Browning v Barrett
[1987] TASSC 53
•9 October 1987
TASSC A49/1987
CITATION: Browning v Barrett [1987] TASSC 53; A49/1987
PARTIES: BROWNING, Robert David
v
BARRETT, Roger Edwin
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: LCA 129/1986
DELIVERED ON: 9 October 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Neasey, Cosgrove and Underwood JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: TASSC A49/1987
Number of paragraphs: 62
Serial No A49/1987
File No LCA 129/1986
ROBERT DAVID BROWNING v ROGER EDWIN BARRETT
REASONS FOR JUDGMENT FULL COURT
NEASEY J
COSGROVE J
UNDERWOOD J
Orders of the Court:
Offence of taking undersized crayfish
(Underwood J dissenting)
Conviction and penalties set aside.
Complaint dismissed.
Offence of having in possession undersized crayfish
Conviction and penalty set aside.
Complaint dismissed.
Serial No A49/1987
File No LCA 129/1986
ROBERT DAVID BROWNING v ROGER EDWIN BARRETT
REASONS FOR JUDGMENT FULL COURT
NEASEY J
9 October 1987
I have had the advantage of reading in draft form the reasons for judgment written by Cosgrove J, wherein the facts of the case are fully set out. It is unnecessary to repeat them, and the reasons which follow will be based upon the facts as so stated, together with any others to which I need to refer.
The applicant was charged with "taking", and also having in possession, 50 undersized crayfish, in breach of reg31(1)(d) and reg44(3) of the Sea Fisheries Regulations 1962 (No 87 of 1962), made under the Fisheries Act 1959. The learned magistrate found the applicant guilty on both charges, adjourned penalty on the first sine die, and on the charge of possession imposed a fine of $40 with costs of $31.10 and a special penalty of $1,000. The motion to review raises the questions whether establishment of mens rea is essential to proof of either offence, and alternatively, whether the "defence" of honest and reasonable mistake was available to the applicant and should have been considered by the learned magistrate. The definition of the word "take" in s3 of the Act, and the provisions of s65(2) of the Act are material to these questions "Take" is defined as including "catch, dredge for, raise, kill, and attempt to take". Section 65(2) provides as follows:
"A person who, while fishing lawfully, accidentally takes an undersized, unclean, or unseasonable fish, or a fish the taking of which is at the time unlawful, does not incur any penalty or forfeiture under this Act if he immediately returns that fish to the water with the least possible injury."
Obviously, the legislature in enacting s65(2) contemplated that regulations might be passed pursuant to the regulation–making power in the Act under which a person fishing lawfully might "accidentally" take undersized fish, and might thereby incur a penalty or forfeiture under the Act but for the existence of s65(2). Regulation 31(1)(d) is such a regulation, though not all possible ways by which fish may be taken under the definition of "take" would attract the application of s65(2). That subsection contemplates a taking in which the fish is removed from the water, and probably such a taking is complete as soon as the taker has reduced the fish into possession by, for example, taking a crayfish pot out of the water and bringing it on to his boat.
"Accidentally" in the context of s65(2) may be construed as meaning unintentionally, as Chambers J said in Hursey v Taylor [1971] Tas SR 212, at 214. Used in that sense it means, "without a specific desire to produce that result". "Intention", or "intent" is a flexible concept. Brennan J shows this in his close analysis in He Kaw Teh v The Queen (1985) 59 ALJR 620 at 639 – 641. His Honour there said, in a passage applicable to the present situation:
"If an 'act' is described so as to include the circumstances in which the muscles are contracted, a different state of mind (i.e. from voluntariness, my interpolation) is applicable, ordinarily called 'intent'. Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so – to bring about an act of a particular kind or a particular result. Such a decision implies a desire or wish to do such an act or to bring about such a result. Thus when A strikes B (the act) having decided to or desiring or wishing to strike him, it can be said that he intends to strike B. .... General intent and specific intent are also distinct mental states General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate. Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate. But existing circumstances can be known more certainly than the probability of the occurrence of a future result, and therefore specific intent is usually established by proof of a desire or wish to cause the prescribed result, whereas general intent is usually established by proof of knowledge of circumstances prescribed by the statute as defining the act involved in the commission of the offence."
(See also as to meaning of "intent", DPP v Majewski (1976) 62 Cr App R 262, per Lord Simon of Glaisdale).
But of course we need not become too pre–occupied with the word "unintentionally". It is not used in s65(2), and it is not the only synonym for "accidentally". The latter, as used in s65(2) certainly means, "without specific desire to produce that result" or any like expression conveying that meaning. The legislature recognises that accidental taking of undersized fish is inevitable, and since it must be presumed to intend that reg31 shall be capable of being given practicable effect, it has provided an exculpatory clause in the shape of s65(2).
The exculpatory clause provides that the person who while fishing lawfully accidentally takes an undersized fish "does not incur any penalty or forfeiture under this Act if he immediately returns that fish to the water with the least possible injury". The clause is of course designed to facilitate the return of live fish to the water in circumstances best calculated to ensure their survival. The key word is, however, "immediately"; a word which must of necessity be read down to some extent in the context in order to enable it to be of any use in practice. The word is used here in its ordinary meaning, which is, without any mediation or passing of time between the two specified acts That is to say, the provision, literally read, is that the undersized fish shall be returned to the water without any passage of time after it is taken. Obviously, that is rarely possible. For example, as a matter of practicality, where there are a number of fish, as is commonly the case, some time must elapse at the best before those of uncertain size can be measured. Thus, "immediately" must be read down sufficiently to enable it to be given workable effect; and with respect I see no reason to dissent from the extended meaning given to the word by Chambers J in Hursey v Taylor (supra) at 214, where his Honour held that "immediately" means, at the earliest practicable moment, which may take into account weather conditions and the like.
