Cole v Firkins
[2004] WASCA 24
•27 FEBRUARY 2004
COLE -v- FIRKINS [2004] WASCA 24
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 24 | |
| Case No: | SJA:1023/2003 | 6 MAY 2003 | |
| Coram: | EM HEENAN J | 27/02/04 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction set aside Complaint remitted for rehearing | ||
| B | |||
| PDF Version |
| Parties: | DARREL MOWBRAY COLE JAMES BENJAMIN WILLIAM FIRKINS |
Catchwords: | Appeal Justices Act 1903 Civil Aviation Regulations 1988 (Clth) Appeal against conviction and sentence Defence of honest mistake Failure to record on maintenance release the total time in service of the aircraft |
Legislation: | Civil Aviation Regulations 1988, reg 43B Crimes Act 1914 (Clth), s 16A Justices Act 1903, s 187 |
Case References: | Attorney-General's Reference No 1 [1979] WAR 45 Bergin v Stack (1953) 88 CLR 248 Director of Public Prosecutions v Morgan [1976] AC 182 Gherashe v Boase [1959] VR 1 He Kaw Teh v R (1985) 157 CLR 523 Khammash v Rowbottam (1989) 51 SASR 179 Minister for Immigration v Wang (2003) 77 ALJR 786 Proudman v Dayman (1941) 67 CLR 536 State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 Von Lieven v Stewart (1990) 21 NSWLR 52 Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 Cobiac v Liddy (1969) 119 CLR 257 Piva v Brinkworth (1992) 64 A Crim R 239 House v R (1936) 55 CLR 499 Lanham v Brake (1983) 74 FLR 285 R v Ingrassia (1997) 41 NSWLR 447; 13 A Crim R 293 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
JAMES BENJAMIN WILLIAM FIRKINS
Respondent
Catchwords:
Appeal - Justices Act1903 - Civil Aviation Regulations 1988 (Clth) - Appeal against conviction and sentence - Defence of honest mistake - Failure to record on maintenance release the total time in service of the aircraft
Legislation:
Civil Aviation Regulations 1988, reg 43B
Crimes Act 1914 (Clth), s 16A
Justices Act 1903, s 187
Result:
Appeal allowed
Conviction set aside
Complaint remitted for rehearing
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Category: B
Representation:
Counsel:
Appellant : Mr J G Kitto
Respondent : Mr G T J Farley
Solicitors:
Appellant : Kitto & Kitto
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Attorney-General's Reference No 1 [1979] WAR 45
Bergin v Stack (1953) 88 CLR 248
Director of Public Prosecutions v Morgan [1976] AC 182
Gherashe v Boase [1959] VR 1
He Kaw Teh v R (1985) 157 CLR 523
Khammash v Rowbottom (1989) 51 SASR 179
Minister for Immigration v Wang (2003) 77 ALJR 786
Proudman v Dayman (1941) 67 CLR 536
State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721
Von Lieven v Stewart (1990) 21 NSWLR 52
Case(s) also cited:
Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Cobiac v Liddy (1969) 119 CLR 257
Piva v Brinkworth (1992) 64 A Crim R 239
House v R (1936) 55 CLR 499
Lanham v Brake (1983) 74 FLR 285
R v Ingrassia (1997) 41 NSWLR 447; 13 A Crim R 293
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1 EM HEENAN J: On 26 February 2003, the appellant, Darrel Mowbray Cole, was convicted by her Worship Ms P Hogan SM after a trial in the Court of Petty Sessions Perth of an offence established by reg 43B of the Civil Aviation Regulations 1988 (Clth) in that, on 2 December 1999 at Perth he, being the operator and pilot in command of aircraft VH-HCK, on the completion of flying operations on that day when the aircraft was flown failed to record on the maintenance release the total time-in-service of the aircraft on that day. As a result of that conviction the appellant was fined $150 and ordered to pay costs fixed by her Worship at $66.20. He now appeals from that conviction and penalty by leave granted by Wheeler J on 24 March 2003 under the provisions of s 187 of the Justices Act 1902.
2 Regulation 43B of the Civil Aviation Regulations 1988 as it applied in this case is in these terms:
"43B Time-in-service to be recorded on maintenance release
On the completion of flying operations on each day that an aircraft is flown, the owner, operator or pilot in command must record on the maintenance release the total time-in-service of the aircraft on the day.
Penalty: 25 penalty units."
