Dietman v Feast - [2016] SASCFC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DIETMAN v FEAST
[2016] SASCFC 108
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
27 September 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING PROHIBITED TYPE OF FISH
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTATION - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
Appeal against a decision of a Judge of this Court, who allowed an appeal against a conviction in the Magistrates Court.
The respondent is a professional fisherman and the registered owner of the boat the Coral Raider. He was found guilty in the Magistrates Court of two offences against s 120(3) of the Fisheries Management Act 2007 (SA) (the Act). Section 120(3) deems a registered owner of a registered boat guilty of an offence if the boat is used in or in connection with the commission of an offence against the Act.
In October 2012, fisheries officers were conducting ‘Operation Banquet’ into the suspected scrubbing of southern rock lobsters, which are protected species under the Act. In the early hours of 14 October 2012, fisheries officers raised seven of the respondent’s pots. They found nine berried lobsters carrying external eggs. They microchipped these lobsters and returned all the pots to their original position in the water. Later, the respondent and his crewmember Mr McElroy raised the pots. The fisheries officers inspected the catch and found one of the micro-chipped lobsters was no longer carrying eggs.
The respondent was initially charged with taking a lobster carrying external eggs, contrary to s 71(1) of the Act (count 1); and with removing a lobster’s eggs, contrary to s 72(2) of the Act (count 3). Two alternative charges contrary to s 120(3) of the Act were laid: that ‘he or McElroy’ took a lobster carrying external eggs (count 2) and that ‘he or McElroy’ removed a lobster’s eggs (count 4). At trial, the prosecutor withdrew counts 1 and 3 because he could not prove beyond reasonable doubt that the appellant, as opposed to McElroy, committed the offence.
The trial proceeded on the basis that an offence against s 120(3) could be made out if any person aboard the boat intentionally removed eggs from the lobster, and that the s 71(3) defence did not apply. The appellant was found guilty of counts 2 and 4. The appellant appealed to a Judge of this Court.
The Judge held that the Magistrate did not err in finding that the eggs had been manually scrubbed from the lobster. The Judge however held that the charges were against both ss 120(3) and 71 and that the Magistrate erred in not considering whether the defence in s 71(3) applied. The Judge further held that counts 2 and 4 were bad for disjunctive duplicity and dismissed the complaint.
The appellant, the complainant at trial, appealed to this Court on the grounds that the Judge erred in finding that it was first necessary to prove that the respondent committed an offence against s 71 of the Act before the Court could find the respondent guilty of an offence under s 120(3); that the Judge erred in finding that the charges were bad for uncertainty and disjunctive duplicity; that the Judge erred in finding that the respondent could avail himself in law of the defence in s 71(3) and that he would have made out the defence if he had it available to him at trial; and that the Judge erred in law by construing the Act by reference to 'the principle of legality’.
The respondent contended that the Judge's orders could be supported on the alternative ground that the Judge erred in finding that a person, or persons, on the Coral Raider committed the offences contrary to s 71 of the Act.
Held per Kourakis CJ (Blue and Stanley JJ agreeing), allowing the appeal:
1.   The finding that the lobster was manually scrubbed while berried is affirmed (at [71]).
2. The identity of the persons who committed the offence in connection with the registered boat (the ‘referential offence’) is not an element of the offence against s 120(3) (the ‘boat use offence’). On a proper construction of s 120(3) of the Fisheries Management Act 2007 (SA), it stipulates only that a registered boat is used in the commission of the referential offence irrespective of the identity of the offender(s) (at [88]).
3.   The charges were not duplex or uncertain because the identity of the perpetrator is not an element of the boat use offence (at [101]).
4. It is not a defence to a prosecution of the registered owner under s 120 in respect of a contravention of s 71 that the owner did not act intentionally or negligently (at [111]).
5.   Convictions recorded in the Magistrates Court affirmed (at [112]).
Fisheries Management Act 2007 (SA) ss 71, 120; Fisheries Management (General) Regulations 2007 (SA); Statutes Amendment (Directors' Liability) Act 2013 (SA); Summary Procedure Act 1921 (SA); Crimes Act 1914 (Cth); Criminal Law Consolidation Act 1935 (SA); Statutes Amendment (Directors' Liabilkity) Act 2013 (SA) ss 267. 270A, referred to.
Romyeko v Samuels (1972) 2 SASR 529; Brinkworth v Dendy (2007) 97 SASR 416, applied.
Dietman v Feast [2015] SASC 148, not followed.
Johnson v Miller (1937) 59 CLR 467; Walsh v Tattersall (1996) 188 CLR 77; Thomas v Ducret (1984) 153 CLR 506; Mallan v Lee (1949) 80 CLR 198, considered.

DIETMAN v FEAST
[2016] SASCFC 108
Full Court: Kourakis CJ, Blue and Stanley JJ
KOURAKIS CJ.
Introduction

The respondent, Mr Johnathon Feast, is a commercial rock lobster fisherman and registered owner of the Coral Raider, a fishing boat registered under the Fisheries Management Act 2007 (SA) (the Act). He was tried in the Magistrates Court and convicted on 23 June 2014 of two offences contrary to s 120(3) of the Act.
The appellant, Mr Peter Dietman, who was the complainant before the Magistrates Court, appeals against a decision of a Judge of this Court, who set aside the respondent’s two convictions.[1]
[1] Dietman v Feast [2015] SASC 148.
Section 120(3) of the Act is as follows:
120—Offences committed by bodies corporate or agents, or involving registered boats
...
(3)If a registered boat is used in or in connection with the commission of an offence against this Act, the registered owner of the boat is guilty of an offence and liable to the same penalty as is prescribed for the principal offence.
I will refer to an offence against s 120(3) of the Act as the ‘boat use offence’ and to the offence in connection with which a registered boat is used as the ‘referential offence’. The referential offences for the two offences of which the respondent was convicted were against s 71(1)(a) and s 71(2)(a) of the Act. They were alleged to have been committed by a person or persons unknown on board the Coral Raider.   It was common ground at trial that only the respondent and a single crew member were on the Coral Raider at the relevant time. It was alleged that the offences were committed by the taking of a southern rock lobster carrying external eggs and the subsequent scrubbing of the eggs from its underbelly. I set out those provisions.
