Blechynden v Bogumil - [2011] WASC 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BLECHYNDEN -v- BOGUMIL [2011] WASC 4

CORAM: MURRAY J

HEARD: 7 DECEMBER 2010

DELIVERED : 6 JANUARY 2011

FILE NO/S: SJA 1076 of 2010

BETWEEN: BRENDAN JAMES BLECHYNDEN
WARWICK FRANCIS GLENISTER
Appellants
AND
ROBERT BOGUMIL
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
Citation  :DEPARTMENT OF FISHERIES -v- BLECHYNDEN
File No  :GN 1013 of 2008

Catchwords:

Criminal law and procedure - Appellants convicted of unlawful interference with fishing gear, a rock lobster pot - Respondents raised honest belief that the pot was owned by them - Whether an honest claim of right - Not a claim of honest and reasonable mistake of fact - Meaning of 'interfere' - Meaning of 'lawful excuse' - Whether magistrate erred in assessment of evidence - Available grounds of appeal against conviction - Whether there was no substantial miscarriage of justice - Whether fines manifestly excessive

Legislation:

Fish Resources Management Act 1994 (WA), s 4(1), s 172, s 205
Criminal Code (WA), s 22, s 24

Result:

Appeal against convictions dismissed
Appeal against sentences allowed
Fines of $1,500 imposed

Category: A

Representation:

Counsel:

Appellants: Mr G Giudice
Respondent: Ms K A T Pedersen

Solicitors:

Appellants: George Giudice Law Chambers
Respondent: State Solicitor for Western Australia

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

Australian Fisheries Management v Mei Ying Su [2009] FCA 56; (2009) 255 ALR 454
Collidge v Russo [1984] WAR 1
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hancock v Birsa [1972] WAR 177
Jenal v Milner (1994) 11 WAR 264
Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562
Mount Lawley Pty Ltd v WA Planning Commission [No 1] [2004] WASCA 149; (2004) 29 WAR 273
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Pearce v Paskov [1968] WAR 66
R v Nundah (1916) 16 SR (NSW) 482
Roddan v Walker (Unreported, WASC, Library No 970252, 20 May 1997)
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

MURRAY J:

The proceedings at first instance

The respondent is a fisheries officer employed by the Department of Fisheries. In that capacity he charged the appellants jointly with two offences.
The charge with which these proceedings are concerned alleges that between 24 and 28 February 2006, in the waters of Drummond Cove, Geraldton, the appellants:
without lawful excuse, interfered with gear being used for fishing, namely a rock lobster pot, when they were neither the owners of that gear, nor acting with the authority of the owner, contrary to s 172(b) of the Fish Resources Management Act 1994 (WA).
The appellants pleaded not guilty, and the trial of that charge was conducted in the Magistrates Court at Geraldton on 26 ‑ 28 October 2009, before Magistrate Lane. Her Honour reserved her decision, requiring the parties to exchange written final submissions and to file them in the court. That process concluded by 18 February 2010, and her Honour delivered written reasons for her decision on 14 June 2010.
Both of the appellants were convicted as charged, and each was fined $2,500. They appealed against their convictions and against the fines, which were imposed on 8 July 2010, upon which date her Honour fixed the costs to be awarded to the prosecution in the sum of $6,000, to be paid by each of the two accused persons.
The appellants had also been charged jointly with a second offence committed at the same time and place as the first, that:
not being the holder of a commercial fishing licence, [they] fished for rock lobster by means of a rock lobster pot that did not have the accuseds' gear identification number branded or stamped on the surface float, attached to the pot, contrary to regulation 32(1)(b)(ii) of the Fish Resources Management Regulations 1995 (WA).
Pleas of guilty were entered by the appellants to those charges on the first day of the trial. They were convicted and, again on 8 July 2010, the appellants were each fined $500 in respect of that offence. Spent conviction orders were made, both in respect of that offence and the offence of which they were convicted after trial.

The appeal

The appellants appeal, by leave, against their convictions of the offence of unlawful interference with fishing gear and against the severity of the fines of $2,500 imposed on each of them.
The grounds upon which leave was obtained are:
APPEAL AGAINST CONVICTION
1.The Magistrate misconceived the defence in finding that the accused men contended that they recognised the pot they were alleged to have interfered with as one they had lost a few weeks earlier. Rather the accused contended they formed the belief at the time of pulling the pot that it was the pot they had lost
2.The Magistrate was wrong in fact in finding that the accused pulled the relevant pot 'in the area where the lines of Mr Battilana's pots were set' (Mr Battilana being the alleged owner of the relevant pot).
3.The totality of the evidence was incapable of supporting:
a.a finding that the appellants knew that the pot in question did not belong to them at the relevant time and did not believe that the pot belonged to them or that if they did so believe that belief was not reasonable.
b.a finding that the prosecution had proved the appellants did not believe (or reasonably believe) that the pot was their pot at the relevant time.
c.a finding that it was not probable that the appellants believed (or reasonably believed) the pot was their pot at the relevant time.
4.The Magistrate was wrong in law and applied the wrong test in finding that it was not enough for the appellants to state they thought the pot was their pot but were reasonably mistaken, in order to have an honest claim of right under section 22 of The Criminal Code.
5.The Magistrate wrongly interpreted the evidence with respect to the importance and significance of the numbers on rock lobster pots as indicating to the world at large the identity of the owners of pots.
6.The Magistrate was wrong in fact in finding that the appellant, Mr Blechynden knew that Mr Battilana used the fishing licence number G327 as this was not open on the evidence.
7.The Magistrate failed to give sufficient reasons for her findings as to the credibility of the appellants.
APPEAL AGAINST SENTENCE
8.The fine of $2,500 is manifestly excessive in consideration of the findings that:
a.the offending behaviour was at the lower end of the scale;
b.the appellants were of good character;
c.the offences were out of character;
d.the offences deserved spent conviction orders.
Grounds 4 and 7 complain of errors of law. The remaining grounds of the appeal against the convictions raise alleged errors of fact for consideration or, as in the case of ground 3, raise what I interpret to be a contention that having regard to the evidence as a whole, her Honour the magistrate made findings of fact which were not supported by the evidence, and that thereby there has been a miscarriage of justice: Criminal Appeals Act 2004 (WA), s 8(1)(b).
In my respectful opinion, the debate about whether the available grounds of appeal against conviction by a court of summary jurisdiction are in some way restricted because s 8(1) of the Criminal Appeals Act does not make specific reference to the conviction being unreasonable or unable to be supported having regard to the evidence, is a sterile one, without substance in law. I have no doubt that it is open to an appellant to contend that the decision reached by the magistrate cannot be supported by the totality of the evidence, and therefore that the conviction constitutes a miscarriage of justice.
Section 8(1) does not contain a provision such as that available in an appeal to the Court of Appeal from a superior court, in the same terms as s 30(3)(a) of the Act, which provides, not for a permissible ground of appeal, but that the Court of Appeal must allow an appeal against conviction if, in its opinion:
(a)the verdict of guilty upon which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
That provision is designed to make clear the factual basis upon which the verdict of a jury, although not, of course, supported by published reasons, may be set aside and the resulting conviction quashed because, although properly instructed as to the law, the jury have arrived at a conclusion about the facts which is unsupportable by the evidence. The provision stems from the fact that, in this area of challenge, the appellate court is concerned with the verdict of the jury, not with any error of law or fact made by the judge for reasons pronounced at the time, or with judicial error (generally procedural) resulting in a miscarriage of justice.
The legislative history in relation to appeals against conviction from superior courts, whether after trial by jury or trial by judge alone, is different from that which grounded appeals to the Supreme Court against convictions sustained in a summary court. It will be observed that s 23 of the Criminal Appeals Act does not in any way specify or limit the grounds on which an offender convicted of an offence on indictment may appeal to the Court of Appeal against that conviction.
Putting to one side a different process of obtaining leave, that was also the case formerly when the right of appeal by an offender against conviction was governed by s 688(1) and (1a) of the Criminal Code. As to when an appeal might be allowed (if it was not the case that there was no substantial miscarriage of justice), that was dealt with in s 689(1) of the Criminal Code. The terms of that provision, which was repealed on the enactment of the Criminal Appeals Act, are substantially repeated in the provision which is the successor to this part of s 689(1) of the Code, s 30(3) of the Criminal Appeals Act.
I mention these matters because there was some debate about the sufficiency of the grounds of appeal against conviction (although leave to appeal had been granted) between counsel, in the course of their submissions. I should therefore make it clear that in my opinion it is necessary to deal with all the grounds of appeal against conviction.

