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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blechynden v Bogumil

Details

AGLC: Blechynden v Bogumil [2011] WASC 4
Case: [2011] WASC 4
Decision Date: 6 JANUARY 2011

CaseChat Overview and Summary

In the case of Blechynden v Bogumil, the appellants were convicted for unlawfully interfering with fishing gear, specifically a rock lobster pot. The respondents argued that they honestly believed the pot belonged to them, which they claimed was an honest belief in their right to the property. The court had to determine whether this constituted a lawful excuse under the statute and whether the respondents' belief was genuinely held. Additionally, the court needed to consider whether the magistrate had erred in assessing the evidence and if the conviction should be upheld or if the appeal should succeed on the grounds of a substantial miscarriage of justice or manifestly excessive fines.

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