Australia: Two new Supreme Court decisions affect local government prosecutions in Western Australia

Last Updated: 1 February 2016
Article by Anne Wood

Two new Supreme Court decisions will affect the way in which Local Governments charge accused persons and serve prosecution notices.

Can you charge for non-compliance with a Direction Notice twice?

No – the Supreme Court says you cannot charge twice for non-compliance with the same direction notice.

In the recent decision of Hunter -v- City of Joondalup [2015] WASC 444, Mr Hunter had been charged (and previously convicted) of failing to comply with a Direction Notice issued under section 3.25 of the Local Government Act 1995.

It was held by the Magistrate at first instance that the Direction Notice constituted an ongoing obligation on Mr Hunter to comply with the Direction Notice even after the first conviction and sentencing.

However, upon appeal, His Honour Justice Corboy found:

  • the items being stored in the yard were (on the evidence) different from the items previously being stored;
  • it would have been open to the City to issue another Direction Notice but that if the City had done this then the Direction Notice might have been subject to review by SAT; whereas, where a prosecution was brought on the existing Direction Notice, the Accused would not have had this option for review, which was an injustice.

The most important finding is that section 17 of the Criminal Code, which says that you can not be convicted twice for the same offence, provided a defence to the second prosecution because he had already been charged and convicted of both:

  • the head offence – that is the failure to comply with the Direction Notice by the due date; and
  • the continuing offence – that is that the failure to comply continued for a number of days.

Because Mr Hunter had been charged and convicted of the failure to comply with the direction notice, there was no head offence which could support a continuing offence of failing to comply with the directions notice on an ongoing basis.

So – what this means for Local Governments is that, in circumstances where an Accused has already been prosecuted on a particular Direction Notice – another prosecution will not be able to be commenced. Instead, a Local Government will need to issue a new Direction Notice and then wait to see whether there is compliance with that Direction Notice before considering a prosecution.

Service of Prosecution Notices

In a new decision released by the Supreme Court of WA on 11 Jan 2016 (Stewart -v- City of Belmont [2016] WASCA 5), the Court of Appeal has determined that in order to correctly serve a Prosecution Notice and Court Hearing Notice it may not be sufficient to merely serve the notice to the last known address.

Pursuant to schedule 2, clause 3 of the Criminal Procedure Act 2004, Prosecution Notices and Court Hearing Notices must be served at the address where the named person was last known to reside, work or conduct a business. (The Act does not apply to the service of Direction Notices.) In some circumstances, an address will be deemed to be the last known address of a person regardless of where they were last known to reside, work or conduct a business.

In the Stewart decision, the City served a Prosecution Notice and Court Hearing Notice at the last address it had for him on its records. However the address for service was an investment property, not a place of residence. It was not shown to be an address where Mr Stewart was known to reside, work or conduct a business, so delivery of the documents to that address was not valid service.

This will have a significant impact on the service of Prosecution Notices or Court Hearing Notices because Local Governments will need to be able to prove that the address at which the notices were served on is not simply a mailing address or a property which is owned by an Accused, but an address where the person was known to previously reside, work or conduct a business. It is likely that a Post Office Box address, or an address ascertained by a title search, will be insufficient.

Local Governments will now need to ensure that they collect more information about where people reside, work or conduct a business. We recommend that this information be collected as part of the normal course of business. This is because a Local Government will have to prove that at least one of the addresses that the prosecution notice and court hearing notices have been served on is a place where that person is known to have:

  • resided;
  • worked; or
  • conducted a business.

For example, when any forms are being filled out for a Local Government, the inclusion of a compulsory section for a residential address could commence the process of updating a Local Government's records for service requirements.

Compliance Officers when investigating complaints should also ask for a current residential address when speaking to a potential Accused.

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However, our best tip for overcoming problems with service addresses is to look through your Local Government's records for any licence, permit or similar document that is in force at the time of the alleged offence under the law which is alleged to have been breached (or a connected law).

If any such document can be found then the address which was given by the person on that document as their address is deemed by Schedule 2 of the Criminal Procedure Act to be their last known address for the purposes of service of the Prosecution Notice and Court Hearing Notice, unless of course you have any reason to believe that it is not where they reside, work or conduct a business.

For example, if a Local Government wanted to prosecute a Planning and Development Act 2005 offence and a Development Approval had been issued under that Act to the Accused was still in force. Then the address which the Accused had given for that permit would be a valid service address. The exception to this rule is where the local government has some reason to believe that address is no longer the last known address where the person resided, worked or conducted a business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Anne Wood
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