- "Time-in-service" was accepted by the parties, in the proceedings before the learned Magistrate and on this appeal, as being the aggregate of the periods during which a particular aircraft was in the air on any given day. It is defined this way by reg 2. It is the time which elapses from when the aircraft's wheels leave the ground at the commencement of a flight until the time the wheels touch down at the conclusion of the flight. If the aircraft makes several flights in one day, as this aircraft did, then the total time in service is the aggregate of each of those periods for the given day.
3 A maintenance release is a document which may only be issued by authorised persons and only in such manner and in accordance with such form as the Civil Aviation Service Authority ("CASA") directs or approves – reg 43(1). A maintenance release contains provision for a variety of information to be recorded promptly and kept relating to the operations of a particular aircraft under the authority of the regulations. By this means it is possible for any person, including an inspector, to tell from a scrutiny of the aircraft maintenance release whether, in any particular respect, the aircraft is due for maintenance, service or repair having regard to the regulations and maintenance criteria which apply to
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- that particular aircraft. It will be obvious, therefore, that if a maintenance release is not promptly and correctly completed or if it were to be completed with false or inaccurate information, it may not be possible to determine reliably when further maintenance, repair or service of the aircraft is due and that this may have a corresponding detrimental effect upon air safety.
4 On 2 December 1999 the appellant held the Air Operators Certificate for the business of Kookaburra Air which conducted charter operations and other aerial work out of Jandakot Airport, Perth, to various places within the State of Western Australia and in the Northern Territory. On this day he was the pilot in charge of aircraft VH-HCK, a Cessna 340A. The learned Magistrate found that the appellant made four flights in that aircraft on 2 December 1999 the details of which, including flight durations, were as follows:
(a) departure from Jandakot at 0421 hours landing at Leonora at 0603 hours (time in service 1 hour 42 minutes);
(b) departure from Leonora at 0650 hours landing at "the Granites" mine site in the Northern Territory at 1020 hours (time in service 3 hours 30 minutes);
(c) take off from "the Granites" at 1220 hours landing at Leonora at 1528 hours (time in service 3 hours and 8 minutes);
(d) take off from Leonora at 1615 hours landing at Jandakot at 1810 hours (time in service 1 hour 55 minutes).
- These findings as to take off and landing times and flight durations were made with the adjustments necessary to allow for differences in local time between Western Australia (WST) and in the Northern Territory (cST) on the day and, therefore, represent actual elapsed times. It was common ground that in December 1999 the local time in the Northern Territory was 1 hour and 30 minutes in advance of local time in Western Australia.
5 It is to be observed that the sum of the elapsed times as found by the learned Magistrate is 9 hours and 35 minutes. It is important to note that her Worship expressly stated that her findings were approximate times. For example, the departure time of 0421 hours from Jandakot Airport on the morning of 2 December 1999 was the time at which the call was given from the control tower to the plane to allow it to leave. Some additional time will have passed while the aircraft taxied into position and then,
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- depending upon a number of external factors, took off. Similarly, with take offs and landings at the other airports it is apparent that her Worship reached her findings about the relevant times by having regard to evidence of other witnesses about time spent on the ground at Leonora and at the Granites and that no precise attention was devoted to the time elapsing from touch down to when the aircraft came to rest and the passengers alighted or, for that matter, for the time spent between the point when the aircraft left the rest position, taxied to the end of the runway, prepared for take off and then when its wheels left the ground. As there were four take offs and four landings by this aircraft on the particular day it is clear that the time spent in the intervals between landing and final rest at any stop, and then moving off from rest, taxiing and take off to the point of lift off may each have been up to several minutes. Over the day it is quite possible that that time could easily amount to somewhere between 10 and 25 minutes or thereabouts. The potential significance of this will need to be considered later in these reasons.
6 The trial before her Worship in the Court of Petty Sessions proceeded over four days, 7 and 8 November 2002 and 24 and 25 February 2003, and her Worship gave her decision on the morning of 26 February 2003. Initially, six charges under the Civil Aviation Regulations were laid against the appellant. Two were dismissed or abandoned earlier in the proceedings in circumstances which were not explained on this appeal. Four remaining charges proceeded and resulted in the conviction of the appellant on this charge and the dismissal of each of the other three. Those other three charges had alleged that the appellant had made false statements to an authorised inspector and false entries in his log book and in other flying documents about the total duration of flying time of the aircraft on 2 December 1999.
