Burnett v Ostrowski - [2007] WASC 69

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BURNETT -v- OSTROWSKI [2007] WASC 69

CORAM: TEMPLEMAN J

HEARD: 9 MARCH 2007

DELIVERED : 29 MARCH 2007

FILE NO/S: SJA 1040 of 2006

BETWEEN: PHILLIP MARTIN BURNETT
Appellant
AND
GEORGE PETER OSTROWSKI
Respondent

Catchwords:

Criminal law - Fisheries offences - Consignment of illegal lobsters - Each day's catch stored live under jetty before consignment - Last day's catch not stored - Whether evidence disclosed likelihood of tampering

Legislation:

Nil

Result:

Appeal allowed
Retrial ordered before different Magistrate

Category: B

Representation:

Counsel:

Appellant: Mr D L Armstrong
Respondent: Ms L J Dias

Solicitors:

Appellant: Altorfer & Stow
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Geraldton Fishermen's Co‑operative Ltd v Munro [1963] WAR 129
Ostrowski v Zaza (1999) 108 A Crim R 350
Pearce v Stanton [1984] WAR 359
Ruljancich v Pearce, unreported; SCt of WA; Library No 2810; 9 January 1980
Starling v Ostrowski [2000] WASC 173

TEMPLEMAN J: Following trial by a Magistrate in Geraldton in January and February 2006, the appellant was convicted of two charges under the Fish Resources Management Act 1994 (WA) ("the Act").
The first charge was that the appellant had consigned totally protected fish, namely two western rock lobsters of a length less than 76 millimetres. The second charge was that he had consigned totally protected fish, namely 184 setose western rock lobsters. Both charges were brought pursuant to ss 46(d), 52 and 222 of the Act.
The appellant now appeals against his conviction.
There was no issue that the undersized and setose lobsters had been consigned by the appellant, who is a professional fisherman, to the Geraldton Fishermen's Co‑operative. The illegal lobsters (as I shall refer to them) were found by two fisheries officers carrying out western rock lobster inspections on 21 April 2002.
The appellant consigned 39 baskets of lobsters on that day. The fisheries officers checked 23 baskets. The other 16 baskets had already been processed by the factory staff and were not inspected.
The illegal lobsters were put into five baskets by the fisheries officers and kept in a live holding facility at the Geraldton Fishermen's Co‑operative. They were taken to Port Gregory on 25 April, when the appellant was given an opportunity to inspect the contents of the five baskets, which he did.
The appellant had been a professional fisherman for about 35 years and was duly licensed to operate a commercial vessel fishing for western rock lobsters. He had an unblemished record. In the period 22 November 1997 to 20 April 2002, the appellant's catch had been inspected by fisheries officers on 13 occasions and no illegal lobsters had been found.
The appellant's evidence was that in April 2002, following his usual practice, he fished out of the North Island of the Abrolhos Group of Islands. The appellant's fishing vessel ("Octagonal") was owned by the company PM & J Burnett Holdings Pty Ltd. The appellant was the master of the vessel. His crew consisted of his son, Joel Burnett, and a deckhand named Quentin Williams.
Joel Burnett was solely responsible for determining the legality of the catch. He had commenced employment with the appellant when he was 15 years old. He was 22 years old in 2002. The appellant trained him to gauge and check western rock lobsters over a three week period early in his employment, when they worked side by side. The training involved gauging the lobsters and returning any undersized specimens to the sea. Any lobsters of doubtful size were handed to the appellant to gauge so that the appellant could explain to his son whether they could be retained in the catch or returned to the sea.
The appellant also instructed his son to identify setose lobsters. His instruction to his son was that if there was any doubt about the legality of a lobster, it should be returned to the sea.
Initially, the appellant checked his son's work every two to three weeks.
By 2002, Joel had been gauging the catch for seven years. Initially, the appellant checked his son's work weekly. By 2002, the frequency of the appellant's spot checks had decreased to every four to six weeks.
The appellant's evidence was that he had every confidence in the way his son carried out his work. He said there had been no blemish in Joel's work for the previous three years. The appellant's confidence in his son was not based only on his skill in assessing the legality of lobsters. The appellant had discussed with his son the penalties under the Act, including large fines for consigning illegal lobsters, leading to the eventual loss of the fishing licence.
Further, Joel leased lobster pots from his mother, which gave him a 25 per cent interest in the catch.
