HODDINOTT -v- CITY OF BELMONT [2026] WASC 197

[2026] WASC 197 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : HODDINOTT -v- CITY OF BELMONT [2026] WASC 197 CORAM : PALMER J HEARD : 16 MARCH 2026, WRITTEN SUBMISSIONS 14 APRIL 2026 DELIVERED : 20 MAY 2026 FILE NO/S : SJA 1019 of 2025 BETWEEN : SUSAN HODDINOTT Appellant AND CITY OF BELMONT Respondent ON APPEAL FROM: For File No : SJA 1019 of 2025 Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE B COLEMAN File Number : PE 62842 of 2024 PE 62841 of 2024 Catchwords: Criminal law - Appellant convicted in her absence under s 55 of the Criminal -- 1 of 25 -- [2026] WASC 197 Page 2 Procedure Act 2004 (WA) - Application to have conviction set aside under s 71 of the Criminal Procedure Act 2004 (WA) refused - Application for leave to appeal - Whether an appeal lies from the refusal of an application to set aside a conviction - Whether there has been a miscarriage of justice Legislation: Criminal Appeals Act 2004 (WA) Criminal Procedure Act 2004 (WA) Criminal Code (WA) s 22, s 23A Local Government Act 1995 (WA) Health (Miscellaneous Provisions) Act 1911 (WA) Result: Leave to appeal refused Application dismissed Category: B Representation: Counsel: Appellant : In Person Respondent : Mr P Gillett Solicitors: Appellant : In Person Respondent : McLeods Lawyers Case(s) referred to in decision(s): Carden v City of Wanneroo [2025] WASC 54 Fazio v St John-Ayre [2017] WASC 62 Fujita v City of Bayswater [2022] WASC 101 Grover v Scott [2010] WASCA 164 Sami v Duggan [2011] WASC 304 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 -- 2 of 25 -- [2026] WASC 197 Page 3 Save Beeliar Wetlands (Inc) & v Jacob [2015] WASC 482 Sharma v Hodgson [2012] WASC 433 -- 3 of 25 -- [2026] WASC 197 PALMER J Page 4 PALMER J: Introduction 1 The appellant is the owner of a property in Cloverdale (the Property). In 2024, she rented the Property to a tenant who had issues with hoarding. 2 The respondent is the local council responsible for the area in which the Property is located. 3 In December 2023, the respondent received complaints from neighbours about the condition of the Property, including that rubbish and disused materials were being stockpiled there. 4 In January 2024, a health officer employed by the respondent inspected the Property and issued a notice to the appellant under s 3.25 of the Local Government Act 1995 (WA) (the Local Government Act) requiring the appellant to clean up the Property by 7 February 2024. 5 On 3 April 2024, the respondent issued a further notice to the appellant under s 3.25 of the Local Government Act. 6 On 2 May 2024, the respondent issued the appellant with a notice under s 139 of the Health (Miscellaneous Provisions) Act 1911 (WA) (the Health Act) to remove materials from inside the house, unblock sinks and drains and ensure an adequate supply of hot and cold water.1 7 By way of a prosecution notice dated 6 November 2024, the respondent charged the appellant with: (a) one count of, between 2 May 2024 and 30 July 2024, failing to comply with a notice issued under s 3.25 of the Local Government Act; and (b) one count of, between 2 May 2024 and 30 July 2024, failing to comply with a notice within the time specified in the notice, contrary to s 140(1) of the Health Act.2 8 The charges were listed for a hearing on 20 December 2024 in the Perth Magistrates Court. The appellant did not attend that hearing and she 1 See prosecution notice PE 62841/2024 - 62842/2024. 2 See prosecution notice PE 62841/2024 - 62842/2024. -- 4 of 25 -- [2026] WASC 197 PALMER J Page 5 was convicted by Magistrate Coleman in her absence pursuant to s 55 of the Criminal Procedure Act 2004 (WA) (the Criminal Procedure Act). 9 Magistrate Coleman imposed fines in relation to both counts. In relation to the first count, the appellant was fined $500 and was ordered to pay an additional penalty of $5,000. In relation to the second count, she was fined $100 and was ordered to pay an additional penalty of $4,500. She was also ordered to pay costs of $1,432.3 10 On 10 January 2025, the appellant made an application pursuant to s 71 of the Criminal Procedure Act, to have her conviction set aside. That application was initially listed before Deputy Chief Magistrate E Woods on 28 January 2025 but adjourned until 13 March 2025 to allow the appellant further time to prepare her application. 11 On 13 March 2025, the Deputy Chief Magistrate dismissed the appellant's application to set aside her conviction. Her Honour was not satisfied that it was in the interests of justice to grant the application as she did not consider that the appellant had identified any arguable defence to the charges. 12 The appellant now seeks to appeal both her conviction and the refusal of her application to set aside her conviction. 13 The appellant needs leave to appeal. She advanced nine proposed grounds of appeal. For the reasons that follow, I do not consider that any of those proposed grounds have sufficient merit to warrant the grant of leave to appeal. I will refuse leave to appeal and dismiss the appeal. The proceedings in the Magistrates Court 20 December 2024: The appellant is convicted in her absence 14 As I have mentioned, there was no appearance by the appellant at the hearing on 20 December 2024. 15 After the appellant's matter was called, Magistrate Coleman indicated that she had satisfied herself that the appellant had been served on 6 November 2024.4 16 The prosecution applied to proceed under s 55 of the Criminal Procedure Act and that application was granted.5 3 Transcript from primary court 20 December 2024 (Transcript 20 December 2024), ts 9. 