When it is seen that, in accordance with the definition of "takes", undersized fish may be taken accidentally, and that s65(2), when read together with reg31, recognises that but for the operation of that subsection a breach of the regulation would automatically occur upon the taking of such fish, it is clear in my opinion that this offence provided for in reg31(1)(d) is intended to be not subject to the ordinary presumption that guilt will be established only upon proof of mens rea. The offence thus falls into the category of either strict or absolute liability, to use the convenient classification employed by Dickson J in R v Sault Ste Marie [1978] 2 SCR 1299, and repeated by Gibbs CJ in He Kaw Teh (supra) at 624.
However, there is nothing in the context of the Act and regulations of which reg31(1)(d) forms part to indicate that it was intended that a person charged with this offence should not be able to avoid liability by showing that he had an honest and reasonable belief in a set of facts which if true would have rendered his act innocent. That being so, it is to be presumed that this "defence" was available to the applicant. As Dawson J said in He Kaw Teh v The Queen (supra) at p649:
"In this country it is well established by authority that whatever the presumption, if any, that mens rea, to be proved by the prosecution, is an ingredient of a statutory offence, there does exist a presumption that honest and reasonable mistake is to be treated as a ground of exculpation."
See also, to the same effect, per Gibbs CJ (with whom Mason J agreed) at 623; Wilson J at 631 – 633; Brennan J at 641 – 643. I see no reason why that presumption should not be given its full effect in the present case. The existence of s65(2) provides none; and I see no other reason for supposing that the regulation under which the applicant was charged, considered in its context within the Act and regulations as a whole, should be thought to intend to punish a person who has taken all reasonable steps to see that the regulation has been complied with, and who has an honest and reasonable belief that it has been.
Thus, in my view, the defence of honest and reasonable mistake was available to the applicant in relation to this charge of taking undersized crayfish. There would have been no scope for consideration of the defence if the applicant had not provided the necessary evidentiary basis for raising it as an issue; but since there is no doubt that he did well and truly raise it as an issue, then the prosecution bore the onus of disproving beyond reasonable doubt the existence of an honest and reasonable belief on his part that all undersized fish had been returned to the water, within the requirements of s65(2). The issue of honest and reasonable mistake was not argued before the learned magistrate, but it was a matter which should have been considered, and if it had been, the relevant evidence given by the applicant was so strong that the only reasonable conclusion would have been that the prosecution had not discharged its onus
Section 65(2) provides that a person who while fishing lawfully accidentally takes an undersized fish "does not incur any penalty or forfeiture under this Act" if he immediately returns the fish to the water with the least possible injury. That means that a person in respect of whom s65(2) applies is not subject to being convicted of an offence under the regulation, because a conviction is itself a penalty. If the applicant had an honest and reasonable belief that all undersized fish had been returned "immediately" to the water, that belief would have made his taking of the fish in the first place innocent in the relevant sense, in that he would not have been subject to conviction for a breach of reg31(1)(d). The applicant's conviction on the charge of taking undersized crayfish should therefore be set aside.
Turning to the second charge, of having in his possession undersized crayfish, I am of the same opinion, for the reasons above stated, that the defence of honest and reasonable mistake was open to the applicant, and that on the evidence before the magistrate it should have been considered. There is no doubt that the applicant had possession of the fish in the relevant sense, but his evidence already referred to suggested strongly that at all material times he honestly and reasonably believed that none of the crayfish in his possession was undersized. Such an honest and reasonable belief would have made his possession of all of the fish innocent. Thus, his conviction on the second charge was also in my opinion wrong, and should be set aside; with the consequence that all costs and penalties should be remitted.
Serial No A49/1987
File No LCA 129/1986
ROBERT DAVID BROWNING v ROGER EDWIN BARRETT
REASONS FOR JUDGMENT FULL COURT
COSGROVE J
9 October 1987
This is a lower court appeal which I reserved for the consideration of the Full Court. I gave reasons for so doing and I now set out hereunder the first part of those reasons which contains most of the relevant facts:
"The applicant moves the Court to review his conviction in the Court of Petty Sessions at Hobart on 2 charges of breach of reg31(1)(d) of the Sea Fisheries Regulations, one of unlawfully taking 50 undersized crayfish and the other of having those same crayfish in his possession. On the charge of taking, His Worship Mr. Parker found the complaint proved but adjourned penalty sine die; on the charge of possession he imposed a fine of $40 with costs of $31.10 and a special penalty of $1,000. (The Court's Minute is incorrect in this respect).
The evidence adduced in the Court below showed that the applicant was the skipper of a vessel called the 'Sea Hound'. The owner of the vessel was one Berry, who worked as a deck hand on the vessel, being initially inexperienced in commercial fishing. The other member of the crew was a deckhand Lionel Fyfe. The financial arrangements were that the appellant was to receive 30% of the gross catch, Fyfe 7½% and Berry the remaining 62½%. Berry was responsible for the provision of the vessel, and all out–goings Fishing commenced in August and during that month the appellant 'trained' Berry, showing him, among other things, how to measure crayfish. September and October were spent in the slipyards During part of November and December Fyfe measured all crayfish caught and then they were re–checked by the appellant in the view of the other crew members Then the procedure altered, so that Fyfe checked them, Berry checked them, and finally the appellant checked them into the well. The number of undersized fish passed by Berry gradually decreased and the amount to which they were undersize also decreased until the appellant was satisfied of his expertise. During that time Berry measured in excess of 8,000 fish.
