Brown, Graeme Maxwell v Healey, Denis Allan
[1999] TASSC 13
•18 February 1999
[1999] TASSC 13
PARTIES: BROWN, Graeme Maxwell
v
HEALEY, Denis Allan
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 120/1997
DELIVERED: 18 February 1999
HEARING DATE/S: 30 November 1998
JUDGMENT OF: Cox CJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant: L J Neasey
Respondent: W A Ayliffe
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Ayliffe & Ayliffe
Judgment category classification:
Judgment ID Number: [1999] TASSC 13
Number of pages: 3
Serial No 13/1999
File No LCA 120/1997
GRAEME MAXWELL BROWN v DENIS ALLAN HEALEY
REASONS FOR JUDGMENT COX CJ
18 February 1999
The respondent was charged in the Court of Petty Sessions with (inter alia) two offences against the Sea Fisheries Regulations 1962 ("the Regulations"), reg44(1)(oc). The first such charge alleged that he had in his possession or control on 8 January 1996 at Port Arthur more than twenty abalone without having in his possession a third copy of a diver's docket which related to those abalone, or a docket in the prescribed form relating to the purchase of those abalone from a licensed fish merchant at a time when he was not the holder of a commercial abalone diver's licence who had taken the abalone under that licence and that abalone had been landed. The second charge was in similar form, but related to the possession of other abalone on the following day.
Regulation 44(1)(oc) provides:
"44 ¾ (1) No person ¾
(oc) may, subject to subregulation (1i), possess, or have control of, more than 20 abalone unless ¾
(i) the person has in his or her possession the third copy of the diver's docket which relates to the abalone; or
(ii) the person has in his or her possession a docket in the prescribed form relating to the purchase of the abalone from a licensed fish merchant; or
(iii) the abalone are in the possession of the holder of a commercial abalone diver's licence who has taken the abalone under that licence and the abalone have not been landed; "
It was common ground that the respondent did not have a commercial abalone diver's licence on the relevant days, although he did hold an abalone quota licence. The evidence before the learned magistrate would have permitted a finding that the respondent had in his possession or control more than twenty abalone on each occasion, that on each occasion he had in his possession what purported to be the third copy of the diver's docket which related to the abalone in question and that pars(ii) and (iii) of the subregulation had no application. The document in the respondent's possession purported to be a diver's docket and contained in substance the information required by reg7AA, but being signed by the respondent, who was not in fact the holder of a commercial abalone diver's licence, the appellant's argument is that it was not such a diver's docket as complied with the Regulations and authorised his possession of the abalone pursuant to reg44(1)(oc)(i). The learned magistrate took a different view and dismissed the complaint in respect of these charges; hence this appeal.
Regulation 17AA(3) requires the holder of a commercial abalone diver's licence to fill in a docket to be contained in record books which the Director, by virtue of subreg(2) of that regulation, is required to make available from the offices of the Department. The term "diver's docket" is defined in reg2 as meaning:
"a diver's docket on which the holder of a commercial abalone diver's licence enters information specified in regulation 17aa in respect of abalone taken by that licence holder;"
The document which the respondent filled in, although it may have contained all the information required by reg17AA, did not come within that definition because the respondent was not the holder of such a licence.
The learned magistrate upheld the respondent's submission that the third copy of the "diver's docket" in his possession should not be qualified with a requirement that the docket must be valid in the sense of completed by a commercial abalone diver who holds a current licence for the following reasons:
1"The Regulation does not express that to be a requirement";
2Such an interpretation is not in accordance with the statutory scheme; and
3The consequence of such an interpretation would be that a processor who had a third copy of the docket would be in breach of the regulation if the commercial abalone diver's licence had lapsed.
As to the first reason advanced, the learned magistrate did not specify which regulation she had in contemplation. Presumably it was reg44(1)(oc). While that regulation does not in terms require that the docket, possession of the third copy of which will authorise the possession or control of more than twenty abalone, be filled in or prepared by any particular person, reference back to the definition in reg2 clearly establishes that a diver's docket is one which is filled in by the holder of a commercial abalone diver's licence and unless the contrary intention can be found, reg44(1)(oc) must refer to a docket which has been filled in by such a person. The learned magistrate did not in her oral ruling refer to reg2 and it may be that she simply overlooked it.