7 One of those charges alleged that the appellant had falsely stated that the time-in-service of the aircraft VH-HCT for 2 December 1998 was 9 hours 48 minutes and evidence was called for the respondent in an attempt to prove that the minimum duration of the time-in-service for that aircraft that day was 11 hours and 18 minutes based on a reconstruction of the distance travelled, the aircraft engine capacity, prevailing weather and certain assumptions made about time spent on the ground for refuelling at the intermediate stops. That charge was dismissed because the learned Magistrate was not satisfied about the reliability of the respondent's expert evidence and, indeed, expressly stated that she accepted the evidence of the appellant's expert which "supports the defence case that the flight times are essentially as recorded in the relevant documentation". In the context of this trial and of her Worship's reasons for decision, this can
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- only be a positive finding that the time-in-service of the aircraft on 2 December was not proved to be 11 hours and 18 minutes or thereabouts but was, essentially, 9 hours and 48 minutes or thereabouts as recorded by the appellant in the maintenance release.
8 Having regard to the significance which must be attached to the dismissal of this particular charge and the express finding by her Worship that the time-in-service of the aircraft on that day was essentially 9 hours and 48 minutes, nothing can be regarded as turning on the difference between this period and the 9 hours and 35 minutes time elapsing between the flight times specifically found by her Worship. Apart from the limits of approximation which her Worship expressly stated, the difference can, on the probabilities, be attributed to the time the aircraft was on the ground immediately after touchdown and before coming to rest and then, at each take off, the time passing between departure from the rest position to the point of take off - processes repeated on eight occasions that day.
9 On 13 December 1999 the appellant was interviewed by an inspector from the Department of Civil Aviation, Mr Seager, and asked to produce, among other things, the maintenance release for aircraft VH-HCK for its operations on 2 December 1999. The appellant provided Mr Seager with a photocopy of that document which, under the column for aircraft time-in-service, expressed in hours and minutes were the figures "09:48". On 16 December 1999 Mr Seager returned and demanded the production of the original maintenance release for the aircraft and this was handed to him. It, too, showed an entry for 2 December 1999 with the figures "09:48" in the column under hours and minutes for aircraft time-in-service. It can be taken that this recording of the time elapsed while the aircraft was in service that day is essentially correct in accordance with the findings which her Worship made. If that were not so then, having regard to the manner in which these prosecutions were conducted, the other charge against the appellant which I have described would not have been dismissed.
10 The problem for the appellant, at trial and on this appeal, was that it was obvious, indeed admitted, that the entry of 09:48 appearing for 2 December 1999 under the entry "aircraft time-in-service" was an alteration. At some time, which does not emerge from the evidence, an earlier entry was painted over by liquid paper and the figures of "9:48" were substituted. It appears that this occurred some time after 2 December but before 13 December 1999 when Mr Seager first asked to see this record. The reason given by the appellant for this change was that he had made the alteration to correct an inadvertent error.
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11 Unchallenged opinion evidence from an expert document examiner adduced for the respondent established that there were two, at least, alterations to the maintenance-in-service effected by this process for 1 and 2 December 1999 respectively. The original entries, later obscured by the liquid paper, and the altered entries for each day were:
"1 December 1999
Original 30/11 ... 9.7
Altered 1/12 ... 6.57
2 December 1999
Original 2/12 ... 3.2
Altered 2/12 ... 9.48"
12 In evidence the appellant said that at the completion of flying on 2 December 1999, and after his return to Jandakot, he entered up the time-in-service by inserting in the column "9.7 [hrs]" but inadvertently made that entry on the line for 1 December and not for 2 December. It seems that there was also an earlier mistake in the dates entered in the maintenance-in-service which could possibly have contributed to this error if it was one. He then said that he later discovered the error and corrected it by putting in the figure of 9:48 for 2 December 1999 and that this was the correct figure. However, the situation was more complicated because the corrections made involved also changing the date from 30/11 to 1/12 and substituting a figure of 6.57 for the original entry of 9.7. A further complicating factor was that the alteration made to the entry for 2/12 by inserting the figures 9:48 replaced an entry of 3.2 which had earlier been made against that date.