The sufficiency of reasons

I have said that ground 7, which complains of the insufficiency of the reasons of the magistrate, raises a question of law. Inadequacy of reasons alone may, but will not necessarily, amount to an appellable error. That will be so where the inadequacy of the reasons is of itself a matter which ought to result in the conclusion that there has been a miscarriage of justice by the failure to give adequate reasons: Mount Lawley Pty Ltd v WA Planning Commission [No 1] [2004] WASCA 149; (2004) 29 WAR 273; Full Court [26] ‑ [29]. With specific reference to ground 7, I should observe that, as was made clear in Mount Lawley, although it is unnecessary generally for a judge to refer to all the evidence, where credibility issues arise, as they did in this case, it is necessary for the judge to explain why one body of evidence was preferred to another: [28].
It has to be said that in this case the reasons of her Honour the magistrate do contain some infelicity of expression, and on occasions it is rather difficult to determine precisely what finding of fact her Honour made on a particular issue. For example, at [80] and [81], her Honour found that each of the appellants knew that the rock lobster pot in question was not his. She does not say when, in her view, they were possessed of that knowledge, and at [84], she concludes that the appellants, upon the whole of the evidence, 'knew, or ought to have known', that the pot did not belong to them. Other similar examples might be given.
However, in my opinion, a fair reading of her Honour's reasons does show that she gave consideration to the whole of the material evidence and the judgment does reveal why her Honour rejected the version of the facts of the appellants, given in their evidence at trial and when they were interviewed before trial by investigating Fisheries officers. I will review material aspects of that evidence in due course. But I may say at this stage that, in my opinion, ground 7 cannot be made out.

The law: interference with fishing gear

I turn then to questions of law. Ground 4 asserts that her Honour misconceived the law in relation to the potential application to the case of an honest claim of right under s 22 of the Criminal Code. Before dealing with that issue, it is necessary for the decision of this appeal that I set out my views about the law applying to the offence charged under s 172 of the Fish Resources Management Act 1994 (WA) (FRMA).
Section 172 provides:
172. Unlawful interference with fishing gear
A person must not -
(a)remove fish from any net, trap, fishing gear or gear that is being used for aquaculture; or
(b)interfere with any net, trap, fishing gear or gear that is being used for aquaculture,
unless the person is the owner of the net, trap or gear or is acting with the authority of the owner or has some other lawful excuse.
Penalty:In the case of an individual, $25 000 and imprisonment for 12 months.
In the case of a body corporate, $50 000.
The FRMA came into operation by proclamation on 1 October 1995 (Government Gazette, 29 September 1995, p 4649). At that time the penalty for an offence against s 172 was, in the case of an individual, $5,000 and imprisonment for 6 months, or in the case of a body corporate, $10,000. The present penalties were enacted by the Sentencing Legislation Amendment and Repeal Act 2003, s 63(5). As can be seen, the monetary penalties provided were at that time very substantially increased. That legislation came into operation on 1 August 2003, not so very long before the offence against s 172 of the FRMA was allegedly committed on 24 February 2006.
The appellants were charged with interfering with fishing gear, a rock lobster pot. The term 'fishing gear' is defined in FRMA, s 4(1):
fishing gear means any equipment, implement, device, apparatus or other thing used or designed for use for, or in connection with, fishing;
The word 'fishing' is also defined in FRMA, s 4(1):
fishing or fishing activity means -
(a)searching for fish;
(b)attempting to take fish;
(c)taking fish; or
(d)engaging in any other activity that can reasonably be expected to result in the taking of fish;
There was no doubt, in this case, that the rock lobster pot was fishing gear. It was a thing used or designed for use for fishing for the fish known as rock lobster, because it was used or designed for use for taking or attempting to take rock lobster out of the ocean.
The first question then, under FRMA, s 172, was whether, on the waters of Drummond Cove at the relevant time, the appellants 'interfered with' the rock lobster pot. That is not a term defined in s 4 of the Act, and no authority upon its meaning was cited to me. Nor have I been able to locate any such authority.
I was referred to the case of Collidge v Russo [1984] WAR 1, which dealt with an offence against s 90 of the Road Traffic Act 1974 (WA), committed by a person 'who unlawfully interferes with the mechanism or parts of any motor vehicle'. A person who opened a car door, leant inside and rummaged through the glovebox was held not to have interfered with any part of the motor vehicle. Brinsden J held that in the context of s 90 of the Road Traffic Act, the thing interfered with had to be changed in some way.
With respect, in the context of that offence, that is undoubtedly an appropriate conclusion. But the context of FRMA, s 172, and the offence provided by that section is quite different. In the first place, an offence is committed if any fish is removed from any net, trap, fishing gear, or gear being used for aquaculture and, in the second place, such a thing must not be interfered with.
In my opinion, in this context, when the evident purpose is to prevent interference with fishing gear in a way which might facilitate the taking of fish, the gear is interfered with if it is handled, used or in any way dealt with, rather than being left alone. In this case, the magistrate made clear findings, which are not challenged, that what the appellants did would amount to interference with the lobster pot in question.

Some undisputed facts

What follows is taken from my review of the evidence and the reasons of her Honour the magistrate. I will omit, for the moment, matters of controversy.
On 24 February 2006, the appellants were fishing for rock lobster in the waters of Drummond Cove, using their dinghy to pull pots and take lobster. It was a good clear day and there was good visibility into the relatively shallow (about five fathoms) waters of the cove. The appellants are teachers by profession, and they are friends. They have long enjoyed recreational fishing for rock lobster. They are licensed recreational fishermen, but they are certainly not commercial rock lobster fishermen and they are not licensed as such. The appellants live in the area of Drummond Cove, a suburb of Geraldton.
Mr Blechynden has a cousin. His name is Glen Battilana. He is a licensed commercial rock lobster fisherman, and he also, at the relevant time, habitually laid his pots in Drummond Cove. Mr Battilana operates a commercial fishing boat called 'Shark Raider'. His registered number is G327. I gather that the number is used as an identifier on his pots. When they are laid, they also have, as a means of identifying their location and whose pots they are, floats, which are lime green or white. Two floats are attached to the rope connected to the pot. There are actually two ropes used to attach the floats to the pot. One is 20 fathoms in length, a yellow rope, and then there is an additional length of four fathoms of blue rope, which is actually tied to the pot.
Mr Battilana had fished in the Drummond Cove area since 1982. He was doing so on 24 February 2006, and he laid a line of 30 pots. The evidence establishes that the line could be discerned, if conditions were favourable so that the floats were visible. That was the case on 24 February 2006. But a line is not a straight line. It meanders and may extend over a considerable distance. While he was pulling his pots, he received a call from Fisheries officers to say that they had recovered one of his pots.
He did indeed find that although he had laid 30 pots, there were only 29 remaining. The pot that was missing, Mr Battilana said, was not at the end of the line, but further down the line (27/10/09, ts 43). The pot was recovered without its floats, but with the ropes still attached. It was in fact the pot which had been pulled by the appellants. I will come to the circumstances of that shortly.
Mr Battilana's evidence was that he had set this pot on 24 February 2006. It was a second‑hand pot. He was able to say that he had bought it in August 2005 from another commercial fisherman. He had had the pot thereafter until it was lost. When he unloaded his catch, he found the missing floats. It appeared that they had been returned to the jetty, but with only a short length of rope attached. The particular pot had the number 'G69' routered into the side of the pot. The pot bore the number 'G327', painted next to the number 'G69'. 'G69' was the number registered to the former owner. As I have mentioned, 'G327' was the number registered to Mr Battilana.
Returning to the appellants and their fishing activities on 24 February 2006, they were observed by two Fisheries officers. One was the respondent, Mr Bogumil, and the other was a Mr Killick. They saw the appellants together pull a pot out of the water and carry it, in their dinghy, to the shore, where the dinghy was placed on a boat trailer on which it was towed to Mr Glenister's home nearby. The officers went to the house and found the pot still in the dinghy, with rope attached, but no floats. One of the officers photographed it. It was visible from the road.

