2 has no longer been an operating business. I find that as such all conforming rights had ceased as of 2003."

17 The learned Magistrate then determined for what use the land was being put. He concluded that it was effectively "a tip" as the land was being used as a storage site for junk. He made reference to exhibits A, B and F which comprised bundles of photographs depicting the use of the land on 7 April 1995 (exhibit A), the use on 29 July 2003 (exhibit B) and the use on 16 September 2003 and 7 November 2003 respectively (exhibit F).

18 These bundles of photographs certainly reveal that strewn over the three Lots in question are a variety of materials including old rusting car and truck bodies, old engines, bricks, iron, steel and general rubbish. The learned Magistrate's description of the land being effectively a tip or a storage site for junk is, on any viewing of the photographs, a fair description. It is also of interest that much of the material which was photographed in 1995 can be seen in the same location in the subsequent photographs taken in 2003, which are the subject of exhibits B and F. The workshop shed on Lot 2 is also clearly visible in the photographs. It appears in all photographs to be closed. There is no indication of any functioning business.

19 The learned Magistrate found the three charges proven beyond reasonable doubt and after listening to submissions on the appropriate penalty imposed the fine and costs to which I have made reference.

20 The grounds of appeal upon which the appellant originally sought to set aside its convictions on the three complaints were as follows:

"1. The learned Magistrate erred in law in convicting the appellant:

a. when the Appellant was not permitted to call evidence relevant to the question of the continuity of the use of the land situate[d] at Lots 2 and 3 Gilwell Avenue Kelmscott and Lot 1 Clifton Street Kelmscott (Land) where that evidence, if led, would have shown that the use of the land had not changed since 1963; and

b. the question of continuous use of the Land was central to the prosecution of the matter, in the proof by the Appellant of continuous use, within the meaning of the Town Planning and Development Act, is a complete defence to the prosecution; and

c. by precluding the Appellant from having the opportunity to call relevant evidence, the Appellant has been convicted in circumstances where exculpatory evidence was not before the Court, by reason of the conduct of the learned Magistrate.

2. There has been a miscarriage of justice in convicting the appellant in the circumstances set out in paragraph 1a and 1c above, where the Appellant was represented by an officer of the company and did not have the benefit of legal counsel or advice and so was unaware that all relevant evidence relating to the continuous use of the Land was required to be proven."

21 After the hearing of the appeal and whilst judgment was reserved the appellant sought leave to add the following additional ground of appeal.

"... the learned Magistrate erred in law in allowing Mr Keith Mann to appear on behalf of the Appellant (Defendant) at trial in circumstances where:

(a) the Appellant (Defendant) is a company, which is generally required to be represented in proceedings by a legal practitioner;

(b) even if the company is permitted to appear without a legal practitioner, a director of the company is the only person with the authority to appear;

(c) Mr Mann was not a director of the Appellant (Defendant)."

22 It was contended that leave should be granted to incorporate this ground of appeal because during the hearing of the appeal on 12 April 2006, I had raised the question of the power of the learned Magistrate to allow an officer of the company to represent it on the hearing of the prosecution. I did raise the point, which had not been adverted to in any of the submissions in support of or opposition to the appeal.

23 The powers given to a Judge sitting on appeal from a court of summary jurisdiction are extremely wide. Section 14 of the Criminal Appeals Act 2004 (WA) sets out what those powers are. The section is silent on the question of reopening an appeal after judgment has been reserved. The provisions of the Supreme Court Act 1935 (WA) which deal with the Court of Appeal (s 57 et seq) are silent on the matter as are the Supreme Court (Court of Appeal) Rules 2005 (WA). However, recourse to the question of reopening proceedings at trial is of assistance. There is no doubt that if the interests of justice demand it a Judge may permit the reopening of a case after judgment has been reserved but not delivered. The primary consideration is said to be embarrassment or prejudice to the opponent. The matter is comprehensively dealt with in Seaman, "Civil Procedure Western Australia" Vol 1 [34.5.17]. Not surprisingly, an applicant seeking to reopen a proceeding must demonstrate a case for the exercise of discretion in its favour. However, a Judge is to be cautious in admitting fresh evidence by way of reopening an appeal because the concept of finality of the trial process is eroded: Singh v Krafter, unreported; FCt SCt of WA; Library No. 8434; 15 August 1990 per Pigeon J (at 8 - 9).

24 In the present case, as I was responsible for raising the question of the learned Magistrate's entitlement to allow Frederick Alfred Keith Mann (Mr Mann) to represent the defendant, and as there would not appear to be any prejudice to the respondent in so doing, I am prepared to allow the appeal to be reopened by the addition of the above ground of appeal. It will be ground 3 of the grounds of appeal.

25 It is convenient to deal first with grounds 2 and 3. They may be considered together. These grounds effectively contend that because the appellant was not represented by counsel but by an officer of the company, there was a denial of natural justice. The specific denial of natural justice is alleged to be the inability of the officer of the company to understand the requirement that the appellant must produce evidence as to a continuous non-conforming use of the land, which was in turn approved by the City. The additional ground contends that because the appellant was a corporation it should have been represented by a legal practitioner, or at least a director.

26 The learned Magistrate allowed the appellant to be represented at the hearing by Mr Mann, as appears from the following exchange at the commencement of the hearing:

"HIS WORSHIP: Yes. Mr Mann, is it?

MR MANN: Yes, sir.

HIS WORSHIP: Yes. Okay. And KC Nominees Pty Ltd: that's your company, is it?

MR MANN: Yes, sir.

HIS WORSHIP: Okay. You're a director of that company?