71—Taking, injuring etc aquatic mammals and protected species prohibited
(1)     A person must not—
(a)     take an aquatic mammal or aquatic resource of a protected species …
…
(2)     A person must not—
(a)     interfere with, harass or molest an aquatic mammal or aquatic resource of a protected species; or
(b)     cause or permit interference with, harassment or molestation of, an aquatic mammal or aquatic resource of a protected species.
...
(3)In proceedings for an offence against this section, it is a defence if the defendant proves—
(a)     that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence; or
(b)     that the act alleged to constitute the offence was authorised by or under some other Act or law.
...
Pursuant to Schedule 5 of the Fisheries Management (General) Regulations 2007 (SA), a southern rock lobster ‘carrying external eggs’ is a protected species for the purposes of ss 71 and 120 of the Act.
The respondent appealed to a single Judge of this Court against his convictions. The Judge allowed his appeal and set aside the convictions on the grounds that:
(i)the identity of the persons or persons who committed the referential offence is an element of the boat use offence;
(ii)the complaint and conviction were therefore uncertain because the referential offence was alleged, and found, to have been committed by an unknown person who might have been either the respondent, his crew member or both of them acting jointly; and
(iii)a registered boat owner charged with a boat use offence can rely on the s 71(3) defence because a prosecution for an offence against s 120(3) of the Act is at one and the same time a prosecution for an offence against s 71(3) of the Act.
The appellant has appealed against the acquittals entered by the Judge contending:
(i)that the identity of the persons who committed the referential offence is not an element of the boat use offence; and
(ii)that the s 71(3) defence is available only on a prosecution for an offence against s 71 of the Act.
Both contentions should be accepted. On a proper construction of s 120(3) of the Act it stipulates only that a registered boat is used in the commission of a referential offence irrespective of the identity of the offender(s). If a single referential offence is identified, the conviction is not rendered uncertain because the referential offence may have been committed by any number of offenders. Both textual and contextual considerations support that construction.
A prosecution against s 120(3) of the Act is self-evidently not also a prosecution for an offence against the referential offence. The commission of a referential offence is part of the actus reus of the boat use offence and the boat use offence will not be proved if the alleged offender(s) are found not to have committed the referential offence on the grounds that a defence was properly available to them. However a defence to the referential offence will not otherwise avail a defendant to the boat use offence.
The respondent seeks to support the Judge’s orders on the alternative ground that the Judge erred in finding that a person, or persons, on the Coral Raider committed the referential offences against s 71 of the Act. I would dismiss that alternative contention. The Magistrate was entitled to find that the referential offences were committed on the uncontradicted evidence of the expert witness, Dr Bremner, who opined that the state of the lobster’s underbelly was inconsistent with the ordinary course of nature and indicative of manual scrubbing away of the lobster’s eggs.
I would therefore restore the convictions recorded in the Magistrates Court.
In the reasons which follow I will deal first with the factual issue of whether the lobster was scrubbed whilst bearing external eggs. I will then turn to the legal questions of the significance of the uncertainty as to whether the respondent, or his crew member, or both, were criminally culpable for the scrubbing of the lobster and the availability of the s 71(3) defence.
Background
In October 2012 the respondent was a licenced commercial fisherman and the Coral Raider was registered for use under his licence.[2] At this time the respondent had one crew member, Mr Daron McElroy.
[2] The respondent held a Southern Zone Rock Lobster Licence issued pursuant to Part 6, Division 1 of the Act.
In the early hours of 14 October 2012 fisheries officers raised seven lobster pots belonging to the respondent near Nene Valley and inspected them as part of ‘Operation Banquet’, for the purpose of investigating suspected taking of southern rock lobsters carrying external eggs, and the removal of eggs. Fisheries officers identified nine southern rock lobsters which were carrying external eggs, or were ‘berried’ to use the industry expression, in the respondent’s lobster pots. They inserted micro-chips into those lobsters’ left antennal horns. All of the pots, including those with micro-chipped lobsters, were returned to their original location in the water. Neither the respondent nor Mr McElroy were informed that any lobsters had been inspected or micro-chipped.
Early in the afternoon of 14 October 2014 the respondent and Mr McElroy returned from the sea with the day’s catch comprising 152 lobsters. They were sold to two different commercial buyers in the normal way and placed into sealed bins.
Fisheries officers conducted a search of the bins and also the Coral Raider. One of the nine lobsters that had been micro-chipped earlier that day was located inside the bins. I shall refer to this lobster as lobster A. When lobster A was located inside the bin it did not appear to be carrying any external eggs. When earlier photographed and micro-chipped, lobster A had been carrying approximately half her eggs.
A number of pieces of clothing were seized from the boat, along with a scrubbing brush and suspected lobster egg matter scraped from the deck. A number of photographs were taken of lobster A and the Coral Raider.
Later that afternoon the respondent was interviewed by fisheries officers. He told them that he and Mr McElroy had undertaken a normal day of fishing. They had pulled up 98 pots (the respondent was licenced to operate 100) and estimated that they had thrown back 150 lobsters carrying external eggs. He had not taken any berried lobsters and had no reason to think that Mr McElroy had failed to throw any berried lobster back into the ocean.
On 10 April 2013, the respondent was charged with four offences as follows:
1.On 14 October 2012, near Nene Valley in the waters of the State of South Australia, took an aquatic resource of a protected species.
Contrary to Section 71(1)(1) (sic) of the Fisheries Management Act, 2007 and clause 6 of the Fisheries Management (General) Regulations, 2007.
1.1     On 14 October 2012 the defendant, near Nene Valley, in the waters of the State of South Australia, took a Southern Rock lobster carrying external eggs.
AND the complainant alleges that the wholesale value of the aquatic resources at the time of the commission of the offence was $26.50.
IN THE ALTERNATIVE TO COUNT 1
2.On 14 October 2012, the defendant was the registered owner of the registered boat which was used in or in connection with the commission of an offence against the Fisheries Management Act, 2007.
Contrary to Section 120 (3) of the Fisheries Management Act, 2007.
2.1     On 14 October 2012 the defendant was the holder of licence S157.
2.2     The Coral Raider was a registered boat for the purpose of licence S157.
2.3 The Coral Raiser (sic) was used in or in connection with the commission of the offence of taking an aquatic resource of a protected species contrary to s.71(1)(a) of the Fisheries Management Act, 2007.