Her Honour the magistrate found, and as I have said, there is no dispute about it, that the appellants, acting together, interfered with the pot by pulling it out of the water, loading it in their dinghy and taking it to the shore, where it was retained in the dinghy and towed away. It was undoubtedly Mr Battilana's pot.

The law: a lawful excuse for the interference

Speaking generally and without, at this stage, identifying particular features of the evidence and the answers at interview given by the appellants, their case was that they first saw and paid attention to the rope attached to the pots. The blue rope was significant, because it was of a type which was softer and more suitable for use by those whose hands were not calloused and hardened by habitual work as a fisherman. It was rope they used.
When the pot was pulled into the dinghy, both men noticed that it showed signs of repairs that had been made to one of their pots which they had previously lost while fishing in Drummond Cove. They thought the pot was theirs, and so kept it in the dinghy and took it to Mr Glenister's home. They did not notice or pay attention to the identifying numbers which, as recreational fishermen, they would not use to mark their gear.
It was clear that they did not own the pot, which belongs to Mr Battilana. The appellants did not have his authority to interfere with the pot in the way that they did. A question arose whether they had, in terms of FRMA, s 172, 'some other lawful excuse' for dealing with the pot in the way that they did.
That is a phrase of wide import. In Hancock v Birsa [1972] WAR 177, the question of the meaning of that term arose in the context of s 68 of the Police Act 1892 (WA), which made it an offence to be, without lawful excuse, in or upon any premises. Hale J thought, that in the context of that section:
'Without lawful excuse' is a compendious method of saying 'without an excuse which would appear to a reasonable man to be adequate in the circumstances' (179).
Burt J made the point that, 'without lawful excuse' did not express the same idea as 'unlawful purpose'. His Honour said:
Proof of an unlawful purpose no doubt denies a lawful excuse. But the converse is not, I think, true. Proof of the absence of a lawful excuse does not require the finding of an unlawful, in the sense of a criminal, purpose. What it does require, and in my opinion all that it requires, is a judgment by the court as to whether the defendant's presence on the premises is excusable in all the circumstances of the case, bearing in mind that the defendant is charged with an offence punishable by imprisonment and, therefore, that his conduct may well be innocent or excusable for this purpose although otherwise indefensible (181).
The same view was expressed by Wickham J at 183.
Roddan v Walker (Unreported, SCt, Library No 970252, 20 May 1997) was a case which concerned the offence of having an explosive substance in a person's possession 'without lawful excuse'. Steytler J reviewed the decided authorities, including Hancock v Birsa, which was followed by the later Full Court decision in Jenal v Milner (1994) 11 WAR 264, before concluding that, in the context of that offence, which his Honour said was clearly directed towards preventing possession of items of a kind which, in the absence of a lawful excuse, might lead to the inference that they are proposed to be used for criminal purposes, an appropriate excuse would be one that showed that the explosive substance was possessed for a purpose which was not forbidden by law.
In the context of the FRMA, s 172, it seems to me, speaking generally, that a lawful excuse would be one not prohibited by the law, but which would justify the defendant's conduct in handling or dealing with the fishing gear, because the purpose of the defendant's conduct was not directed to an infringement of the rights of the owner of the gear, albeit that the defendant was not the owner or authorised by the owner to interfere with the gear. Much will depend upon the circumstances, having regard to the legislative purpose of the offence which proscribes an act committed without lawful excuse of a kind which infringes the owner's rights.
Some obvious examples might be given. In relation to a case such as this, I would think it would be a lawful excuse for interference with fishing gear, that the accused was investigating whether the gear was his property, or whether it had been abandoned. It would be a lawful excuse, I would think, to deal with the gear by retaining it after it had been discovered that the accused was not the owner, for the purpose of seeking to identify who the owner was, so that the gear which appeared to have been lost could be returned to that person. The above are mere examples. They by no means constitute a closed list of possible circumstances which might establish a lawful excuse.
I put the matter in that way because of the provisions of s 205 of the FRMA:
205. Proof of exemptions
In any proceedings for an offence against this Act, the onus of proving that -
(a)at the time of the alleged offence a person was exempted under section 6 or 7 from a provision of the Act;
(b)anything was done or omitted to be done with a lawful excuse or reasonable excuse;
(c)a person, boat or thing referred to in the charge was not in WA waters;
(d)a fish was taken from waters other than WA waters; or
(e)an act occurred in waters other than WA waters,
lies upon the person making that assertion.
This would not be a case, of course, which was capable of giving rise to any contention that either or both of the appellants were exempted from the need to comply with s 172, but, despite the heading to the section, it can be immediately seen that its content is much wider than proof of exemptions, and s 205(b) was potentially relevant in this case.
I say 'potentially relevant', because it was made clear during the hearing of the appeal that the appellants did not assert that what they did, which was alleged to constitute a contravention of s 172, was done with a lawful excuse. Had they done so, as I read the combination of s 172 and s 205, a legal onus to prove that the appellants had a lawful excuse for their conduct, which would otherwise constitute a contravention of s 172, would have fallen upon them, to be discharged on the balance of probabilities in the ordinary way.
Her Honour the magistrate found that the evidence established, beyond reasonable doubt, that the appellants were not the owners of the pot when they interfered with it, and they were not acting with Mr Battilana's authority at that time. So much was patently obvious.
In my opinion, the appellants might have sought to establish that they had a lawful excuse, even so, for interfering with the pot, which was without floats and may have been lost, by pulling it to the surface so that they might examine it to see if it was theirs, to determine if it was a pot which, according to their evidence, they had lost in the general area of the waters of Drummond Cove some time previously.
But they could have no lawful excuse for dealing with the pot by taking it from the waters of the cove, in their dinghy, to the shore, with the intention of retaining possession of it, in the erroneous belief that it was their pot. At least, in my opinion, that could not constitute a lawful excuse for the manner in which they dealt with the pot in the circumstances of this case.

