Barry McQuillan and Thomson Stewart v Brian Edward Hemming Nos. SCGRG 92/2191 and 92/2238 Judgment No. 3801 Number of Pages 11 Criminal Law and Procedure Fisheries Offence Evidence - [1993] SASC 3801

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law and procedure - fisheries offence - Appeal from convictions by Magistrate for unlawful taking of abalone - appellants observed near boat and trailer on boat ramp in vicinity of another vehicle also on the ramp - other vehicle stopped shortly afterwards a short distance down the road from the ramp, found to be carrying load of freshly shucked abalone - occupier and passenger of that vehicle jointly charged with appellants and pleaded guilty to unlawfully taking the abalone - held that in all the circumstances, the Magistrate correctly held that the circumstantial case against the appellants, and in particular that they had been associated with the taking of the abalone found in the other vehicle, was sufficiently proved beyond reasonable doubt - separate appeal against penalty dismissed.
Evidence - right to silence - Held that once a prima facie case was established, the failure by the defendant to give evidence might properly be held to enable the inference of guilt from unexplained circumstantial evidence to be drawn more readily, particularly when the relevant facts were peculiarly within the knowledge of the defendant.
May v O'Sullivan (1955) 92 CLR 654 at 658; Evans v Sparrow (1973) 6 SASR 519 at 523 and 529-532; Thorogood v Warren (1979) 20 SASR 156 at 158-159; Hoobin v Samuels (1971) 25 SASR 238 at 243; Zanetti v Hill (1962) 108 CLR 433 at 442-443; R v Utans (1982) 29 SASR 592 at 594; Bridge and Anor v R (1964) 118 CLR 600 at 615; R v Neilan (1992) 1 VR 57 at 65-67 and Petty v R (1991) 173 CLR 99, considered.
Evidence - Lies by a defendant made in the course of giving evidence at the trial - observations as to the inferences which might properly be drawn against the defendant in such circumstances. Cross on Evidence Australian edition, vol 1, para 15210, considered.

HRNG ADELAIDE, 13 January 1993 #DATE 19:2:1993
Counsel for appellant McQuillan:        Mr C Kourakis
Solicitors for appellant McQuillan:     Johnston Withers
Counsel for appellant Stewart:         Mr G Germein
Solicitors for appellant Stewart:     Germein-Reed
Counsel for respondent:                 Mr M Stevens
Solicitors for respondent:             Crown Solicitor's Office

ORDER
Appeals against sentence dismissed.

JUDGE1 PERRY J The appellants, who were two of four defendants charged jointly with various offences against the Fisheries Act, appeal against their convictions, and in the case of one of the appellants, his sentence. 2. All of the alleged offences were said to have been committed on a fishing trip in a boat owned by the appellant Barry McQuillan, off the coast of Yorke Peninsula near Port Minlacowie, on 5 December 1991. The defendants were alleged to have taken unlawfully 801 abalone. 3. The charges were heard by a Magistrate constituting the Kadina Court of Summary Jurisdiction, sitting at Christies Beach. Two of the defendants, Steven Stewart and Robert Cicak, pleaded guilty. The appellants pleaded not guilty. After hearing the evidence, the learned trial Magistrate…

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.

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Details

AGLC: Barry McQuillan and Thomson Stewart v Brian Edward Hemming Nos. SCGRG 92/2191 and 92/2238 Judgment No. 3801 Number of Pages 11 Criminal Law and Procedure Fisheries Offence Evidence [1993] SASC 3801
Case: [1993] SASC 3801
Decision Date: 19 February 1993

CaseChat Overview and Summary

The appellants, Barry McQuillan and Thomson Stewart, appeal against their convictions and sentences for various fisheries offences, including the unlawful taking of abalone. The offences were committed on a fishing trip near Port Minlacowie on 5 December 1991. The appellants were observed near a boat ramp and their vehicles were found to contain diving equipment and abalone. The convictions were upheld by the trial Magistrate and the appellants challenge the sufficiency of the evidence and the penalties imposed.

The court examined the evidence presented, including the observations of the fisheries officer, Mr Hemming, who saw the appellants' vehicles near the boat ramp and later stopped a vehicle containing abalone. The court found that the circumstantial evidence, including the proximity of the vehicles and the diving equipment, was sufficient to prove the appellants' involvement in the unlawful taking of abalone beyond reasonable doubt. The court also considered the appellants' false statements and the failure of one appellant to give evidence, which were held to be relevant in drawing the inference of guilt.

The court concluded that the circumstantial evidence was overwhelming and excluded any reasonable hypothesis consistent with innocence. The appeals against conviction were dismissed, and the penalties were found to be within the ambit of the sentencing discretion.

ORDER:
The appeals against sentence are dismissed.

Orders