Bailey v Doncon

[2007] WASC 252

BAILEY -v- DONCON [2007] WASC 252

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 252
Case No:	SJA:1034/2007	Heard:	24 AUGUST 2007 (FURTHER WRITTEN SUBMISSIONS 18 SEPTEMBER 2007)
Coram:	BEECH J	Delivered:	15/11/07
No of pages:	21	Judgment Part:	1 of 1
Result:	Appeal upheld
Category:	B
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Parties:	WAYNE ROBERT BAILEY BENJAMIN GRANT DONCON
Catchwords:	Criminal law Fisheries offences Consignment of illegal lobster Checked by crew Where appellant believed crew had correctly checked Mistaken belief Reasonableness of mistake Whether unwilled act or event that occurred by accident
Legislation:	Criminal Code (WA) s 23, s 24 Fish Resources Management Act 1994 (WA)
Case References:	Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 Burnett v Ostrowski [2007] WASC 69 Ferrari v Neenan [2000] WASCA 191 Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129 Kaporonovski v The Queen (1973) 133 CLR 209 O'Brien v Ostrowski [1999] WASCA 181 Ostrowski v Zaza [1999] WASCA 156; (1999) 108 A Crim R 350 Pearce v Stanton [1984] WAR 359 R v Taiters; Ex parte Attorney General [1997] 1 Qd R 333 Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372 Starling v Ostrowski [2000] WASCA 173 Warren v Coombes (1979) 142 CLR 531

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BAILEY -v- DONCON [2007] WASC 252 CORAM : BEECH J HEARD : 24 AUGUST 2007
(Further written submissions 18 SEPTEMBER 2007) DELIVERED : 16 NOVEMBER 2007 FILE NO/S : SJA 1034 of 2007 BETWEEN : WAYNE ROBERT BAILEY

Appellant

AND

BENJAMIN GRANT DONCON
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S P SHARRATT

File No : GN 1422 of 2005

Catchwords:

Criminal law - Fisheries offences - Consignment of illegal lobster - Checked by crew - Where appellant believed crew had correctly checked - Mistaken belief - Reasonableness of mistake - Whether unwilled act or event that occurred by accident

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Legislation:

Criminal Code (WA) s 23, s 24

Fish Resources Management Act 1994 (WA)

Result:

Appeal upheld

Category: B

Representation:

Counsel:

Appellant : Mr D L Armstrong
Respondent : Ms F B Seaward

Solicitors:

Appellant : Altorfer & Stow
Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Burnett v Ostrowski [2007] WASC 69
Ferrari v Neenan [2000] WASCA 191
Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129
Kaporonovski v The Queen (1973) 133 CLR 209
O'Brien v Ostrowski [1999] WASCA 181
Ostrowski v Zaza [1999] WASCA 156; (1999) 108 A Crim R 350
Pearce v Stanton [1984] WAR 359
R v Taiters; Ex parte Attorney General [1997] 1 Qd R 333
Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372
Starling v Ostrowski [2000] WASCA 173
Warren v Coombes (1979) 142 CLR 531


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BEECH J:

Introduction

1 The appellant is a commercial western rock lobster fisherman. He appeals against his conviction, after a trial in the Magistrates Court, of consigning 39 totally protected fish contrary to s 46(d) of the Fish Resources Management Act 1994 (WA) (the FRM Act). Leave to appeal was granted under s 9 of the Criminal Appeals Act 2004 (WA).

2 Under s 45 of the FRM Act, certain types of western rock lobster are prescribed as totally protected fish. One type of fish prescribed as totally protected fish is setose western rock lobster taken from, in the possession of or consigned by, a person on a boat on, or brought on to land from, certain waters: Fish Resources Management Regulations 1995 (WA) reg 10(b); sch 2 pt 2.

3 A setose western rock lobster is defined as one that has fine hair-like filaments for the attachment of eggs on its branched structures underneath its tail or that has fine hair-like filaments that are in the process of lengthening as part of the development of the rock lobster's sexual maturity.

4 On 1 June 2004 officers of the Fisheries Department inspected 13 baskets of western rock lobster that had been consigned by the appellant. Thirty nine lobsters from the baskets were found to be setose. It is not, in this appeal, in dispute that those 39 lobsters were totally protected fish for the purposes of the FRM Act.

5 At trial, the appellant relied on s 24 of the Criminal Code (WA). Under that section a person who does an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed to exist. The magistrate found that the appellant had had a relevant mistaken belief (or that the contrary was not proven) but found that the appellant's belief was not reasonable. Grounds 1 and 2 attack the finding of unreasonableness. Grounds 6 and 7 also relate to the appellant's case on s 24.