The defences raised before the magistrate, and her Honour's decision

There is some confusion about this, and it seems to have arisen out of the trial process which, it will be recalled, involved, at the conclusion of the evidence, a requirement that the parties exchange and file written submissions. For the respondent, it seems that submissions were filed before those presented for the appellants.
The respondent's submissions dealt with two potential lines of 'defence', both of which would require the prosecution to negate an available denial of criminal responsibility. The first was said to arise out of s 24 of the Criminal Code, which relevantly provides for a mistake of fact:
A person who does or omits to do 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 or omission to any greater extent than if the real state of things had been such as he believed to exist.
Further, for the respondent, submissions were made to deal with the potential application of an honest claim of right, pursuant to s 22 of the Criminal Code. That section commences with the general proposition that unless knowledge of the law by an offender is expressly declared to be an element of the offence, ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence. But the section goes on to provide, with respect to property offences, for what, in shorthand terms, is described as an honest claim of right:
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
The submissions made by the appellants to the magistrate, and on appeal, however, concentrated on the availability of an honest claim of right under s 22, to negate the appellants' criminal responsibility.
Her Honour the magistrate dealt with both issues. She directed herself about the relevant law and, against the background of the other evidence presented by the prosecution, she reviewed the accounts given by both appellants, firstly when interviewed by investigating Fisheries officers and, secondly, in their evidence to the court.
Because various grounds of appeal allege that her Honour made errors of fact in her assessment of the evidence, and errors in her conclusions about the credibility of the appellants' accounts, I accept that it is necessary for me to review the evidence, and I will return to that task.
However, for the moment it is sufficient to note that her Honour first dealt with the issue, as she perceived it to be, arising under s 24, whether either or both of the appellants had an honest, but mistaken belief that they owned the pot, a belief nonetheless not only honestly held, but upon reasonable grounds. Her Honour concluded, at [50] ‑ [51] and [63] of her judgment, that neither appellant honestly held that belief, and nor could they have done so on reasonable grounds. She found that the appellants' evidence that they held such a belief was untruthful.
As to the asserted honest claim of right, after reminding herself that the onus was borne by the respondent to negative the claim beyond reasonable doubt, and after reminding herself that the relevant act to be done with respect to the pot as an item of property was, 'the act of pulling and retaining the Battilana pot' [68], her Honour said:
Therefore the 'right' stated by the accused must be that of ownership of the Battilana pot. It is not enough to state that they thought that it was their pot (but were mistaken based on reasonableness). The defence can only be on the basis that each accused held an honest belief that they actually owned the Battilana pot [69].
The statement is a little confused, but in my respectful opinion, her Honour is there drawing a distinction between a mistake of fact under s 24 and an honest claim of right under s 22. If her Honour meant to observe that to make out a claim of right under s 22, it was sufficient merely that the claim be made honestly (whether or not mistaken), whereas under s 24, the claim must not only be made honestly (although mistaken), but must also be reasonable, then, of course, the observation is unexceptionable.
However that may be, nothing turned upon it, because, after again reviewing the evidence, her Honour concluded that neither appellant honestly believed that they owned the pot [77]. Indeed, her Honour went further, and found that each man knew, when they pulled the pot into their dinghy and decided to retain it, that it was not their pot [80], [81].

The law as to s 22 and s 24 of the Criminal Code

The appellants were right to restrict their defence to advance an honest claim of right under s 22. The case did not raise an honest, but mistaken belief in a mistake of fact which might fall within s 24 of the Code. Their mistaken belief that they owned the pot, even if honestly held, was not a 'belief in the existence of any state of things'. It was not a mistake of fact, but a mistake of law.
The point is amply illustrated by reference to the decision of the High Court in Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493. Mr Palmer was a commercial fisherman who was in the process of changing from line fishing to lobster fishing. He went to the Fisheries Department and obtained photocopies of documents which included various notices describing areas where rock lobster fishing was permissible. The documents, however, omitted a regulation which prohibited fishing for rock lobster in a specified area, described by bearings and high water marks.
Mr Palmer thought that he was permitted to fish within the designated zone, without restriction. He was not aware of the excluded area and, as luck would have it, it was in that area that he set his pots. It was held that he had been rightly convicted because he could not rely on s 24 of the Code, as his mistake was a mistake of law and ignorance of the law was no excuse.
Nor could he make an honest claim of right under s 22. The offence of fishing in a prohibited area was not held to be an act done with respect to property. The point is succinctly put by McHugh J at 515 [49]:
Mr Palmer made no mistake as to any of the factual elements of the charge. His mistake was that he believed that the law of Western Australia did not prohibit or regulate fishing for rock lobsters in that area. His mistaken belief was not a mistake as to a fact or 'state of things', but a mistake as to the operation of the law. His case fell within s 22, not s 24, of the Criminal Code. It was ignorance of the law that caused him to make the mistake that he did.
The fact that the officer of the Fisheries Department contributed to his ignorance of the law by failing to give him documents describing the prohibited area in which he set his pots was immaterial to his criminal responsibility.
Again, the point is made clear by referring to Australian Fisheries Management v Mei Ying Su [2009] FCA 56; (2009) 255 ALR 454, where the Full Court of the Federal Court, distinguishing Ostrowski, held that a foreign fisherman who honestly and reasonably believed that a red line marked on his GPS navigation unit represented the border of the Australian Fishing Zone made a mistake of fact and not law, which negated his criminal responsibility for fishing within that zone. Captain Su's mistake was held to be a mistake about where he was and whether he was in the zone. Mr Palmer was under no mistaken belief as to where he was. His mistake was about whether he was entitled to fish there lawfully.
A useful decision is that recently given by Hall J in Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37. The question in that case was whether the appellant had been rightly convicted of using land as a salvage yard, without the necessary approvals, contrary to provisions of the Planning and Development Act 2005 (WA). The appellant's case at trial was that it was lawfully permitted to operate the salvage yard on the premises because it had a non‑conforming right to use the land in that way. It raised s 22 and/or s 24 of the Code. The magistrate held that s 22 did not apply, and the correct provision to consider was s 24 which, his Honour held, had been negated because the belief was, at the relevant time, neither honestly held nor held on reasonable grounds.
Hall J held that the magistrate had erred in dealing with the matter under s 24, because a belief about the existence of a non‑conforming use right, in respect of a property, was a belief about a matter of law. However, the appeal was dismissed on the ground that, as a matter of fact, the findings of the magistrate that the belief was not honestly held would, in any event, have disposed of the second limb of s 22 of the Code, leaving the appellant in the position of an accused who was simply ignorant as to the applicable law.
As to the potential application of s 22, there is no doubt that it might be available in respect of the offence charged in this case. The old debate about whether, in terms of s 22 of the Code, 'an offence relating to property' was restricted to offences defined in Part VI of the Code, headed 'Offences relating to property and contracts', or whether a relevant offence relating to property might be an offence defined, as in this case, in legislation outside the Code, has long been set to rest.
It had been held that s 22 only applied to offences relating to property defined in the Code: Pearce v Paskov [1968] WAR 66, but in Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562, McKechnie J, Malcolm CJ and Templeman J agreeing, after discussing the authorities, held that the decision in Pearce should no longer be followed: 579 [97] ‑ [101].
In so holding, his Honour applied the leading authority on s 22, the case of Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561. That case concerned a provision of the Fauna Conservation Act 1974 (Qld) prohibiting the keeping of fauna without a licence. The court's discussion concerned s 22 of the Criminal Code (Qld) which is, however, expressed in identical terms to our s 22.
In R v Nundah (1916) 16 SR (NSW) 482, it was held that the question, when an honest claim of right is made (in that case at common law, but equally under the Code), is simply whether the prosecution has negated, beyond reasonable doubt, the proposition that the accused honestly believed the property was his, that he owned it.
In Walden, in the context of s 22 of the Code, it was held that what had to be negated was that the accused honestly believed himself to be entitled to do what he did with respect to the property and without intention to defraud: 569, 600 and 608. Gaudron J pointed out that s 22 was concerned with:
… the assertion of a supposed right, notwithstanding that such assertion involves a belief, founded in ignorance, that conduct proscribed by the criminal law is lawful (606)
It will always be necessary to bear in mind that the second limb of s 22 is concerned with the negation of criminal responsibility for an act or omission done with respect to property which would otherwise constitute the offence charged. Where the honest claim of right is raised, unless it can be negated by the prosecution, there will be no criminal responsibility for the accused's conduct.
Shortly put then, the question arising in this case under s 22 of the Code was whether the appellants, when they interfered with the pot without a lawful excuse, by taking the pot out of the water, putting it in their dinghy and returning it to the shore with the intention of keeping it, were acting under an honest claim of right in that they believed, albeit wrongly, that they owned the pot. If they might have honestly believed that to be the case, then their criminal responsibility could not be negated beyond reasonable doubt, and because they would have no intention to defraud, in the circumstances they would be entitled to be acquitted.