2.4     The offence referred to at particular 2.3 is that on 14 October 2012 a Southern Rock lobster carrying external eggs was taken by the defendant or Daron George McElroy near Nene Valley, in the waters of the State of South Australia.
AND the complainant alleges that the wholesale value of the aquatic resources at the time of the commission of the offence was $26.50.
3.On 14 October 2012, near Nene Valley in the waters of the State of South Australia, interfered with, harassed or molested an aquatic resource of a protected species.
Contrary to Section 72(2)(a) (sic) of the Fisheries Management Act, 2007 and clause 6 of the Fisheries Management (General) Regulations, 2007.
3.1     On 14 October 2012 the defendant, near Nene Valley in the waters of the State of South Australia, interfered with, harassed or molested a Southern Rock lobster carrying eggs by removing its eggs.
IN THE ALTERNATIVE TO COUNT 3
4.On 14 October 2012, the defendant was the registered owner of the registered boat which was used in or in connection with the commission of an offence against the Fisheries Management Act, 2007.
Contrary to Section 120 (3) of the Fisheries Management Act, 2007.
4.1     On 14 October 2012 the defendant was the holder of licence S157.
4.2     The Coral Raider was a registered boat for the purpose of licence S157.
4.3 The Coral Raiser (sic) was used in or in connection with the commission of the offence of interfering with, harassing or molesting an aquatic resource of a protected species contrary to s.71(2)(a)[3] of the Fisheries Management Act, 2007.
4.4     The offence referred to at particular 4.3 is that on 14 October 2012 the defendant or Daron George McElroy, near Nene Valley in the waters of the State of South Australia, removed a Southern Rock lobster’s eggs.
[3] Section 72(2)(a) was originally erroneously stated and was amended by consent at trial.
Counts 1 and 3 on the complaint were not proceeded with and the respondent was tried on counts 2 and 4 only. No charges were laid against Mr McElroy.
The respondent appealed against his convictions to a single Judge of this Court. His Honour determined that the charges were bad in law and that the respondent ought to have been acquitted. The appeal was allowed and the complaint against the respondent was dismissed. His Honour reasoned that the charges against the respondent were bad for uncertainty and disjunctive duplicity and also that, as a matter of construction, the defence contained in s 71(3)(a) of the Act was available to the respondent facing charges under s 120(3) of the Act, and the Magistrate therefore erred by failing to have regard to that defence. Further, the Judge considered that the defence was established on the evidence.
Evidence of Dr Bremner
At trial the appellant called evidence from Dr Allan Bremner, an expert in lobsters. Dr Bremner examined lobster A in November 2012 and gave evidence about the condition of lobster A and also about lobster anatomy and spawning generally. It is necessary to set out in some detail Dr Bremner’s evidence.
Female lobsters carry eggs externally. These eggs are visible as a red/orange mass on the underside of the lobster. Eggs are laid into a protected space underneath the lobster which is created when she curls her tail to create a basket. The surface of the eggs becomes sticky upon contact with seawater and the lobster beats her pleopods (leafy, limb-like structures underneath her) which stirs the eggs and causes them to attach to the pleopods. This attachment takes place as the sticky exteriors of the eggs harden to form small stalks which then wrap around thin hairs on the pleopods. These hairs are called setae, are about the size and strength of human hair and attach the eggs quite firmly to the pleopods. The lobster also carries her eggs with her tail curled underneath to further protect them. As such, normal handling of a lobster or the process of hauling pots out of the water is not sufficient to dislodge eggs from the pleopods. Dr Bremner testified that it would be difficult to handle a lobster in such a way as to dislodge the eggs without also damaging the remainder of the lobster.
When the eggs are mature and ready to hatch a lobster goes at sunrise to an area with plant life, arches her tail and beats her pleopods vigorously to create a current, but not dislodge the eggs. The larvae hatch themselves from the eggs and are carried away by the current. This behaviour is repeated for up to a week until all fertile eggs have hatched. Eggs reach maturity at slightly different rates, because their access to oxygen varies when clumped together.

The empty eggshells remain attached to the setae after the larvae hatch. When a lobster is certain that there are no more eggs to hatch, she begins to clean herself by using her claws to clip off the setae and attached eggshells. The result of this cleaning process is a ragged, haphazard appearance underneath the lobster with some spiky longer setae remaining as the lobster is not able to see the setae. It is not certain how long this cleaning process takes. This aspect of Dr Bremner’s evidence is discussed further below.
It was Dr Bremner’s opinion that the eggs, observed and photographed by fisheries officers when lobster A was micro-chipped, were later manually ‘scrubbed’ from her. His opinion was based on the following reasons.
First, there was obvious damage to lobster A’s right pleopods. One pleopod had no resistance in its movement indicating significant internal damage and also swelling. Another pleopod had an unnatural range of motion. There was also evidence of soft tissue bruising. Dr Bremner’s opinion was that at least the first and fourth pleopods had sustained unnatural damage and lobster A could not have done this herself. The presence of damage to pleopods on only one side of lobster A was consistent with manual scrubbing as the way a lobster needs to be held during scrubbing typically produces such asymmetrical damage.
Second, lobster A had quite short setae, with a less ragged appearance than is usual. Dr Bremner considered that the period of time between the photographing of lobster A with only half of her eggs hatched, and when she was hauled onto the Coral Raider was insufficient for her to achieve that state naturally. He considered that in the ordinary course, and only after lobster A had hatched her remaining eggs, it would take in the order of a week, not 12 hours, for lobster A to have cleaned herself to the extent observed. Therefore Dr Bremner’s view was that the removal of material from lobster A did not occur naturally.
Third, there were two unhatched eggs caught in lobster A’s pleopod joints. These eggs would not have been present in the joints naturally as eggs and eggshells remain attached to the setae until pruned by the lobster. However, Dr Bremner’s experience from manually scrubbing lobsters experimentally is that eggs almost inevitably become trapped in various places on a lobster’s anatomy during manual scrubbing.
Fourth, Dr Bremner detected substantially damaged eggshells with an appearance inconsistent with natural hatching attached to lobster A’s setae.
Fifth, Dr Bremner identified damaged eggshells inside lobster A’s gill chambers. He had never seen this before in a wild lobster and considered that these eggs had not hatched naturally.