6 At the trial, the appellant also alleged that the catch may have been tampered with by a third person. He relied, in this respect, on the defences of accident or unwilled act found in s 23 of the Criminal Code. The magistrate found that the defence of accident had not been raised on the facts, concluding that there was no evidence that the crates were

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tampered with and that the contention was mere speculation. Grounds 3, 4 and 5 attack those findings.

7 For the reasons which follow, I would uphold grounds 1 and 2 and dismiss the other grounds.

The evidence

8 The evidence was, relevantly, to the following effect.

9 The consignment in question came from fishing on 29, 30 and 31 May 2004. It was the result of three days fishing. A total of 39 lobsters out of 13 baskets were setose.

10 The appellant did not inspect the lobsters of the consignment himself. He delegated the task to his two deckhands, Mr Michael Wasley and Mr Bryce Kelly.

11 The appellant explained the system for checking lobster which applied on his boat. The process involved was that each lobster was checked by one of the deckhands when it was brought onto the boat. If it was undersize, setose or otherwise totally protected, it was thrown over the side of the boat back into the water. The appellant watched the deckhands check the lobsters but he was unable to actually see whether any of the lobsters being checked were setose or not because the bulky gloves used by the crewmen blocked his view.

12 The appellant had reiterated to his crew that any setose lobster should be returned to the sea. He had made them aware of the seriousness of the charges he faced if totally protected fish were found in his catch.

13 Both men had started employment with the appellant with no or very limited experience in grading and checking lobster.

14 Mr Wasley had previously worked on boats, but had very little experience in gauging lobster. He started working as a deckhand for the appellant in January 2003, working until the end of that season in June 2003. He had then resumed with the appellant at the commencement of the next season in mid November 2003.

15 Mr Kelly had had no prior experience when he commenced at the start of the season in mid November 2003. Thus he had worked for approximately six and a half months before the time of the offence.

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16 The appellant had provided both men with relevant training. He had shown them both, among other things, how to identify setose lobsters and had drawn their attention to the relevant Department of Fisheries chart (exhibit 14) on the subject. The appellant had also sent both men on a one day training course that covered the subject in November 2003.

17 The appellant checked every lobster that Mr Wasley considered legal for a period of time when Mr Wasley commenced work on his boat (Mr Wasley thought a month, the appellant said a couple of weeks). The same process occurred for Mr Kelly's first 10 days on the boat.

18 After this initial period, the men only passed doubtful lobster to the appellant for checking. If they considered the lobster was clearly illegal or clearly legal, they would throw them back in the water or put them in the box, as appropriate, without checking with the appellant. At the relevant time, both men were still getting the appellant to check doubtful lobster.

19 Both men considered the appellant strict and watchful. Their boxes were kept separate for monitoring purposes. The appellant gave evidence that he watched how long the men spent gauging and, if they took a long time considering a particular lobster, he would ask to take and check it because it must be doubtful (15/01/07 ts 87).

20 The crew were also aware that fisheries officers from the department did random checks.

21 The magistrate accepted the appellant's evidence that he would spot check a basket or a crate every fortnight (see 15/01/07 ts 84) The appellant had not conducted a spot check on any of the baskets that made up the consignment in question. The magistrate accepted that the appellant had checked the contents of a basket in the preceding week (on 25 May 2004).

22 The appellant's evidence was that he had never found illegal lobsters in either of Mr Kelly or Mr Wasley's baskets in the initial training period or when he had conducted spot checks prior to the relevant consignment (15/01/07 ts 89, see also ts 84, 86). Mr Kelly gave evidence that the appellant did not locate any illegal fish when the appellant checked his baskets (16/01/07 ts 8 - 9). Mr Kelly also said that, while the appellant had thrown some of the doubtful lobster he had handed to him overboard for size, he did not think this had occurred for setose (16/01/07 ts 9). In his evidence, Mr Wasley agreed that he reached a stage very early in his training when he was 100% correct in his gaugingas far as the checks

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demonstrated (15/01/07 ts 69).As far as he knew, there was no blemish in his work where checking lobster was concerned (15/01/07 ts 71).

23 Mr Robert Bogumil, a supervising district fisheries officer, gave evidence that the appellant's consignments had been inspected five times between January 2003 (when Mr Wasley started working) and June 2004 (other than the inspection giving rise to the charge in question). His consignments had been clean except for on one occasion in March 2004 when two setose lobsters were discovered (15/01/07 ts 42 - 43). Mr Bogumil said the record demonstrated that the appellant had been sent an infringement warning (15/01/07 ts 43 - 44). Mr Bogumil also said that fishermen were not informed if their consignment had been checked and was clean (15/01/07 ts 44). However, the inspections were conducted in the open and fisherman would be able to see if they watched.