MR MANN: No, sir. I'm a public officer of that company. I'm the secretary.

HIS WORSHIP: Okay. And this lady is - ?

MR MANN: A director.

HIS WORSHIP: A director; okay. In relation to that - - presumably, you're going to speak, in relation to that, are you, Mr Mann?

MR MANN: Yes, sir.

HIS WORSHIP: So I'm not going to have two people - -

MR MANN: Yes, sir.

HIS WORSHIP: - - for the same company speaking on behalf - -

MR MANN: No. That's fine, sir."

27 The learned Magistrate was concerned about the failure of the appellant to have legal representation. Late in the proceedings, on the second day of the hearing, the learned Magistrate expressed concern about the fact that the appellant was represented by Mr Mann, pointing out that he was the owner of the premises but neither he nor the appellant actually ran the garage which, it was contended, operated a business on the land. The learned Magistrate pointed out that Mr Mann was the secretary of the appellant which gave him "effectively no entitlement" and added:

"HIS WORSHIP: - - I have to say, I wouldn't - - if I'd known then what I know now, Mr Mann, I wouldn't have allowed it. I would have got you to get a legal practitioner to do it - -"

28 It is difficult to understand how the learned Magistrate could have compelled Mr Mann or the appellant to have obtained legal representation. That was entirely the choice of the company. There is no right at law to representation by counsel. When the defendant in a Court of Petty Sessions is a body corporate, it might be expected that it has the capacity to retain counsel. It was never the case that the learned Magistrate had any obligation to ensure that the appellant was represented by counsel.

29 Mr Mann correctly described himself before the learned Magistrate as an officer of the appellant, because in legislation relating to corporations the secretary of a corporation is defined as an "officer" of the corporation (Corporations Act 2001 (Cth) s 9).

30 The responsibility of the secretary of a company is primarily for record keeping within a company and the preparation and keeping of minutes of meetings of directors and members. The secretary also has an obligation to ensure that the company performs it statutory obligations and to provide information about the company for the benefit of the public. "Fords Principles of Corporations Law" (12th ed) points out [13.100] that older cases treated a company secretary as being "little better than a clerk", but by 1971 the English Court of Appeal considered that times had changed and a company secretary was a much more important person with considerable responsibilities and effectively "the chief administrative officer of the company" (Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711). Texts such as "Fords Principles of Corporations Law" make no reference to the entitlement of a company secretary to represent the company in legal proceedings.

31 In relation to the question of representation of the appellant before the learned Magistrate, it must be appreciated that the proceedings in issue were criminal proceedings. On 24 November 2004, when the prosecution against the appellant commenced, the procedure in relation to the appearance of a corporate body in a Court of Petty Sessions was governed by the provisions of the Justices Act 1902 (WA). Section 68 provided as follows:

Every complainant shall be at liberty to conduct his case and to have the witnesses examined and cross-examined by his counsel or solicitor; and every defendant shall be admitted to make his full answer and defence to the charge, and to have the witnesses examined and cross-examined by his counsel or solicitor."

32 Presently, the representation of a corporation when charged with an offence before a court (which means a court of summary jurisdiction or a superior court) is governed by the provisions of Div 6 of the Criminal Procedure Act 2004 (WA). Section 152 provides that a corporation may appoint an individual, who need not be a lawyer, to be its representative in proceedings before the court. Section 153 provides that a corporation may appear before a court by its representative who on behalf of the corporation may do all things that an accused who is an individual may do before the Court.

33 Counsel for the appellant sought to rely on a number of civil cases to the effect that a non lawyer will rarely be given leave to appear for a company in such proceedings. Reference was made to Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 where a number of criteria are set out in relation to the exercise of the discretion which is called for in allowing non lawyers to appear on behalf of corporations. Factors such as the complexity of the case, the difficulties of the unrepresented party, the unavailability of disciplinary measures, the duty to the Court of lay advocates, the protection of the client and the opponent and the guiding principle of the public interest are all identified. Stein JA pointed out (at 163) that the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. His Honour added:

"The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.

84 The reason for this was explained by Gleeson CJ in a speech given to the Supreme Court of Japan in January 2000 (Current Issues for the Australian Judiciary). The Chief Justice said that: The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system.

85 Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured."

34 I respectfully agree with what Stein JA has said. The same principles underlie the provisions of the Rules of the Supreme Court 1971 (WA). Pursuant to the Rules of the Supreme Court (r 3(2)) a body corporate can only begin or carry on proceedings before the Court by a solicitor. However, it has always been the case that in exceptional circumstances the Court has inherent power in civil proceedings in the interest of justice to permit an individual who is not a legal practitioner to appear as an advocate for a company: Arbuthnot Leasing International Ltd v Havelet Leasing Ltd [1991] 1 All ER 591 (at 598). It is significant that an officer of a corporation may be permitted to answer a charge of contempt brought against the corporation: Deen v Stronghearts Pty Ltd (1998) 8 Tas R 432 (at 437). A charge of contempt may be described as "quasi-criminal".

35 However, as I have stressed, the learned Magistrate in this case was dealing with criminal proceedings. Very different considerations apply from civil cases. This is reflected in the fact that s 152 of the Criminal Procedure Act 2004 now provides that a corporation may appoint an individual who need not be a lawyer to be its representative in criminal proceedings. At the time the learned Magistrate heard the prosecutions against the appellant, it was clearly open to him to allow a corporation to be represented either by a legal practitioner or by some other representative.

36 I see no reason why an officer of the appellant should not have been permitted to represent the appellant in the criminal proceedings which were before the learned Magistrate. Indeed, it would arguably have been a denial of natural justice to have refused Mr Mann leave to represent the corporation in circumstances where he came prepared to do so.

