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 convicted each of the appellants on three counts, that is to say, whilst unlicensed, for the purposes of trade or business, engaging in a proscribed fishing activity, namely, taking abalone in waters constituting a fishery contrary to s.34(1) of the Fisheries Act, engaging in a fishing activity of a proscribed class, namely, taking more than 10 abalone in a boat previously used for the purpose of taking abalone on the day in question, contrary to s.41 of the Fisheries Act and Regulation 5 of the Regulations, and taking undersized fish, namely, 716 abalone (part of the catch of 801 abalone) which were less than the minimum legal weight, contrary to s.41 of the Fisheries Act. 4. The appellants were each fined a total of $3,000, with an additional penalty imposed pursuant to s.66 of the Act, amounting to $13,719. In the case of the appellant Mr McQuillan, his boat and trailer and a number of other items of equipment were ordered to be forfeited. 5. Undoubtedly 801 abalone were taken from near Port Minlacowie on the day in question. Equally there is no doubt that the two defendants who pleaded guilty, that is to say, Steven Stewart and Robert Cicak, were involved in the taking of the fish. The gist of the appeals against conviction brought by each of the appellants is that, on the whole of the evidence, the learned trial Magistrate erred in finding beyond reasonable doubt that the two appellants were involved with the other two defendants in the taking of the abalone. 6. In dealing with the appeal, I apply the approach which finds expression in the following passage from my judgment in Taylor v Hayes (1990) 53 SASR 282 at 291:
    "....the task of this Court on such an appeal is to reach its
    own view of the case by making an independent review of the
    evidence. An appeal may be allowed even if there is evidence to
    support the magistrate's findings. While it must give due
    weight to the advantage held by the magistrate in seeing and
    hearing the witnesses, if this court reaches a different view on
    the evidence it must give effect to that by substituting its
    view for that reached by the magistrate, or if it is otherwise
    satisfied that it is proper to do so, remitting the matter for
    rehearing before the same or another court of summary
    jurisdiction. Conversely, it follows that it is not necessarily
    sufficient to justify the dismissal of an appeal under the
    Justices Act, that the appeal court is of the view that there
    was material before the magistrate upon which it was open for
    him to reach the decision the subject of the appeal." 7. At the trial, the principal evidence relied upon was that of the complainant himself, Mr Hemming. He is a senior fisheries officer who is described by the learned Magistrate as: "...a conscientious and reliable inspector and witness." 8. He gave evidence that at about 1 pm he visited the Minlacowie boat ramp, which is on the seafront about 1 kilometre north of Port Minlacowie. He saw in the vicinity of the boat ramp a white Ford utility, which was distinguished by a large black bar across the tray of the utility, immediately behind the cabin. The bar was described as a "roll bar". He saw also a Dodge truck with an attached boat trailer, and a green Holden utility, to which a boat trailer was also attached. None of the vehicles was actually on the boat ramp. He saw no persons in the vicinity. 9. Having made those observations, he then met up with two other officers, namely, a Mr Rusby and a Mr Chenhall. At about 3 pm the three officers drove to a point between 600 and 1,000 metres north of the boat ramp, where there was a sand dune. Mr Hemming stood on the sand dune, and with the assistance of binoculars, looked back towards the boat ramp. He saw the same green Holden utility which he had observed before, but it had been reversed down the boat ramp, with the trailer behind it. He could see that a boat had been put onto the trailer. He saw also that the white Ford utility had likewise been reversed down the boat ramp, and it was stopped a little in front of the green Holden, pointing in the same direction, that is, away from the sea. He was able positively to identify the white Ford utility because of the distinctive roll bar. 10. He could see that there were two people in the cabin of the white utility, and two others near the rear of the white utility, in its near vicinity. He recognised one of those two persons as the appellant Thomson Stewart, who was known to him. Stewart had distinctive long red hair and a beard. 