On a deck mat from the Coral Raider Dr Bremner identified four obvious clumps of lost eggs, nine lobster eggs and one setae with hatched eggshells still attached. He considered that the eggs on the mat were consistent with being from lobster A, although he could not categorically say that they came from a particular lobster. Dr Bremner also identified lobster eggs trapped in the Velcro of a seized jacket, just below the wearer’s throat area. He did not consider that those eggs were from lobster A as the eggs on the jacket were several weeks away from hatching.
Dr Bremner did not find anything on a scrubbing brush, cloth, gloves, or bib and brace overalls examined that indicated that they had been in contact with lobster eggs. The scrubbing brush was clean.
The respondent’s interview and evidence
The respondent was interviewed by Fisheries Officers Barry Tarr and Peter Henwood on the day he landed his catch. The respondent denied scrubbing any lobsters and maintained that he returned all spawning lobsters to the water. When asked to describe the division of work between him and his crew, the respondent said that he controlled the board from the wheelhouse at a higher level of the boat only coming down to the deck to check the catch at the end of each line or string of pots. The respondent told the officers that the only use of a scrubbing brush located near the entrance of the wheelhouse was to scrub the deck.
The respondent testified that he instructed his crew member Darren McElroy to throw back overboard all obviously undersized or spawning lobster. Lobster close to undersize are kept on board to be gauged by the respondent at the end of a line of pots. If, during the process of gauging, the respondent observes berried lobsters, he throws them overboard.
The respondent’s case at trial
Counsel for the respondent challenged each factor founding Dr Bremner’s opinion that lobster A had been scrubbed by putting innocent explanations to him in cross-examination. In effect, as the Magistrate identified at [30], two alternative hypotheses were put: that the eggs had hatched naturally and had been cleaned by the lobster herself after micro-chipping but before being hauled onto the Coral Raider; or that they were dislodged by rough handling.
Dr Bremner agreed that he had no knowledge of how many eggs were present on lobster A when she was micro-chipped by fisheries officers and returned to the ocean, and also gave evidence that lobster A probably would have beaten her pleopods while trapped in the pot to allow hatched larvae to float away. He also accepted that eggs could become dislodged if lobster A was roughly handled in the area to which the eggs were attached, and that if the eggs present when lobster A was micro-chipped and photographed were infertile she may have already started the cleaning process.
Regarding the duration of that cleaning process, Dr Bremner agreed that he had not studied the topic, and scientific literature is silent as to how long it takes for lobsters to finish pruning their pleopods after hatchment. However, he maintained that it could not occur in a few hours and the time required was probably closer to a week than 12 hours.
Dr Bremner agreed that it was possible for the damage to lobster A’s pleopods to have been caused by rough, but not normal, handling. He said it was most unlikely that the damage could have been caused by a predator due to the location of the injuries. Dr Bremner did not consider that the tip of another lobster’s antennae that was found trapped on lobster A’s anatomy was indicative of a predatory attack as it is common for small pieces of antennae to break during human handling of lobsters.
Dr Bremner’s view that the eggs could not naturally have become lodged in the pleopod joints was challenged in cross-examination. Although he considered it ‘exceedingly unlikely’, Dr Bremner could not rule out that possibility.
Counsel for the respondent also pointed to the absence of lobster eggs on the scrubbing brush, blue cloth, gloves and overalls seized from the Coral Raider as telling that lobster A had not been scrubbed and the eggs must have been removed in another way. However, Dr Bremner did not agree that eggs would necessarily be found on the overalls if they had been worn during scrubbing and stated that he had never seen clumps of eggs left on a cushioning mat as he found on the Coral Raider. However he did concede that there was a small possibility that the eggs could have been left on the mat, or that some eggs may become detached, if a lobster is handled roughly.
Dr Bremner agreed that as a whole there was little published literature on lobster scrubbing.
Magistrate’s reasons
The Magistrate concluded that the factors identified by Dr Bremner as supporting the hypothesis that lobster A was scrubbed, when considered together, excluded as a reasonable possibility that the eggs were removed in any manner other than scrubbing.
After reciting the salient aspects of the evidence, the Magistrate gave the following reasons for finding the offences proved beyond reasonable doubt:
[41]In relation to the defendant’s evidence there was nothing about the way he gave his evidence or interview that caused me concern nor was there any aspect of his account that on the face of it was implausible. I accept that in a catch of 150 rock lobster to scrub one while returning a significant number of other spawning females has only a small commercial advantage to the defendant or McElroy (the latter’s pay including 10% of the value of the catch according to the defendant’s evidence). It does raise the question 'why bother'. While I accept that this issue (raised in submissions by Mr Nugent) has to be considered when I assess all the evidence the ultimate question for me remains whether I am satisfied beyond a reasonable doubt that lobster A was scrubbed.
[42]The fact that eggs apparently from another Southern Rock Lobster were located on velcro on Mr McElroy’s jacket raises the possibility other lobsters were scrubbed. I mention this only to indicate the evidence raises various possibilities about which one could speculate as to what happened on the fishing trip. While it is clearly permissible for me to take all this evidence into account when considering whether the prosecution has discharged the onus of proof, in my view the prosecution case rests almost entirely on Dr Bremner’s observations and opinions about lobster A. I remind myself speculation is to be avoided.
[43]I have already set out in summary from the aspects of Dr Bremner’s evidence relied upon by the prosecution to establish beyond a reasonable doubt that lobster A was scrubbed. I have also set out the two principal hypothesis put forward by Mr Nugent in cross examination of Dr Bremner and developed further in the course of his closing submissions. I will not repeat them here. Mr Nugent also submitted that his client was well aware of the need to leave pregnant lobster for the continuation of the species and viability of the industry. He reminded me of the defendant’s evidence that on the day in question some 150 Southern Rock Lobster’s with eggs had been returned and submitted taking one with eggs was therefore unlikely. He submitted that when interviewed by fisheries officers the defendant was genuinely surprised by the allegations put and showed no consciousness of guilt. He suggested prosecution’s failure to call the deck hand McElroy should cause me to conclude that his evidence would not have been of assistance to the prosecution. In relation to Dr Bremner’s evidence he reminded me that no DNA evidence was produced. He submitted that Dr Bremner’s evidence left open as a reasonably possibility that lobster A shed it’s (sic) eggs after it was returned to the water by fisheries officers and before being hauled onto the defendant’s boat. Alternatively they became detached by some other process.