As to the second reason advanced, the learned magistrate referred to the decision of Zeeman J in Graham v Davis A55/1995 in which his Honour held that reg44(1)(oc) was not authorised by the Fisheries Act 1959, s9(1)(n)(iii) which permitted the making of regulations:
"(n) prohibiting … the having possession or control of any fish … falling within all or any of the following classes, namely: ¾
…
(iii) fish the taking of which is contrary to the regulations."
He considered that reg44(1)(oc) was not confined in its operation to possession of fish taken contrary to the regulations and was thus ultra vires. He pointed out that the regulations contained a scheme whereby the taking of abalone in State fishing waters is prohibited in certain circumstances, which he then detailed. Furthermore, he pointed out that the regulations imposed obligations concerning abalone and that under the general scheme, the holders of commercial abalone diver's licences were made subject to obligations which included the completion of diver's dockets. However, he did not suggest that a regulation authorised by the Act imposing an obligation on any person in possession of abalone to be also in possession of a diver's docket as defined in the regulation and whether lawfully taken or not would be contrary to that scheme. The validating legislation enacted by Parliament by the Fisheries Amendment Act 1995, which commenced on 24 November 1995, some months prior to the date on which these offences are alleged to have occurred, simply extended the obligations imposed upon every person in respect of the taking of fish to obligations in respect of their possession, by inserting a power to make regulations:
"(mb) requiring the possession, completion, maintenance and provision of any records, returns or documents with respect to the possession of fish"
and by validating any existing regulations prohibiting or restricting the possession of fish subject to any condition or requirement to possess, etc any records, returns or documents. The imposition of an obligation to be in possession of a valid diver's docket completed by the holder of a commercial abalone diver's licence is in no way contrary to the scheme of the regulations.
The third reason advanced does not pay due regard to the defence of honest and reasonable mistake of fact. It is clear from the decision in He Kaw Teh v R (1984 - 1985) 157 CLR 527 that save in respect of offences of absolute liability, the existence of an honest and reasonable, although mistaken, belief in a state of affairs which, if true, would make the act of the accused innocent may be raised by way of exculpation and that once the evidentiary burden of establishing some foundation for the existence of the belief has been satisfied by the defence, the onus of proving the absence of such a belief lies upon the prosecution. At 566, Brennan J (as he then was) said:
"It is now firmly established that mens rea is an essential element in every statutory offence unless, having regard to the language of the statute and to its subject matter, it is excluded expressly or by necessary implication."
The regulations do not expressly exclude mens rea as an essential ingredient, nor do they exclude them, in my opinion, by necessary implication. It was not argued otherwise by the respondent's counsel, although he did submit that the onus of establishing the defence lay upon the person relying upon it and that this gave rise to the risk of injustice if the defendant could not persuade the tribunal of fact on the balance of probabilities that he held such a belief. But as I have said, it is clear from He Kaw Teh v R (supra) that consistently with the decision in Woolmington v The Director of Public Prosecutions [1935] AC 462, the onus is clearly on the prosecution (see Gibbs CJ at 534 (with whom Mason J agreed); Wilson J at 558; Brennan J at 582; and Dawson J at 594). See also F v Ling [1985] Tas R 112.
Considering the learned magistrate's reservations then in relation to a processor's possession of fish if the docket is not completed by the holder of a current commercial abalone diver's licence, it is clear that once there is some basis for a finding that the processor honestly and reasonably believed the docket to be valid in the sense of having been completed by a licence holder, he or she would not labour under any onus to prove the existence of that belief but it would be for the prosecution to prove its absence.
In my opinion, the appellant's contention is correct and the learned magistrate was in error in concluding that the respondent had no case to answer. The order dismissing those matters of complaint should be set aside and the further hearing thereof remitted to the learned magistrate for determination according to law.
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