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Browning v Barrett

Browning v Barrett

Case [1987] TASSC 53 9 October 1987

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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…

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 Browning v Barrett

Details

AGLC: Browning v Barrett [1987] TASSC 53
Case: [1987] TASSC 53
Decision Date: 9 October 1987

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the Full Court heard an appeal against conviction on two charges of taking and possession of undersized crayfish, in breach of reg31(1)(d) and reg44(3) of the Sea Fisheries Regulations 1962. The applicant, a professional fisherman, was convicted by a magistrate, but the appeal was reserved for the Full Court. The court had to decide whether the offences required proof of mens rea, and if the defence of honest and reasonable mistake was available. The Full Court found that the offence of taking undersized crayfish did not require proof of mens rea, but the defence of honest and reasonable mistake was available. The applicant had an honest and reasonable belief that he had returned all undersized fish to the water, which if true, would have made his act innocent. The court set aside the conviction and penalties on the charge of taking undersized crayfish. The offence of having in possession undersized crayfish also did not require proof of mens rea, and the defence of honest and reasonable mistake was available. The applicant had an honest and reasonable belief that none of the crayfish in his possession were undersized, which if true, would have made his possession innocent. The court set aside the conviction and penalties on the charge of having in possession undersized crayfish.

Orders