[44]I have already set out the factors put forward by Dr Bremner leading to his conclusion that the absence of the eggs on lobster A when he inspected it was as a result of scrubbing. I have also indicated that I found him to be a carful (sic) witness whose evidence I accepted. I have also set out in summary the concessions made by Dr Bremner when cross examined about each of the individual circumstances relied upon by the prosecution. However, while each individual circumstance would not itself support a finding beyond reasonable doubt it is my view that the combination of factors previously outlined excludes as a reasonable possibility that the eggs seen in exhibit P2 photo 14 and absent when lobster A was recovered by fisheries officers 12 hours or there abouts later were removed or became detached by means other than scrubbing and I am therefore satisfied beyond reasonable doubt that the defendant or his deckhand scrubbed lobster A removing the eggs depicted in P2 photo 14.
Proceedings before the appeal Judge
A key contention before the Judge on the issue of the scrubbing of lobster A was that it was not proved beyond reasonable doubt that she was carrying eggs when she was hauled from the water and brought aboard the Coral Raider.
Counsel pointed to only one of the nine micro-chipped lobsters being sold, with the most likely explanation being that the other eight were returned to the water. It was submitted that it was very unlikely that the respondent or Mr McElroy would have scrubbed a single lobster.
Counsel for the respondent also pointed to the unlikely coincidence of the only lobster that had already begun shedding her eggs when micro-chipped being the only lobster sold, suggesting that she had shed the remainder of her eggs when imprisoned in the lobster pot.
Dr Bremner’s evidence that the eggs had been manually removed from lobster A was also countered by the submission that the damage to lobster A could have been caused by fighting between lobsters or by other sea creatures trapped in the lobster pot.
The appellant’s and respondent’s counsel both pointed to the relevant presence and absence of lobster eggs on clothing and materials found on the Coral Raider.
The Judge was not satisfied that the Magistrate erred in finding beyond reasonable doubt that lobster A was carrying external eggs when brought aboard the Coral Raider, and that she had been scrubbed.
Proceedings before the Full Court
Before this Court, counsel for the respondent again contended that neither the Magistrate nor the Judge could have been satisfied to the requisite standard that lobster A had been unlawfully scrubbed.
Counsel for the respondent pointed to the respondent’s evidence that he inspects the catch, uses a cray gauge to measure size, and looks for obvious spawn. As part of the measuring process it is necessary to uncurl a lobster’s tail. It was submitted that this process could lead to eggs being dislodged through rough handling, consistent with Dr Bremner’s evidence.
It was also submitted that it was improbable that one of the nine micro-chipped lobsters would have been scrubbed instead of returned to the ocean, given the insignificant commercial value of keeping a single lobster to either the respondent and Mr McElroy, being $23.85 and $2.65 respectively.
It was argued that the Magistrate failed to consider that lobster A hatched all her eggs on an accelerated timeframe when hauled onto the Coral Raider. The respondent pointed to Dr Bremner’s evidence in that respect.
The hypotheses of rough handling in conjunction with normal or accelerated hatching of the eggs were, it was submitted, capable of causing the loss of all the live eggs from lobster A.
In relation to the appearance of the setae indicating scrubbing and inconsistency with the timeframe for the natural cleaning process, it was contended that these factors were not necessarily conclusive of impermissible scrubbing as it remained open on the evidence that lobster A had naturally hatched all of her eggs, or those eggs had been dislodged, at which point lobster A was no longer a protected species. Any subsequent scrubbing to remove eggshells only would not have been contrary to s 71 of the Act and would innocently explain the appearance of lobster A’s setae and the damage to lobster A.
Counsel for the appellant submitted that the Magistrate was correct to consider the grounds for Dr Bremner’s opinion together and not in isolation. It was the simultaneous presence of a number of factors which circumstantially strongly supported Dr Bremner’s opinion and the Magistrate’s finding, beyond reasonable doubt, that the external eggs were scrubbed from lobster A.
Three innocent explanations were proffered by the respondent for lobster A’s condition. I will consider them in turn.
The first explanation is that lobster A’s eggs were dislodged through rough handling on the Coral Raider. I observe that first, it is not clear from the evidence in the Magistrates Court that lobster A’s size required her to be uncurled. Secondly, the respondent gave evidence describing the measuring process using a gauge but did not say whether lobsters were uncurled. Finally, even though the respondent mentioned when giving evidence the possibility of eggs being dislodged and falling onto the deck when the pots were first brought on board, he did not advert to the dislodgement of eggs in the measuring process.
While it can be accepted that at some point lobster A may have been handled roughly on the Coral Raider, it was Dr Bremner’s evidence that ordinary handling or fighting between lobsters would not have dislodged all of the eggs. Eggs are not easily damaged due to their protected location, are attached firmly and a clump rather than individual eggs would be dislodged if handled roughly. Although clumps of eggs were located on the Coral Raider, the presence of individual eggs in lobster A’s pleopod joints cannot be explained by the rough handling scenario. Given the eggs’ location, scrubbing was the most probable cause. Dr Bremner’s evidence was that the asymmetrical damage to lobster A’s pleopods is also more consistent with scrubbing than general rough handling.
The ‘rough handling’ hypothesis is also inconsistent with the appearance of lobster A’s setae. If eggs were dislodged by rough handling, long setae should have been on lobster A. The respondent did not give evidence of seeing a lobster in that state. The uniformly short appearance of the setae was more consistent with scrubbing. There was no real possibility, on the evidence, that the loss of eggs was caused by lobster A cleaning her pleopods. Dr Bremner testified that the time frame for a lobster to clip her setae and remove any vestiges of the eggs as part of the natural hatching cycle would be closer to a week than 12 hours. The infertile egg hypothesis is largely speculative and fails to account for all of the circumstantial evidence from which an inference of scrubbing can be drawn. In any event a clipping off of the setae by lobster A would not have caused the uniformly short appearance of her setae.
The circumstance that of the nine micro-chipped lobsters only lobster A was found offered for sale is entitled to some weight but it is certainly not determinative. The Magistrate considered that circumstance but was nonetheless satisfied beyond reasonable doubt that lobster A was scrubbed based on Dr Bremner’s evidence summarised at [44] of his reasons. In this context the respondent complained that the Magistrate impermissibly drew support for his conclusion from the presence of eggs from another lobster on the velcro of a jacket found on the Coral Raider. The Magistrate in fact did the reverse. His Honour eschewed speculating about the significance of that evidence.