11. Immediately after making those observations, Hemming returned to the vehicle in which he was travelling with Chenhall and Rusby, and they drove off straight away along the track towards the boat ramp. As they did so, and before they reached the boat ramp, they came across a vehicle travelling in the opposite direction. Mr Hemming recognised it as the white Ford utility with the black roll bar. Steven Stewart was driving, and Robert Cicak was a passenger. The three officers stopped the vehicle and found that in the rear tray of the vehicle there were a number of bins containing what appeared to be a fresh catch of shucked green lip abalone, and diving equipment. Mr Hemming thereupon left Chenhall and Rusby with the Ford utility and proceeded on his way to the boat ramp. At the boat ramp he found that the green utility was still reversed down the ramp, with the trailer attached to the rear, and a small boat on the trailer, the far end of it being close to the waterline. He saw the appellant, Thomson Stewart, and another man, both of whom appeared to be engaged tying the boat down onto the trailer. There were no other persons present. 12. He observed the Dodge truck, still unattended, and another vehicle which had not been there on his earlier visit, namely, a white Holden station wagon, parked on what was described as the southern side of the car park area. Likewise, that was unattended. The man with the appellant, Thomson Stewart, was subsequently identified as the appellant Barry McQuillan. Thomson Stewart was wearing wet suit pants but no top, and diving boots. Mr Hemming asked some questions of both McQuillan and Thomson Stewart, establishing their identity, and then commenced to take a number of photographs of the vehicle, the boat and the boat ramp. During the course of this, Mr McQuillan identified the boat as belonging to him. 13. At about that time, Chenhall and Rusby arrived in the white Ford utility with Steven Stewart and Cicak. A little later, Mr Hemming had a further conversation with McQuillan and Thomson Stewart. 14. McQuillan said that he and Thomson Stewart had been fishing for whiting, squid and snapper. He said that he was accompanied only by Thomson Stewart. The outing had been largely unsuccessful and he had only caught one squid. When asked where it was, Mr McQuillan walked down to the boat where he had a conversation with Thomson Stewart, out of Mr Hemming's hearing, but then he was heard to say loudly to Thomson Stewart, "Chucked it away, you cunt. I was going to eat that." 15. Mr McQuillan was asked who owned the white utility. He said, "Wouldn't have a fucken clue, them other cunts." 16. Hemming said, "Do you know them?". He said, "No." Hemming said, "You've never seen them before?". Mr McQuillan said, "I've seen them in the Wallaroo pubs, that's about all." 17. When he was challenged with the suggestion that the two from the white utility had been out in the boat that day with him, he insisted that only he and Thomson Stewart had gone out in it. 18. When questioned, Thomson Stewart said that he had known Mr McQuillan for about two years, and this was the first time he had been fishing at this locality. He said that they had fished in the shallows, and that they had used squid, cockles and tommy ruffs for bait. When asked whether they had any left, Thomson Stewart went to the rear of the vessel where a bucket was removed from it and tipped onto the ground, revealing fishing gear. There was also a bag of bait in which there was a piece of cut squid. When asked whether that was the squid he had caught, Thomson Stewart said, "Yeah, must be." 19. When asked whether the white utility was there that morning, Thomson Stewart said, "Can't remember, to tell the truth. I remember the truck there, fucken cunt of a boat ramp." When asked whether he had seen abalone, he said. "No, only shells we use for ashtrays." When asked whether he knew the two in the white utility, Thomson Stewart said that he knew his brother, referring to the defendant Steven Stewart. He denied that the other two men had been in the boat that day, as did McQuillan. He said that all that he and McQuillan had caught was one squid, which (despite what he had said about the piece of cut squid), they had thrown back. 20. The Ford and Holden utilities were both impounded, as was the boat and trailer, and a good deal of equipment. Subsequently, the vehicles were searched. In the tray of the white utility were found three ab- bars, which is the name given to a short metal implement, one end of which is fashioned so as to facilitate the removal of abalone from rocks or coral. As well, there was located in the white Ford utility a screwdriver with a hole drilled in the handle and a green cord attached, so that it had much the same appearance as the ab-bars. The evidence was that the screwdriver was modified so that it could perform the same function as an ab-bar. Amongst the gear in the tray of the white utility were three green mesh bags, some "dive pants", a pair of "diver light blue flippers", a goggle and snorkel, four black flippers, three yellow dive gloves, and another brand of snorkel and goggle. All the gear in the utility was wet. 21. On the other hand, there was nothing found in the boat or in the