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…

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 Burnett v Ostrowski

Details

AGLC: Burnett v Ostrowski [2007] WASC 69
Case: [2007] WASC 69
Decision Date: 29 MARCH 2007

CaseChat Overview and Summary

The case of Burnett v Ostrowski was heard by the Supreme Court of Queensland, where the defendant, Ostrowski, faced charges for illegal consignment of lobsters. The dispute centred around whether Ostrowski had contravened the Fisheries Act by storing the last day's lobster catch live under a jetty before consignment, a practice that was illegal under the legislation. The prosecution argued that this was a regular practice, while the defence contested that the evidence did not substantiate the likelihood of tampering with the lobsters during the storage period.

The primary legal issue before the court was whether the evidence presented by the prosecution was sufficient to establish that the defendant's actions constituted an offence under the Fisheries Act. The court needed to determine if the evidence demonstrated a likelihood that the lobsters had been tampered with while stored under the jetty, which would be a breach of the statutory requirements. Additionally, the court had to consider whether the failure to store the lobsters on the last day of the catch constituted a departure from the usual practice that would imply guilt by omission.

The court found that the evidence did not conclusively demonstrate that the lobsters were tampered with while stored under the jetty. The court held that while the practice of storing lobsters under the jetty was illegal, the evidence did not establish a likelihood that tampering occurred on the last day when the lobsters were not stored in that manner. The court reasoned that the absence of storage did not necessarily imply an intent to tamper and that the prosecution had not proven the defendant's guilt beyond a reasonable doubt. Consequently, the charges against Ostrowski were dismissed.

As a result of the court's findings, the defendant was acquitted of the charges. The court's decision hinged on the insufficiency of the evidence to prove that the lobsters were tampered with during storage under the jetty, and the absence of such storage on the last day did not constitute a breach of the Fisheries Act.

Orders