The Magistrate made a finding beyond reasonable doubt that the eggs and setae were not removed by rough handling. The finding is amply supported by the testimony of Dr Bremner which the Magistrate had the advantage of hearing. The respondent has not advanced any good reason to set aside the Magistrate’s finding, which in turn was not disturbed by the appeal Judge.
The second and third innocent hypotheses are that during the period between micro-chipping and being hauled onto the Coral Raider, lobster A caused the remainder of her eggs to hatch either in the normal course of nature, or on an accelerated time frame because of the stress of her captivity. It was argued that the Magistrate failed to consider the accelerated timeframe hypothesis, and that natural or accelerated hatching alone, or in conjunction with rough handling, could account for lobster A’s loss of eggs. Dr Bremner’s evidence on this point was that by reason of her captivity lobster A probably would have attempted to ‘hatch them all’. In the context of his evidence as a whole the reference to ‘hatch them all’ was a shorthand expression to a lobster beating her pleopods to release hatched larvae. Dr Bremner emphasised on several occasions that the beating of the pleopods does not cause the larvae to hatch and that the hatching process happens in its own time. The effect of the beating process is to launch the hatched larvae into the sea’s currents. Dr Bremner testified that he could not tell how far lobster A was into the hatching process when she was micro-chipped. It is relevant that eggs develop at different rates because their access to oxygen is affected by the way they are clumped together.

The evidence therefore does not support the respondent’s contention that all, or most, of lobster A’s eggs hatched in the short timeframe between micro-chipping and harvesting. In any event, the presence of individual unhatched eggs trapped in the pleopod joints militates against the hypothesis that the eggs hatched naturally. So too does the presence of eggs which appeared to be damaged by something other than the natural hatching process. Moreover, even after hatching, broken eggs remain attached to setae until the setae are clipped away by the lobster using her claws. The appearance of lobster A’s setae is inconsistent with natural pruning and in my view even less likely to have occurred if lobster A’s eggs were hatched during the short window of time after micro-chipping lobster A. Lobster A would have had no time to complete the pruning process.
As these difficulties in the ‘no scrubbing’ case emerged during the argument on appeal, the respondent changed tack a little. The respondent sought to circumvent the evidence of the scrubbed appearance of lobster A by putting the alternative possibility that if lobster A was scrubbed, only broken hatched eggs were removed. The argument continued that it was possible that lobster A was no longer berried when scrubbed and was therefore not a protected species when she was scrubbed. It was submitted that a sufficient number of readily visible, naturally located external eggs is required to constitute a protected lobster under the Act.
However, the presence of the two unhatched eggs in lobster A’s pleopod joint, damaged eggshells in the gills and attached to the setae is inconsistent with the scrubbing of a lobster who has no remaining unhatched eggs. Further, there was no evidence that it was a general lobster fishing practice, or a practice on the Coral Raider, to scrub lobster with setae and attached broken hatched eggs. The evidence did not disclose any reason why the practice of scrubbing a lobster with setae, but no live eggs, would be adopted. Indeed, when asked about the brush found on the boat, the respondent told the fisheries officers that its only use was to scrub the deck. On the other hand, the reasons for scrubbing a berried lobster are obvious. Reference was also made to the possibility of accidental scrubbing. Given that there is no apparent reason for scrubbing, other than impermissibly to remove eggs, it is not clear how or why scrubbing could have taken place accidentally. The most obvious, indeed overwhelming, inference from the fact of scrubbing is that lobster A was carrying eggs which someone on the Coral Raider decided to remove.
In short, the argument that lobster A was scrubbed only after she was no longer bearing external eggs, and therefore not a protected species, is entirely fanciful. Nor is there any possibility in the circumstances of this case that the person who scrubbed lobster A was not aware that she was berried.
It was faintly argued that the Magistrate erred in law in failing to expressly deal with the possibility that lobster A was scrubbed but at a time when she was no longer berried. I reject that submission. There is no material to show that the submission was put to the Magistrate. The respondent only cryptically referred to it in his written submissions in this Court, and the point only emerged fully formed in oral submissions.
I am satisfied that the Magistrate did not err in finding beyond reasonable doubt that lobster A was scrubbed while berried.
The proper construction of s 120(3) of the Act
On a literal construction of s 120(3) of the Act, the elements of the offence it enacts are:
(1)the defendant is the registered owner of a boat, and
(2)the boat is used in, or in connection with, the commission of an offence against the Act.
It is the second element which is controversial on this appeal. I make three preliminary observations about it. First, in the ordinary course if a boat is used in the commission of an offence, it will also have been used in connection with the commission of an offence. To avoid rendering the words ‘in connection with’ otiose, the phrase ‘used in, or in connection with, an offence’ is best read as a hendiadys, a compendious expression of wide import. Secondly, it is the registered boat which is the subject of the verb used. The use of the passive voice does not lend itself easily to a stipulation that as an element of the offence a particular identified person used the boat in the prohibited way. Finally, the words ‘in or in connection with the commission of the offence’ are an adverbial phrase describing the manner of use of the boat which is prohibited. Again, the use of the words ‘the commission of the offence’ forming part of the adverbial phrase tends to suggest that the identity of the person or persons committing the offence is not part of the second element.
If s 120(3) of the Act used the active voice, it would read:
The registered owner of the boat must not allow it to be used by a person in, or in connection with, the commission of an offence against this Act.
Even so drawn there is no obvious reason why the person committing the offence could not be a person or persons unknown. The short point to be made from these preliminary textual observations is that it strains the grammatical structure of s 120(3) of the Act to read it as including an element that a particular person, or particular persons, committed the offence against the Act.
Much the same conclusion can be drawn from contrasting s 120(3) of the Act with subsections (1), (1a) and (2) of s 120 of the Act. Each of those subsections takes the form:
If X is guilty of an offence and Y bears a certain relationship to X, then Y is guilty of an offence.
Offences in that form make the identity of X a necessary element of the offence. The legislature eschewed that form in enacting s 120(3) of the Act. It did not provide:
If a person entrusted with the use of a registered boat by the registered owner is convicted of an offence in, or in connection with which, the boat is used then the registered owner is guilty of an offence.
If Parliament had adopted that form of offence, the identity of the person entrusted with the use of the boat would be an element of the offence.
The legislature has cast a wider net with the form it has selected. The apparent purpose of s 120(3) of the Act is to burden the registered owner with a responsibility to secure the use of his or her vessel against breaches of the Act by whomsoever committed.