4 Transcript 20 December 2024, ts 2. -- 5 of 25 -- [2026] WASC 197 PALMER J Page 6 17 The prosecutor explained the facts to Magistrate Coleman and provided Her Honour with some photographs.6 18 Magistrate Coleman then made some brief sentencing remarks. Her Honour noted that she was constrained by the absence of any plea in mitigation from the appellant. Her Honour characterised the appellant's offending as serious and observed that general deterrence was an important sentencing consideration in her case.7 19 The Magistrate acknowledged that the appellant did not put the rubbish on the Property but observed that the appellant was obliged to ensure that her tenant complied with his obligations. She noted that the appellant may have attempted to have the tenant rectify the condition of the Property but that the photographs provided confirmed that the condition of the Property remained unacceptable and the position had been ongoing for a significant period of time.8 20 Magistrate Coleman then imposed the fines that I have mentioned. There were two sets of fines for each charge because each count carried with it a daily penalty for each day of non-compliance. The additional penalties imposed were global sums imposed in relation to the daily penalty.9 28 January 2025: The initial hearing of the s 71 application 21 As I have mentioned, the application that the appellant made pursuant to s 71 of the Criminal Procedure Act was initially listed before Deputy Chief Magistrate Woods on 28 January 2025. The appellant represented herself. The respondent was represented by the same prosecutor who had appeared on 20 December 2024. 22 The prosecution opposed the application on the basis that it was not in the interests of justice to set the conviction aside. The prosecutor referred to evidence that the appellant had filed in support of her application that she had complied with the respondent's notices. The prosecutor then referred to evidence filed by the respondent that the appellant had not complied with the notices during the time period that was the subject of the charges.10 5 Transcript 20 December 2024, ts 2. 6 Transcript 20 December 2024, ts 2 - ts 7. 7 Transcript 20 December 2024, ts 9. 8 Transcript 20 December 2024, ts 9. 9 Transcript 20 December 2024, ts 9. 10 Transcript from primary court 28 January 2025 (Transcript 28 January 2025), ts 2 - ts 3. -- 6 of 25 -- [2026] WASC 197 PALMER J Page 7 23 The appellant said that her understanding was that her conviction would be automatically set aside by operation of s 72(2) of the Criminal Procedure Act. The Deputy Chief Magistrate told her that her understanding was incorrect.11 24 The Deputy Chief Magistrate asked the appellant whether she had a defence and the appellant referred to the Bush Fires Act 1954 (WA). The prosecutor clarified that there were no charges laid under that act.12 25 The appellant indicated that she was unable to defend herself without knowing the nature of the charges against her. She then referred to her tenant having a hoarding issue and her being unable to do anything about it as the owner.13 26 The Deputy Chief Magistrate again asked the appellant whether she had a defence and the appellant referred to the respondent's computer server being down. She also repeated that she was not responsible because she was the owner.14 27 The appellant referred to s 23A and s 22 of the Criminal Code.15 28 Ultimately, the appellant indicated that she would like an adjournment and the Deputy Chief Magistrate granted an adjournment to 13 March 2025.16 13 March 2025: the s 71 application is refused 29 The hearing on 13 March 2025 also took place before the Deputy Chief Magistrate. The appellant again represented herself. The prosecutor does not seem to have initially been present. 30 The Deputy Chief Magistrate asked the appellant if she had any defence to the charges.17 31 The appellant submitted that a decision had been made to proceed under s 72(2) of the Criminal Procedure Act and not s 72(3) and therefore the matter should not have gone into 'default judgment'. The 11 Transcript 28 January 2025, ts 3. 12 Transcript 28 January 2025, ts 3 - ts 4. 13 Transcript 28 January 2025, ts 3 - ts 4. 14 Transcript 28 January 2025, ts 5 - ts 6. 15 Transcript 28 January 2025, ts 6 - ts 7. 16 Transcript 28 January 2025, ts 7 - ts 8. 17 Transcript from primary court 13 March 2025 (Transcript 13 March 2025), ts 3. -- 7 of 25 -- [2026] WASC 197 PALMER J Page 8 Deputy Chief Magistrate told the appellant that the matter had not gone into 'default judgment'.18 32 The appellant also claimed that she was not served with the prosecution notice and that service had not been established. The Deputy Chief Magistrate said that service had been established.19 33 The appellant referred to s 23A and s 22 of the Criminal Code and read out the latter provision. The Deputy Chief Magistrate explained that those defences did not apply.20 34 The appellant referred to the tenant's mental health issues and the Deputy Chief Magistrate indicated that she did not consider them a defence.21 35 The Deputy Chief Magistrate asked the appellant whether she had complied with the notices given to her by the respondent and she said she had. The appellant said she had given breach notices to the tenant and spoken to him on the telephone. Her Honour said that that was insufficient.22 36 The appellant then claimed that the notices had been withdrawn and re-issued.23 37 The matter was briefly adjourned, to permit the prosecutor to arrive. The appellant then repeated many of the same submissions and the Deputy Chief Magistrate observed that it was not apparent to her how any of those submissions provided a defence.24 38 There was some discussion about the terms of s 140 of the Local Government Act.25 39 The Deputy Chief Magistrate indicated that there were other matters that she needed to hear and that she would give the appellant five more minutes to address her as to why she had a defence.26 18 Transcript 13 March 2025, ts 3 - ts 5. 