24 The appellant denied being informed or aware at the time that two setose lobsters had been discovered in his consignment in March 2004 (15/01/07 ts 89). His evidence was that he knew that his consignment was inspected from time to time and there had been no problems except for one lobster so obviously undersize that he had concluded it must have fallen into the box. He was not charged with respect to this undersized lobster.

25 The magistrate did not refer to the March 2004 infringement in his reasons, although he referred to the appellant's knowledge of prior clean inspections as one of several things that made the appellant think that all lobsters consigned by him were legal.

26 At the relevant time, a high proportion of the lobsters caught in the pots were illegal. Mr Wasley estimated that about six out of ten were illegal (ie either undersized, setose or otherwise totally protected). The appellant's records showed that about two thirds of the catch, before it was checked, at this time was illegal (and so returned to the water) (15/01/07 ts 87). About 500 undersized and 50 or 60 setose were being thrown back into the water every day (15/01/07 ts 87).

27 There were a lot more setose lobsters at this time in the season than in the summer months (15/01/07 ts 83). The appellant warned his deckhands to expect this (15/01/07 the appellant ts 83, Mr Wasley ts 63). However, the appellant also noted in his evidence that, 'even though there's a minimum number in the summer season you still have to look for them every cray' (15/01/07 ts 83).

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28 The appellant's evidence was that the lobsters consigned on 1 June 2007 had been caught on the three preceding days and stored in the water under his pontoon until the morning of 1 June. His pontoon was anchored in deep water in a bay off the North Island (15/01/07 ts 93). It was about a kilometre from civilisation (15/01/07 ts 107). However, according to the appellant, anybody could access it via the nearby public moorings (15/01/07 ts 93). The appellant said that there was no security or lighting on his pontoon for that period of time (15/01/07 ts 92, 107).

29 When stored overnight, the appellant's lobster baskets are stacked three high and four across in each underwater partition on the pontoon (15/01/07 ts 105 - 106). The baskets have to be retrieved by hand one at a time from the partition. A person stands each side and hooks them out one at a time with a hook on a rod. The appellant was asked whether this is a difficult process. He responded (15/01/07 ts 106):

The most difficult thing is you're looking down in the water and it's 5 o'clock in the morning and it's dark. But yes … we have a guy each side hooking them, they pass on two guys and there's another two of us on the boat so it's a chain thing like that.

30 The appellant said that it was possible that someone else could have got his baskets out of the partition and seeded them with illegal lobsters (15/01/07 ts 107). He said that the baskets weighed about 25 kg each so one person could lift them (15/01/07 ts 107). He noted that the top ones are just below the surface of the water and that a person could just reach in and get them. The baskets had fitted, but removable, lids.

31 The appellant gave evidence that there was a lot of petty arguments and some aggression in the North Island community during the 2004 season (15/01/07 ts 93). He said that he did not have a good relationship with all of the other fishermen on the island (15/01/07 ts 93). He said, 'You never know 100 per cent but you believe sometimes your pots are being pulled and there was a bit of that at that time'.

32 In cross-examination the appellant said that everything had looked normal when they had loaded the crates from the pontoon onto his boat to take to the carrier boat for consignment (15/01/07 ts 97). He agreed that there were no obvious signs that someone had taken the lids off the crates and tampered with them or anything like that. (Mr Kelly gave similar evidence - 16/01/07 ts 15 - 16.) However, in re-examination (15/01/07 ts 108), the appellant maintained that, despite the lack of obvious signs, he still thought it possible that his catch had been tampered with while stored on the pontoon because '[t]here's ill feeling around and with such a

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competitive industry there is aggression there'. The appellant added, 'People don't like people; [tampering is] a possibility.'

33 Mr Bogumil, the fisheries officer, was cross-examined in relation to conflict on the North Island. His evidence was that there was always conflict between fishermen on the islands in general and that there had, from time to time, been some conflict on the North Island specifically (15/01/07 ts 46). He was aware that on occasions the police had attended North Island to investigate issues arising from conflicts between fishermen (15/01/07 ts 46). He agreed that there is no real security for the jetties or pontoons at North Island during the season (15/01/07 ts 47).

34 Both Mr Wasley and Mr Kelly said that they had not put any of the setose lobsters into the catch (Mr Wasley - 15/01/07 ts 73, Mr Kelly - 16/01/07 ts 12). Mr Wasley said that he was 99% sure of this. Both men were also shown a number of samples of the setose lobsters that were discovered in the appellant's consignment. They both said that the lobsters appeared clearly setose, not doubtful, and that they would have thrown them straight back into the water if they had handled them (Mr Wasley - 15/01/07 ts 73; Mr Kelly - 16/01/07 ts 13 - 14). However the weight of this evidence is diminished by the fact that the samples viewed by Mr Wasley and Mr Kelly had been dried. The evidence suggested that setose is easier to identify on a dry sample than on a moving, wet, live lobster (15/01/07 ts 22; see also ts 101). The magistrate had the benefit of viewing for himself dried samples (15/01/07 ts 16 - 19), but he did not have the benefit of expert evidence in relation to whether the lobsters discovered were fully blown setose or not (15/01/07 ts 16 - 17).