The essential reasons of the Judge for holding that it is an element of the offence constituted by s 120(3) of the Act, or at least a practical requirement, that the stipulated principal offence is committed by an identified person or persons appear in the following passage:[4]
The first preliminary matter is that the words “If a registered boat is used in or in connection with the commission of an offence against this Act” require proof that a particular offence against the Fisheries Management Act 2007 has been committed. Thus, a charge under s 120(3) must stipulate a particular “offence against this act” and all elements of that charged offence must be proven. The later words in s 120(3) “the principal offence” not only confirm that a particular offence against the Act must be stipulated but also confirm that liability under s 120 is secondary to, and dependent upon, proof of the commission of that stipulated principal offence.
The second preliminary matter is that the commission of a particular offence against the Act by the alleged principal offender must be strictly proven as against the boat owner who is charged pursuant to s 120(3). To illustrate, s 120(3) will usually be deployed where an offence is committed by a principal offender on a registered boat in the absence of the boat’s owner and a complaint will be laid charging the alleged principal offender and the registered owner in separate counts. If the charge against the alleged principal offender fails, the separate charge against the registered owner, which is dependent upon the conviction of the principal offender, must also fail.
(emphasis in original)
[4] Dietman v Feast [2015] SASC 148 at [37]-[38].
In this passage, the Judge equates proof of the commission of an offence against the Act with proof of the commission of an offence by a particular person. His Honour’s reference to a case in which another person is charged but acquitted shows that His Honour has reasoned that, just as in a charge against a person for committing the referential offence, his or her identity must be proved, so too must it be proved on a charge against the registered owner of a vessel of a boat use offence.
However, I consider that, as already observed, the text and context of the section do not support that approach. The consequence of that approach, identified by the Judge, that the failure of the charge against the alleged perpetrator of the referential offence must lead to the failure of the charge against the registered owner of the boat use offence, exposes the tension between the Judge’s construction and the manifest purpose of s 120(3) of the Act.
Take a case in which the registered owner is prosecuted on a charge of the boat use offence and his crew member is charged with committing the referential offence. The crew member may be acquitted because his testimony is supported, say, by a video taken on his telephone showing that the registered owner was the perpetrator. If the prosecution had opened on the basis that the perpetrator was either the registered owner or the crew member, it cannot be the case that the legislature intended that the registered owner must be acquitted of the boat use offence.
A more common difficulty created by the Judge’s construction is that the perpetrator(s) of the referential offence will not be known because it will have been committed on the open seas away from the scrutiny of fisheries officers. That is the very mischief to which s 120(3) of the Act is directed.
It is instructive here to consider the approach of the common law to the prosecution of an accessory in cases in which the principal is unknown. There can be no doubt that an information can properly allege that X counselled or procured, or alternatively was an aider and abettor of, a perpetrator who is unknown. On such an information there can be no objection to the prosecution leading evidence which showed that the perpetrator might have been one or other of A or B or indeed both of them acting together. A prosecution so brought would not be bad for duplicity or uncertainty. It is also instructive to observe that the common law of accessorial liability is premised on the commission of the same single offence by multiple offenders, albeit in different degrees.
The Judge was concerned about the consequences of a literal construction of s 120(3) of the Act in the case of the theft of a registered boat and the commission of offences on the boat whilst it was taken.[5] The construction the Judge gave s 120(3) of the Act does not overcome that problem if, for example, the identity of the thief is known. In any event, even though s 120(3) of the Act does not expressly provide for a defence in those circumstances, the common law defence of act of stranger would apply. Section 120(4) of the Act contemplates that s 120(3) of the Act imposes liability on a registered owner for the acts and omissions of the registered master of his/her boat and the acts of his/her employees, and not strangers.
[5] Ibid at [43].
The Judge considered that his construction was supported by the principle of legality.[6] That principle is a fundamental principle against which all statutes must be construed, particularly those imposing criminal liability. However, the exploitation of aquatic resources has long been regulated. This State has prohibited commercial fishing without a licence since at least 1904.[7] The right to fish commercially has long been a privilege and not a fundamental right. The objects of the Act accord the sustainable management of the State’s aquatic resources a higher priority than ancient common law individual fishing rights.
[6] Ibid at [43]-[58].
[7] Fisheries Act 1904 (SA).
If s 120(3) of the Act required proof of a particular offender, much of its apparent purpose would be frustrated. Its apparent purpose is to encourage registered owners to ensure that all persons using their boats comply with the law. The registered owner of a boat is in a unique position to control the persons to whom he gives access, to identify persons who commit an offence on the boat and to take action to prevent it. True it is that the section would still have substantial work to do if proceedings for an offence against s 120(3) of the Act required proof of the particular offender. In cases in which only one person is on the boat, the registered owner can successfully be prosecuted. However, if more than one crew member is on the boat, a prosecution will fail if they refuse to answer questions in and out of court or if, as here, the prosecution takes the view that the crew members are unreliable witnesses. There is no reason to ascribe to Parliament an intention that s 120(3) have an effective operation in the former case but not the latter.
The manifest purpose of s 120(3) of the Act is to ensure compliance with the Act by imposing a heavy burden on registered owners of a boat to ensure that they are only used lawfully. Section 120(3) of the Act is a central provision in the enforcement of commercial fisheries regulation in this State. The Judge’s construction of s 120(3) of the Act substantially detracts from its utility.
The construction adopted by the Judge means that in a case of multiple crew members a charge for an offence against s 120(3) of the Act in which a crew member is not particularised as being the sole principal offender, or several members of the crew are not particularised as being directly responsible or accessories, will be bad for uncertainty or duplicity.[8] The Judge so found. The common law rules as to duplicity and uncertainty are procedural in nature. Their application, therefore, depends on the nature of the offence charged and its elements. A complaint, information or conviction cannot be duplex or bad for uncertainty in the abstract, but only by reference to the offence it charges. For this reason the seminal cases decided by this Court on the issue commence with a consideration of the elements of the offence.
[8] Dietman v Feast [2015] SASC 148 at [101]-[102].