The learned Magistrate clearly accepted the evidence given by the appellant about the way he had trained his son and about the confidence he had in his son's ability. The Magistrate said:
"In this case the [appellant] properly delegated the task of identifying illegal lobster to his son a very experienced fisherman, and experienced in this task, with an unblemished record of eleven years." (reasons, page 12)
A little later in his reasons, the Magistrate said:
"The evidence clearly established Joel Burnett was suitably experienced and properly instructed."
The Magistrate said also:
"In relation to the training and education which Joel Burnett received and his experience as at 21 April 2002 there is no reason to doubt the [appellant] was entitled to have confidence in his son's competence and reliability in identifying and returning to the water illegal lobsters." (reasons, page 7)
The appellant's evidence was that he did not tell his son about the illegal lobsters which had been discovered on the inspection of 21 April, until they were returning from fishing on 23 April. Joel's reaction was to say that it was not possible. However, the appellant checked the whole of the catch for the two days following the consignment of 21 April. He said it contained no undersized or setose lobsters.
On 25 April, when the fisheries officers placed the baskets of illegal lobsters on the deck of the Octagonal, Joel Burnett said they were not lobsters caught on that vessel. The illegal lobsters were red in colour, suggesting that they had been caught in shallow waters, whereas the appellant and his son had been fishing in deep waters. They said that the lobsters they had caught were pale in colour.
Joel's evidence was that the illegal lobsters were so blatantly setose that they could not have been mistakenly judged to be legal.
As to the colour of the lobsters, there was evidence from Dr Roy Melville‑Smith, the principal research scientist at the Department of Fisheries who said that there was a tendency for darker coloured lobsters to be found in shallow water and for the lighter coloured lobsters to be found in deeper water. However, his evidence was that this was a generalisation and that the colour of lobsters also changed, regardless of depth, depending on whether they were found on a sandy or a rocky bottom.
The Magistrate apparently accepted this evidence: reasons, page 3.
The appellant's evidence was that the catch consigned on 21 April was the result of four days' fishing. At the end of each of the first three days, the catch was placed under the appellant's jetty in wooden crates so as to keep the lobsters alive. A wooden lid was nailed on to the top of each crate.
On the fourth day, the Octagonal was brought to the jetty. The first three days' catch was taken from the jetty and put on to the vessel in circulating water together with the fourth day's catch. The entire catch was then taken to Port Gregory and consigned to the Geraldton Fishermen's Co‑operative.
Given the appellant's confidence in his son's expertise, both generally and as a result of the close inspection of the catch on 23 April, the appellant concluded that someone must have tampered with the first three days' catch while it was stored under his jetty. However, the Magistrate regarded this contention as speculative and noted that there was no actual evidence of tampering.
The appellant relied on two defences. The first was raised under s 23 of the Criminal Code (WA). Relevantly for present purposes, s 23 provides that:
"… a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will …"
The appellant's contention was that he had not willed the act of consigning illegal lobsters.
The Magistrate held that "no defence of accident was raised on the facts" (reasons, page 2). This was a reference to s 23 of the Code.
The appellant contends in this appeal that the Magistrate erred in law in making that finding in that:
"(a)there was evidence that the illegal Western Rock Lobster consigned by the Appellant was not taken by him as being bright red in colour when the lobster taken by the Appellant was from deep waters and of a pale colour.
(b)there was evidence that other persons had access to the Appellant's catch under the jetty at North Island and able to place illegal lobster in the Appellant's catch without the knowledge of the Appellant and such evidence was not speculative and unlikely to have occurred as so found by the Learned Magistrate."
In my view, the Magistrate was correct to reject the s 23 defence. That is because the relevant act was that of consigning the catch containing the illegal lobsters: and the appellant did consign his catch.
In Geraldton Fishermen's Co‑operative Ltd v Munro [1963] WAR 129 at 132, the Full Court held that:
"It has hitherto been accepted in this Court that the act or omission mentioned in s. 23 is a physical act or omission forming an element of the offence charged, and does not comprehend the totality of the elements of the offence where, for instance, the offence is the possession of an article possessing a particular characteristic. It has been accepted that if the defence alleges ignorance of the relevant characteristic the matter falls to be decided under the category of mistake under s. 24."
In my view, that passage governs the present case. The appellant here does allege "ignorance of the relevant characteristic": namely, the illegality of the 184 lobsters in the catch he consigned.
I therefore turn to the appellant's second defence, under s 24 of the Code. Section 24 provides:
"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist."
The relevant question in the present case was whether the appellant honestly and reasonably believed that each one of the lobsters consigned by the appellant on 21 April was legal: Starling v Ostrowski [2000] WASC 173 at [26]. There is no doubt that the appellant honestly believed that to be the case: and that his belief was mistaken. The issue is, therefore, whether the appellant's belief was reasonable.
Whether or not a mistake is reasonable, is a question of fact: Pearce v Stanton [1984] WAR 359 at 363.
Reasonableness is to be judged objectively, but having regard to the policy of the Act, which is a species of protective legislation.
In considering the s 24 defence, the Magistrate noted that the risk of consigning illegal lobsters was one which any reasonable fisherman must consider. He said:
"In most cases, the gauging and inspection of lobsters is a task delegated to a crew member, but a skipper bears eventual responsibility to consign only legal lobsters. In exercising that responsibility he is required to ensure that the system of inspection used is appropriate and that those who carry out the task are suitably experienced, properly instructed, and supervised: Servaas v Segars, unreported; SCt of WA; SJA 1118 of 1996 per Wheeler J."
The Magistrate went on, as I have noted above, to refer to the evidence which "clearly established Joel Burnett was suitably experienced and properly instructed". The Magistrate continued:
"However supervision of fishery operations is an ongoing responsibility. The defendant's original practice of taking a basket of lobsters to spot check on the way home from fishing when his son was very young and inexperienced clearly discharged that responsibility and minimised the risk of consigning illegal lobsters. While the defendant could properly be satisfied by April 2002 that there was no risk of consigning illegal lobsters due to lack of experience or proper instruction the risk of human error always remained. Logically that risk would increase with the intervals between spot checks. The evidence establishes the defendant recognised the existence of the risk by having a system of spot checks and in my view a reasonable person in the position of the defendant would have incorporated a system of carrying out spot checks much more frequently than once every four to six weeks. He was on his own evidence able to carry out spot checks by selecting a basket for inspection on the way home from fishing expeditions when his son first started working and, while it may be accepted he was entitled to be satisfied such frequent inspection was not necessary in April 2002 with a very experienced son as the delegated crew member, spot checks only once every four to six weeks were manifestly inadequate, and the mistake made by the defendant is not the sort of mistake a reasonable person in the position of the defendant might make."
It is, I think, implicit in this passage that the Magistrate found that the appellant's catch contained illegal lobsters as a result of "human error" on the part of Joel Burnett. The only other explanation was that the catch had been tampered with: a possibility which the Magistrate regarded as speculative and not supported by any evidence.
The appellant's ground of appeal based on s 24 is in the following terms:
"1.The Learned Magistrate having concluded that the Appellant honestly believed that the Western Rock Lobster consigned by him were not illegal lobster, erred in law and in fact in concluding that the Appellant's honest belief was not a reasonable one in that:-
(a)the Appellant adopted a practice of instruction and of checks common in the Fishing Industry to ensure that no illegal Western Rock Lobster was consigned by him.
(b)the learned Magistrate found that the Appellant properly delegated the task of identifying illegal lobster to his son Joel Ryan Burnett whom he found to be a very experienced fisherman and experienced in this task with an unblemished record of eleven years which included the period November 1997 - April 2002 when the Appellant's consignment was subject to random inspections by Fisheries Officers on 13 separate occasions without blemish.