37 It is true that the learned Magistrate gave only cursory consideration to the question of the representation of the appellant. Mr Mann simply stepped forward to be the representative of the company and he was accepted by the learned Magistrate.

38 In all the circumstances, however, I am satisfied that Mr Mann was the person who had the most knowledge about the use of the land the subject of the prosecutions. This is made clear in his affidavit sworn 5 December 2005 and admitted in the proceedings pursuant to order of McKechnie J on 21 December 2005. He deposes that he has been involved in the operation of the vehicle and machinery repair business known as "Mann's Garage" and conducted it at what he contends to be Lots 2 and 3 Gilwell Avenue and Lot 1 Clifton Street, Kelmscott from 1966 until the present time. He further deposes that throughout that time he has been involved in the business both as an owner in partnership with his wife and also by physically working in it.

39 Mr Mann does point out in the affidavit that at no time did the appellant ever own or conduct the business of "Mann's Garage". At all relevant times the business has been operated under various names including "Mann's Garage" or "Mann's Garage and Engineering Services". Pursuant to the provisions of the Business Names Act 1962 (WA) the business known as "Mann's Garage" or "Mann's Garage and Engineering Services", has at all relevant times been registered to Mr Mann and Clara Anna Mann.

40 The learned Magistrate was certainly aware of the difference between ownership of the business and ownership of the land. He pointed out in his reasons that the appellant was never the owner of any business conducted at the land in question, but only the owner of the land itself. It was the appellant which was prosecuted and the complaints related to the use of the land, not to the carrying on of the business on the land.

41 I am satisfied that in all the circumstances of the case Mr Mann was the person best able to represent the appellant in the proceedings before the learned Magistrate. There could be no miscarriage of justice occasioned by the learned Magistrate giving him leave to appear on the appellant's behalf.

Further evidence on a question of representation of the appellant

42 When the Court was reconvened after the hearing of the appeal and whilst judgment was reserved, counsel for the respondent sought leave to adduce further evidence in relation to the history of Mr Mann's appearances for the appellant in matters which had been the subject of prosecution by the City. Because I had given the appellant leave to file the additional ground which became ground 3 of the grounds of appeal, I gave the respondent leave to file further affidavit evidence on the question of Mr Mann's previous appearances.

43 By affidavit sworn 11 May 2006, the respondent deposed that in January and February 1983 the then Town of Armadale had prosecuted the appellant in the Perth Court of Petty Sessions and at that time Mr Mann had appeared for and conducted the defence of the appellant. It was also deposed that on the occasion of a prosecution to be heard in the Armadale Court of Petty Sessions on 1 November 1995, Mr Mann appeared to conduct his own defence, but there was no hearing, as the complaint was withdrawn.

44 Pursuant to leave given to do so, Mr Mann swore an affidavit on 16 May 2006, in which he deposed to the fact that when he appeared in the 1983 proceedings he was a director of the appellant. However, Mr Mann deposes to the fact that he ceased to be a director of the appellant with effect from 18 July 2001 and until 7 February 2006, which does not accord with the first statement. A letter from ASIC dated 27 July 2001, annexed to the affidavit of Mr Mann confirms that he ceased acting as a director with effect from 18 July 2001.

45 Whatever the position, I accept that on two occasions prior to the hearing of the matter under consideration in this appeal, Mr Mann had appeared in the Court of Petty Sessions. Once was for the appellant and the other occasion on his own behalf. On the second occasion he was not called upon to play a major part in the proceedings because, as Mr Mann puts it in his affidavit, "the respondent withdrew ... before finishing its alleged case against me".

46 I conclude that Mr Mann has a history of representing either the appellant or himself in two prosecutions which have been brought by the City or its predecessor. This confirms to me that Mr Mann has always regarded himself as capable of defending prosecutions brought by the City and has made a conscious decision to represent the interests of the appellant or himself in those circumstances without briefing counsel.

47 I should also mention that with the supplementary materials filed by the respondent after judgment had been reserved in this matter, there were numerous transcript references to the way in which the proceedings in the Court of Petty Sessions unfolded before the learned Magistrate. A detailed response was also filed on behalf of the appellant answering those references. It is unnecessary to deal separately with them. I have dealt with the general issue of representation and the way in which the learned Magistrate dealt with Mr Mann in what I have already written and what now follows.

48 The appellant contends that the learned Magistrate failed to ensure that the appellant, a litigant in person was given all appropriate assistance. Reliance is placed upon the decision of the Full Court in Tobin v Dodd & Ors [2004] WASCA 288. Heenan J at [14 - 15] dealt at length with the extent to which a court should act to ensure a fair trial where there is an unrepresented litigant. His Honour quoted extensively from Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129, a decision of the Full Court of the Federal Court of Australia (Sackville, North and Kenny JJ). The Court was there talking about civil proceedings, but observed (at [27]) that the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a Judge hearing civil proceedings in which one or more of the parties are not legally represented. However, as the Court pointed out (at [29]) a trial Judge often faces something of a dilemma. They may be bound to provide some advice and assistance to an unrepresented litigant, but the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation.

49 In MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 Gibb CJ and Wilson J (at 524) pointed out that a Judge in a criminal trial should have no difficulty in explaining to an accused person the nature of a voir dire in relation to the admissibility of a confession. Their Honours considered that the accused should be advised that he may cross-examine Crown witnesses and give and call evidence himself on the issue of voluntariness, but that if he does give evidence he may be cross-examined and his answers on cross-examination may be used against him at his trial. They continued:

"It would be wrong to think that a judge who explained to an accused person the choices open to him would be playing the part of an advocate - he would be performing his duty as a judge by informing the accused of his rights in relation to the conduct of the trial ... There is no limited category of matters regarding which a judge must advise an unrepresented accused - the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial."