The approach of the appellate court

To determine whether the magistrate erred in her judgment about that question, having regard to the grounds of appeal, I must review the evidence, consider its capacity to support the inferences and conclusions drawn by the magistrate, and if I consider that her Honour has fallen into error, I must not shrink from drawing my own conclusions to the extent that it is open to me to do so. In that regard I should, however, constantly bear in mind that I was not the trial judge and that I have not had the advantage possessed by her Honour the magistrate of being able to see and hear and make an assessment about the reliability of the witnesses as they gave their evidence.

Particularly is that so in a case such as this, which turned so greatly upon credibility issues essentially concerned with the testimony and the out of court statements by the appellants in relation to their states of mind and the question whether they honestly believed, at the relevant time, that the pot was owned by them. Further, her Honour made some observations which inferentially indicate that the demeanour of the appellants, as they came to give their evidence, played a role in the fact‑finding process, and in that, of course, I have no capacity to replicate the advantage enjoyed by her Honour as the trial judge.
It is for that reason, particularly, that in this case, where her Honour's findings rested on credibility, I should not upset those conclusions unless it seems to me that her Honour the Magistrate has failed to use, or has clearly misused, her advantage as the trial judge, or where incontrovertible facts or uncontested testimony show the findings to be unsupportable.
The leading case guiding an appellate judge, placed as I am in relation to a case such as this, is Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ, at 127 ‑ 129 [27] ‑ [31]. That decision was applied in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458: see Kirby J, Gleeson CJ agreeing, at 466 [21] ‑ [23] and Callinan and Heydon JJ at 492 [180].

The evidence reviewed

Mr Killick

I have touched on the evidence of the Fisheries officer, Mr Killick, which was accepted by her Honour the magistrate. He said the pot which was later established to be that of Mr Battilana, which he saw the appellants pull into their dinghy and remove from the cove, was without floats when they pulled it up, but had yellow rope attached. That was the rope that he saw when the dinghy, with the pot still in it, was later located on its trailer at the front of the house which was established to be that of Mr Glenister.
Mr Killick gave evidence of the statements made by Mr Blechynden when he was interviewed on video by the Fisheries officers on 1 March 2006. He told a simple story. While he and Glenister were fishing they saw the rope, but no floats. Blechynden said that they both thought the rope was theirs. When they pulled the pot on board, they discovered that it was indeed their pot which they had lost about two weeks earlier, so they took it home (26/10/09, ts 15). He described the rope as a soft, blue rope (ts 17). When Mr Blechynden was told by the officers that the pot had been identified by a commercial fisherman, he insisted it was theirs and said he would be interested to know what the commercial fisherman was doing with their pot.
Mr Blechynden referred at interview to the rope being a softer blue rope, when Killick said it was yellow. There was lengthy questioning of Killick about that. The photographs taken on the day were extensively discussed. Mr Killick maintained that the rope was yellow. The photographs are of bad quality. They are digital reproductions. Certainly there is rope shown in them which is yellow. Otherwise, it seems, parts of it may have a blue appearance. Mr Killick supposed that might be something to do with the photography and the printing of the images. He was not shifted from his recollection that the rope was yellow.
Although Mr Blechynden had said nothing about it when interviewed, Killick was cross‑examined about two batons, which were part of the construction of the pot, which appeared to be a different sort of wood than other batons which made up the structure of the pot. The point was taken no further at that stage.

Mr Bogumil

Mr Bogumil, the respondent and a senior Fisheries officer, gave evidence of the observations made of Drummond Cove and the activities of the appellants on 24 February 2006 which was generally consistent with that given by Killick. With the assistance of photographs taken at that time, he was able to confirm that the rope attached to the pot was indeed yellow. The photographs actually show a length of blue rope attached to the pot, and the long length of yellow rope is attached to that. As I have said, floats would be attached to the distal end of that rope, but they were not there.
I must say, for my part, that given the relatively shallow water and the good visibility into the water, if the pot could be seen from the surface, no doubt the blue rope could be seen as well. But the much longer length of yellow rope, attached to the blue rope, which was in turn attached to the pot, would certainly have been visible, and I would not find it surprising that the Fisheries officers described the pot as having a yellow rope attached.
Mr Bogumil and Mr Killick undertook a recorded interview with the appellant, Mr Glenister, on 18 March 2006. As in the case of the interview with Mr Blechynden which, it will be recalled, had been conducted on 1 March, although the video of the interview was tendered, by agreement, material portions which had been transcribed were read into evidence.
Mr Glenister said he was happy to talk to them about the incident 'where we've mistakenly caught Glen Battilana's pot'. The essence of what Glenister said was that he saw the rope in the water, without any floats on it, in the vicinity of the area where they had lost a pot some weeks earlier. He told the officers that there was nothing special about the rope, 'A rope's a rope', but he said the appellalnts thought, 'Well, there's a chance that it's ours.' He could not tell one pot from another, but Mr Blechynden was adamant that it was their pot and he referred to repairs, 'which Blech claims to have done'.
Mr Glenister identified the pot in question from a photograph which showed the registered numbers G69 and G327. There were two different batons visible, not pine, as was ordinarily the case, but made of jarrah. Mr Glenister told the officers that they were the repairs which Blechynden identified. What he was saying to the officers was clear; he did not recognise the pot, but Blechynden said he did and, 'convinced me that it was ours' (26/10/09, ts 66).
When further questioned by the officers, Mr Glenister started to talk about salvage rights, conveying the impression that he thought that if it was not their pot, it had apparently been lost, the floats were gone, the appellants had found it, it was a nice pot and it was their good fortune that they had acquired it (26/20/09, ts 74).
Mr Bogumil also gave rather unsatisfactory evidence of a later interview he had conducted with Mr Blechynden, under caution, supported by contemporaneous notes made by the witness. It seems that at that interview, Mr Blechynden also referred to an entitlement to 'salvage' a pot which had been abandoned or was unattended. But he made that statement in general terms when asked what he understood the word 'salvage' meant.
Counsel cross‑examined Mr Bogumil about Mr Glenister's reference to the process of salvaging a pot, and it was made clear that that discussion related, not to the pot in question in these proceedings, but to a different pot previously owned by another fisherman and in the possession of the appellants at the time in question, but apparently not the subject of the charge being tried.

