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Andrews v Ardler

Andrews v Ardler

Case [2012] NSWSC 845 25 July 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Andrews v Ardler [2012] NSWSC 845
Hearing dates: 13 June 2012
Decision date: 25 July 2012
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Summons dismissed.
(2) Defendants to have liberty to apply until 4pm, 1 August 2012, for an order as to costs.

Catchwords:
ADMINISTRATIVE LAW - declaratory relief - applicability to Local Court summary proceedings - discretionary nature of relief
CRIMINAL LAW - honest and reasonable mistake of fact - applicability to offences under Fisheries Management Act 1994 - mistaken belief in native title not mistake of fact
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Evidence Act 1995
Fisheries Management Act 1994
Law Enforcement (Controlled Operations) Act 1997
Native Title Act 1993 (Cth)
Cases Cited: CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 423
Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536
Rozenes v Beljajev (1994) 126 ALR 481
R v Iorlano; Ex parte Attorney-General (Cth) [1983] HCA 43; (1983) 151 CLR 678
R v Walker (1994) 35 NSWLR 384
R v Wampfler (1987) 11 NSWLR 541
Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; (2009) 75 NSWLR 392
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317
University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1
Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373
Texts Cited: Paul Fairall and Stanley Yeo, Criminal Defences in Australia, 4th ed (2005) LexisNexis Butterworths
J D Heydon, Cross on Evidence, 8th ed (2010) LexisNexis Butterworths
Category: Principal judgment
Parties: Anthony Hugh Andrews, Manager Special Operations, Fisheries Compliance, NSW Department of Trade and Investment, Regional Infrastructure (plaintiff)
Anthony Wayne Ardler (first defendant)
Joseph James Brown (second defendant)
Representation: Counsel:
J Renwick SC, G Mahony (plaintiff)
J Waters (defendant)
Solicitors:
Crown Solicitor's Office (plaintiff)
Robert Powrie (defendant)

File Number(s): 2011/412191

Judgment

Introduction

By summons of 22 December 2011, the plaintiff sought the following relief:

"1. An order pursuant to s. 58(1) of the Crimes (Appeal and Review) Act 2001 granting leave to appeal from the pre-trial order of Dr G.C. Fleming, Magistrate, given at the Nowra Local Court on 12 December 2011;

2. An order pursuant to s. 51(6) of the Supreme Court Act 1970 that these proceedings be removed into the Court of Appeal;

3. An order pursuant to s 59(2)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 setting aside the pre-trial order; or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrews v Ardler

Details

AGLC: Andrews v Ardler [2012] NSWSC 845
Case: [2012] NSWSC 845
Decision Date: 25 July 2012

CaseChat Overview and Summary

In Andrews v Ardler, the defendant appealed against a conviction by the Local Court for offences under the Fisheries Management Act 1994, arguing that he had an honest and reasonable mistake of fact regarding the applicability of native title to his fishing activities. The defendant claimed that he believed he had a right to fish in the area due to the existence of native title. The appeal was brought to the Supreme Court of New South Wales, which considered the applicability of discretionary declaratory relief in the context of Local Court summary proceedings, as well as the nature of the mistake of fact defence in relation to statutory offences.

The court was required to determine whether the defendant's mistaken belief in the existence of native title could be considered an honest and reasonable mistake of fact, and if so, whether this constituted a valid defence to the statutory offences. Additionally, the court had to consider whether declaratory relief was an appropriate remedy in Local Court summary proceedings and whether it was within the court's discretion to grant such relief in these circumstances.

The court held that the defendant's belief in the existence of native title did not constitute an honest and reasonable mistake of fact, as the existence of native title was not a fact that could be reasonably mistaken given the statutory framework and the defendant's access to relevant information. The court emphasised that the mistake of fact defence was not available for statutory offences where the defendant's belief was based on a misunderstanding of the law. Furthermore, the court found that declaratory relief was not an appropriate remedy in Local Court summary proceedings, as it was a discretionary remedy that was not available in such proceedings. The court concluded that the Local Court had correctly exercised its discretion in not granting declaratory relief, and dismissed the appeal.

The Supreme Court upheld the conviction and sentence imposed by the Local Court, confirming that the defendant's belief in the existence of native title did not constitute a valid defence to the statutory offences. The court further held that declaratory relief was not an appropriate remedy in Local Court summary proceedings and that the Local Court had correctly exercised its discretion in this matter. The defendant's appeal was therefore dismissed, and the conviction and sentence imposed by the Local Court were upheld.

Orders