In March, the appellant and his crew were fishing in rough conditions off South West Cape. They were about 10 hours steaming from Dover when they turned for home. They had on board 1,044 crayfish. The weather was rough until about 3 hours out of Dover when they brought up the Actaeon Islands The weather and the navigation of the Islands required the applicant to attend to the helm until about 1½ hours out of Dover. The remainder of the trip was uneventful through calm water.
On arrival at Dover, the applicant met First Class Constable Farquhar on the wharf and asked if he was 'coming down to measure a few'. In his evidence Constable Farquhar said that the applicant invited him to measure the fish, helped him to do so and was 'disgusted' that some were undersize. At the wharf the applicant agreed with the Constable that 50 of the fish were undersize and accordingly only 15 were retained as a sample and the remainder returned to the water. The extent to which the fish fell short of the required measurement was 1mm. to 3mm. The applicant had never disputed the measurements He said that it would not have been possible in the prevailing conditions for him to check all the catch, although he could have spot–checked some. He described Berry's failure to restore the undersized fish to the water as 'pure lack of professionalism' and tended to suggest that they were retained deliberately. He said that it had damaged his reputation as a professional fisherman.
Much of this evidence was elicited by Mr. Glade–Wright in reliance on these words from the reasons for judgment of Chambers J in Hursey v Taylor (1971) Tas SR 212 at 216 – 217.
'Upon its (Fisheries Regulation 31(1)(d)) proper construction it is not the intention of the regulation to penalize breaches that are unintentional and in respect of which the person charged had no reasonable opportunity of knowing whether or not a breach was being committed.'
I intend no criticism of counsel when I say that his argument was perhaps not fully developed. However His Worship reserved his judgment. On 31st July he said this:
'Yes Well, in this case I have examined the evidence and I have re–read Hursey v Taylor and I am satisfied that, accepting as I do the defendant's evidence as to the circumstances in which these fish were taken, that it was at the actual moment of taking impractical for him to measure them. Nevertheless, subsequent to that time and before his arrival to land the fish there was, in my view, ample opportunity for him to re–measure, although ...
Though I accept that for the reasons which he expressed he was reluctant to exercise that opportunity, in the circumstances I am satisfied that Hursey v Taylor has no – well, the circumstances envisaged in Hursey v Taylor have no application in this case. The opportunity was there for the defendant to measure those fish. He elected to rely upon his deckhand to do that. His deckhand did not – whether deliberately or negligently, I can't be sure. But, nevertheless, he relied upon him and his faith in the deckhand was, in the event, not justified. And I find the offences proved.'
The Notice to Review set out the following grounds of appeal:
'1THAT having found that at the moment of the actual taking of the fish, the subject of the said complaint, it was impracticable for the Applicant to have ascertained whether an offence under Regulation 31(1)(d) had been committed, the learned magistrate erred in law in finding proved the second count in the said complaint alleging that the Applicant had taken fish of less size than the minimum prescribed by the said Regulations
2THAT the learned magistrate erred in fact in finding that in the circumstances of the Applicant's possession or control of the said fish the Applicant had had a reasonable opportunity of ascertaining whether an offence had been committed.
3THAT the learned magistrate erred in law in finding proved the first count in the said complaint.
4.THAT the learned magistrate erred in fact and in the law in holding that the Applicant's faith in his co–defendant Clem James Berry not committing an offence under Regulation 31(1)(d) of the said Regulations was not justified having regard to the circumstances of the case.'
On the hearing the following ground was added:
'The learned magistrate erred in relation to both counts in that he failed to direct his mind to the question whether the appellant was entitled to acquittal on the ground that he honestly and reasonably believed that no undersized fish were "taken" by him or reduced into his possession or retained in his possession.'
It seems to me that this ground raises questions which I should refer to the Full Court."
There are some legislative provisions to be considered and it may be convenient to set those out immediately. The first is reg31 of the Sea Fisheries Regulations 1962, the relevant portions of which read as follows:
"No person –
…
(d)shall take, buy, sell, offer or expose for sale, or have in his possession, or under his control, any fish of any of the kinds or species respectively enumerated in the table to this paragraph that is of less size than the minimum size prescribed therein. ...".
Underneath that provision is a table of species of fish and sizes All of the fish are either crayfish or scale fish. Shell fish such as scallops and abalone are treated separately.
The word "take" which appears in that regulation is defined in s3 of the Fisheries Act 1959 as follows:
"'take' includes catch, dredge for, raise, kill, and attempt to take;"
Reg44(4) provides a penalty for a first offence of not less than $40 or more than $500 and sub–reg(4)(a) provides that there shall be imposed in addition to any penalty under sub–reg(4) "a special penalty of $20 (no more or no less) in respect of each ... crayfish".
It is also necessary to refer to s65 of the Act which provides as follows:
"65 – (1) All penalties under this Act are in addition to any forfeiture.
(2)A person who, while fishing lawfully, accidentally takes an undersized, unclean, or unseasonable fish, or a fish the taking of which is at the time unlawful, does not incur any penalty or forfeiture under this Act if he immediately returns that fish to the water with the least possible injury".
The making of reg31 is specifically authorised by s9(1)(m) of the Act. It clearly prohibits the catching and raising of undersized fish – that is to say, it prohibits activities which may take place wholly or partly underwater. Conduct of any of such activities is an offence.