Mr Battilana

I have mentioned the evidence given by Mr Battilana in relation to his pot, and the fishing gear generally. Her Honour made findings in accordance with that evidence, which she accepted. She also accepted Mr Battilana's evidence about a conversation he had with his cousin, Mr Blechynden, on the evening of 1 March 2006. I have mentioned that Blechynden had been the subject of a video‑recorded interview with the Fisheries officers, a Mr McDowell and Mr Killick. That interview had taken place during the afternoon of 1 March 2006.
It is important that I set out in full the evidence which Mr Battilana gave:
Can you tell me about the phone conversation you had with Brendan Blechynden on 1 March 2006?‑‑‑Brendan rang me one evening to say that the Fisheries had accused him of taking my pot, which they'd observed him doing, and he come around home with it and I just said, 'Look, Brendan, I can't help you because they've observed you pulling the pot out of the water and bringing it ashore and they know you've done it. So I just can't - I can't help you. It's my profession and your hobby. It's my lifestyle. It's my job.'
How did he want you to help him?‑‑‑To say I found the pot or gave him the pot.
When did you next see the pot?‑‑‑He bought it there that night after the phone call (27/10/09, ts 42 ‑ 43).
Mr Battilana was cross‑examined about this conversation. Apparently the telephone call was followed by a visit to Mr Battilana's home by Mr Blechynden. The statement that Mr Battilana had given to the Fisheries officers was put to him. It contained no reference to Mr Blechynden asking Mr Battilana to say that he had given Blechynden the pot, which Blechynden said he had in his car. He wanted to return it, and it was clear that he wanted Battilana to contact the Fisheries officers to say that he had found the pot, and by that means he had recovered it. If he would do that, Mr Blechynden said to Battilana, he (Blechynden) could not be charged with stealing it.
Battilana accepted that the statement put to him recorded accurately what had passed between the two men. He refused to contact the Fisheries Department to say that he had found the pot. He agreed that Blechynden was saying to him that he had 'salvaged' the pot because the floats had been cut off and the rope and the pot were the same as his. Battilana said Blechynden was trying to return the pot to him and wanted him to tell the Fisheries officers that he had found it, or had recovered it, so that Blechynden could not be charged with stealing it (ts 49).

Mr Ganzer

A Mr Ganzer gave evidence. He was a craypot manufacturer, trading as Pederson's Cray Pots. He gave evidence that Mr Blechynden had telephoned him in March of 2006 and had asked him to make up two lobster pots for him. Mr Ganzer did that, and then Mr Blechynden asked him to give him a note or a document simply saying that he had bought pots previously from Mr Ganzer's business. That was untrue, but nonetheless Mr Ganzer provided the document. The tender of the document was objected to and it was not pressed, presumably because it was not written by Mr Ganzer personally. However, given his evidence that it was provided to Mr Blechynden at his request, I would have thought it was admissible.
The cross‑examination was directed to make the point that some other person in the business might have sold a pot previously to Mr Blechynden. But, of course, the witness's evidence was, as led and as affirmed in cross‑examination, that the witness simply wrote the statement that Mr Blechynden had bought pots from them before, because he was asked to do so, although he knew it to be untrue.

Mr McMichan

On the other hand, the defence called a Mr McMichan, who had sold refurbished craypots to Mr Glenister on several occasions, to give evidence to that effect. Her Honour the magistrate appears to have thought that the evidence was irrelevant, and I must say that its relevance escapes me.

Mr Blechynden

The first defence witness was Mr Blechynden. He said he formed the belief that the pot was theirs. He noticed the ropes. They pulled the pot up, and he immediately noticed the batons that had been repaired. He said that the rope 'was the same colours', and there were other signs that it was their pot. It had only one fishplate, or ballast weight, in the bottom of the pot. Commercial fishermen generally used two. Recreational fishermen used one to make the pot easier to pull to the surface of the water by hand. The pot was in the vicinity of the area where they had lost a pot about two weeks earlier (27/10/09, ts 66 ‑ 67).
Mr Blechynden explained that the water was clear and there was good visibility in the area, which he thought was about 25 feet deep. He saw the rope. There was about five metres of yellow rope, he thought, attached to a blue rope which was just about on the surface. He saw the yellow rope first, and so I would gather that he saw the blue rope attached to the pot. The repaired batons were on the top of the pot, to one side. Mr Blechynden said he was convinced that the pot was theirs; 'The batons immediately caught my eye' (ts 71).
Mr Blechynden said that he did not notice the number or numbers on the pot when he pulled it out of the water (ts 76), but, he said, after he was interviewed by the Fisheries officers on 1 March 2006, and they put to him that the pot had the number G327 on it, and that number belonged to Mr Battilana, Mr Blechynden checked the pot and found that it did indeed bear the number G327.
He then gave evidence that he spoke to Battilana. He said to him:
After speaking to the Fisheries officers I checked. I went to Warwick's [Glenister's] house and checked the craypot and found your number on the pot. I would like to bring it back. Do you want me to bring it around to your house or would you like me to drop it in the water? (27/10/09, ts 77).
Blechynden then gave evidence that he did bring the pot around to Battilana's house. He showed it to him, and asked Mr Battilana, 'Well, can you tell them that you found it?' Mr Battilana declined to do that. Blechynden's evidence was that he did not ask Battilana to tell the Fisheries officers that Battilana had given the pot to Blechynden.
The effect of Blechynden's evidence seems to me to be that, when he pulled the pot, having regard to the features he described, he honestly thought it belonged to the appellants. He did not see the numbers, which would not have been on the pot they had lost, although pots they had bought second‑hand did have a variety of numbers on them relating to previous owners. He did not know that the number G327 would identify Battilana's gear.
His first inkling of trouble was when he was interviewed by the Fisheries officers on 1 March 2006. They told him of the number identification, and whose number it was. He then discovered that the pot was not the one owned by him and Glenister, which they had previously lost. He took it to Battilana and endeavoured to get him to agree to the pot being returned to the water and 'found' by Battilana, or that the pot could simply be returned to Battilana, who would then untruthfully tell the Fisheries officers that he had found the pot. He did not suggest to Battilana that he should go to the Fisheries officers and tell them that he had given the pot to Blechynden.
Blechynden was cross‑examined. He confirmed that when they pulled up the pot, he did not see the numbers which he would have recognised to be professional fishermen numbers. He explained that he did not do so because that was not how they identified their pots. He agreed however, that he helped to pull the pot into the boat and pulling on the rope bridle would cause the two numbers to be presented on the side of the pot which was uppermost and closest to the fishermen. Although he did not notice the numbers, his eyes were immediately drawn to the repaired batons which were immediately adjacent to the numbers (28/10/09 ts 5 ‑ 7). It did not register with him that there appeared to be other batons which had been repaired or were different from the rest (ts 8).
Blechynden was operating the boat but he assisted to pull the pot into the dinghy. He noticed the blue rope attached to the pot which appeared to him to be the same as the rope they used, but he did not notice the yellow rope attached to the distal end of the blue rope, although the yellow rope would have been pulled into the dinghy first. He agreed that neither on 1 March 2006 or 4 April 2006, when speaking to the Fisheries officers, did he mention the yellow rope.
He agreed that he said nothing at either interview about making the identification of the pot by reason of the repairs that had been made to its batons. When he was asked about the conversation he had with the witness Ganzer, he said that the 'receipt' was written at Ganzer's suggestion, 'as he believed I may have bought the pots as well at that time.' (ts 12) That of course was not the way it had been put to Ganzer and it was contrary to Ganzer's evidence.
In relation to his recognition of the rope, Blechynden did not I think improve his position in re‑examination. He maintained that he recognised the blue rope, but when he was asked about the yellow rope he said such rope was to his knowledge that most commonly used in the industry, 'it is basically the industry standard because it stands out.' (ts 15)

Mr Glenister

Mr Glenister gave evidence. He made it clear that he did not initially recognise the pot. He assisted to pull it on board. He did not see the registered numbers, but when the pot was in the boat, he said Blechynden pointed out to him the features which supported the view that the pot was the one they had lost some weeks earlier. He referred to the repairs to the batons and a dent in the pot where it had earlier been damaged by a reef. Another feature which he said indicated to him that it was their pot, was that it appeared to have been in the water for some time. There was no bait in the bait baskets and there were no lobsters in the pot. It will be recalled that Battilana's evidence was, however, that it had been set in his line that day.
The most significant feature from his point of view was the blue rope and the fact that there was only one ballast weight (to lighten the pot). Mr Glenister said the major length of rope was blue. He said there were three to four metres of yellow rope which, as I understand the evidence, reverses the colours of the respective lengths of rope (28/10/09 ts 27). Mr Glenister said that, being of the belief that the pot was theirs, they took it to the shore and towed it in the dinghy to his home where it was parked on the verge by the road in the vehicle's usual place. He summarised the features of the pot which convinced him that it was theirs (28/10/09 ts 37).
When cross‑examined, Mr Glenister said that if he had not referred when interviewed to the blue rope and the damage to the pot, he could only assume that it did not come up, although he agreed that the presence of the blue rope was the most significant thing about the pot which persuaded him that Blechynden was right when he said it was their pot. He agreed that although he had noticed the repairs to the batons, he did not notice the adjacent numbers on the pot. It still seemed to Mr Glenister, he said, to be the pot that they owned and had repaired, although, 'I'm quite happy with the fact that it's possibly not' (ts 41). He was not conscious of the pot being in a line of pots when it was pulled to the surface.