19 Transcript 13 March 2025, ts 5. 20 Transcript 13 March 2025, ts 6 - ts 7. 21 Transcript 13 March 2025, ts 6 - ts 7. 22 Transcript 13 March 2025, ts 7 - ts 8. 23 Transcript 13 March 2025, ts 8. 24 Transcript 13 March 2025, ts 10 - ts 15. 25 Transcript 13 March 2025, ts 14 - ts 16. 26 Transcript 13 March 2025, ts 17. -- 8 of 25 -- [2026] WASC 197 PALMER J Page 9 40 The appellant used that five minutes to argue that s 139 of the Local Government Act could not apply to her. She denied that the Property was unfit for human habitation, or was unclean or in need of repair. She said that the issues raised by the respondent had been resolved. She argued that there was no justification for the respondent to have issued the notices that they did.27 41 The Deputy Chief Magistrate then heard from the prosecutor briefly. 28 42 Her Honour then dismissed the appellant's application because the appellant had failed to raise any arguable defence.29 Why leave to appeal is required and when it is granted 43 Under the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act), a decision of the Magistrates Court to convict an accused of a charge may be appealed to the Supreme Court on the grounds that the court made an error of law or fact or both, or on the basis that there has been a miscarriage of justice.30 44 Leave to appeal is required for each ground.31 An application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act. 45 Leave to appeal must not be granted on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding,32 meaning that the ground is required to have a rational and logical prospect of succeeding.33 Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.34 46 A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.35 Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.36 27 Transcript 13 March 2025, ts 17 - ts 19. 28 Transcript 13 March 2025, ts 19 - ts 21. 29 Transcript 13 March 2025, ts 21. 30 Criminal Appeals Act s 6(c), s 7(1) and s 8(1). 31 Criminal Appeals Act s 9(1). 32 Criminal Appeals Act s 9(2). 33 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. 34 Criminal Appeals Act s 9(3). 35 Sami v Duggan [2011] WASC 304 [38]. 36 Criminal Appeals Act s 14(2). -- 9 of 25 -- [2026] WASC 197 PALMER J Page 10 The proposed grounds of appeal 47 The appellant commenced this appeal by a Notice of Appeal dated 5 April 2025. The Notice of Appeal identified the date of the relevant decision as being 13 March 2025 and the decision maker as being the Deputy Chief Magistrate. The decision made is identified as being a refusal to correctly apply s 72(2) of the Criminal Procedure Act. 48 On 8 September 2025, the appellant filed a minute of proposed amended grounds of appeal. The minute indicated that the appellant wished the appeal to be extended to include her conviction on 20 December 2024 and to add two new proposed grounds. To the extent necessary, I grant the appellant leave to amend the notice of appeal in terms of the minute. 49 There were ultimately nine proposed grounds of appeal: (a) Ground 1: error of law and excess of jurisdiction Criminal Procedure Act 2004 (WA), s72; (b) Ground 2: error of law and excess of jurisdiction Criminal Procedure Act 2004 (WA), s 32, s 172, Schedule 2 s 2(3), Schedule 2 s 3(10); (c) Ground 3: error of law and excess of jurisdiction Criminal Code 1913 (WA), s22 and 23A(2); (d) Ground 4: error of law and excess of jurisdiction Health (Miscellaneous Provisions) Act 1912 (WA), s 26, s 358 and s 362; (e) Ground 5: error of law and fact - Validity of notices/charges; (f) Grounds 6 and 7: error of law and fact - Circumstance and Legal Compliance; (g) Ground 8: Unlawful Prosecution; and (h) Ground 9: Miscarriage of justice. The further evidence on the appeal 50 Section 40(1)(e) of the Criminal Appeals Act provides that for the purposes of dealing with an appeal, an appeal court may admit other evidence. The Court must otherwise decide an appeal on the evidence that was before the lower court. Section 39 of the Criminal Appeals -- 10 of 25 -- [2026] WASC 197 PALMER J Page 11 Act provides that subject to an appeal court's power under s 40 to admit new evidence, the appeal court must decide the appeal on the evidence and material that was before the lower court. 51 Both parties made applications to adduce further evidence at the hearing of the appeal. 52 The appellant sought leave to rely on two affidavits sworn on: (a) 20 August 2025 (the Appellant's First Affidavit); and (b) 25 March 2026 (the Appellant's Second Affidavit). 53 The respondent sought to reply on an affidavit of David Peter Gillett sworn on 10 September 2025 (the Gillett Affidavit). 54 Having considered this material, I was satisfied that it was in the interests of justice to receive the further evidence upon which the parties sought to rely. Ground 1 55 Proposed ground 1 is that there was an 'error of law or and excess of jurisdiction Criminal Procedure Act 2004 (WA), s72'. 56 The appellant contends that the Deputy Chief Magistrate made an error of law, or acted in excess of jurisdiction, because she decided to proceed under s 72(3) of the Criminal Procedure Act despite the conditions of s 72(2) of the Criminal Procedure Act having been met.37 57 The respondent disputed the competency of this ground of appeal. It argued that no appeal lies from a decision to refuse an application under s 71 of the Criminal Procedure Act.38 58 The relevant right of appeal is created by s 7(1) of the Criminal Appeals Act which provides that a person who is aggrieved by 'decision' of a court of summary jurisdiction may appeal to the Supreme Court against the decision. 