13 Clearly, the aircraft had been in service on 2 December 1999 for much longer than 3.2 hours, so it is very difficult to make sense of the former entry of 3.2 first recorded against that date. Under cross-examination on this point the appellant could only say that he perhaps entered 3.2 hours against that date as a mistaken impression of the duration of one of the legs of the flight that day, being one of the legs between Perth and Leonora when the aircraft was flying according to instrument flight rules. This seems to be most implausible for several reasons. First, there would be no occasion to enter a figure in the aircraft time-in-service for a day's flying before the journey was completed or the day over and, secondly, the figure entered does not match either of the
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- legs between Leonora and Perth (the instrument flight rule trips) nor does it correspond exactly with any other leg of the journey that day. The learned Magistrate did not accept this explanation and said: "The defendant's evidence on the information he recorded on 2 December 1999 was most unimpressive". Her Worship rejected the defence of honest mistake, saying:
"Here the defendant's case is not that he honestly believed that the time in service was 3.2. It is effectively that he was tired, he wasn't thinking and so on. Now, I am satisfied beyond reasonable doubt that the entry made on 2 December was 3.2. I do not accept the defendant's evidence that he also wrote 9.7 or added 9 to a 7 on another line and I find that the defence of honest mistake is not available from the facts presented and on that basis I find that the first charge, that is Charge No 24351, is proven."
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15 An examination of the original maintenance-in-service document (exhibit 10) shows that there is over-writing in the date column with apparent alterations to the dates for the entries 29/11; 1/12 and 2/12 suggesting that there may have been an earlier error which caused a short sequence of subsequent derivative errors. But the corrected version shows that the last entry before the corrected entry 02/12 was 01/12 and that there is no entry of 3.2 hours for aircraft time-in-service for any day included on that document. It is little wonder, therefore, that her Worship concluded that the appellant's evidence was unimpressive but there is no escaping the fact that an entry was made on the document dated 30/11 for 9.7 hours and that it was later obliterated and changed to 1/12 and 6.57 hours and that a figure of 3.2 hours appearing for 2/12 was altered to 9:48 hours [9 hours and 48 minutes equals 9.8 hours].
16 There is, therefore, clearly a possibility that the obliterated entry 30/11 – 9.7 was made after this flight intending that it should be an accurate entry for the flying undertaken on 2 December 1999. Yet this possibility, real though it is, fails to explain how the corrected entry for 1/12 of 6.57 hours which, presumably, was the time-in-service for the aircraft for the day before this flight and an entry which should have been already recorded on the maintenance-in-service before this alleged mistake, came to be made. It also still leaves the original entry for 2/12 at 3.2 at least as incongruous as before. Several possible explanations come to mind. There may have been some systemic error in the maintenance-in-service which caused or contributed to these peculiarities. Or, there may have been, alone or in combination, a failure to record on the maintenance-in-service either at all, or accurately, the time-in-service of the aircraft on other days, so that when this correction was made the incongruities identified appeared. These potential explanations may or may not involve breaches of reg 43B on other occasions but, even if they do, the appellant had not been charged with any such offence.
17 Stripping away the areas of doubt or controversy and focusing on the facts which it was necessary for the respondent to prove to establish this charge must be the course preferred to other conjecture. The respondent needed to prove, beyond reasonable doubt, that on 2 December 1999, at the end of the day's flying the appellant either failed to make an entry in the maintenance release for the total time-in-service of the aircraft on that day or made a false entry for the total time in service. The evidence established, to the satisfaction of the learned Magistrate, that 9.7 hours or 9 hours and 48 minutes was essentially a correct statement of the total time in service of the aircraft that day. The expert forensic document opinion evidence, established beyond dispute, that an entry of 9.7 hours
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- against a date 30/11 on the maintenance release had been made but later was blotted out and replaced by a different entry for 1/12. A similar process of alteration to the record showed that a corrected figure of 9:48 had been inserted against the date 2/12 in place of the figure of 3.2 which remains unexplained. The evidence of the appellant was that he had entered the figure of 9.7 in the maintenance-in-service at the end of the flight on 2 December 1999 but had mistakenly entered it against the date 30/11. This explanation does not appear to account for the other incongruities which I have already mentioned.
18 It is in this situation that the appellant's defence of mistake needs to be considered and in a situation where, for reasons already explained, it must be accepted that the learned Magistrate erred in rejecting the defendant's evidence that he wrote 9.7 or added 9 to a 7 on another line in the maintenance-in-service document. On the defence of mistake her Worship referred to the decision of the High Court in Proudman v Dayman (1941) 67 CLR 536 which counsel for both parties had correctly submitted, set out the applicable principle. In dealing with the defence of mistake her Worship went on to say:
" --- that case clearly establishes that for the defence to succeed there must have been a positive mistaken belief in facts which, had they existed, would have made the defendant's conduct innocent. In that particular case the defendant had not cast her mind to the question whether the driver in that case was licensed or not. The charge was something along the lines of permitting an unlicensed person to drive a vehicle.