50 It is contended on behalf of the appellant that the learned Magistrate failed to discharge his duty to the appellant as an unrepresented litigant, by failing to explain to Mr Mann the nature of the submissions he should file and in curtailing proceedings so that he was unable to call evidence that he wished to call. Further, it is contended that the learned Magistrate failed to explain to Mr Mann that the critical issue in the case was whether non-conforming use of the land in question had ceased after 1995 and prior to December 2003, and in doing so had failed to explain to Mr Mann that the appellant should lead any evidence it had to demonstrate continuity in the business during that period.

51 The transcript of the proceedings reveals that counsel for the respondent opened the case by explaining clearly what the case against the appellant was and also by articulating the defence that the appellant appeared to have. Counsel for the respondent informed the Court that the evidence to be led would be fairly straight forward. The charges related to a three month period between September and December 2003, and the evidence would be in the form of photographic evidence and from an officer of the City, who would give evidence of inspections of the land in question in September and in November 2003. He added:

"Now, I understand, because I've had some discussions with Mr Mann on behalf of the defendant, that, essentially, his defence is going to be one related to non-conforming use, and I think it's worthwhile me just briefly touching upon that, your Worship, because I think that's what's going to occupy most of today."

52 Counsel then went on to explain to the Court what a non-conforming use was and then concluded the opening by saying:

"MR HANDCOCK: Mr Mann and his predecessors in title were using - - it will be the prosecution case, were using Lot 2 and the City concedes that there has been some non-conforming use rights that attach to Lot 2 of an industrial-type nature. Now, evidence will need to be led about exactly what that is, but just in opening, there's no real contention about some pre-existing uses on Lot 2, and the defendant was trading in a business known as 'Mann's Garage', so it was an industrial - type use, and I'll give you more particulars of that as we go.

However, the prosecution case is that the storage and depot use that's being conducted is being conducted across Lots 1, 2 and 3, so there'll be a factual issue, no doubt, about that point, but I make it - - in opening, that there is certainly going to be some concessions about that middle lot, Lot 2, because on Lot 2 is located the physical - - the one and only physical building structure that's there is on Lot 2."

53 Various exhibits were tendered to the Court to establish the existence of the relevant Town Planning Schemes and the relevant zoning of the land within the boundaries of the City. Certified copies of the certificates of title in relation to the three Lots, details of registration of the appellant and of the business name "Mann's Garage" were all tendered. The respondent was then called. He testified that he had first visited and inspected the three Lots in Gilwell Avenue and Clifton Street respectively in the year 1995. He testified that there was a substantial shed building on Lot 2 but no buildings or structures on the other two Lots. He gave evidence that at no time had town planning approval been granted for use of the land which could be described as "depot use" or "storage use". He produced photographs of what he saw in 1995. He testified that he had reinspected the land in September 2003 and photographed what he found on the three Lots in question. He made a further inspection on 7 November 2003 and he produced more photographs. He testified to a conversation with Mr Mann on 16 September 2003 in which Mr Mann mentioned that he had not been well and might sell some of the land. The respondent saw no people working at the location on that day either outside or inside the building. He gave further evidence of communications between the City and the respondent.

54 Exhibit U2 in the proceedings revealed that by notice dated 28 June 1982, the City (then the Town of Armadale) had given notice to the appellant that as owner of the land at Lot 1 Clifton Street and Lot 2 Gilwell Avenue, Kelmscott, it was required to remove refuse rubbish and disused material on the land which in the opinion of the council of the Town of Armadale was likely to adversely affect the value of adjoining property. A list of materials is annexed in the First Schedule. It included disused truck parts, engines, refrigerators, piping, galvanised frames, tyres, drums, motor vehicle bodies and disused machinery.

55 Exhibit U3 reveals that by letter dated 28 February 1983, Mr Mann on behalf of the appellant advised the town clerk of the Town of Armadale that some of the offending material had been removed and certain fencing would be erected. Exhibit U4 is a copy of a complaint issued by the town clerk of the Town of Armadale in relation to the matter. This apparently led to a fine being imposed in the Court of Petty Sessions in Armadale for breach of Town of Armadale by-laws relating to the removal of rubbish and litter. Exhibit U5 is a copy of a letter from the town clerk to Mr Mann relating to payment of a fine, but also pointing out that Lot 2 had been recognised by the Town of Armadale as a lawful "industrial" use and accordingly was recognised as a non-conforming use although the land was zoned rural and latterly Special Rural "E" under TPS 1. It is of significance that only Lot 2 was referred to in this communication.

56 By letter dated 9 October 1995, the City wrote under the hand of the deputy city planner advising Mr Mann as follows:

"Council, in previous correspondence, has accepted that the operation has a Non Conforming use and as such the business may continue to operate from the property, provided it remains at the same scale that it was immediately prior to the Gazettal of the Town Planning Scheme in 1973. The difficulty that Council is currently experiencing is with various materials strewn over a substantial portion of the premises."

57 The heading to the letter related to Lots 1 and 2 Clifton Street and Lot 3 Gilwell Avenue, Kelmscott. Counsel for the appellant therefore contended that the City by its letter of 9 October 1995 was clearly conceding that there was a non-conforming use over the three pieces of land. However, when read carefully, the words used by the deputy city planner make it clear that he is referring to previous correspondence in which there was acceptance of the existence of a non-conforming use in the form of the business operated at the site. That could only refer to Lot 2.