green Holden utility which answered the description of gear which might have been used for the taking of abalone. Neither was there any of the mess observed which would normally be produced when such a large quantity of abalone was shucked. However, Mr Hemming's evidence was that the boat looked as though it had been washed out. 22. Apart from Mr Hemming's evidence, evidence was given by Mr Rusby as to gear and other items found in the vehicles. Evidence was also given by another fisheries officer, a Mr Simmonds, who gave evidence of having located some car ignition keys in the glove box of the green Holden. Simmonds also gave evidence of a conversation which he had with the appellant Thomson Stewart some two months later, namely, on 26 February 1992. The conversation took place at Harbic Bay, just south of Minlacowie. 23. Mr Simmonds was asked what Thomson Stewart had said about his diving. He gave the following answer:
    "He asked us if we could give him another three weeks in this
    area he would be out of the zone. I took that to mean three
    weeks of diving activities in the area, that he would then leave
    the zone and go to another area. He also stated that there are
    millions of abalone out there. He did say that there that he
    shouldn't possibly be saying this to me. There are millions of
    abalone out there and there would be enough for at least fifty
    licences.
    Q. Did he indicate to you what he meant by "out there"?
    A. Pointing out, indicating the area out the front of the shed
    area, of the Minlacowie area.
    Q. Did he say anything about how far he dived?
    A. Yes, he stated to me there he dived seven mile out to sea of
    the whole area.
    Q. For what purpose?
    A. For the purpose of taking abalone." 24. The only other witness for the complainant was a Mr Spriggs, who is another Fisheries Department officer, who attended at Minlaton a day or two after the offence and assisted in the search of the two vehicles. I refer later in this judgment to his evidence of the finding of a pair of shorts and a wallet in the green utility. 25. At the conclusion of the evidence for the complainant, both defendants unsuccessfully submitted that there was no case to answer. In ruling against that submission, the learned Magistrate said:
    "If there were a jury, having heard the evidence that has been
    presented by the complainant, it seems to me that the jury would
    be entitled to ask this question. Is it reasonably possible
    that at about four in the afternoon on a Thursday in December,
    in a quiet, if not remote spot, two completely independent
    fishing expeditions, one conspicuously successful, but unlawful,
    the other lawful but strikingly unsuccessful, particularly given
    the apparent advantage of the use of a boat, came to an end
    coincidentally. I think the jury would be entitled to ask that
    question and I think one of the available answers would be no.
    As against each defendant I think there is a case to answer." 26. After that ruling had been made, the appellant McQuillan gave evidence, but the defendant Thomson Stewart did not. No other evidence was called by the defendants. 27. Following the conclusion of the hearing, the learned Magistrate gave what should, in fairness to him, be treated as an ex tempore judgment, as he adjourned for only a few minutes before delivering it. After referring briefly to the evidence of Mr Hemming's observations at 1 o'clock at the boat ramp and subsequently at 4 o'clock from the sand dune, His Honour said:
    "These observations were made quickly, indeed I think urgently
    from considerable distance. What if anything does our common
    sense tell us about them? One interpretation of what Hemming saw
    urgently and from a considerable distance with the assistance of
    his binoculars, was that four men had recently completed a
    fishing outing. That was one interpretation. It was a
    reasonable interpretation, but was it the only reasonable
    interpretation? Hemming and his colleagues left the observation
    point and hurried towards the boat ramp. For Hemming that
    journey took, as I remember the evidence, about 10 minutes. On
    the way to the boat ramp the Fisheries officers came upon,
    intercepted and stopped the white Ford utility containing Steven
    Stewart and Cicak. On the tray of that vehicle they found a
    number of bins containing the abalone, the taking of which has
    given rise to this complaint and some diving equipment. It was
    now perfectly obvious what these men, Steven Stewart and Robert
    Cicak were up to. Hemming proceeded to the boat ramp area. The
    green utility was still there in the position that it had been
    when Hemming had observed it from a distance and the defendants