35 Since the discovery of the setose lobsters in the consignment, the appellant's practice has been to conduct spot checks every two days.

36 Mr Bogumil said that the more a lobster is handled, the more it is damaged (15/01/07 ts 48).

The magistrate's findings

37 The learned magistrate found that the rock lobsters concerned were totally protected fish and that they were consigned by the appellant. Those matters are not in dispute.

38 The magistrate then dealt with the 'defence' of accident which counsel for the appellant said had been raised in the case. The magistrate recorded the argument of counsel that it should be inferred that unknown

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persons have seeded the 13 crates with setose lobsters and that their presence in the consignment was thereby an accident. The magistrate rejected that argument finding that there was no evidence that the crates were tampered with. He said that, on the accused's evidence, the baskets were most likely to have been seeded in daylight because they were difficult to lift with the steel hooks at night. Given that each of the 13 baskets contained a number of setose lobsters, the process of seeding would have been a difficult one. The magistrate accepted evidence of one of the fisheries officers that the check being performed was a random check. He found that it was unlikely that a malicious third party going to such an effort would rely on mere chance that fisheries officers would randomly check the consignment.

39 The magistrate then turned to the question of mistake. He identified (with respect, correctly, see below) that the relevant belief must be a positively held belief by the appellant that each of the lobsters he was consigning was not setose.

40 The magistrate found that the existence of an honest belief to that effect on the part of the appellant had not been disproven. The question therefore was whether the belief was reasonable. It is convenient to set out the magistrate's finding and reasoning in relation to this topic:

The question then is whether the prosecution have been able to prove beyond a reasonable doubt that that honest mistake made by the accused, ie that all the lobsters in the consignment were not in a setose state, was the sort of mistake that a reasonable person in the position of the defendant might make. That question needs to be seen, of course, in the context of the legislation and the policy behind the legislation.

That policy is highly protective and is designed to ensure the long-term sustainability of the fishery through sound management practices and supervision by officers who regularly and randomly inspect consignments for compliance with strictly enforced rules. The obvious policy behind the prohibition of the consignment of setose lobsters is to protect breeding stock. This policy must be borne in mind when I determine whether a system is adequate to found a reasonable belief. So what system of instruction and supervision was in place for the three-days catch that were consigned on 1 June 2004.

The magistrate made findings as to the training, experience and supervision of the crew consistent with what is summarised in [11] - [21] above, and continued, at 27/03/07 ts 9 - 11:

The consignment came from fishing performed on 29, 30 and 31 May 2004. The accused and his crew lived at the North Islands on the Abrolhos and fished each day. The season commences at the islands on 15 March

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2004. For awhile the carrier boat consigns the catch every day, but after a month the carrier boat would only travel to the islands once every three days to collect the crayfish that were then stored in the tanks. The consignment of 1 June 2004 represented crayfish that were caught on the three days prior to that day.

I accept that the accused pulled a basket up from the pontoon on 25 May 2004, emptied the contents of that basket into a cacker box and measured them himself. He says he found no illegals in that basket or any others he had previously checked. He watched crayfish going over the side that was sized and gauged by his crewmen but, of course, he is unable to see clearly what is going on because the bulky gloves that the crewmen use block his view.

He is still being asked about doubtful fish on occasion, but is so satisfied with the performance of his crewmen on earlier occasions that he does not check their output by spot checking those crayfish passed by his crew at all on this consignment. If he had checked one or two baskets on any of the three days that form this consignment, he would have discovered setose lobsters as they were evenly spread throughout the catch.

It is significant that now he has been charged with the offence, or since he has been charged with this offence, he checks his baskets every two days. His evidence is that everything was going perfectly, but it is obvious his system broke down and for three days setose lobsters were getting into his baskets. There is evidence from Mr Wasley that ... a large percentage of the catch from the islands at the time were illegal fish - ... the estimate [was] six out of 10 were illegal at this time.

Mr Wasley himself has only half a season experience and the 2004 season in sizing and gauging crayfish. The other deckhand, Mr Kelly, had no prior experience at sizing and checking crayfish before the commencement of that season. I am of the opinion that no reasonable man in the position of the accused would check the output of such experienced crewmen, or inexperienced crewmen, only once every two weeks at that time of the year in the islands.