58 At the conclusion of the respondent's evidence at the hearing, the learned Magistrate invited Mr Mann to ask questions of the witness. It should be said at once that the cross-examination was extensive. It occupies over 44 pages of transcript. It is apparent that from the outset Mr Mann was set upon establishing that he disputed the respondent's version of the zoning of the land in question. Objection was raised to statements being made by Mr Mann in the course of his cross-examination and the learned Magistrate rightly pointed out that the interpretation of the zoning was a question of law in relation to which the witness was not able to give an answer. Mr Mann clearly understood this. He then put to the respondent that his contention that the land was zoned rural was incorrect.

59 Mr Mann must have understood what was in issue in the hearing, because he put the following question to the respondent.

"Mr Arrowsmith, is it council's contention that the only right to tenure we have on those properties is by virtue of non-conforming use?"

There was then an argument about the admissibility of the question and Mr Mann made it clear in the course of his submissions that he understood that the issue in the case was the question of non-conforming use rights. Mr Mann told the learned Magistrate that the company contended it had a right to be on the land and what it was doing there was in conformity with the City's Town Planning Scheme. However, the cross-examination degenerated into an inquiry into the extent of and the validity of the City's Town Planning Scheme.

60 The learned Magistrate became frustrated with the time that the cross-examination was taking and said:

"HIS WORSHIP: - - move on. You're losing the argument on that one. It's irrelevant - - what happens - - once you get a zoning, they zone it. It doesn't matter what you use it for, they zone it, and then everybody's bound by those rules. However, it does make provision for non-conforming use. That's the only argument I can see that you'd possibly have, so those who are already there have the benefit of being there, if they - - as long as they're using it for the same purpose, and can establish the requirements, it seems to me, but there's no point going and arguing about what everybody else is doing. It seems to me that that's the only argument you have."

61 It seems to me that at this point the learned Magistrate made it clear to Mr Mann what the issue was and what defence he should be running. It can not be said that the appellant was unaware that all relevant evidence relating to the continuous use of the land was required to be proven. That is the essence of the second ground of appeal.

62 The only other witness called by the respondent on the first day of the hearing was Charl Herman Erasmus, the compliance officer with the City. He gave evidence of the visits to the property with the respondent. He was cross-examined at length, but a good deal of the cross-examination related to another charge which is not in issue.

63 At the close of the proceedings on 24 November 2004, the learned Magistrate indicated that he could not re-list the matter until 15 February 2005. He gave Mr Mann the following advice:

"HIS WORSHIP: Yes. So if you have witnesses, Mr Mann, that's the date that they should be here. The prosecution - - at this point, it's probable that they've finished their case, but given that they have the opportunity just to consider anything that they may have felt they might have left out - - but hopefully, that's not the case, and then it's your opportunity - either yourself or your wife - to give evidence first up in the proceedings on that day. Okay?

MR MANN: Thank you, sir. Can I just ask, in the event that a fairly important witness from our side that - - he's not available on that day. Is there - - what - -

HIS WORSHIP: Well - -

MR MANN: - - what - -

HIS WORSHIP: - - the only thing I can say is that you've got nearly 2 months, Mr Mann. Unless he's in hospital or overseas, I couldn't imagine there'd be too many reasons, because what you can do is you can summons him, in which case, he has to be here."

It seems clear that at this point Mr Mann was aware of what the procedure was in relation to the calling of witnesses. This is relevant to ground one to which I will turn later.

64 At the resumed hearing on 15 February 2005, counsel for the respondent announced his appearance and informed the learned Magistrate that he had seen Mr Mann outside. The learned Magistrate responded by saying "Oh you fooled me with some hope there for a minute". This was clearly a reference to the fact that he would have preferred it if Mr Mann had not been present. Counsel for the appellant placed emphasis upon this during the hearing of the appeal, but in my view nothing turns upon it. It was an unnecessary observation, but it does not demonstrate that there was any particular ill feeling about Mr Mann and in any event there is no ground of appeal that suggests bias on the part of the judicial officer.

65 Mr Mann made clear at the outset what it was that he wanted to establish at the hearing. He said:

"MR MANN: Sir, firstly, we've been put at a considerable disadvantage, I believe, and our case has been diminished, considerably by not allowing us to examine - - cross-examine the council witnesses on the evidence they adduced before the court, and that was documents relating to Town Planning Scheme Number 1, which we believe to be fraudulent documents."

66 I need hardly say that the issue of whether or not TPS 1 was "fraudulent" was not an issue before the Court. Mr Mann had been told what the issue was and it seems from the transcript that follows that he was not prepared to accept it. He went on to say that he regarded TPS 1 as something that went "directly to credibility". He was ultimately told by the learned Magistrate that he would not be allowed to pursue this issue.

67 The respondent called Ian MacRae, executive director of development services at the City. He was responsible for preparing land use maps which were associated with each of TPS 1 and TPS 2. He gave evidence in relation to them. He was cross-examined by Mr Mann and again Mr Mann turned to the question of whether or not they were fraudulent.

68 The prosecution case closed and Mr Mann indicated that he wished to call John Harry Horton, a forensic document examiner who had done extensive work on various City documents, to prove that they were "fraudulent documents". The learned Magistrate tried to point out to Mr Mann that bringing a scientist in to say that the Scheme was fraudulent would not help because "it's a statutory Scheme and you're stuck with it". The learned Magistrate pointed out that if it was Mr Mann's intention to strike down the legislation he would have to go to a different court.

