Investments (WA) Pty Ltd v City of Swan

[2012] WASC 278

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeal
3. › Effect of order of remittal
4. › Scope of authority of court on remittal
5. › Whether unlimited remittal required consideration of all issues
6. › Criminal Appeals Act 2004 (WA), ss 14(1)(c), 14(1)(e), 15(2)
1. Criminal Law
2. › Defences
3. › Honest claim of right
4. › Criminal Code (WA), s 22
5. › Whether defence open on the evidence
6. › Whether honest but mistaken belief as to timing of payment obligation constitutes claim of right with respect to property
7. › Planning and Development Act 2005 (WA), s 218(c)
1. Criminal Law
2. › Summary prosecution
3. › Obligation of magistrate to consider all defences open on the evidence
4. › Whether obligation applies regardless of whether defence raised by counsel
5. › Criminal Code (WA), s 22
1. Practice and Procedure
2. › Criminal appeal
3. › No substantial miscarriage of justice
4. › Whether appeal should be dismissed despite error by magistrate
5. › Criminal Appeals Act 2004 (WA), s 14(2)

Quick Take

An unlimited remittal order ('to be dealt with according to law') does not confine the magistrate to entering a conviction and sentencing but requires consideration of all outstanding issues including defences open on the evidence. A magistrate dealing with a summary prosecution must consider every lawfully available defence open on the evidence, even if not raised by counsel. An honest but mistaken belief as to the timing of a payment obligation under a planning condition does not constitute an honest claim of right with respect to property for the purposes of s 22 of the Criminal Code (WA).