Here the defendant's case is not that he honestly believed that the time in service was 3.2. It is effectively that he was tired, he wasn't thinking and so on ---
...
I find that the defence of honest mistake is not available on the facts presented --- ."
19 The learned Magistrate was, with respect, correct in observing that for the defence of mistake to succeed there must have been a positive mistaken belief in facts which, had they existed, would have made the defendant's conduct innocent.
20 The Proudman v Dayman defence, as it has come to be called at common law, is a defence that the accused held an honest and reasonable
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- belief in a state of facts, which had they existed, would make his act innocent. So the mistake must be both honest and reasonable. However, where the offence charged involves a particular ingredient of mens rea, whether of knowledge, intention or otherwise, then a mistaken honest belief which is inconsistent with that mens rea, or mental ingredient of the particular offence will constitute a defence even if the mistaken belief is an unreasonable one: Attorney-General's Reference No 1 [1979] WAR 45 and R v Saragozza [1984] VR 187. In this case it was accepted by the respondent, at trial and on this appeal, that the offence established under reg 43B did include, as a necessary ingredient, a component of mens rea or knowledge, so that if there was an honest mistake by the appellant with regard to this ingredient, concerning facts, which if true, would have made his conduct innocent then a defence to the charge would exist. It is only in this particular sense that it is possible to say correctly that the appellant's honest mistake need not be a reasonable one.
21 There was no suggestion that the defence of honest mistake was unavailable on this charge because it alleged an offence of strict liability or for any other reason. The honest and mistaken belief held by the defendant does not have to be based upon reasonable grounds but the reasonableness of the belief may be pertinent to the question of whether it was actually held by the accused – Director of Public Prosecutions v Morgan [1976] AC 182; R v Saragozza (supra). The onus is on the prosecution to prove that the defendant did not have an honest and mistaken belief in relevant facts which could provide the defence, but there is an evidentiary burden upon the defendant to raise the issue – He Kaw Teh v R (1985) 157 CLR 523.
22 A mistake of law will not suffice, it must be a mistake as to the actual facts: Khammash v Rowbottom (1989) 51 SASR 179. The positive or affirmative nature of the mistaken belief necessary must involve the defendant attending to the relevant facts upon which the belief is based because ignorance or inadvertence will be insufficient: Gherashe v Boase [1959] VR 1 and Von Lieven v Stewart (1990) 21 NSWLR 52 per Handley JA at 66. This doctrine was reviewed by Gleeson CJ, with whom Cripps JA and Slattery A-J agreed, in State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721. The learned Chief Justice referred to the judgment of Dixon J in Proudman v Dayman (supra) in explaining the meaning of honest and reasonable mistake as a defence to a charge for a statutory offence as being that the defendant had reasonable grounds for believing in the existence of a state of facts which, if true, would take his act outside the operation of the enactment, and that on those grounds he did so believe. His Honour went on to explain that in a
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- number of different contexts courts have stressed the need to show an affirmative belief in a certain fact or state of affairs, as distinct from a mere absence of knowledge. In every case it is necessary to identify precisely what is the state of mind that is required for the establishment of an offence of which mens rea is an element.
23 In the present case the mental element includes the knowledge by the owner, operator or pilot in command of the total time in service of the aircraft on that day plus the implied obligation for that owner, operator or pilot in command to take adequate steps to ascertain the total time-in-service of the aircraft and then to record it in the maintenance release. Consistently with these principles, I consider that if an owner, operator or pilot in command honestly recorded the accurate total time in service of the aircraft for a particular day by entering that detail into the maintenance release but, when doing so, honestly and mistakenly recorded the wrong date beside the entry that would be a mistake of fact which would render the defence available. That would cast upon the prosecution the onus of proving, to the requisite standard, that the alleged mistake was not honest or, otherwise, that if the facts believed to be true had been true this would not have meant that no other offence would have been committed – see per Fullagar J in Bergin v Stack (1953) 88 CLR 248 at 262.
24 Having regard to the evidence at this trial and the defence relied upon by the appellant this means that it was necessary for the prosecution to prove, beyond reasonable doubt, that the appellant had not made an entry in the maintenance release on the evening of 2 December 1999 by which he recorded a total flying time of 9.7 hours with the intention of correctly recording that day's activities for the Cessna VH-HCK; or, that if he did so, he was not acting under any honest mistake in noting the date for the entry as 30-11-99 instead of 2/12/99 at a time when he made the alleged mistake about that day's date. If the appellant had made the entry of 9.7 hours on the evening of 2/12/99 intending that to be the record of the aircraft's time in service for that day and, if he had honestly mistaken the date causing him to make the entry against the figures 30/11/99, that would be a defence.
