Berry v Barrett; Bugg v Barrett

[1988] TASSC 75

Serial No B7/1988

List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Berry v Barrett;  Bugg v Barrett [1988] TASSC 75; B7/1988

PARTIES:  BERRY
  v
  BARRETT

BUGG
v
BARRETT

FILE NO/S:  151/1987
DELIVERED ON:  15 March 1988
JUDGMENT OF:  NETTLEFOLD J

Judgment Number:  B7/1988
Number of paragraphs:  9

Serial No B7/1988

List "B"

File No LCA 151/1987

BERRY v BARRETT

BUGG v BARRETT

REASONS FOR JUDGMENT  NETTLEFOLD J

15 March 1988

1. I have now had an opportunity to make a close study of the evidence in these cases which were heard together.

1. When the notices to review were filed they contained only the following ground of appeal:–

"That the learned Magistrate erred in finding that the complaint had been proved beyond reasonable doubt in that there was no evidence or no sufficient evidence that the Applicant had taken or had been in possession of undersized crayfish."

1. I am satisfied that this court should not uphold that ground of appeal. There was sufficient evidence to enable a court to find that the undersized fish had been traced satisfactorily from the appellant's fishing vessel into tank number 3 at the factory.

1. However at the hearing of the appeal leave was granted to each appellant to amend to add the following ground of appeal:–

"The learned Magistrate was wrong in law and in fact in holding or finding that there was a system in place in the operation of Tas. Crays Pty. Ltd. that was religiously adhered to, to enable the sure identification of crayfish caught and brought to the factory."

1. I propose to uphold each appeal. This ground provides a sufficient basis for that conclusion, but I would wish to express the reasons for it somewhat more broadly.

1. I am clearly persuaded that each appellant, behaving reasonably and listening carefully to the learned magistrate's reasons for his decision, could reasonably entertain a real sense of injustice. With great respect, those reasons reveal a failure to come to grips with the real difficulty in the prosecution case. That difficulty was that the prosecution was seeking to discharge a criminal onus of proof notwithstanding relevant and significant conflicts between the witnesses and notwithstanding that, in the nature of things, errors could occur. Examples of conflicts which required careful consideration were those concerning what fish went into number 2 tank, when Chadwick's fish and Abbott's fish came into the factory and what became of those consignments and what fish was cooked on the Monday. With several people involved in the weighing of the fish and depositing it in the tanks there is the possibility of confusion. With respect, the learned magistrate discloses a misunderstanding of the true state of the evidence when he says "There was no divergence at all between Dillon Junior, Mr. Keating and Mr. Bird up until the time the fish were placed in the tanks".

1. With respect, the learned magistrate's talk of "a terrible conspiracy", which became wider the longer he thought about it, was inappropriate. The risk was not of a terrible conspiracy but of a down to earth run of the mill honest error.

1. A tribunal of fact, properly considering the essential problem which this case contains, could find in favour of the prosecution. But it would be unjust to allow this finding in favour of the prosecution to stand because the reasoning in support of it shows that the essential problems were not properly addressed and properly solved.

1. In each case there will be the following orders:–

1        Appeal allowed.

2        Convictions set aside.

3Should the prosecution so elect the charges against each applicant are to be tried again before a magistrate other than the magistrate from whom the appeal is brought.