The impact of s65 on this prohibition is a matter of great difficulty. As Underwood J points out in his Reasons for Judgment, the section has a long history, which began at a time when the legislative purpose was the protection of the gentry's great sporting fish, namely salmon and trout. Further, as his Honour points out "takes" in the original statute meant to remove from the water. The provision found its way into the Tasmanian Statute against a similar background and used the word "takes" in a similar way. So long as the Statute dealt with fly–fishing and retained that meaning of "takes", it made fairly reasonable sense. A person fishing for salmon or trout who wishes only to catch "size" fish may be said, in a colloquial sense, accidentally to hook an undersize fish (particularly if it is foul–hooked) and to fail to discover the fact until it is netted or landed. Fly fishermen are usually attempting to hook a particular fish identified only by its fins or its tail or the ring of water which it has made. These indicia give only a rough idea of size. If, when the fish is brought to hand, and turns out to be undersize, it may be said that the taking of it was an accident. The expression "accidentally" is more easily seen to be appropriate to such an event when it is opposed to "wilfully" in the first part of s14 of the Act of 1861. In Filleter v Sheppard ([1847] 11 QB 347; 116 ER 506 at 510) Lord Denman CJ said, in construing the Building Act, "It is true that, in strictness, the word accidental may be employed in contra–distinction to wilful, and so the same fire might both begin accidentally and be the result of negligence". It must be noted that even in making that concession, his Lordship used the word "accidentally" in its primary sense as qualifying an event which is either unexplained or which could not be foreseen. But the sentence as a whole suggests that a result may be regarded as having been achieved accidentally even though the possibility of its occurrence was foreseen. The exculpatory provision in s14 remains unclear but may be taken to be an attempt to ensure that, whether the fish was taken accidentally or negligently, it must be returned to the water.
When the scope of the legislation was widened to include shell–fish and the definition of "take" altered to include "catch, raise and dredge for", a very strange legislative pattern emerged. The regulations provided for the issue of licences to "take" crayfish and for the manner in which the fish were to be taken. Nowadays crayfish may only be taken by means of a pot and there are restrictions on the nature of the pot including the size of the escape gap and the number of bait–sticks to be used. Once a pot is let down into the water, a fisherman has no control over entry therein by the denizens of the sea. Small crayfish will get in there, and will be raised and emptied onto the deck. Every fisherman knows this He wishes or purposes only to catch "size" fish, but his manner of catching is such that he knows and accepts that he will catch undersized fish. Therefore he intends to catch undersized fish. To repeat a phrase which I have used elsewhere "he has assimilated the result to his purpose."
The situation is the same with scallops Fishermen are licensed to use dredges to take scallops Every fisherman, amateur or professional (and there were many amateurs in past days) knows that when you dredge for scallops you will catch small doughboys Catching small doughboys is an offence. There can be no doubt that crayfishermen and scallop fishermen know with absolute certainty that for so long as they fish, they will take undersized fish. They will catch them and raise them before they have any opportunity of identifying the particular fish which are undersized. On any ordinary understanding of intent as it is known in the criminal law they intend to take undersized fish. To do an act innocent in itself in the knowledge that the commission of a crime is an inevitable consequence thereof is specifically to intend to commit the crime.
Not only does the fisherman intend to take undersized fish but the Government intends that he should take them. It has licensed him to fish and prescribed a manner of fishing which makes that consequence inevitable.
The next step is that the Government by regulation makes it an offence to take, that is catch or raise, undersized fish. This is legislation from fantasy land. It is the ultimate "Catch 22". The Government says "I will give you a licence to fish but only in a way which will result in the taking of undersized fish. You will then be guilty of an offence and I will take your boat". But it says, "Don't worry, if you take such fish accidentally (which you will not because we both know that you intend to take them) you will still be guilty but you will not incur any penalty or forfeiture if you return the fish to the water immediately". "Immediately after what" says the poor fisherman. "Ah" says the Government. "That's for you to find out".
The odd thing about this incomprehensible statute and its regulations is that it seems to have worked. No doubt some innocent people have been convicted but by and large the industry has been adequately regulated. The cause of this result is the fact that for over fifty years everybody associated with this highly regulated industry has acted on an interpretation of this Act which cannot be sustained by its language. The common interpretation is that the catching of undersized fish is not in itself an offence unless one actively desires to do so, but it will mature into an offence if one fails to restore the fish to the sea within a reasonable time. This of course ignores the fact that catching is an offence and that exculpatory provisions do not create offences However, applying this interpretation to some specific words in s 65, "accidentally" means "while not actively desiring to do so" and "immediately" means "as soon as is reasonably practicable after ascertaining that it is undersized". The words "with the least possible injury" include the meaning "that the ascertainment of the size of the fish must be made at the earliest practicable moment".
I must say that I have the greatest difficulty in accepting this interpretation, based as it is, not on the words of the Statute properly construed, but on commonly accepted practice. But, on balance, I have come to the view that less harm is done by accepting it than by declaring the Statute and regulations incomprehensible or by any other mode of dealing with them. It is, in my view, deplorable that a citizen cannot discover his rights and duties and his defences to prosecution in words of a Statute plainly there for all to see, but must find them in a sort of moral convention. Attention ought to be given immediately to a re–drafting of the legislative documents
However, as the legislation is understood, the core of the offence of "taking" – no desire to take being alleged – is the failure to restore the fish to the sea within a reasonable time.
The offence of being in possession is not in terms directly affected by s 65 and in many cases would not be at all affected by it, but where the possession is a consequence of taking and the taker and possessor are the same person, the section would, on the interpretation commonly given to it, protect the possessor over the period from taking to return to the sea within a reasonable time. Therefore in the circumstances of this case, the essence of possession and taking is the same – the failure to return the undersized fish to the sea.