25 However, it is now apparent that the learned Magistrate rejected the defence because she mistakenly rejected the appellant's evidence that he wrote 9.7 on another line in the maintenance release, when it was common ground that he had done so at some time or another - although, it must be said, not necessarily on the evening of 2 December 1999 at the crucial time. From this it follows that, in my opinion, the appellant's
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- defence of honest mistake was rejected on erroneous grounds and because of this, the Court of Petty Sessions never made a decision upon the critical issues of whether or not the respondent had established, on the requisite standard of proof, that the defence of honest mistake should be dismissed.
26 Having regard to the incongruities in the evidence which I have identified, and the learned Magistrate's conclusion that the appellant's evidence was most unimpressive (which, however, may be a conclusion affected by her Worship's view that the appellant had never written the figures 9.7 on another line in the maintenance release), there is much about this case which remains unresolved. Not having the benefit of hearing and seeing the witnesses at the trial, and in particular the appellant in the course of his examination and cross examination, it is not possible for me to conclude that this defence of honest mistake must have been dismissed. Nor, for that matter, am I able to conclude that the decision which ought to have been made at the trial is that the charge be dismissed. In my view the issue of whether or not the defence of honest mistake has been disproved by the respondent has not been correctly resolved and there remains a prospect that a proper determination of the issues may result in the charge being dismissed as a result of decisions which may still need to be made on the issues of fact which I have identified. Where there remains a real prospect that the correct disposition of this case may require the dismissal of the charge, it is not possible to say that no substantial miscarriage of justice would occur if this appeal were to be dismissed at this stage notwithstanding that the points raised by the appellant might be decided in his favour – Justices Act, s 199(1)(b).
27 It follows that I consider that the appeal against conviction should be upheld but that the case should be remitted for hearing by another Magistrate. The adverse findings made by the original Magistrate against the credibility of the defendant turn out, to a certain degree, to have followed from a mistaken view of the evidence. Having reached an adverse view of the appellant's credibility in part on an erroneous basis at the trial, the learned Magistrate who first heard the case would be faced with the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle if the case were now to be remitted to her for determination – Minister for Immigration v Wang (2003) 77 ALJR 786 per Gummow and Hayne JJ at [74]. The appellant is entitled to have this charge determined by a court which has not already expressed a concluded view over these issues of credit on mistaken grounds.
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Appeal against sentence
28 The appellant also obtained leave to appeal against the penalty of a fine which was imposed upon him by the learned Magistrate. He submits that the correct disposition of this charge, in the event that he had been rightly convicted, would be for it to be disposed of without a conviction under s 19B of the Crimes Act 1914. In the light of the conclusion which I have reached on the appeal against conviction it is not strictly necessary for me to deal with the appeal against penalty but, in case my decision should be taken further, I consider that I should indicate briefly the decision which I consider should have been made upon this part of the appeal had it been necessary to determine it.
29 The power of the court to proceed under s 19B of the Crimes Act is plainly discretionary and the factors to be taken into account in exercising the discretion are specified by the statutory provision. It is clear that the learned Magistrate expressly addressed the statutory criteria relevant for the exercise of her discretion and, having examined them, was satisfied that none should be applied in this particular case in the exercise of that discretion. There is nothing to suggest that the discretion which the Magistrate possessed was not exercised by failing to consider it, nor that the possibility of its application was not canvassed with regard to the relevant criteria. Nor could it be suggested that the imposition of the fine imposed in the event of a conviction for this offence was outside the scope of any reasonable exercise of the discretion with regard to the imposition of penalty. It was for the learned Magistrate to decide whether or not to proceed under s 19B and, with respect, nothing has been established to lead to a conclusion that there was any error of principle in her Worship's decision to decline to exercise that discretion. Accordingly, had the conviction of the appellant not been set aside, I would have dismissed the appeal against the order for the imposition of a fine. As it is, the order for the fine is set aside by the order setting aside the conviction.
Conclusion
30 For these reasons I consider that the court should order that:
(a) the conviction of the appellant on Complaint No 24351 of 2002 of the Court of Petty Sessions at Perth for the offence of breaching reg 43B of the Civil Aviation Regulations 1988 on 2 December 1999 be set aside;
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- (b) that the charge under Complaint No 24351 of 2002 be remitted to the Court of Petty Sessions at Perth for rehearing before a different Magistrate.
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