It is not the case that increased vigilance by way of checking the baskets was a difficult matter as it was in the case of the skipper in the case of Pearce v Stanton [1984] WAR 359. The crayfish were not kept in bags, and on the evidence of Michael Wasley, the boat got in each day at lunchtime, loaded the pontoon, and then everybody relaxed. There was every opportunity for the accused to check the fish stored in the baskets and placed in the pontoons.

I am of the opinion that the crown have negated the defence of honest and reasonable mistake of fact beyond a reasonable doubt. Mr Armstrong argued I would be extending the law beyond the settled appeal cases if I find that the accused has no firm foundation for his honest and reasonable

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belief, but I respectfully disagree. Each case must be looked at in view of its unique blend of facts.

It may have been that if the crew were more experienced that a reasonable person in the position of the accused would be able to rely on the skill and judgment of his crew. It may well have been that if it was more difficult to inspect the catch, that this would have been impracticable, but he is relying on the skill and judgment of a crew.

Fishing with such a high proportion of setose lobsters in his catch would have led a reasonable person to carry out spot checks for each consignment, either by checking a basket at his leisure in the pontoon as he now does, or by carrying out spot checks throughout the day in order to reasonably believe that every one of those lobsters was not a lobster in a setose condition. I therefore find the charge proven.

Grounds of appeal

41 The appellant's appeal notice of 20 April 2007 contains five grounds of appeal.

42 The first two grounds relate to the magistrate's finding that the appellant's mistaken honest belief, that the lobsters were not setose or otherwise not totally protected fish, was not reasonable.

43 Grounds 3, 4 and 5 attack the magistrate's finding that the allegation that the lobster catch may have been tampered with by a third person was speculative and that, consequently, the defence of accident was not raised by the evidence.

44 In the course of the hearing of the appeal the appellant was granted leave to add a sixth ground also relating to the allegation of tampering with the catch. Ground 6 seeks to invoke the alleged tampering in support of the mistake defence rather than the s 23 defence. It is to the effect that the magistrate erred in rejecting the appellant's mistake defence as it was open on the evidence and it was not disproved beyond reasonable doubt that the catch had been tampered with by a third person.

45 A seventh ground of appeal was added, by leave, after the hearing of the appeal. When the attention of counsel was drawn to the decision of the Court of Appeal in Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87, application was made to add ground 7 (mistakenly described as ground 6 in the application itself) that:

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The learned magistrate erred in law and in fact in finding that the appellant's belief was not reasonable applying a test that under s 24 of the Criminal Code the reasonableness of the belief was to be assessed by reference to the ordinary person in the accused's position.

46 It is convenient to deal with the grounds of appeal in the order that follows.

Grounds 3, 4 and 5

47 By these grounds the appellant contends that he should have been exculpated from criminal responsibility by operation of s 23 of the Criminal Code.

48 In my opinion, in the circumstances of this case, s 23 was incapable, as a matter of law, of operating so as to assist the appellant. Relevantly, s 23 provides that a person is not criminally responsible for an act or omission which occurs independently of the exercise of his or her will or for an event that occurs by accident.

49 The act or omission referred to in s 23 is a physical act or omission forming an element of the offence charged. It does not extend to all elements of the offence. So where, as here, the offence includes a physical act (consignment) of articles possessing a particular characteristic, the relevant 'act' for the purposes of s 23 is the act of consignment, not the act of consignment of articles possessing the particular characteristic: Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129, 132; Burnett v Ostrowski [2007] WASC 69 [30] - [31]. Here the act of consignment itself was plainly a willed act.

50 The appellant also argued that the second limb of s 23 applied in that (on the assumption that there was an evidentiary foundation for the tampering hypothesis) the commission of the offence by the appellant was 'an event that occurred by accident'. In my opinion, the second limb of s 23 has no part to play in this case, because the offence with which the appellant was charged did not attempt to make him criminally responsible for any relevant 'event'.

51 The relationship between the two limbs of s 23 was explained in Kaporonovski v The Queen (1973) 133 CLR 209. An 'event' is the consequence of a willed 'act'. The second limb of s 23 arises when the relevant 'event' is one which, but for the operation of s 23, would constitute a factual element of the offence charged: R v Taiters; Ex parte Attorney General [1997] 1 Qd R 333, 335; Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372 [83].

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52 In this case there was no element of the offence relating to any consequence of the act of the appellant. Rather, the offence was constituted by the act of consignment, provided that the subject matter of the consignment (or part of it) had the relevant characteristics. Whether the appellant's lack of awareness that the lobster had the relevant characteristics means that he was not criminally responsible for his act of consignment falls to be determined by reference to s 24, not s 23.

53 In any event, for the reasons given in relation to ground 6, I would not interfere with the magistrate's factual finding that tampering had not occurred.