59 Section 6 of the Criminal Appeals Act defines a 'decision' of a court of summary jurisdiction to include: (a) a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3); 37 Appellant's submissions filed 6 October 2025 (Appellant's Primary Submissions) [3(i)] - [3(iv)]. 38 Respondent's outline of submissions dated 12 November 2025 [9] - [10]. -- 11 of 25 -- [2026] WASC 197 PALMER J Page 12 (b) a decision ordering a permanent stay of a prosecution; (c) a decision to convict an accused of a charge, whether after a plea of guilty or after a trial; (d) a decision to acquit an accused of a charge; (e) a decision to acquit an accused of a charge on account of mental impairment; (f) a sentence imposed, or order made, as a result of a conviction or acquittal; … (g) a sentence imposed, or order made, as a result of a conviction or acquittal; a refusal to make an order that might be made as a result of a conviction or acquittal; 60 Section 6 does not define a 'decision' to include a decision to refuse an application made pursuant to s 71 of the Criminal Procedure Act to set aside a conviction. 61 In Grover v Scott,39 Jenkins J (with whom McLure P and Buss JA (as he then was) agreed) expressed doubt about whether the refusal of an application under s 71 of the Criminal Procedure Act, fell within the definition of a 'decision' for the purposes of s 6 of the Criminal Appeals Act. Although Her Honour indicated that she would not determine the issue as she had not heard submissions,40 her Honour subsequently expressed the view that a decision to refuse an application under s 71 of the Criminal Procedure Act is not amenable to appeal.41 62 In Sharma v Hodgson42 Beech J (as he then was) considered whether the terms of s 6(g) of the Criminal Appeals Act might encompass such an appeal. He concluded that they did not. His Honour said:43 …any event, in my view, the decision to refuse the s 71 application is not a decision in respect of which the appellant has a right of appeal. A person aggrieved by a decision of the Magistrates Court has a right of appeal under s 7(1) of the Criminal Appeals Act 2004 (WA). Section 6 of that Act defines 'decision' to include a decision to convict an accused 39 Grover v Scott [2010] WASCA 164 (Grover). 40 Grover [76]. 41 Grover [98]. 42 Sharma v Hodgson [2012] WASC 433 (Sharma). 43 Sharma [18] - [19]. -- 12 of 25 -- [2026] WASC 197 PALMER J Page 13 of a charge. It also includes a refusal to make an order that might be made as a result of a conviction or acquittal: s 6(g). Although the matter was not argued [76], in Grover v Scott [2010] WASCA 164 [98], Jenkins J (McLure P & Buss JA agreeing) stated that a decision by a magistrate not to allow an application under s 71 of the CPA is not amenable to appeal. I would respectfully adopt that approach. Although an application under s 71 of the CPA is made following a conviction, on a proper construction of the Criminal Appeals Act I do not consider that an order under s 71 is an order that 'might be made as a result of a conviction' for the purposes of par (g) of s 6 of the Criminal Appeals Act. This does not leave a person who applies unsuccessfully under s 71 without appellate remedy. He or she can appeal against the conviction. If error is shown in the application under s 71, a miscarriage of justice in the consideration may be able to be demonstrated. 63 These authorities and the scope of s 6(g) of the Criminal Appeals Act were considered by Fiannaca J in Fazio v St John-Ayre.44 His Honour agreed with Beech J's view that s 6(g) does not encompass a decision to refuse an application made under s 71 of the Criminal Procedure Act.45 His Honour expressed some difficulty understanding how an error in an application under s 71 might demonstrate a miscarriage of justice in an appeal against conviction. His Honour observed:46 It is not clear to me, with respect, in what context Beech J considered in Sharma v Hodgson that an error in an application under s 71 might demonstrate a miscarriage of justice in an appeal against the conviction, although I note that Jenkins J had suggested a similar approach in Grover v Scott. I respectfully have some difficulty with the proposition that an error in the determination of a s 71 application can be relevant to an appeal against the conviction. In my opinion, if an error is made on such an application, it is not an error made in a ruling or interlocutory decision that is part of the proceedings that resulted in the conviction, which may be relevant on an appeal against the conviction. Moreover, s 71(5)34 of the Criminal Procedure Act appears to contemplate that an application under s 71 should be regarded as an alternative procedure to an appeal, when a conviction is entered pursuant to s 55. It does not preclude the bringing of an appeal against the conviction after a decision has been made on a s 71 application, but it requires the Magistrates Court to refuse such an application if the accused has already lodged an appeal against the conviction or if he lodges such an appeal after the application has been 44 Fazio v St John-Ayre [2017] WASC 62 (Fazio) [88]. 45 Fazio [88]. 