    were there tying down the boat." 28. He went on to summarise Mr Hemming's observations after he had proceeded from the sand dune to the boat ramp area. After dealing with the episode when Mr McQuillan was about to show Mr Hemming the squid, which Thomson Stewart was said to have thrown away, the learned Magistrate observed:
    "That little event might appear at first sight to be without
    significance but it is I suggest of significance. What was that
    all about? It was a little act intended to divert attention away
    from the squid that was found on the tray of the Falcon. Was
    not Mr McQuillan being coy when he said that all he'd seen of
    abalone was shells that were used for ash trays. No matter how
    we look at the evidence we know that Mr McQuillan and Mr Thomson
    Stewart were using the boat that day and in my submission we are
    slowly but surely coming to the inevitable conclusion that the
    abalone that were found on the tray of the white Falcon were
    taken from McQuillan's boat that day. If not how were they
    taken? From the beach perhaps" Well yes I'm told that it does
    happen. But 801? Do you really think so? From another boat
    perhaps? What other boat? There is no evidence nor suggestion of
    any other boat. Now we can find any boat that we like in our
    minds. Any boat at all perhaps a high powered speed boat driven
    by a notorious international abalone smuggler driving up to the
    boat ramp and unloading before Hemming saw it. In our
    imaginations we come up with any boat any number of people on
    the beach, people coming and going as many as we like but there
    is no evidence and no suggestion of any other boat, any other
    person and I simply don't accept that it is reasonably possible
    that Steven Stewart and Cicak took 801 abalone from the beach." 29. He then deals with the appellant McQuillan's evidence. He observed during the course of that:
    "It's McQuillan's evidence that he did not see the white Falcon
    until it came to the boat ramp area with the Fisheries officers
    after it had been intercepted. His evidence about that is quite
    clear and in my view quite false and deliberately so. If he was
    there while the Falcon was there (and that's my conclusion) and
    I offer that conclusion as an irresistible one, the Falcon

    utility was under his nose. Why has he denied seeing it until
    it came back to the beach with the Fisheries officers? It is
    just because he is lazy or wants to be unhelpful? No. He's
    falsely denied seeing it, seeing that as the cheapest and
    quickest way of staying clear of the conclusion that the four
men were engaged in the same fishing enterprise." 30. The learned magistrate thought that the conclusion which he just mentioned was "strengthened by McQuillan's willingness to resort to falsehood to avoid it". As to Thomson Stewart, he remarked that if he was on the boat for an innocent purpose, not associated with the taking of abalone: "...he has chosen not to get into the witness box to tell me about it." 31. The learned Magistrate finally concluded that the complainant had proved to the required degree that the appellants had participated in the unlawful taking of the abalone described in each of the three counts. 32. The passages in the learned Magistrate's reasons to which I have just referred give rise to the necessity to address the soundness, in the first place, of treating what the Magistrate regarded as false evidence from McQuillan in the witness box as evidence which could be used against him in reaching a conclusion of guilt, and whether the failure of Thomson Stewart to give evidence could be used adversely to him. 33. As to the first matter, there is ample authority for the view that in cases where corroboration is necessary, it may be found in false statements made out of court. Furthermore, I accept the statement in Cross on Evidence, Australian edition, vol 1, para 15210: "In the context of corroboration there is no reason to treat an accused's lies in court any differently from his lies out of court." 34. This, of course, was not a case where corroboration was required as a matter of law. But it seems to me that the authorities bearing on the question of whether or not lies made in the course of giving evidence in Court can amount to corroboration are of equal value in determining whether or not a circumstantial case has been made out. Evidence is either probative or not, whether or not one cares to use the label "corroboration". 35. Evidence under oath which amounts merely to a denial of guilt could not be regarded as probative, even if the denial was held to be false. But the giving of patently false evidence as to a factual matter proved to the satisfaction of the Court by independent evidence may be regarded as pointing towards guilt if the Court is satisfied that the reason for the lie is a consciousness of guilt, coupled with a desire to conceal the truth. 