69 In the event, leave was given to call Mr Horton, a forensic consultant and private investigator, who was primarily a finger print expert and document examiner. The examination got off to a bad start with Mr Mann endeavouring to cross-examine Mr Horton. This was disallowed. Documents were then put to Mr Horton that he had never seen before. In the end the evidence established nothing.

The evidence of Mr Mann and the assistance given by the Court

70 At the close of Mr Horton's evidence the learned Magistrate invited Mr Mann to give evidence. Mr Mann responded that he had a very important witness in the foyer. The learned Magistrate told him that the general procedure was that Mr Mann should give evidence first, but he had made an exception for Mr Horton because he was due elsewhere. Mr Mann was then directed to enter the witness box. This he did. He took with him "an armful" of documents.

71 The learned Magistrate then asked various questions of Mr Mann. He essentially led him through his evidence. The essence of what happened is revealed by the following:

"HIS WORSHIP: When you first got the property, what were they? Were they empty blocks, or did they have something on them, or - - ?---No, sir. Lot - - lot two had a workshop built on it, which is still currently there.

...

... Lot one, although it was a vacant lot, was being used in the business.

...

... lot three was being used by the previous owner, on a care and maintenance basis. We subsequently bought that - - lot three, and continued to use it as part of the business. We've run an automotive and general engineering business across probably the widest spectrum you could imagine, almost."

72 The learned Magistrate then gave Mr Mann the opportunity of answering the allegation which was being made against him. The passage is as follows:

"HIS WORSHIP: Yes. Well, perhaps - - I mean the allegation - - ?---I - - I - -

- - is that the land is used for a depot and storage use without town planning approval. Why do you say that you're not bound by that particular requirement on those three blocks?---Sir, the material - - the - - the materials on the - - on the block are part of the business, and they've been part of the business, in principal - - materials and - - and - - and equipment, and the - - the difficulty I have with people's understanding, sir, if you like, in that - - what somebody else see as being equipment, and what - - we use this equipment, and we - - on perhaps a weekly basis. I'm not able to obtain some piece of equipment to do a job with, and we've got to manufacture it, and we manufacture a piece of equipment out of - - whatever's at our disposal, and that's why we have so much of this material on the site, sir."

The learned Magistrate invited Mr Mann to explain to him why he did not consider himself to be bound by TPS 2. It was unnecessary for the learned Magistrate to go into this area but he did.

73 The learned Magistrate then asked Mr Mann whether he was going to produce anything to establish that the area occupied by the Lots in question was zoned "industrial" as he seemed to be saying. He said to him "now is your opportunity" to adduce this evidence. The learned Magistrate had to tease out what it was that Mr Mann was saying and he did so in the following passage:

"... or are you simply saying that, because it was 'Industrial', in the first place, when you started off, that you've got ongoing, non-conforming use? ... either you're going to produce a map, which will show evidence contrary, that it is 'Industrial' - a zoning map - or alternatively, you're simply relying on the fact of non-conforming use. That seems to me the only argument."

74 Unfortunately, the learned Magistrate was unable to control Mr Mann. At one point he put it to him that he was "loving all this ... you really love the theatre of it all". This was denied by Mr Mann but it seems that there was a reasonable basis for the learned Magistrate to make the observation.

75 There were various other materials in the examination of Mr Mann to which I need not refer because it does not relate to the complaints in question.

76 Mr Mann put in evidence the correspondence to which I have referred which relates to the attitude firstly of the Town of Armadale and latterly of the City in relation to non-conforming use. He was clearly therefore aware of the issues.

77 It is unnecessary to refer to the cross-examination of Mr Mann, but at the conclusion of it he called Simon Craig Wood, a public servant from the Department for Planning and Infrastructure. He told the Court he had no particular qualifications in the areas of town planning and was primarily an administrative officer. The calling of the witness clearly frustrated the learned Magistrate as appears from the following passage:

"HIS WORSHIP: Well, I appreciate that may be your issue, but the purpose of calling this witness is to ask him some questions; not for you to ponder over the meaning of life."

I can find nothing offensive in what was said by the learned Magistrate. He was trying to control the proceedings.

78 Eventually Mr Wood left without apparently establishing anything of any significance. The learned Magistrate then invited Mr Mann to call his former wife. The following exchange occurred:

"MR MANN: Sir, it's four minutes to four. What time are we going to conclude - -

HIS WORSHIP: I am not spending a minute more over this matter than I have to, Mr Mann. You're not leaving this court till it's finished. I'm not coming back again. I'm not wasting the court's time - -

MR MANN: No. Thank you, sir. Yes.

HIS WORSHIP: We've spent 2 days on this matter.

MR MANN: Yes, sir. I'd like to introduce Clara Mann to the - -

HIS WORSHIP: Yes.

MR MANN: - - witness stand.

HIS WORSHIP: It's my intention, at the end of the day, gentlemen, to take written submissions. I'm not going to waste another moment, as far as this matter is concerned. If I give you the opportunity to talk, we'll never finish, so you - - I can indicate now that I'll simply give you 14 days to provide me with written submissions as to your position on any evidence, and then I'll give my decision after that."

79 Clara Anna Mann was then called and she gave evidence that there was a business still operating on the land in question. She said she had a cheque book, cheques and some bank statements. The learned Magistrate asked the questions. It transpired that bank records related only to the period prior to December 2000 and then in 2004. There were no records produced for 2003. Mrs Mann said she just grabbed "a handful" of records. She contended there were some for 2003. The learned Magistrate examined the records but he could find none and returned the papers to Mrs Mann saying they were not relevant. There was then further evidence from Mrs Mann about other matters which were irrelevant.