Grounds 1 and 2

54 These grounds attack the magistrate's finding that the mistaken belief of the appellant was not reasonable. Ground 1 contends, in summary, that the appellant's belief was reasonable because he was entitled to have confidence in his deckhands as they had been appropriately trained, had experience, were supervised and had been subject to spot checks. Ground 2 attacks the magistrate's findings that more spot checks, including a spot check of each consignment, were required to ground a reasonable belief in the circumstances.

55 There is very little dispute as regards the facts relevant to grounds 1 and 2. The issue is whether, on the facts and circumstances found by the magistrate, the magistrate was right in concluding that the appellant's belief was not reasonable.

56 It is common ground between the parties that the approach to be taken by an appellate court in determining the reasonableness of the mistaken belief is that set out in Warren v Coombes (1979) 142 CLR 531, 551, that

in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

See for example, Starling v Ostrowski [2000] WASCA 173 [7] and Ferrari v Neenan [2000] WASCA 191 [17].

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57 It should be observed at the outset that the relevant mistaken belief, for the purposes of s 24, is a belief that every lobster consigned was not setose or otherwise illegal. The question of reasonableness is directed to the belief that every lobster was legal. It is not directed to the reasonableness of the system in general or to the reasonableness of the appellant's conduct as a whole: Starling v Ostrowski [25], [26]; Ferrari v Neenan [12], [13], [21]; O'Brien v Ostrowski [1999] WASCA 181 [111].

58 In the context of cases about the size of western rock lobster, Heenan J made the following observations in Ostrowski v Zaza [1999] WASCA 156; (1999) 108 A Crim R 350:

[I]t is appropriate for a skipper to delegate the role of measuring rock lobsters, but he bears the eventual responsibility to consign only those which are of legal size. In exercising that responsibility he is required to ensure that the system used is appropriate and that those who do the measuring are suitably experienced and properly instructed and supervised (per Wheeler J in Servaas v Segers, unreported SCt of WA; SJA 1118 of 1996; 18 November 1999). In Ruljancich v Pearce; unreported; SCt of WA; Library No 2810; 9 January 1980, having commented that in a case such as this 'we are dealing necessarily with fine measurements', Burt CJ expressed the view that the skipper of a fishing boat who delegates the measurement of rock lobsters to a member of his crew should check the measurement 'if there is any reason at all for him to suppose that the lobster would measure short'. [11]

59 In assessing the reasonableness of a belief that all lobsters consigned were legal, regard must be had to the protective policy of the FRM Act: Pearce v Stanton [1984] WAR 359, 363; Starling v Ostrowski [9] - [10]; O'Brien v Ostrowski [105], [108].

60 The reasonableness of a skipper's belief that there are no illegal lobster will depend, in large measure, on the reasonableness of the skipper's trust that the crew members will not have made any mistakes in their work. The question is whether there was, at the relevant time, a sufficient basis for believing that the crew had performed their function without error as to make the belief reasonable.

61 Of necessity, the decided cases involve a determination of whether the particular fisherman's belief was reasonable in all of the circumstances of the case in question.

62 Where a fisherman had a particularly long and close working relationship with the crew member to whom he entrusted the task of measuring rock lobsters, in the absence of any evidence tending to show

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that before the incident in question there was reason to suspect that the crew member was not measuring the lobsters in a satisfactory fashion, Heenan J did not interfere with the magistrate's finding that it was reasonable to rely on the crew member's work without extensive supervision and monitoring: Ostrowski v Zaza [13] - [14]. By contrast, in Starling v Ostrowski it was held not to be reasonable for the skipper to rely on the work of a relatively untried crew member (to whom he had given instructions as regards checking for size) without undertaking any spot checks of the crew member's work.

63 Where, as a result of spot checks (or otherwise), a skipper was aware that his crew members had previously made mistakes in gauging or checking lobster, the skipper's belief that mistakes were not made on a particular occasion would not be reasonable if no steps had been taken to ensure that the earlier mistakes were not repeated: Servaas v Segers (Unpublished, WASC (Wheeler J), 18 November 1996); Ferrari v Neenan.

64 In this case, however, on the appellant's evidence, apparently accepted by the magistrate (27/03/07 ts 9 and 10, set out above), no illegal lobster had been found in the baskets of either crew member during the training period or when he conducted his fortnightly spot checks.

65 In Pearce v Stanton Rowland J made the following observations at the conclusion of his reasons:

The appellant is of course rightly concerned that fishermen should exercise the strictest of controls to ensure that the rock lobster remains a protected species and that fishermen and others do not infringe the section. It may be the case that there are steps other than those taken by this respondent which could and should reasonably be taken to ensure that undersized lobsters are returned to the sea. If other means do exist they were not in this case brought to the attention of the magistrate. In the absence of obvious means this must be a matter for evidence.