46 Fazio [91]. -- 13 of 25 -- [2026] WASC 197 PALMER J Page 14 made but before it has been decided. In my opinion the legislative scheme contemplates that any appeal against a conviction entered pursuant to s 55 is to be determined by reference to the s 55 proceedings, not by reference to any decision on a s 71 application that may have been made in the interim. However, it is not necessary for me to determine that issue, in the context of this appeal, because I have had regard to the material that was put before Magistrate Malley and have considered whether it establishes a miscarriage of justice independently of the decision made by his Honour. (footnotes omitted) 64 In Carden v City of Wanneroo,47 Cobby J adopted Fiannaca J's analysis in Fazio, observing that no appeal lies from a decision of a magistrate to refuse to set aside a conviction entered in the absence of the accused. 65 In her responsive submissions, the appellant argued that none of these cases finally decided whether an appeal lies from the refusal of an application made under s 71 of the Criminal Procedure Act. The appellant contended that such a decision falls within the definition of a decision given in s 6(g) or s 6(f) of the Criminal Appeals Act.48 66 In my view, no appeal lies from the refusal of an application made under s 71 of the Criminal Procedure Act. I respectfully agree with the conclusion expressed in the cases discussed above. 67 Section 6(g) of the Criminal Appeals Act defines the term decision to include 'a refusal to make an order that might be made as a result of a conviction'. While an order setting aside a conviction under s 72 of the Criminal Procedure Act may only be made following a conviction, it is not an order that can be made 'as a result of a conviction'. 68 An order made under s 72 of the Criminal Procedure Act may only be made as a result of an application under s 71. Such an application must first be made, on one of the grounds in s 71(1)(a) - (c) or s 71(2)(a) - (c). 69 Further, the question of whether to grant the application involves the exercise of discretion on the part of the court. The conviction is not set aside automatically as the appellant asserted. At the hearing of an 47 Carden v City of Wanneroo [2025] WASC 54 (Carden) [10] - [11]. 48 Responsive submissions on behalf of the applicant dated 9 December 2025 (Appellant's Responsive Submissions) [1] - [6]. -- 14 of 25 -- [2026] WASC 197 PALMER J Page 15 application, the court may grant the application if it is satisfied that it is in the interests of justice to do so.49 70 The appellant also asserted that an appeal against the refusal of an application made under s 71 of the Criminal Procedure Act fell within the definition of decision in s 6(f) of the Criminal Procedure Act. Reference to that section does not assist the appellant. 71 Section 6(f) of the Criminal Procedure Act defines a decision to include 'a sentence imposed, or order made, as a result of a conviction or acquittal'. As I have said, an order setting aside a conviction under s 72 of the Criminal Procedure Act is not an order that can be made 'as a result of a conviction'. Further, s 6(f) seems to address the situation where an order has been made, not the situation where an order has been refused, as in this case. 72 It might also be observed that the Deputy Chief Magistrate did not proceed under s 72(3) of the Criminal Procedure Act as the appellant asserts. At no time did Her Honour indicate that she was doing so. 73 In my view, no leave should be granted in relation to ground 1, as no appeal lies from the Deputy Chief Magistrate's decision to refuse to set aside the conviction. 74 It is convenient to deal with proposed ground 2 last. Ground 3 75 Proposed ground 3 is that there was an 'error of law and excess of jurisdiction Criminal Code 1913 (WA), s 22 and 23A(2)'. 76 The appellant's submissions referred to s 22 and s 23A(2) of the Criminal Code and asserted that it provided 'important foundation and customary common law protections for property owners'. It was contended that the criminal law requires a victim and a guilty mind. It was argued that the Criminal Code defines what is a crime and if its conditions cannot be met, no crime has occurred.50 77 The appellant contended that the respondent's decision to prosecute her was ideologically based or due to corruption or incompetence.51 49 Criminal Procedure Act, s 72(5). 50 Appellant's Primary Submissions [5i)] - [5vi)]. 51 Appellant's Responsive Submissions [9] - [11]. -- 15 of 25 -- [2026] WASC 197 PALMER J Page 16 78 This proposed ground of appeal has no merit. 79 The appellant's submissions failed to explain how she might have a defence under either s 22 or s 23A(2) of the Criminal Code. 80 Section 22 of the Criminal Code provides that 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. 81 The appellant was charged with failing to comply with notices issued under the Local Government Act and the Health Act. It is not clear to me that those offences relate to property in the necessary sense. Even if they do, the appellant's submissions fail to identify any honest claim of right that would justify her not complying with the notices issued. 82 Section 23A(2) of the Criminal Code provides that a person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will. 83 Even if s 23A(2) of the Criminal Code could apply to the present offences, there is no evidence that the appellant was unable to control her actions, such that she had a defence to the charges. 84 Neither s 22, nor s 23A(2) would seem to have any relevant application. 85 There is no evidence that the respondent's decision to prosecute the appellant was ideologically based or due to corruption or incompetence. In any event, the appellant's allegations are not relevant to whether she might have a defence under s 22 or s 23A(2) of the Criminal Code. Ground 4 86 Proposed ground 4 is 'error of law and excess of jurisdiction Health (Miscellaneous Provisions) Act 1912 (WA), s 26, s 358 and s 362'. 