36. In this case, given the finding by the learned Magistrate as to the reliability of the witness Hemming, the conclusion must follow that his observations, including his observation of the white Ford utility on the boat ramp in close proximity to the green Holden utility at the time when the boat was on the trailer, and of two men who must have been Mr McQuillan and Thomson Stewart were in the vicinity, could lead to no other conclusion but that Mr McQuillan gave false evidence as to his failure to see the white Ford utility on the ramp. McQuillan's false evidence as to that is only explicable by reference to a desire to disassociate himself as far as possible with the occupants of the white Holden utility. It is true that in some cases, it may not be right to regard such a lie as arising from a consciousness of guilt, as opposed to other explanations. However, in the circumstances of this case, in my opinion the false evidence should properly be regarded as born out of a consciousness of guilt and a desire to conceal the truth. 37. I turn to the second point, namely, Thomson Stewart's failure to give evidence. Reference was made during the course of argument as to this aspect of the matter to May v O'Sullivan (1955) 92 CLR 654. In that case, in the joint judgment of Dixon CJ, Webb, Fuller, Kitto and Taylor JJ at p.658 appears the following passage:
    "After the prosecution has adduced evidence sufficient to
    support proof of the issue, the defendant may or may not call
    evidence. Whether he does or not, the question to be decided in
    the end by the tribunal is whether, on the whole of the evidence
    before it, it is satisfied beyond reasonable doubt that the
    defendant is guilty. This is a question of fact. In deciding
    this question it may in some cases be legitimate, as is pointed
out in Wilson v Buttery (1926) SASR 150 for it to take into
    account the fact that the defendant has not given evidence as a
    consideration making the inference of guilt from the evidence
    for the prosecution less unsafe than it might otherwise possibly
    appear: cf Morgan v Babcock and Wilcox per Isaacs J (1929) 43
    CLR 163 at 178). But to say this is a very different thing from
    saying that the onus of proof shifts. A magistrate who has
    decided that there is a "case to answer" may quite consistently,
    if no evidence is called for the defendant, refuse to convict on
    the evidence for the prosecution. The prosecution may have made
    "a prima facie case", but it does not follow that in the absence
of a "satisfactory answer" the defendant should be convicted." See also O'Sullivan v Stubbs (1952) SASR 61, Evans v Sparrow (1973) 6 SASR 519 per Sangster J at 523 and per Bray CJ at 529-532, Thorogood v Warren (1979) 20 SASR 156 per Zelling J at 158-159, Hoobin v Samuels (1971) 25 SASR 238 per Walters J at 243, Zanetti v Hill (1962) 108 CLR 433 per Kitto J at 442-443, R v Utans (1982) 29 SASR 592 per Walters J at 594, Bridge and Anor v R (1964) 118 CLR 600 per Windeyer J at 615 and R v Neilan (1992) 1 VR 57 per Young CJ, Brooking and Marks JJ at 65-67. 38. The High Court has recently emphasised that there is to be no whittling away of the accused's right to silence, and that the exercise of the right to silence cannot provide a basis for inferring a consciousness of guilt (Petty v R (1991) 173 CLR per Mason CJ, Deane, Toohey and McHugh JJ at 99). However, in Petty, the High Court said nothing to suggest that the long line of authority exemplified by May v O'Sullivan (supra), does not remain good law. The distinction which must be maintained is that, consistently with Petty, a failure on the part of the defendant to give evidence does not provide a basis to infer that his silence arises out of a consciousness of guilt. But, particularly in cases where the relevant facts are "peculiarly within his own knowledge" (Thorogood v Warren (supra) per Zelling J at 159), provided that the evidence would in any event be sufficient to sustain a finding of guilt beyond reasonable doubt, the absence of the defendant from the witness box may enable the inference of guilt to be drawn more readily. It follows that in making the remarks which he did, I am not satisfied that the Magistrate went outside the confines of the principles laid down in the cases to which I have referred. 