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
AppellantsAND
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)
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…
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- AGLC
- Blechynden v Bogumil [2011] WASC 4
- Case
- [2011] WASC 4
- Decision Date
CaseChat Overview and Summary
The court examined the meaning of 'interfere' within the context of the statute and clarified that an honest belief in a right to the property did not equate to an honest and reasonable mistake of fact. It was critical to distinguish between the two concepts. The court also evaluated the magistrate's assessment of the evidence and whether it was appropriate to conclude that the respondents' belief was not genuinely held. The court determined that the magistrate's findings were supported by the evidence and that there was no error in the assessment. Regarding the grounds of appeal, the court held that the appeal did not demonstrate a substantial miscarriage of justice, and the fines imposed were not manifestly excessive.
The court upheld the convictions, finding that the appeal did not meet the criteria for a substantial miscarriage of justice. Furthermore, the fines were deemed appropriate and not manifestly excessive. The decision confirmed that an honest claim of right does not suffice as a lawful excuse for interfering with property. The court's detailed analysis and reasoning ensured that the legal principles were correctly applied, leading to the maintenance of the convictions and the fines imposed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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