87 The proposed ground of appeal seems to concern the fact that the respondent was represented by a solicitor in the Magistrate's Court. The appellant asserted that the respondent was not entitled to engage a -- 16 of 25 -- [2026] WASC 197 PALMER J Page 17 lawyer to prosecute her. The appellant indicated that she objected to the respondent's lawyers acting.52 88 The appellant argued that s 362 of the Health Act meant that the respondent could not act through a lawyer.53 89 This proposed ground of appeal also has no merit. 90 Section 172(3)(b) of the Criminal Procedure Act provides that the respondent could be represented by a lawyer. Section 362 of the Health Act does not provide otherwise. Ground 5 91 Proposed ground 5 alleges an 'error of law and fact - Validity of notices/charges'. 92 The appellant referred to the fact that she was being prosecuted under s 140(1) of the Health Act and submitted that it did not apply because the respondent had not carried out any 'terms notice' and is 'therefore not seeking to recover expenses from the owner'.54 93 The offence created by s 140(1) is committed by not complying with the notice issued within the time specified. It is not an element of that offence that the respondent seeks to recover its costs. The local government may also take remedial action and recover its costs but it is not obliged to do so. Section 140 of the Health Act provides: 140. Local government may act in default of owner (1) Whenever any owner fails to comply with a notice served upon him under any of the foregoing provisions of this Part, within a time therein specified, he commits an offence, and the local government may carry out the terms of the notice and recover all expenses from the owner: Provided that the local government may sell or dispose of the material taken from a demolished or amended building, but the proceeds of sale shall be applied towards the expense of carrying out the terms of the notice — the surplus (if any) to be paid to the owner. (emphasis added) 52 Appellant's Primary Submissions [6i)] - [6viii)]. 53 Appellant's Responsive Submissions [14]. 54 Appellant's Primary Submissions [7i)]. -- 17 of 25 -- [2026] WASC 197 PALMER J Page 18 94 The appellant argued that the charge under s 3.25 of the Local Government Act duplicated the offence under the Health Act.55 95 This argument does not have any merit. The two charges related to two offences, concerning a failure to comply with two different notices, with different subject matter, issued under two different acts. 96 The appellant further contended that no notices could be issued because the tenant did not consider his possessions to be rubbish or disused.56 97 It is not an element of either offence that the tenant believed the material to be rubbish or disused. Nor would his subjective belief give rise to any defence. 98 Material is not disused because someone might intend to make use of the material at some future point. In Fujita v City of Bayswater,57 Hall J (as he then was) observed: Items are disused if they are not being used or held ready for use. They may be disused even if the owner intends to make use of them at some point in the future. Disuse is concerned with the current state of a thing, not with its value. 99 The appellant also referred to s 139 of the Health Act and said that she denied that the property was unfit for human habitation, unclean, or in want of repair. She asserted that the complaint made against her was false and that the respondent had manufactured complaints.58 100 While the appellant's submissions acknowledged that the tenant had a hoarding issue, she denied that there was any issue with the sewerage and sink drains. She said that the tenant denied any uncleanliness or blocked drains, other than of a temporary nature. She said that she had inspected the property and not found there to be any problems. She disputed the respondent's evidence to the contrary.59 101 In the Appellant's First Affidavit, the appellant said that there was no issue with the water on the Property, except that the gas had been disconnected because the bill had not been paid.60 55 Appellant's Primary Submissions [7i)]. 56 Appellant's Primary Submissions [7(b)i)] - [7(b)vi)]. 57 Fujita v City of Bayswater [2022] WASC 101 [53]. 58 Appellant's Primary Submissions [7i)] - [7vii)]. 59 Appellant's Primary Submissions [7ii)] - [7x)]. 60 Appellant’s First Affidavit [8.] See also Appellant’s Second Affidavit [11]. -- 18 of 25 -- [2026] WASC 197 PALMER J Page 19 102 In the Appellant's Second Affidavit, the appellant said the following: 3. As previously indicated, multiple notices were issued and the one which went before the court had been modified to claim there were maintenance issues with the house. Specifically claims were made that there were issues with sinks/drains, the HWS and a ceiling. 4. These claims were inconsistent with what I had been told by the tenant. He claimed he had just broken a bottle of cooking oil and was cleaning it up in the kitchen sink when the council agent, Zappavigna, arrived to inspect the property. He claimed it was something of a temporary nature and there was no problem with any other sinks. 5. This lack of sink/drainage issues was also consistent with my own previous observations when the property was fully accessible. However, due to the hoarding issue it was not possible to view any sink issues mentioned in the notice due to the amount of furniture and other domestic items preventing access. This would also explain why there were no photographs verifying that this was, at any time, a genuine issue in the notice before the court. 