66 I propose to consider a number of matters to which the magistrate referred in coming to his conclusion that the belief was not reasonable, before stating my own conclusions on the question of reasonableness.

67 The magistrate evidently relied upon the fact that because the setose lobsters were spread through all 13 baskets, if the appellant had checked one or two baskets from any of the three days of fishing he would have discovered setose lobsters. In my opinion, that was not a matter relevant to the reasonableness of the appellant's belief, because it was not a matter known to him at the time of the offence. The question of reasonableness

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is to be assessed on the basis of the information available to the appellant at the time of the offence.

68 Next, the magistrate described it as significant that, since the appellant was charged with the offence, he checks his baskets every two days. While I accept that it is a matter to which regard might be had, it does not seem to be a matter of significant weight in determining reasonableness. The question is whether, on the basis of the information then available to the appellant, it was reasonable for him to believe that his crew were performing their task without error so that all lobsters to be consigned were legal. The fact that, subsequent to discovering a problem and being charged in relation to it, the appellant has adopted more regular spot checks, does not seem to me worthy of great weight. The fact that a fisherman discovers, as a result of an inspection and the issue of an infringement, that his system has failed (and so alters it) does not mean that it was not reasonable for him to believe in its adequacy before that occurred.

69 The magistrate also placed emphasis on the fact that at the time in question a large percentage of illegal fish were being caught in the pots. There are earlier decisions in which similar considerations are relied upon as relevant to the question of reasonableness. However, when it is remembered that the relevant belief is that every fish is correctly checked and therefore legal, there seems to me to be limited weight which can be placed upon the proportion of illegal fish in a given catch prior to checking. Whether illegal lobsters are rare or common within an unchecked catch, in order for a skipper to have a defence under s 24 he must believe that every fish has been checked and checked correctly and that belief must be reasonable.

70 The magistrate also relied on the fact that further checking was not a difficult matter. It is the reasonableness of the belief that every lobster is legal, not the reasonableness of the system employed, that is being assessed. In that context, the presence or absence of practical difficulties in improving the system may be relevant but is not of great weight. What matters most are things which go to the strength of the foundation for believing that error by the crew had not occurred.

71 Finally, the magistrate also had regard to the level of experience of the appellant's crew. He emphasised that Mr Wasley had only half a season's experience in the 2003 season as well as the 2004 season and that Mr Kelly had no experience before the 2004 season commenced. However, the evidence does not seem to me to establish that one season's

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experience, as opposed to considerably more experience, is necessarily of great significance. The evidence did not establish that the task of gauging whether a lobster is setose or otherwise totally protected is so difficult that many seasons' experience will be required before a crew member can be relied upon.

72 Moreover, the length of the experience of the crew members should be seen in the context of their evidently impeccable performance of their duties for the entirety of the 2004 season. The appellant had trained them, he had checked all their work for a period at the commencement of their employment and, since then, had conducted fortnightly checks of their work. The most recent spot check had been conducted one week before the consignment in question. The results of all the previous checks, in the context of the training provided and his ongoing supervision, seems to me to provide a reasonable foundation for the belief on the part of the appellant that the deckhands had not allowed any illegal lobsters into the catches the subject of the consignment of 1 June 2004.

73 In the concluding passage of his reasons the magistrate found that in the circumstances a reasonable person would carry out a spot check for each consignment.

74 I do not accept that in the circumstances of the case the belief on the part of the appellant that there were no illegal lobsters would have been reasonable only if he had conducted a spot check of every consignment.

75 By its nature, a spot check is not comprehensive. It involves a random selection of some only of the whole of a catch or consignment. So a system of spot checks cannot guarantee that errors by the crew had not occurred in respect of the lobster in this consignment.

76 For the reasons already given, the fact that a spot check of the consignment would have, in this case, identified setose lobster does not go to the reasonableness of the appellant's belief. The question of reasonableness is not to be assessed with the benefit of hindsight.

77 The respondent submitted that, as a general or perhaps universal proposition, a belief that there were no illegal fish in a consignment would only be reasonable if a spot check was conducted of (some) lobster the subject of the particular consignment. The requirement for a spot check for every consignment was said to arise from the fact that the offence involves the act of consigning.

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78 I do not accept that submission. If its logic were correct, it would also apply to other offences under s 46 of the FRM Act. Among those offences are to have in a person's possession any totally protected fish. Thus, on the logic of the respondent's argument in this respect, spot checks more often than once for each consignment would be required.

79 In any event, there seems to me to be no basis to give spot checks of a set frequency a controlling significance in the assessment of reasonableness of the belief relevant to s 24. I refer to my earlier observations that a spot check is, by its nature, not comprehensive. The reasonableness of a belief that all lobsters being consigned are legal is to be assessed taking into account all of the circumstances. The presence and frequency of spot checks, and the results of such spot checks, are among the matters to be taken into account.