The fish in this case were not in fact returned to the sea within a reasonable time; the deckhand/owner bungled his job. As to that the learned magistrate said, "whether deliberately or negligently, I can't be sure". The appellant's defence was that he had done everything in his power to ensure that the fish were properly measured, and that all the undersized fish were put back. He believed that they had been. This is really two defences in one – (a) that he did not retain the fish for an unreasonable time; and (b) that he honestly believed on reasonable grounds in a state of affairs which if true would have relieved him from penalty and forfeiture on both counts by virtue of s65. As he gave strong evidence supporting both of these defences, and as Crown Counsel (Mr Melick) conceded that his evidence was not negated, he was entitled to be acquitted if these defences were open to him (see He Kaw Teh v R (1985) 157 CLR 523). The respondent contends that they are not open to him. Once the fact of retention beyond a reasonable time is established, guilt follows The state of mind of the accused person is irrelevant. The offence is one of strict liability. To my mind, it would be surprising if an offence which for its content relies essentially on convention rather than the words of a statute were one of strict liability. But it is strongly urged upon us that that was the intention (however clouded by its own words) of Parliament and that the importance and fragility of the fishing industry requires it to be so. These are important considerations and one must examine them.
The most convenient starting point, is this passage from the judgment of Wright J in Sherras v De Rutzen [1895] 1 QB 9l8 at 921:
"… There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject–matter with which it deals, and both must be considered: …"
His Honour said that there are 3 categories of offences which may be regarded as attracting absolute liability.
"1Acts which are not criminal in any real sense but are acts which in the public interest are prohibited under penalty.
2 Some and perhaps all public nuisances
3Acts in respect of which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right."
However, it would clearly be wrong to regard this classification as definitive. Each statute has to be considered in its context. In Gammon (Hong Kong) Ltd v Attorney–General of Hong Kong [1985] AC 1 at 14, Lord Scarman, speaking for the Judicial Committee, stated these propositions:
"(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."
Brennan J in He Kaw Teh (supra) at 567, regarded proposition 4 as too categorical, and with respect, I would agree. I would add, that if the legislation is aimed at a social evil or at the protection of the community's property or heritage, the difficulties in detection and prosecution of offenders may tend to overcome or diminish the presumption (see Wilson J in He Kaw Teh (supra) at 557). But, by and large, I would be inclined to regard these latter considerations as suggesting more a reversal of the onus of proof than imposition of absolute liability.
I turn now to the case in hand and the Tasmanian situation.
(1) It is obvious that the protection and preservation of the stock of crayfish in Tasmanian coastal waters is a matter of considerable importance to the State and its citizens
(2) I am not at all sure that the difficulties of detection, where professional fishermen are concerned, have not been exaggerated to a significant degree.
(3) The offence is not traditionally "criminal". It does not constitute a direct attack on the property or person of others However the deliberate depredation of a community resource is shameful, and would be regarded as such by genuine fishermen and by the community at large. In the Court of Petty Sessions, the appellant said, in answer to a suggestion that he would gain from possession of the undersized fish:
"Mr. Browning: Well, obviously I haven't. I have lost. My reputation has gone. As far as a professional fisherman, my last nine to ten years that I've worked my guts out for is completely wiped out. By taking undersize crayfish you are indirectly dipping into your fellow workmates' next year's pay packet.
Mr. Maher: Yes, I appreciate that.
Mr. Browning: And as a very close community and news like this spreads like wild fire. Once a rat catcher, you're labelled as a rat catcher for life."
It is a hard thing to brand an innocent man as a malefactor and punish him as such (cf Regina v City of Saulte Ste Marie [1985] DLR 169 at 170).
(4) Punishment is in a sense another aspect of criminality, but it is an important consideration in its own right. In this Act and Regulations a first offence carries a minimum penalty of a small fine, plus a mandatory special penalty, plus forfeiture of boat, tackle, engines, stores, catch and so on, plus exposure to cancellation of licences (reg18A and reg19). To impose penalties of that sort, some of them non–discretionary, on a person who did his best to avoid offending is hard indeed.
(5) If the law punishes fishermen who have done their best to avoid committing an offence, it is difficult to see how that punishment will "encourage greater vigilance" in them. It may be said to encourage others But there is little encouragement to be good if the good are punished equally with the bad. Punishment of the good is, in many ways, a disincentive to those inclined to be bad. And as Lord Evershed observed in Lim Chin Aik v The Queen [1963] AC 160 at 174, it can hardly be inferred that Parliament intended to impose absolute liability "in order to find a luckless victim".
(6) Another matter to be borne in mind is that the court is very largely uninstructed as to facts basic to the formation of a legislative opinion such as the importance of the industry, the nature and frequency of depredations of fish stock, the attitude of professional fishermen, difficulties of detection and prosecution (although the courts may readily infer some of the latter), and generally the mischief, the need, the energy of the Department and the relationship between those matters and the suggested draconic remedy.
(7) Finally, although the courts have an obvious and accepted duty to give effect to properly expressed directions of the legislature, the primary aim of the courts is to do justice to the individual members of the community, and if necessary to stand between the individual and the executive. Courts should be cautious in the application of "policy" and slow indeed to countenance injustice as a means of achieving a perceived social end.