103 The appellant also deposed to taking photographs at the Property on 20 February 2026 that established that there were no drainage problems or ceiling damage.61 104 The respondent relied upon an affidavit of its environmental health officer, filed in the Magistrate's Court. In that affidavit, the officer deposed to:62 (a) inspecting the Property in January 2024 and observing a large amount of rubbish and disused materials being stored in the front and rear yards of the Property;63 (b) inspecting the Property again on 21 March 2024 and observing: (i) a large amount of rubbish and disused materials being stored in the front and rear yards of the Property, (ii) the house was full of rubbish and disused materials; and 61 Appellant’s Second Affidavit [6] - [10]. 62 See Affidavit of Joseph Zappavigna (Zappavigna Affidavit), attachment 2 to Gillett Affidavit. 63 Zappavigna Affidavit [5]. -- 19 of 25 -- [2026] WASC 197 PALMER J Page 20 (iii) there was no hot water;64 (c) taking photographs on 21 March 2024 which are attached to his affidavit (that corroborated his evidence);65 (d) issuing notices to the appellant under s 3.25 of the Local Government Act and s 139 of the Health Act;66 (e) subsequently inspecting the Property including on 30 July 2024 and observing that the notices had not been fully complied with and he again attached photographs that he took to his affidavit (that corroborated his evidence);67 (f) on 6 August 2024, the respondent wrote to the appellant indicating that the notices had not been complied with;68 and (g) on 11 August 2924, the appellant then sent the health officer an email asking for an extension of time to comply with the notices.69 105 The appellant's email stated as follows:70 I attended 39 Pearl Rd., on Saturday 10th August 2024. Beni advised that he requires an extension until 29th September 2024 so please be formally advised of this request. I also noted that the problem appears to have gotten worse. This is as I predicted and as I told you would happen. This had been my previous experience with him and is a symptom of this hoarding mental issue. I attach the last 2 pages of his current lease where he has agreed to indemnify me against issues of this nature, therefore any prosecution needs to be against him. I also attach another breach notice with his requested extension date …. (emphasis added) 106 I am not satisfied that the appellant's evidence establishes that her conviction was a miscarriage of justice. When her evidence is assessed in the context of the evidence as a whole, including the health officer's 64 Zappavigna Affidavit [6] - [7]. 65 Zappavigna Affidavit [8]. 66 Zappavigna Affidavit [9] - [11]. 67 Zappavigna Affidavit [12] - [13]. 68 Zappavigna Affidavit [14]. 69 Zappavigna Affidavit [15]. 70 Zappavigna Affidavit, attachment JZ6, page 52. -- 20 of 25 -- [2026] WASC 197 PALMER J Page 21 evidence, it is insufficient to raise any reasonable doubt that she committed the offence. 107 The respondent's health officer gave evidence of matters that he personally observed during the relevant time period and his evidence is supported by contemporaneous photographs. His evidence is compelling. 108 The appellant's evidence is vague and lacking in credibility. 109 The appellant's evidence leaves the time periods she is addressing unclear. She fails to explain when she inspected the Property and the condition of the Property at the time of that inspection. 110 The evidence that the appellant seeks to rely upon in relation to the sinks and drains is hearsay. The appellant accepts that she was unable to inspect the sinks and drains in the kitchen and bathroom due to the clutter there. 111 The notice issued under the Health Act required the clutter in the kitchen and bathroom to be removed. The appellant's evidence that she was unable to inspect the sinks and drains reveals that that clutter was not removed. 112 To the extent that the appellant now claims that the notices that were issued had been complied with, or lacked any proper basis, her credibility is significantly undermined by the email that she sent on 11 August 2024. That that email sought an extension of time to comply with the notices is a tacit acknowledgement that they had not been complied with. That the notices had not been complied with is also evident from the appellant's comment that when she inspected the Property on 10 August 2024, the problem appeared to have gotten worse. 113 The photographs relied upon by the appellant do not assist her. The period relevant to the charges is between 2 May 2024 and 30 July 2024. The appellant's photographs were taken almost 1½ years later in February 2026. 114 I do not consider that proposed ground 5 has any merit. Grounds 6 and 7 115 Proposed grounds 6 and 7 allege an 'error of law and fact - Circumstance and Legal Compliance'. -- 21 of 25 -- [2026] WASC 197 PALMER J Page 22 116 The appellant submitted that s 360(3)(b)(i) of the Health Act provides that the level of any penalty for an offence may be related to the circumstances and extent of the offence. It was claimed that 'throwing out a defence in a case such as this, without considering the circumstances, is never valid'. The appellant made various assertions about her tenant, his circumstances and the complaint that was made to the respondent.71 117 The appellant argued that the mental health issues of her tenant were not under her control. She contended that she issued breach notices to the tenant and that the 'record' showed that she had been fully co-operative with the respondent. She described the respondent's health inspector as being heavy handed.72 118 These proposed grounds of appeal have no merit. 