80 Towards the conclusion of Mrs Mann's evidence the following exchange took place:

"HIS WORSHIP: Yes. But you're the owner of the premises. You're the owner - - he's got nothing - - technically, he shouldn't even be where he is, technically. If I'd known, probably, before, I wouldn't have allowed you to represent you, because he's got no technical position. He's the secretary of a company, which gives him effectively no entitlement. As a director, you have. I have to say, I thought he was a director.

...

HIS WORSHIP: - - I have to say, I wouldn't - - if I'd known then what I know now, Mr Mann, I wouldn't have allowed it. I would have got you to get a legal practitioner to do it - -"

81 By the time Mrs Mann's evidence had been taken it was 4.50 pm and the learned Magistrate said that he had had enough. He then said:

"HIS WORSHIP: You've got till the 15th of March to give me written submissions - in the case of the prosecution, obviously, they're - - why I should be satisfied beyond reasonable doubt that each of the charges is proven beyond reasonable doubt; in relation to KC Nominees, why the prosecution have failed, essentially - -"

Explanation of the provisions of s 72 of the Justices Act 1902

82 This was followed by the following observation from counsel for the respondent which was designed to assist Mr Mann:

"MR HANDCOCK: Sir, can I make just one very brief submission, partly to assist Mr Mann?

HIS WORSHIP: Yes.

MR HANDCOCK: It's my submission that the onus switches, in these circumstances. It's an underlying principle of law that, in relation to non-conforming use, the party who makes the claim proves the claim, but in any event, I have drafted the complaints to effectively negatively aver the section - - or part six of the scheme, which is to negatively aver the non-conforming use provisions, and I then rely on the impact of section 72 of the Justices Act, which effectively says if you negative an exception proviso exemption, then the onus falls on the defendant to adduce the evidence, so it's my submission that Mr Mann - - that is the submission I make - and I'll make it in written submission form - but Mr Mann - - in my submission, it would be fair to him if he understood that that is one of the key planks - -

HIS WORSHIP: Yes. Well, the onus, on balance, is - - if you're going to allege non-conforming use - - I mean, in relation to the zoning issue, obviously, that onus is on the prosecution. In relation to the non-conforming use, if you're going to allege that, then it's not sufficient to say 'Well, we allege non-conforming use, and then the prosecution have to prove it is'. If you're going to allege non-conforming use, then you have to establish, on balance, that there is non-conforming use, and you do that - - all I'm saying to you is, when you make your submissions, you have to concentrate on that issue ... (indistinct) ... saying 'Well, what factors can the court rely on to conclude that there is non-conforming use in relation' - - in other words, ongoing usage, as it was originally used before the scheme came into operation. Do you understand that, Mr Mann?"

83 It seems clear at this point that Mr Mann understood what was in issue. He made no request to call any further witnesses. There was one further exchange where the learned Magistrate asked counsel for the respondent to again explain after the Court had risen what the issues were.

84 A thorough analysis of the transcript thus reveals that the learned Magistrate gave every assistance he could to Mr Mann. In that sense he gave every assistance he could to the appellant. He did not in my view fail to discharge his duty by failing to explain to Mr Mann the nature of the submissions that should be filed and nor in my view did he curtail the proceedings precluding Mr Mann from calling any further evidence. Further, I reject the assertion that he failed to explain the critical issue to Mr Mann, namely whether a non-conforming use of the land had ceased after 1995 and prior to December 2003. Nor in my view did the learned Magistrate fail to explain to Mr Mann that evidence should be led to demonstrate continuity of the business during the period in question.

85 Recourse to the evidence reveals that Mr Mann understood clearly what was involved. He led evidence in relation to the nature of the business and the use of the land for the business. He tendered material which he had in the form of letters to and from the City (or the Town of Armadale before it) and he argued the issue of non-conforming use. He also went off on a tangent about the validity of the City's Town Planning Schemes and raised the issue of fraud. Clearly that was outside the boundaries of the prosecution.

86 I am unable to conclude that there was any miscarriage of justice in the conviction of the appellant by reason of the matters raised in the second or third grounds of appeal.

87 As for the first ground of appeal, I reject the contention that the appellant was not permitted to call evidence in relation to the question of continuity of the use of the land where there was evidence which would have shown that the use of the land had not changed since 1963. I have set out the relevant passages of evidence which indicate that evidence was called on the issue. At no time did the learned Magistrate preclude the calling of such evidence. Indeed, the transcript reveals that Mr Mann was made well aware that the question of continuous non-conforming use on the land was the key issue. As I have pointed out, Mr Mann clearly understood this.

88 "Fresh evidence", or more properly described, "further evidence", which was adduced at the hearing of the appeal pursuant to the order of McKechnie J included affidavits of customers of "Mann's Garage" testifying to the effect that they had certain work done on vehicles over certain periods of time.

89 Jeffrey Alan Blackwell deposed on 3 December 2005 that he had used "Mann's Garage" consistently for the last 13 to 14 years to repair his vehicles and that he had last taken a truck in to "Mann's Garage" in December 2003.

90 Graham Keith Mann swore on 3 December 2005, that he was a diesel mechanic by trade and the son of Keith and Clara Mann. He deposed to the fact that he resided at 53 Gilwell Avenue, Kelmscott until December 1993 and knew from personal observation that Lots 2 and 3 Gilwell Avenue and Lot 1 Clifton Street, Kelmscott were used in business by his father and mother as a garage and engineering business under the name "Mann's Garage". He deposed that during 1998 he began working with his father at the garage on a consistent basis, entered into an apprenticeship in May 1999, and for the term of the apprenticeship (four years) worked in the garage completing tasks assigned to him by his father. He listed major clients. He deposed however that at the completion of his apprenticeship in early 2003, he began work as a sole trader. He said that he used the garage for some machining and welding purposes. He also said that after he completed his apprenticeship he recalled working for his father on occasions.