I am not persuaded in the least that the Act and regulations evince an intent to deny an honest man a reasonable defence; nor am I persuaded that the state of the fishing industry in Tasmania requires the imposition of draconic penalties on a man who has done his best. As to the appellant's first defence, the fish were still alive when confiscated and some were returned to the water. The time for returning the fish with little or no injury had therefore not passed. So far as the appellant was concerned, the delay was not due to his fault and, on his part could not be said to be unreasonable. He had not desired to take undersized fish. The taking had not matured into an offence.
Alternatively, he demonstrated an honest and reasonable belief in a state of affairs which would relieve him from penalty and forfeiture.
So far as possession is concerned, the question arises as to whether the Crown was required to prove, as an element of possession, that the appellant knew that some of the fish in his physical possession or custody were undersize. The question of knowledge of the nature of goods possessed was not affirmatively decided in He Kaw Teh (supra), at least partly because, in that case, the degree of knowledge required depended on interpretation of the statute and the effect of the "reasonable excuse" provision. Personally I find much force in the analysis of Dawson J and I would favour the view that the fish were in the possession of the appellant at all relevant times However, the thrust of the case is that if it is not necessary for the prosecution to prove awareness of the nature of the object in possession, it is necessary for it to negate evidence that the accused was unaware of the nature of the goods This defence of unawareness is characterized as the defence of honest and reasonable mistake (see Dawson J at 598). It follows that in one form or another, both defences were open to the appellant, were supported by evidence and were not negated. My opinion is that the appeals should be allowed and the convictions quashed.
Serial No A49/1987
File No LCA 129/1986
ROBERT DAVID BROWNING v ROGER EDWIN BARRETT
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
9 October 1987
This is a notice of motion to review the decision of a magistrate whereby the applicant was convicted of two offences contrary to reg31(1)(d) and reg44(3) of the Sea Fisheries Regulations 1962. The motion was referred to the Full Court by Cosgrove J The applicant, a professional fisherman, was convicted of "having in (his) possession or under (his) control" fifty undersized crayfish and of "unlawfully taking" those fifty undersized crayfish. The first matter of complaint alleges only one offence notwithstanding the reference to possession or control. See Hedberg v Woodhall (1913) 15 CLR 531. Although the second matter of complaint alleged an "unlawful" taking, unlawfulness forms no part of the statutory prohibition enacted by reg31(1)(d) which provides:
"No person shall take, buy, sell, offer or expose for sale, or have in his possession, or under his control, any fish of any of the kinds or species respectively enumerated in the table to this paragraph that is of less size than the minimum size prescribed therein in respect of that kind or species of fish, whether or not the fish was taken in State fishing waters"
(A table is then set out specifying 13 different species of fish and a minimum size for each).
The question for determination is one of statutory interpretation. Are the offences of "having in possession or under control" and "taking" fish of a proscribed size, complete upon proof of the actus reus alone, or is a mental element an essential ingredient in the offences? If the latter is the case, what is the nature of the mental element?
Contemporary discussion of this question immediately leads to He Kaw Teh v The Queen (1985) 59 ALJR 620. Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ were all of the view that there was, and always had been, a rebuttable presumption that mens rea is a necessary element in every statutory offence. Approval was expressed of the following passage from Sherras v De Rutzen [1895] 1 QB 918 at 921:
"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject–matter with which it deals, and both must be considered."
The members of the court were not united in their conceptual approach to the matter of honest and reasonable mistake of fact, which if true, would have rendered the act innocent. However, there was agreement by all the members of the court that an honest and reasonable mistake of fact was a ground of exculpation in the case of all statutory offences unless Parliament had clearly intended the contrary, and further, given the existence of relevant evidentiary material, the onus lay upon the prosecution to establish that the defendant had not acted under an honest and reasonable mistake of fact.
This principle must be applied to the interpretation of the two statutory offences that are the subject matter of this motion to review.
Counsel for the respondent relied heavily upon the provisions of the Fisheries Act 1959; s65(2) which provides:
"A person who, while fishing lawfully, accidentally takes an undersized, unclean, or unseasonable fish, or a fish the taking of which is at the time unlawful, does not incur any penalty or forfeiture under this Act if he immediately returns that fish to the water with the least possible injury."
It was submitted that the provisions of that subsection and the subject matter of the legislation, rebutted the presumption that an honest and reasonable mistake of fact was a 'defence' to an alleged breach of reg31(1)(d) and reg44(3). It was argued that the express enactment of an exculpatory provision indicated that Parliament intended those offences to be absolute offences subject only to the provisions of s65(2).
Section 3(1) of the Fisheries Act provides that "take" includes, "catch, dredge for, raise, kill, and attempt to take." At best s65(2) can only have limited application to the acts proscribed by reg31(1)(d) for its operation is confined to persons who are fishing lawfully and, provides no exculpation for persons who, having received undersized fish from another, have them in their possession or under their control or, who buy or sell or offer or expose for sale such fish. Just what the sub–section does mean is very difficult to understand, particularly in the light of the extended statutory meaning given to the word take. In Hursey v Taylor [1971 – 1973] Tas SR 212, Chambers J at 214 referred to the subsection and said at 214:
"I think that three things are clear in regard to the subsection –
(1) "accidentally" means unintentionally,
(2) "immediately" means at the earliest practicable moment
(3)The subsection can only operate where the fish has in fact been returned to the water.
The third consideration which I have mentioned shows that the subsection can have very little practical operation. If a fisherman unintentionally catches an undersized fish and immediately returns it to the water, the fact that it was caught would, in the very nature of things, not usually be known to those whose duty it is to enforce the provisions of the Act and Regulations From the practical point of view, therefore, the subsection really gives no protection to a fisherman who is found with an undersized fish on his boat at a point of time when he has had no real opportunity of checking its size and putting it back into the water if it is undersized. It is permissible to wonder whether this really represents the intention of Parliament."