The grounds of appeal discussed

I have mentioned ground 4, which in my view relates to what her Honour said at [68] and [69] of her judgment, to which I have referred at [57] ‑ [59] above. Her Honour the magistrate did not, I think, relevantly misconceive the nature of the question which she was to decide, which the claim of right defence under s 22 of the Code raised. As I have said, her Honour, in my view, on a fair reading of her reasons, correctly identified the crucial issue in the case as being whether the prosecution had negatived beyond reasonable doubt a claim by the appellants that each of them, when the pot was interfered with by being pulled from the water, retained in the dinghy and removed from the cove without lawful excuse and without the authority of Mr Battilana who owned the pot, honestly believed that the pot was theirs.
Her Honour found against the appellants on that issue because she rejected their evidence that that was their belief and that left the elements of the prosecution proved beyond reasonable doubt. Indeed her Honour went further than she needed to because she found that not only did she not accept that either appellant had that belief, but she considered that each of them knew, at least by the time that they made the decision to keep the pot, that it was not the pot they said they had lost some weeks earlier.

Not only did her Honour not make any material mistake as to the law (except by unnecessarily dealing with the question of a potential application of s 24 of the Code) with the result that ground 4 is not made out, but as I have already said, there is in my opinion no merit in the contention that her reasons were insufficient to explain why she rejected the evidence of the appellants as reliable and accurate accounts, as the appellants complain in ground 7.
I have, I think, already made it clear that the distinction made in ground 1 reveals no relevant misconception by her Honour the magistrate about the nature of the defence advanced by the appellants. Her Honour decided the question raised by each appellant when they advanced an honest claim of right under the second limb of s 22 of the Criminal Code.
Turning to the appellants' specific complaints of errors of fact, ground 2 is not made out. There is nothing to suggest that her Honour misunderstood the evidence about the meandering and extended nature of the line of pots laid by Mr Battilana. But it was of some significance that he gave evidence that the pot which he missed out of the 30 which he laid, the pot that was pulled by the appellants, was not on the end of the line but was some pots into the line.
That evidence and the evidence given by the Fisheries inspector Killick, at least left open the conclusion that the pot was broadly in the line of pots laid by Battilana, although on the appellants' evidence, when they first came upon the pot, Battilana's floats had already been removed. Her Honour the magistrate said no more than that the appellants pulled the pot, 'in the area' of the line of pots set by Mr Battilana [8].
Grounds 5 and 6 can be taken together. They both concern the relevance of the numbers G69 and G327, commercial fishermen's numbers which were respectively routered and painted on the side of the pot. As to that, her Honour did indeed find at [40] that Mr Blechynden knew not only that Mr Battilana operated the 'Shark Raider' but that he knew that the registration number G327 was Battilana's number at the time when he pulled the pot. Her Honour rejected Blechynden's evidence, that it was only when he was given that information by the Fisheries officers who interviewed him on 1 March 2006 that he knew that fact.
At [41] her Honour noted that not only had Blechynden fished for rock lobster in Dummond Cove some 20 years, but that he knew that his cousin Battilana conducted commercial rock lobster fishing operations there also. It is not unreasonable in my view, that her Honour the magistrate thought it to be inconceivable that over a substantial period of time the appellant Blechynden, noting the presence of the commercial fisherman Battilana and his vessel the 'Shark Raider' in the cove, would not have observed Battilana's registered number. It was open to her Honour, in my opinion, to reach that conclusion.
However, the alleged error of fact raised in ground 5 is in my opinion, of more significance and I am unable to detect that her Honour the magistrate made any error of fact in dealing with the question of the significance of the identifying numbers allocated to commercial fishermen which were different from (as I understand it) the identifiers allocated to licensed recreational fishermen, which were obliged to be branded or stamped on a surface float attached to a lobster pot.
The evidence overwhelmingly supported her Honour's conclusion that the numbers might be used to identify the owner of a pot which was found. The appellants accepted that inquires could be made with the Fisheries Department to ascertain to whom specific numbers were allocated. Of course, in a case like this where there was more than one commercial fisherman's number on the pot, that would not necessarily establish who was the current owner who had lost the pot.
But, against that background of evidence about the significance of the numbers, the important point was that both appellants gave evidence that they did not see the numbers marked on a readily visible portion of the pot as it was pulled into the dinghy and there examined by them. As I have said, the numbers were adjacent to that part of the pot where there were batons which Blechynden said he had repaired and Glenister accepted that to be the case. The numbers were on the side of the pot which would come uppermost into the dinghy as the pot was pulled.
Had they noticed the numbers, that may not have told them whose pot it was, but it would certainly have told them that it was not their pot and thereafter the only lawful excuse they might have for retaining the pot would be to investigate who the owner was with a view to having the pot returned to that person.
Finally, in relation to conviction, I turn to ground 3 which complains that the evidence was not capable of supporting the conclusion to which her Honour came, that there was not acceptable evidence from any source, particularly the appellants, capable of supporting their asserted honest claim of right. As the matter was argued, this ground was advanced by submitting that her Honour was not entitled, on the grounds which she gave, to reject as truthful and accurate accounts, the evidence given by the appellants. Once her Honour did so of course, their claims of right collapsed.
In my opinion, the ground cannot be made out. Her Honour's decision about the credibility of the appellants as witnesses, including by reference to the self‑serving accounts they gave in the statements they made to investigating Fisheries officers, was well open to her. There is, in my opinion, no indication that her Honour misused in any way the advantage which she had as the trial judge over this court acting in an appellate capacity.
I have reviewed the evidence in its totality so far as it seems to me to have been material to this issue. Her Honour noted that there were significant difficulties in the way of accepting the versions of events given by the appellants, particularly when one considered as her Honour did the differences between their accounts in evidence at the trial and as they gave them to investigating Fisheries officers. Further, although less importantly I think, there were differences of some significance in the evidence when a comparison was made between the accounts given by the two appellants.
The most important matters in relation to each of the appellants seem to me to be as follows. The pot was undoubtedly Battilana's pot. It had been laid on the morning of 24 February 2006 in a line (understanding what that concept involved) of 30 pots. It had had floats attached but they were gone when it was pulled. Glenister in particular, said that one of the matters he considered was that there was no bait in the bait boxes in the pot and no lobsters, indicating that it had been there for some time. While there might well have been no lobsters, it was difficult to accept that there was no bait if the pot was laid that morning.
The water of the cove was particularly clear and shallow. The pot could be seen. So could the rope. There should have been no confusion that there was a greater length of yellow rope attached to a shorter length of blue rope attached to the pot. The blue rope was given particular emphasis by the appellants because it was of a kind, rather softer than the yellow rope, which they tended to use.
It was difficult to see how the blue rope achieved such prominence in their view and why there was confusion about the much greater length of yellow rope which would have been closer to, or substantially on, the surface. Truthful evidence given by the appellants should not have led to any debate about the nature and colour of the rope which they saw. The fact that that occurred was indicative of an attempt by them to identify a particular feature which persuaded them that it was their pot when it was pulled and taken from the cove in the dinghy.
I have mentioned that Mr Blechynden was interviewed by Fisheries officers on 1 March 2006. His statements at that time focused upon the identification he made by reference to the rope. His evidence was more extensive as to the identifiers. He referred particularly to the batons which he said reminded him of the pot which they had lost, which he had repaired, and these were in the same position. If that were true, it would seem to be a remarkable coincidence that the appellants had lost a pot with batons which had been repaired and then found Mr Battilana's pot with identical batons which had been repaired.
In addition, in his evidence, Mr Blechynden referred to the fact that there was only one fish plate or ballast weight at the bottom of the pot. I have discussed that evidence. It is surprising that he did not refer to that before he gave evidence. In relation to his evidence there is the fundamental difficulty derived from the fact that although he was investigating, he said, whether the pot was theirs and examining it carefully, noticing features which established that that was the case, he did not notice the numbers. The significance of the numbers was plain and his evidence recognised that when he said that when informed on 1 March 2006 about the number G327 and that it belonged to Battilana, he reacted immediately.
The evidence was clear that after being interviewed by the Fisheries officers he did take the pot around to Battilana's residence after speaking with him on the telephone. Whether or not, as Battilana initially said in evidence, Blechynden said that he wanted Battilana to say that he, Battilana, had given the pot to Blechynden, the other statement made by Blechynden was accepted. It is noteworthy, of course, that Blechynden had said nothing to the Fisheries officers about the pot having been given to him and the objective facts were totally inconsistent with Battilana having found the pot.
However, the evidence on all sides was that Blechynden asked Battilana to tell the Fisheries officers that he had found the pot and thereby recovered it, whether it was to be returned to him at his house or whether colour was to be added to that story by Blechynden dropping it in the water and then guiding Battilana to 'find' the pot.
Blechynden's purpose in this activity was clear and its significance did not escape her Honour the magistrate. Although he had been interviewed by the Fisheries officers, he and Glenister still had the pot which by then had been placed in the backyard of Glenister's house. If the pot could be said to have been found by Battilana, it would cast doubt upon the accuracy of the observations by the Fisheries officers that the pot they saw in the dinghy at Glenister's house on 24 February 2006, which was Battilana's pot they said, was the pot which had been removed from the water of Drummond Cove by the appellants. It can be well understood then, why Blechynden was of the view that if that story could be falsely created, he could not be said by the Fisheries officers to have 'stolen' the pot.
Glenister was not interviewed by Fisheries officers until later, on 18 March 2006. He knew then that Blechynden had been interviewed and it is perhaps not surprising that his approach at interview was to put the proposition that it was Blechynden which identified the pot and persuaded him that it was the pot that they had lost. He did not, in advancing that proposition, make any assertion about the significance of the rope and he referred only to the repairs which Blechynden claimed he had carried out to the batons.
That he took that approach therefore had an obvious negative impact upon his credibility as a witness in giving evidence before her Honour the magistrate, when, as she noted, he added far more detail, indeed more detail than had been given by Blechynden about the matters which were significant in causing Glenister to come to the view, as he asserted he did, that the pot was theirs.
It will be recalled that he referred to the following matters in evidence, although not when he spoke to the Fisheries officers. Glenister said that he particularly noted the rope and that it was of the type which would be softer on their hands. He said that Blechynden pointed out the batons which had been repaired. Again despite their proximity to the numbers, he said that he did not notice the numbers and I would gather from his evidence that he said he did not notice the numbers because the numbers were not significant for a recreational fisherman to identify the pot. But of course, during the time when they were investigating who might own the pot, they could not exclude that it was a pot owned by a professional fisherman who might be identified by a registered number painted or otherwise placed on the pot.
Glenister referred in some detail to the lack of bait, to marine encrustations which he suggested indicated that the pot had been there for some time. I have commented about those matters. Glenister referred, although Blechynden did not, to damage to a plate which was part of the fabric of the pot. He referred for the first time in evidence to there being only one ballast plate.
In my respectful opinion it was open to her Honour, as she did, to consider that Glenister was tailoring his evidence to provide an account consistent with that given by Blechynden. Having regard to the differences in the account given at interview, her Honour was entitled not to accept as truthful and accurate evidence, the version of the facts given by Blechynden and Glenister in evidence before her.
The appeal against the convictions of the appellants must be dismissed and in the view that I have taken, it is unnecessary that I should consider whether, despite any errors made by her Honour, the appeal against the convictions should be dismissed on the ground that no substantial miscarriage of justice has occurred: Criminal Appeals Act s 14(2); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [41] ‑ [42].