80 In my opinion, the appellant's belief that all the lobsters the subject of the consignment of 1 June 2004 were legal was, in the circumstances already referred to, reasonable. I refer, in particular to [72] of these reasons. Accordingly, grounds 1 and 2 succeed.

Ground 6

81 Ground 6 is to the effect that the magistrate erred in rejecting the appellant's mistake defence in that it was open on the evidence and not disproved beyond reasonable doubt that the catch had been tampered with by a third person.

82 The appellant did not, in his written or oral submissions, develop in any detail how it was that a finding that the catch had been or may have been tampered with would assist in the appellant's defence under s 24.

83 The belief relevant to the s 24 issue is the appellant's belief that all lobsters consigned by him were legal. That necessarily involves a belief that all the lobsters caught on his boat were correctly checked by the crew members. It may also involve a belief that only lobsters caught on his boat are the subject of the consignment. In order that the appellant's belief (that all lobsters consigned were legal) is reasonable, his belief that his crew had not erred in the checking process must be reasonable. If his belief in this second regard is reasonable (as I have found in upholding grounds 1 and 2) then he succeeds under s 24 (subject to any other matters making his overall belief in the legality of the lobsters unreasonable). If his belief in this regard is not reasonable, the fact that tampering has, or might have, occurred will not give rise to a defence under s 24.

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84 Further, that conclusion means that, contrary to a premise of ground 6, absence of tampering was not a matter required to be proved beyond reasonable doubt. It did not go to an element of the offence, an exculpatory matter, or to an indispensable intermediate fact in the course of drawing an inference of guilt.

85 For those reasons I would not uphold ground 6.

86 In any event, assuming I were wrong in that respect, I would not interfere with the magistrate's finding that on the evidence the allegation of tampering was merely speculative.

87 The findings and reasoning of the magistrate in rejecting the tampering allegation is set out in [38] of these reasons.

88 Counsel for the appellant argued that the finding of the magistrate that, on the accused's evidence, the baskets were most likely to have been seeded in daylight because they were difficult to lift with the steel hooks at night was not open to him. The appellant's evidence (15/01/07 ts 106 - 107 and 92) was to the effect that he and his crew unloaded the baskets in the dark and that this added an element of difficulty. Certainly, the evidence would not seem to preclude the prospect that some other person had similarly unloaded and seeded the baskets during the night.

89 The central reason for the magistrate's conclusion that there was no tampering was the unlikelihood that the person would go to the effort and risk of seeding the appellant's basket and then rely on mere chance that the officers would inspect the consignment. Thus he placed great weight on his finding that the inspection was a random one, rather than a targeted inspection.

90 The appellant submitted that the finding of the magistrate that the inspection was random as opposed to targeted was not supported by the evidence. I do not accept that submission. In my opinion the evidence supported the finding of the magistrate. The magistrate accepted, as he was entitled to do, the respondent's evidence that the inspection in question was random (15/01/07 ts 24, see also ts 6 and ts 25).

91 Taking into account the facts and evidence to which the appellant invited attention in support of his submission, it seems to me to have been open to the magistrate, having found that the inspection was random, to conclude that the allegation of tampering was not a reasonable hypothesis. I would not interfere with the magistrate's findings in this regard.

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Ground 7

92 In determining the reasonableness of the appellant's belief for the purposes of s 24, the magistrate identified the question as whether the prosecution had proved beyond reasonable doubt that the mistake made by the appellant (namely that all the lobsters in the consignment were legal) 'was the sort of mistake that a reasonable person in the position of the [appellant] might make' (27/03/07 ts 8). In Aubertin, McLure JA (Roberts-Smith and Buss JJA agreeing) said:

For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused’s belief must be reasonable (mixed element) … The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive. [43]

The Court of Appeal held that the question of reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. Rather, reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself.

93 Thus in posing the question in terms of the reasonable person, the magistrate erred. However, the appellant did not identify any personal attribute or circumstance of the appellant which should, on application of the proper test, have been brought to bear in the magistrate's consideration of the reasonableness of the appellant's belief, but was not in fact brought to bear by the magistrate. For that reason, ground 7 standing alone ought be dismissed under s 14(2) of the Criminal Appeals Act because no substantial miscarriage of justice has occurred. In this respect, this case resembles Aubertin itself; see the conclusion at [48].

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Conclusion

94 For the reasons given, I would uphold grounds 1 and 2 and dismiss the remaining grounds. As a result, the appellant's conviction should be quashed. I will hear counsel as to the precise orders to give effect to these reasons.