(c)having found that the said Joel Ryan Burnett was suitably experienced and properly instructed, the Appellant was entitled to have every confidence in him to ground a reasonable belief that no illegal Western Rock Lobster had been consigned."
That ground of appeal does not refer to the rejection of the appellant's contention that his catch had been tampered with. However, the matter was addressed in submissions and argument and it is therefore appropriate that I should consider it.
As I have noted above, the appellant's evidence was that the catch consigned on 21 April was the result of four days' fishing. The Magistrate appeared to have accepted this evidence: he referred to "fishing operations over the four day period 18 to 21 April": reasons, page 7.
However, later in his Honour's reasons, the Magistrate appeared to have thought that the catch consigned on 21 April was the result of three days' fishing.
His Honour said:
"There was evidence of conflict between fishermen on the Island and in particular between the defendant and his son and another fishermen who operated a jet boat and who could have placed the illegal lobsters in the defendant's stored crates below a shared jetty while the defendant was out fishing. There was no evidence that this had in fact occurred prior to this consignment or since then. The total consignment consisted of 39 crates and illegal lobsters were discovered in each of 23 crates seized by fisheries officers. The remaining 16 crates had already been emptied at the processing facility before inspection began and it is not possible to determine whether illegal lobsters were contained in any or all of those crates. One can reasonably infer that the 23 crates inspected were the product of 2 days fishing on the basis that 3 days fishing produced 39 crates. It would follow therefore that if the alleged lobsters were placed in the defendant's crates by another person that this occurred on two separate days, or on one day after 2 days catch was stored below the jetty. The third day's catch, which was not stored below the jetty, could not have been tampered with as alleged. In any event it seems reasonable to infer that some time would have had to be spent in retrieving 23 crates removing the lids, randomly placing various numbers of illegal lobsters in each of those crates replacing and renailing the lids and returning the crates to the water. Assuming this did in fact occur it would also seem to follow that the only crates inspected by the fisheries inspectors were those containing lobsters caught on the first two days fishing. In the circumstances the suggestion of illegal tampering with the defendant's catch seems unlikely and a matter of speculation …"
This reasoning proceeds on the basis that the appellant's daily catch was about 13 crates. However, given that the catch was the product of four days' fishing, not three, the daily catch would have been about 10 crates.
Clearly, if the appellant's contention was correct, only the crates stored under the jetty could have been tampered with. But these would have amounted to some 30 crates, not 23 crates, as the Magistrate assumed.
It appears that one of the reasons the Magistrate considered the tampering contention to be implausible was that it would have been unlikely that the 16 crates which (on his Honour's view of the evidence) were the product of the final day's fishing, and which contained only legal lobsters, were the ones which happened to have been taken out of the total consignment and processed before the inspection of the balance of the consignment. However, assuming that there had been some 30 crates stored below the jetty, it was possible, if three days' catch had been tampered with, that the 16 crates processed before inspection also contained illegal lobsters. Some of those crates must have been stored below the jetty.
Therefore, the appellant's contention that someone had tampered with his catch, viewed objectively, was less unlikely than the Magistrate thought to be the case.
Further, the fact that there was no evidence of tampering is not itself determinative. That is because no attempt had been made by the appellant or his son to investigate whether there had been any tampering: and the opportunity for making that investigation was lost.
There could have been only two explanations for the presence of the illegal lobsters in the appellant's catch. Either Joel Burnett had failed, over a three or four day period, to carry out his duty to his usual high standard; or someone had interfered with the appellant's catch.
If the latter, the appellant's belief that the whole catch was legal, was, in fact, justified. And that was so, even though the appellant's practice was only to carry out checks on his son's work every four to six weeks. But because the Magistrate did not accept that there was any possibility of the catch being tampered with, error on the part of Joel Burnett was the only explanation for the presence of illegal lobsters in the catch.