The appeal against the sentences

As I have said, each of the appellants was fined $2,500. The maximum penalty was $25,000. Penalties of $500 each were imposed for the related offence of which the appellants pleaded guilty. Her Honour the magistrate of her own motion granted spent conviction orders so that the convictions would not be a matter of record against the appellants. In my opinion, although she did not give reasons for doing that, she must have made that order because she considered that such a breach in the circumstances of this case was both relatively minor and unlikely to be repeated by either appellant.
I accept of course, that I must not allow an appeal against sentence without error on the part of her Honour the magistrate being established. That error might be, but could not be established to be in this case, that her Honour misconceived the facts or the law in relation to the sentence to be imposed or in some other way specifically erred in her approach to the exercise of sentencing discretion. But in addition, the appeal against the sentences should be allowed if their severity demonstrates to the appellate court that the exercise of sentencing discretion has miscarried.
I think that is the case. The fine of $25,000 and imprisonment for 12 months is a maximum penalty reserved for the worst cases of the type which might constitute the commission of the offence of unlawful interference with fishing gear. That sort of case will, I think, be one where the commission of the offence reflects a 'turf war' between fishermen, particularly commercial fishermen, or some other determined attempt to harm commercial interests or interfere with fishing activities in a way which is likely to have a substantial deleterious effect upon the fishery and its sustainability.
This is clearly not a case of that type. I think it is best described as an isolated incident where recreational fishermen of otherwise good character (because that was the case) came upon a pot which was not by floats on the surface at least, identified as being owned by somebody else. It might have been abandoned. They decided that it was a good pot which would be useful to them and they decided to acquire it.
In my opinion, in those circumstances, to impose upon first offenders, acting jointly in the acquisition of the pot, a penalty of 10% of the maximum was too severe.
In my view, in the circumstances of this case, that penalty should be set aside. I would allow the appeal against the fines imposed. It is open to me, and appropriate in this case, that I should exercise the power to resentence: Criminal Appeals Act s 14(1)(d). Having regard to the matters to which I have referred, I think the commission of this offence would be adequately and appropriately punished by the imposition of a fine of $1,500 upon each appellant and I substitute that penalty.

Consequential orders

The appellants were each ordered to pay costs fixed in the sum of $6,000. There is no appeal against that order.
So far as the appeal is concerned, the question of sentence occupied the court's attention only in a very minor way. The argument of the appeal and its decision involved overwhelmingly consideration of the convictions and the appeals which challenged them and in those appeals the appellants have been unsuccessful.
In my opinion, exercising the power conferred by the Criminal Appeals Act s 14(1)(h), it is appropriate that the respondent should have the costs of the appeal. I order them to be taxed as one set of costs if not agreed and, of course, the appellants' liability for their payment is joint and several.