119 Section 360(3)(b)(i) of the Health Act identifies the penalty for a person who is convicted under a provision of the Act specified in Part 2 of Schedule 5. Contrary to the appellant's submissions, it makes no reference to the circumstances and extent of the offence. 120 It might still be accepted that it is necessary to take the circumstances of any offending into account as part of any sentencing exercise. Why this was relevant to whether the Deputy Chief Magistrate should have set aside the appellant's conviction is obscure, however. In any event, as I have already said, no appeal lies from that decision. Ground 8 121 Proposed ground 8 was 'unlawful prosecution'. 122 The appellant referred to the decision in Save Beeliar Wetlands (Inc) v Jacob.73 She submitted that it was State Government's 'policy' to encourage private owners to give homeless people opportunities. It was argued that the prosecution was unlawful because it was contrary to Department of Health policy.74 123 The appellant's submissions failed to identify any Department of Health policy that she relied upon with any particularity. Nor did she produce any evidence of such a policy. It is not clear to me that any 71 Appellant's Primary Submissions [8(a)i)] - [8(a)ix)]. 72 Appellant's Primary Submissions [8(b)i)] - [8(b)viii)]. 73 Save Beeliar Wetlands (Inc) & v Jacob [2015] WASC 482 (Save Beeliar Wetlands). 74 Appellant's Primary Submissions [9i)] - [9ix)]. -- 22 of 25 -- [2026] WASC 197 PALMER J Page 23 such policy exists but even if it did, the appellant's argument is misconceived. 124 Save Beeliar Wetlands was a case involving a judicial review. The present case is not an application for judicial review. Nor do the principles considered in Save Beeliar Wetlands have any relevant application to the appellant's conviction. 125 There is no merit to this proposed ground of appeal. Ground 9 126 Proposed ground of appeal 9 alleges 'miscarriage of justice'. 127 The appellant contended that there was a miscarriage of justice because the Deputy Chief Magistrate failed to accord the appellant a fair hearing when she heard the set aside application, as she failed to read her written submissions and rejected her oral submissions.75 128 I do not consider that the Deputy Chief Magistrate failed to accord the appellant a fair hearing. In any event, the proposed ground is a further attempt to appeal the decision to refuse an application under s 71 of the Criminal Procedure Act. No appeal lies from that decision. 129 There is no merit to this proposed ground of appeal. Ground 2 130 Proposed ground 2 alleges 'error of law and excess of jurisdiction, Criminal Procedure Act 2004 (WA), s 32, s 172, Schedule 2 s 2(3), Schedule 2 s 3(10). 131 The appellant disputed that the respondent had proved service before Magistrate Coleman. The appellant explained this proposed ground in the following way in the Appellant's First Affidavit:76 On page 2 of the 20th December 2024 transcript, the magistrate states: 'All right. So [the appellant] was served, and I'm satisfied of service, on 6 November this year. She is not present, I take it'. The presiding magistrate erred in deciding the matter without checking the validity of the originating documents. This ls an error of fact. The documents were not signed by the 'server' as require by s 32, s l 72. Schedule 2 s 2(3), Schedule 2 s 3(10) of 75 Appellant's Primary Submissions [10i)] - [10v)]. 76 Appellant’s First Affidavit [5]. -- 23 of 25 -- [2026] WASC 197 PALMER J Page 24 the Criminal Procedure Act 2004 (WA) and therefore were not validly served. The matter should not have been allowed to proceed. 132 The appellant attached a copy of the relevant Court Hearing Notice to that affidavit in which the service details had not been completed.77 133 In response, the respondent produced a copy of the Court Hearing Notice with the service details completed that was before Magistrate Coleman.78 This appears to be the document that Magistrate Coleman referred to on 20 December 2024, to satisfy herself of service. 134 To the extent that the proposed ground of appeal is premised on the service details having not been completed on the Court Hearing Notice before Magistrate Coleman, it is based on a false premise. 135 The appellant also disputed receiving the prosecution notice.79 It was unclear to me whether by doing so, the appellant intended to raise a different point to that already addressed. The appellant's evidence was vague and did not directly address whether she received a copy of the Court Hearing form that was posted to her. 136 I am doubtful that the evidence establishes that the appellant was not served with the prosecution notice. In any event, even if service was initially defective, I am not satisfied that any substantial miscarriage of justice has occurred. The appellant ultimately had notice of the charges. She applied to set aside her conviction but that application was refused because she was unable to identify any defence to the charges. None of the various matters raised by the appellant in this appeal suggest that her conviction was a miscarriage of justice. 137 There is no merit to this proposed ground of appeal. Conclusion 138 For all of these reasons, I will refuse leave to appeal and dismiss the appeal. 77 Affidavit, page 61. 78 Gillett Affidavit, attachment 1. 79 Appellant's Primary Submissions [4i)] - [4vi)]. Appellant’s First Affidavit [4]. -- 24 of 25 -- [2026] WASC 197 PALMER J Page 25 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SK Associate to the Hon. Justice Palmer 20 MAY 2026 -- 25 of 25 --