The intention of Parliament is made even more difficult to ascertain because, by virtue of the definition of "take", the subsection applies to persons fishing lawfully who kill or attempt to take an undersized fish. This difficulty of ascertaining the legislative intent from the words of s65(2) is compounded by the fact that its provisions, including the word "take", ante date the extended definition of that word by some 36 years and has remained substantially unaltered ever since.
Section 65(2) has a long legislative history. It appears in the Fisheries Act (Tas) 1889. That Act, like its contemporary counterparts elsewhere, was principally concerned with the protection of certain species of fish such as salmon, trout and oysters and not with the protection of fisheries in general. It would appear that it owes its origins to the Salmon Fishery Act 1861 (UK). Section 14 of that Act made it an offence to:
"(1) Wilfully take any unclean or unseasonable salmon;
(2) Buy, sell, or expose for sale or have in his possession any unclean or unseasonable salmon or any part thereof;"
The section concluded with the following words:
"But this section shall not apply
(1) to any person who takes such fish accidentally and forthwith returns the same to the water with the least possible injury.
(2) ..."
Section l5 of the same Act made it an offence to (inter alia) "wilfully take or destroy the young of salmon". That section contained no exculpatory provision similar to that enacted in s14. In Hopton v Thirwall (1863) 9 LT 327, the court held that on a prosecution for an offence against s15, it was necessary to establish knowledge that the fish taken were young of salmon. The application of that decision to the similar provisions of s14, makes the exculpatory provision in the latter section somewhat difficult to understand. If knowledge was an ingredient in the offence created by s14, the exculpatory provision in the same section appears to be redundant. However, it does appear from the words of both those sections and the subject matter with which they deal, that "take" means remove from the water.
The provisions of s14 and s15 of the English Act of 1861 were enacted in identical terms in Tasmania by s27 and s28 of the Fisheries Act 1889. As in the case of the English Act, the early Tasmanian Act contained no definition of the word "take" and was principally designed to protect salmon, trout and oysters. The exculpatory provision enacted in Tasmania by s27 of the 1889 Act was re–enacted in the various subsequent Fisheries Act and now finds expression in s65(2) of the 1959 Act. However, the first part of s27 of the 1889 Act, in which the exculpatory provision had its genesis, quickly disappeared as fisheries' legislation expanded to regulate and control all types of fishing both at sea and in inland waters.
In 1925, the whole Act was repealed and replaced by the Fisheries Act 1925. A definition of the word "take" in terms identical to that contained in the current legislation, was enacted. At the same time, offences of taking unclean, and unseasonable fish of many varieties and of taking fish of less than a certain size, were all provided for by regulation. Thus, it appears Parliament intended the newly created definition of "take" to govern the offences created by regulation. The first of these regulations was gazetted on the 22 February 1926. Regulations 47 and 48, the forerunners of reg31(1)(d) provided:
"47 No person shall take any fish, of any of the kinds named in the preceding regulation, of a size smaller than the minimum prescribed therefor.
48. No person shall buy, sell, or offer or expose for sale, or have possession of, any fish of any of the kinds mentioned in regulation 46 of a less size than the minimum prescribed therefor, or any female crayfish or soft shelled crayfish."
Regulation 47 omitted the word "wilful" in the case of taking, leading to the conclusion that it was the intention of Parliament that knowledge that the fish taken was undersize was not an element in the offences created by reg47 and reg48.
Notwithstanding the long legislative history of s65(2) the problem of ascertaining its meaning and application remains The plain fact is that all persons fishing lawfully for any species of fish intend to take and therefore, subsequently have in possession or under control, all fish of that species regardless of size. Those not wishing to deplete the resource no doubt further intend to immediately return any undersized fish to the water with the least possible injury. This state of affairs receives recognition in the Fisheries Act 1971 to 1975 (SA); s47(3) which provides:
"If a person takes any undersized fish and returns them to the water forthwith unencumbered in any way and with as little injury as possible he shall not be deemed to have taken those fish in contravention of a proclamation under this section."
The difficulty inherent in s65(2) was adverted to but not resolved by Chambers J in Hursey v Taylor (supra) at 214 where his Honour equated "accidentally" with "unintentionally". If this view is correct, the subsection can have only limited operation upon regulations which prohibit the taking of undersize fish of many varieties It might perhaps apply to a fisherman who, while fishing for one species of fish takes an undersized fish of an entirely different species In such circumstances the taking could be described as accidental. The equipment used to catch any species of fish is incapable of differentiating between those fish which are less than, and those fish which are more than, the prescribed size. It is a notorious fact that fishermen intend to take and subsequently have possession of all fish of the species sought regardless of their size. Thus, a net set to catch trumpeter is, to the knowledge of the user, designed to catch all trumpeter whether they are undersize or not. The taking of undersized fish so caught and their subsequent possession could not be said to be accidental. It is plainly intended. However, if crayfish are caught in such a net whilst feeding on the entrapped trumpeter and are subsequently reduced into the possession of the fishermen, the taking and the possession of such crayfish could truly be said to be accidental within the meaning of s65(2). But, an intention to return undersized fish intentionally caught, even if formed before the act of taking occurred, could not convert that act into an accidental one permitting resort to the provisions of s65(2).
If this is the meaning of that subsection and no other appears open to me on the plain words used, it is not of sufficiently wide application to displace the presumption enunciated in Sherras v De Rutzen (supra) and affirmed in He Kaw Teh v The Queen (supra).