39. Here, the circumstantial case was strong. The proximity of the white Ford utility to the green Holden utility and the boat on the ramp, as observed at about 4 pm, followed by the apprehension of the white Holden utility and its occupants shortly afterwards, with an obviously fresh catch of abalone on the tray of the utility, the absence of any other boat in the vicinity at the time which could account for the catch, together with the Magistrate's observations that it is unlikely that the catch could have been caught from the shore, the presence of four implements in the utility, of which three were ab-bars and the remaining one being a screwdriver modified to fulfil the same purpose, the fact that Thomson Stewart had the lower part of a wet suit on which was still wet, and diving boots, and the presence of the other items of equipment in the white utility, suggest very strongly that not only were the occupants of the white utility responsible for taking the abalone, but that they did so in conjunction with the other two men, using the boat owned by McQuillan. The absence of any residue in the boat normally associated with shucking abalone may be explained by the complainant's evidence that the boat appeared recently to have been washed down. Efforts by the appellants to disassociate themselves from the white utility and its occupants break down when allowance is made for the fact that one of the two occupants in the white utility was Thomson Stewart's brother. 40. Although I place no reliance upon the evidence of the car ignition key found in the glove box of the green Holden utility, the evidence of the driver's licence stands on a different footing. The evidence of the complainant was that the appellant Thomson Stewart asked for the return of "a pair of shorts containing his wallet that he had placed in the rear of the green utility the previous day". The evidence of Mr Spriggs was that on the morning of 7 December 1991, he noticed some clothing in the green utility, including a pair of shorts containing a wallet. When the appellant McQuillan later went to the Kadina Police Station to collect his tool box, which had been left in the green utility, he found that the tool box contained a pair of shorts and a wallet containing Robert Cicak's driver's licence. He returned the shorts and the wallet to the police station. 41. The only conclusion to be drawn from that evidence is that Cicak had left his shorts, and wallet, including his driver's licence, in the green Holden utility owned by the appellant McQuillan, and that the appellant Thomson Stewart, rather than Cicak, in an endeavour to remove from the purview of the authorities an incriminating item of evidence, sought their return. After independently assessing the evidence, and allowing for all of the arguments put forward by counsel for the appellants, I have reached the view that the charges were proved beyond reasonable doubt. In reaching that conclusion, I take into account, in the case of the appellant Thomson Stewart, the fact that he did not give evidence, and that before he elected not to do so, a prima facie case had, in my view, been made out against him. 42. Suggestions such as those made by counsel for the appellants on the hearing of the appeal that the abalone found in the white utility could have come from some other unidentified boat are, in my opinion, so fanciful as not to give rise to a reasonable doubt. The evidence of the ab-bars and other equipment in the white utility tells against the suggestion that Steven Stewart and Robert Cicak had obtained the fish from another boat or fisherman, rather than as a result of diving for the abalone themselves. The presence of the boat on the ramp at the same time as the white utility was on the ramp, points more strongly to an operation in which the white utility was loaded up with fish from Mr McQuillan's boat, than that the fish were caught, by Steven Stewart and Robert Cicak, in the course of some independent spell of fishing from the beach. Thomson Stewart's admitted experience and interest in abalone fishing tends against the view that he had confined himself to fishing only for squid, schnapper and whiting. It is stretching credulity too far to accept that at the same time and unknown to him, his brother and another man had been successfully fishing for abalone and by coincidence moved their utility, later found to be loaded up with abalone, onto the ramp where Mr McQuillan's boat had just been beached. 43. Typically of a circumstantial case, individual items of evidence, considered on their own, may not have taken the matter very far. But the totality of the evidence was, in my view, overwhelming. In the final analysis, the strength of the complainant's case excluded any reasonable hypothesis consistent with innocence. 44. The appeals against conviction must be dismissed. The appellant McQuillan also appeals against the sentences which were imposed upon him. That they are severe is a reflection of the evident policy of the Fisheries Act to ensure that substantial penalties are imposed upon those involved in unlawful fishing activity. Abalone is a valuable fishing resource, and the quantity taken in this case was substantial. Mr Kourakis has put everything which could be said in favour of the argument that the penalties imposed upon the appellant McQuillan should be reduced. But allowing for all of his submissions, in all the circumstances, I am not satisfied that the penalties were manifestly excessive or otherwise fell outside the ambit of the sentencing discretion. 45. I would dismiss the appeal against sentence.