In Ostrowski v Zaza (1999) 108 A Crim R 350, a charge against the respondent of having consigned 27 undersized lobsters contrary to the Act was dismissed. An appeal against that decision was unsuccessful.
Zaza's case (supra) has some similarities with the present case. The respondent was an experienced fisherman and skipper who relied on a member of his crew, a Mr Lee‑Wilson, in whom he had justifiable confidence, to grade the lobsters caught from his vessel.
Neither the respondent nor Mr Lee‑Wilson had been prosecuted previously for a fisheries offence.
Because of the degree of confidence reposed by the respondent in Mr Lee‑Wilson, he did not himself check to see whether the lobsters were undersized. The respondent commanded his vessel from the wheelhouse from where he had a clear view of the pots as they were winched on board, and he could see the undersized lobsters being dropped back into the water. In that way he had a "good gauge" of the proportion of the lobsters being returned to the sea. The respondent had not regularly performed the task of measuring lobsters for some nine years. His evidence was that he took "a stroll around" the deck "every now and then" and checked Mr Lee‑Wilson's measuring "periodically", although he had not done so on the day in question.
The appeal was heard by Heenan J. His Honour referred to Ruljancich v Pearce, unreported; SCt of WA; Library No 2810; 9 January 1980 in which Burt CJ expressed the view that the skipper of a fishing boat who delegates the measurement of rock lobsters to a member of his crew should check the measurement "if there is any reason at all for him to suppose that the lobster would measure short".
In considering that question, Heenan J said:
"Clearly the respondent satisfied the learned Magistrate that the system which he employed was appropriate, that Mr Lee‑Wilson was experienced and reliable, that he had good grounds for believing that the latter not only knew but applied the correct method of measuring rock lobsters and that his own supervision was adequate.
…
… if I had tried the case, I may not have been satisfied that there were grounds for a reasonable belief that the measurement was done correctly unless the respondent had taken, in his words, 'a stroll around' the deck and had checked Mr Lee‑Wilson's measuring at least several times that day.
However, in this case a great deal depended upon the assessment by the learned Magistrate of the credibility of the respondent not only as a witness but also as the skipper of a fishing boat operating within a highly protected industry and, in particular, as a skipper with a long and close relationship with the crew member to whom he entrusted the task of measuring rock lobsters. Having had the benefit of hearing and seeing the respondent give evidence and being cross‑examined quite extensively his Worship formed a favourable impression of him in that capacity. In the absence of any evidence tending to show that, before the fisheries officers intervened, there was reason to suspect that Mr Lee‑Wilson was not measuring the lobsters in satisfactory fashion, I am unable now to conclude that the respondent should have done something other than what he did."
In the present case, the Magistrate did form a favourable impression of the appellant: and he held that the appellant's confidence in his son's ability was justified.
The Magistrate did not accept that there was any possibility that the appellant's catch had been tampered with, but, as I have noted above, his Honour reached that conclusion on an erroneous appreciation of the evidence. It was not, therefore, necessary for the Magistrate to make any assessment of Joel Burnett's credibility: and his Honour did not do so.
However, if the Magistrate had accepted Joel Burnett's evidence, then there must have been circumstantial evidence that the appellant's catch had been tampered with, despite the lack of actual evidence of tampering.
Further, in those circumstances, it would have been open to the Magistrate to find that, as in Zaza's case (supra), the appellant's belief in the legality of the entirety of his catch was a reasonable belief.
The position is, therefore, that on the view I take, the Magistrate made an error of fact in reaching his conclusion.
In an appeal such as this, it is not possible for findings of credibility to be made. However, because the Magistrate reached his conclusion without making express findings of credibility and on a mistaken view of the evidence, I think it would be unsafe to allow the appellant's conviction to stand. I therefore consider the appropriate course is to allow the appeal on the s 24 ground, to the extent of quashing the conviction and ordering a re‑trial before a different Magistrate.