91 Robert William Corps swore an affidavit on 2 December 2005, to the effect that in 1999 he had work done on a vehicle at "Mann's Garage" and again in November 2002.

92 Leslie Charles Fancote swore on 3 December 2005, that since mid 1999 he had "Mann's Garage and Engineering Services" work on an automotive development project for him and from 1966 had "Mann's Garage" carry out repairs on vehicles. The last repair work he had done was mid 2004.

93 In my view none of the fresh evidence adduced affects the outcome of the case. It does not establish a continuous use by way of a non-conforming use of the land in question for industrial purposes. At best it establishes sporadic use of the garage facility on the land for work on various vehicles at various times. Further, although loosely referred to as "fresh evidence" the evidence was not fresh evidence in the strict legal sense. There is a distinction between "fresh" and "new" evidence. New evidence is evidence which was available and known by the convicted person to be available at the time of the original trial or alternatively constructively available: see Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 (at 517).

94 The power of an appeal court under the Criminal Appeals Act (which is applicable to the present appeal) to receive further evidence is contained within s 40 of the Act. The Court may "admit any other evidence" (s 40(1)(e)). Further evidence admitted on an appeal can only result in a successful appeal if there has been a miscarriage of justice: see Criminal Appeals Act s 30(3)(c). The subject is dealt with at length by Pullin JA in De La Espriella-Velasco v The Queen [2006] WASCA 31 (at [155]) et seq.

95 In the present case I am prepared to admit the evidence under s 40 of the Criminal Appeals Act for the purpose of considering what it establishes. In my view it only establishes that some people came to and used premises at the land at certain times (including the relevant period of charges) for mechanical work. The evidence does not establish a continuing non-conforming use, nor does it establish that to the extent that the land was used as a depot or storage, it was land the subject of Pt 6 of TPS 2.

96 Application was made after judgment had been reserved for leave to adduce further fresh evidence in the form of an affidavit of Mr Mann sworn 27 April 2006. In that affidavit an attempt was made to adduce further exhibits said to be relevant to the question of non-conforming use of the subject land. A letter written by the manager of Development Services Division of the City dated 15 June 1995 is one of those documents. In it there appears the statement that there is no dispute that Mr Mann enjoyed a non-conforming use of the land. The letter does not identify what particular land the non-conforming use was on. The heading of the letter referred to Lots 1 and 2 Clifton Street and Lot 3 Gilwell Avenue, but in my view that is not determinative of the matter.

97 I am not prepared to allow the application to adduce additional evidence (more properly described as further evidence). The application was lodged after judgment was reserved and the material was clearly available at the time McKechnie J made an order allowing fresh evidence to be adduced at the hearing of the appeal. It was also available at the hearing of the appeal. There must be a finality to litigation and in the exercise of my discretion I consider that it would be entirely inappropriate to allow the appellant at this stage of the proceedings to adduce further evidence argumentative of the continuous existence of the non-conforming use which is claimed it had. In any event, to allow this evidence to be adduced would necessitate a re-opening of the case in the sense that counsel for the respondent would need the opportunity to test the evidence by cross-examination of Mr Mann and perhaps by calling further evidence. I am not prepared to allow this at a time when judgment has been reserved for a month.

98 This was a case where s 72 of the Justices Act 1902 is applicable. That section reads:

"If the complaint in any case of a simple offence or other matter negatives any exemption, exception, proviso, or condition contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in his defence."

99 In the present case, the respondent averred that the appellant had contravened TPS 2, in that it had used land that was not the subject of Pt 6 of TPS 2 for a depot or storage use without town planning approval. In these circumstances the appellant was called upon to prove that:

(2) in the alternative, the land was not in any event used for a depot or for storage use.

100 A careful assessment of the evidence reveals that the appellant failed to establish that the land was the subject of Pt 6 of TPS 2. That is, that it was land in respect of which there had been a continuous non-conforming use. In other words it failed to prove that there had been no discontinuance for a period of six months or more of the use of the land for industrial purposes.

101 It was clear that the land was used for a "depot or storage use", because the photographs revealed that fact. It could not possibly be said that the collection of what was aptly described by the learned Magistrate as "junk", was in any way incidental to the industrial use of the land. That is use of the land for the purpose of a motor engineering business.

102 Although counsel for the appellant argued that the definition of "industry" in TPS 2 was applicable, in my view it was not. That definition (so far as is relevant) is as follows:

"'Industry' means the carrying out of any process for and incidental to:

...

and includes, when carried out on land upon which the process is carried out in and connected with that process, the storage of goods, any work of administration or accounting, the sale of goods resulting from the process and use of land for the amenity of persons engaged in the process."

103 The photographic evidence reveals that the material on the property (and that includes the three Lots) could not be categorised as storage of goods in connection with any motor engineering activities. Most of the material is rusted, apparently worthless and has remained in situ for many years. Photographs taken in 1995 reveal in many cases the same material as can be seen in the year 2003.

104 In my view, the learned Magistrate was correct to find as he did that any non-conforming use that may have existed prior to 1 September 2003, had been extinguished. Put more properly, the learned Magistrate was entitled to be satisfied beyond reasonable doubt that the charge was proven because the appellant had failed to discharge the evidential burden cast upon it of establishing the non-conforming use of the land for industrial purposes, and he was entitled to be satisfied beyond reasonable doubt that the land had been used as a depot or storage without town planning approval.