Although the Fisheries Act is designed to protect and preserve a valuable natural resource, a conviction for a breach of reg31(1)(d) and reg44(3) exposes the offender to the imposition of very severe penalties An offender is liable to pay not only substantial fines, including minimum penalties in the case of some fish, but also to the forfeiture of valuable equipment used in connection with the taking or being in possession of fish. Further, there would seem to be no warrant for inferring that the creation of an absolute offence would assist in the enforcement of the regulation. See Lim Chin Aik v The Queen [1963] AC 160.
Accordingly, I reject the submission that Parliament intended reg34(1)(d) and reg44 to create an absolute offence. If a defendant honestly believed on reasonable grounds, in the existence of facts which, if true, would have rendered his act innocent, then no offence has been committed. Upon the charge of having in his possession or under his control fifty undersized crayfish there was ample evidence before the learned magistrate that the applicant did believe on reasonable grounds that the fifty crayfish were not of less than the minimum prescribed size and it could not be argued that the prosecution had proved beyond reasonable doubt that the applicant had not acted under such a mistaken belief. With respect to that conviction I would allow the appeal and quash the conviction.
The charge of taking undersized crayfish is a more difficult matter having regard to the extended definition of "take". In St Leger v Bailey [1962] Tas SR 131 Burbury CJ held that crayfish were taken or caught when captured in the pot. If this view is correct the actus reus is complete before there is any opportunity to ascertain the size of the crayfish and no possibility of a "defence" of honest and reasonable mistake of fact could arise. Burbury CJ said at 134:
"S3(1) of the Act defines the word 'take' as including 'catch, dredge for, raise, kill, and attempt to take.' As a matter of plain English, if a person sets a crayfish pot and a crayfish is entrapped in it he thereupon 'catches' it. The crayfish is captured in the pot and it is caught."
Support for the correctness of his Honour's view is to be found in R v Glover [1814] Russ and Ry 668 where it was held that a rabbit was "taken" when entrapped in snare lines set for that purpose. Approval of the reasoning in R v Glover (supra) is to be found in Farey v Welch [1929) 1 KBD 388 at 393 (pigeons) and Wells v Hardy [1964] 1 All ER 953 at 958.
The offence of taking can be contrasted with the offence of possession which, in the absence of express statutory provision to the contrary, is not complete unless the alleged possessor has some knowledge of the presence of the thing alleged to be possessed in a place over which he has control of the thing said to be possession. See Lockyer v Gibb [1967] 2 QB. 243 at 248; Williams v The Queen (1979) 53 ALJR 101 at 108; R v Warner [1969] 2 AC 256.
The proposition that the actus reus of the offence of taking undersized fish contrary to reg31(1)(d) and reg44(3) is complete at the moment of catching is not confined to crayfishing. It is equally applicable to fishing for scale fish either by net or line. Consequently as
(1)the nature of the operation results in the intentional "taking" of all fish of the species sought regardless of size and
(2)the actus reus of the offence is complete before there is an opportunity to formulate a belief with respect to the size of the fish,
the inevitable conclusion is that fishing in accordance with the terms of a licence issued as provided by legislative enactment will, to the knowledge of the licensor and licensee, lead to the commission of an offence created by the same legislation.
Although the presumption operates so that the regulatory offence of taking undersize fish (an offence complete upon the act of catching) is subject to the "defence" of mistake of fact, it is almost impossible to conceive of any circumstances arising in which a defendant could adduce the evidence necessary to make it an issue. Accordingly, the only statutory relief against forfeiture and penalty lies in the limited scope of the provisions of s65(2) which became a legislative anachronism in 1925. I agree with Cosgrove J, that those engaged in the industry have acted on the assumption that the act of taking undersize fish does not become an offence unless it is followed by a failure to return such fish to the water with the least possible injury as soon as reasonable practicable. However, that construction is contrary to the plain words of the Act and the regulations Such construction cannot be achieved without ascribing to the words "accidental" and "immediately" meanings which ordinarily are quite foreign to them. Whilst I agree with the criticism of the legislation expressed by Cosgrove J, I regret that I am unable to agree with his construction of s65(2).
The court's function is to ascertain the intention of Parliament as expressed by the words used in the section; The River Wear Commissioners [1877] 2 AC 743. Those words must of course, be read in the context of the whole instrument and regard may be had to the subject matter of the legislation. The importance of the oft–quoted statement from the judgment of Higgins J in The Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161 should not be forgotten:
"The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable".
Giving the words their ordinary meaning, s65(2) is not unintelligible and has a place in the legislation albeit a very limited one. Its limited application does not arise from any ambiguity of language, but from the fact that Parliament saw fit to re–enact without alteration, a long standing provision at the time it expanded the scope of the fisheries legislation and introduced an extended definition of the word "take". I cannot be certain that such re–enactment was a draftsman's error or omission which might entitle the court to construe the section to say what the court thinks it ought to mean as was done for example, in Cramas Properties v Connaught Fur Trimmings Ltd [1965] 2 All ER 382; Cooper Brookes (Woollongong) Pty Ltd v The Commissioner of Taxation (1980) 147 CLR 297. If remedy is called for, Parliament has the exclusive jurisdiction to provide it.
With respect to the charge of taking undersize crayfish, there was no evidence before the learned magistrate that at the time of taking, the appellant acted under an honest but reasonable mistake of fact which if true would have made his act innocent nor, was the taking of the crayfish accidental within the meaning of s65(2). Thus, with respect to that conviction I would dismiss the appeal.
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