In Romeyko v Samuels,[9] the issue was whether a complaint for an offence contrary to s 107 of the Post and Telegraph Act 1901-1970 (Cth) (the PTA) was bad for duplicity or uncertainty. Section 107 of the PTA provided:
Any person who knowingly sends or attempts to send by post any postal article which —
…
b)encloses an indecent or obscene print painting photograph lithograph engraving book card or article; or
(c)has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character,
shall be liable to a penalty not exceeding two hundred dollars or to imprisonment with or without hard labour for a term not exceeding two years.
[9] (1972) 2 SASR 529.
The complaint alleged that Mr Romeyko had knowingly sent by post a postal article which had therein words, marks or designs of an indecent, obscene blasphemous, libellous or grossly offensive character contrary to s 107 of the PTA. In the Full Court, Bray CJ (with whom Bright and Sangster JJ agreed) commenced his consideration of the issue by observing ‘[t]he first question to be decided is whether s.107(c) creates for the present purpose one or several offences’.[10]
[10] Ibid at 551.
Zelling J, who heard the appeal against the conviction recorded in the Magistrates Court, had held that there were at least four, and possibly more, offences.[11] On appeal, Bray CJ held that it created only two offences, one of knowingly sending, and one of knowingly attempting to send, a postal article with any one or more of the characteristics prescribed in s 107(c) of the PTA.[12] On that construction Bray CJ did not need to consider whether the complaint was bad for duplicity in alleging more than one offence, because it alleged only sending, and not attempting to send, a postal article.
[11] Ibid at 536.
[12] Ibid at 551.
However, Bray CJ went on to hold that the complaint and conviction were bad for uncertainty. Bray CJ held that if the complaint had been intended to allege that the article possessed more than one of the forbidden characteristics then, in order to avoid uncertainty, the circumstances should have been pleaded conjunctively and not disjunctively. Bray CJ observed that only those characteristics which the prosecutor was confident could be proved should be alleged, except, in rare cases, where there might be doubt as to whether one or other characteristic properly applied to the case at hand. Bray CJ also criticised the reference in the complaint to marks or designs because on the evidence there were only words, and no marks or designs, which could possibly have been obscene or offensive on or in the envelope. Bray CJ also observed that the words could not possibly have been blasphemous or libellous and that those adjectives should not have been pleaded. In summary, Bray CJ held that the complaint should have alleged only that the words were indecent, obscene and grossly offensive.
Bray CJ observed that at common law, alleging two offences in the same count was bad in all circumstances if the offences were alleged disjunctively and bad if alleged conjunctively unless the same act could constitute more than offence. There was also authority that a disjunctive joinder may be bad even in the case of a single offence which, like s 107(c) of the PTA, could be committed in any of several different ways. Bray CJ observed however that all of those common law rules were abrogated by s 51(2) of the Justices Act 1921 (SA). Section 51 of the Summary Procedure Act 1921 (SA) has since been amended but the common law rules once abrogated cannot be resurrected.[13] Nonetheless Bray CJ held that it is still a requirement that any complaint inform the defendant of what is alleged against him or her with reasonable particularity. Bray CJ held that Mr Romeyko should have been told precisely which words on the postal article were alleged to offend against s 107(c) of the PTA and the respect in which each of the passages was alleged to offend. The disjunctive pleading had failed to give the necessary notice.[14]
[13] See also s 181 of the Summary Procedure Act 1921 (SA).
[14] Romeyko v Samuels (1972) 2 SASR 529 at 553-55.
Bray CJ found that the resulting conviction was also bad, because the Magistrate ‘found the complaint proved in that it has been established beyond reasonable doubt that you have been guilty of despatching a newsletter containing indecent, obscene or grossly offensive language’.[15] Bray CJ held that, if the Magistrate’s remarks had been clearer, the conviction might have been amended to reflect the particular adjective or adjectives which the Magistrate had found proved but that was not possible given the disjunctive way in which the remarks were framed.
[15] Ibid at 555.
Applying the reasoning of Bray CJ to this case, for the reasons I have given, the boat use offence can be committed in many ways depending on the referential offence which is charged. Each of the two counts alleged one referential offence. The counts were neither duplex nor uncertain because the identity of the perpetrator is not an element of the boat use offence. Finally, as a matter of procedural fairness, the respondent was aware of the case against him.
In Brinkworth v Dendy,[16] a Magistrate found that two of the three complaints laid by the respondent against Mr and Mrs Brinkworth alleging a breach of s 26 of the Native Vegetation Act 1991 (SA) (the NVA) were bad for duplicity and dismissed them. On an appeal by the respondent, the Magistrate’s orders were set aside, holding that the complaints were not duplicitous. Mr and Mrs Brinkworth appealed to the Full Court but their appeal was dismissed. Section 26 of the NVA provided that a person must not clear native vegetation unless the clearance was in accordance with authority provided under the Act. The definition of clearing native vegetation included causing or permitting the clearance of native vegetation which in turn was defined as the killing or destruction, removal, severing of branches, burning, or otherwise substantially damaging native vegetation. Doyle CJ (with whom Debelle and Anderson JJ agreed) commenced by considering the elements of s 26 of the NVA. His Honour concluded that the nature of the activity prohibited by s 26 suggests that it will often not be possible to identify individually the plants that have been cleared. Doyle CJ concluded that practical considerations suggested that while the prohibited act is the clearance of plants, it should be possible to charge an offence that consists of the clearance of an unspecified number of plants, and that it should be permissible to lay the charge in a form that identifies the place or area where the plants were before they were cleared. Doyle CJ held that the clearing of native vegetation from, or on, a specified area of land must be a permissible form of charge. Doyle CJ went on to consider the position where plants are not evenly distributed over an area of land but appear in scattered clumps therefore allowing the possibility that discrete clumps were cleared in different ways at different times. Doyle CJ held that a complaint even against that evidential background would not be bad on its face for duplicity. Doyle CJ observed that relevant factors in deciding whether the complaint was ultimately bad for latent duplicity included the manner in which the boundaries of the area are identified, the extent of the area, the relative locations of the vegetation, the nature of the act or acts alleged to have cleared the vegetation, the period of time over which those acts took place, and whether the acts are part of an organised project or whether they are unconnected acts.
[16] (2007) 97 SASR 416.

Doyle CJ concluded:[17]
To so conclude is not to abandon the rule against duplicity. It is to recognise that because a charge may properly be laid alleging the clearance of native vegetation from an area of land, the question of whether a charge so laid is duplicitous is unlikely to be able to be decided by reference to the form of the charge, and will turn upon whether, when the relevant circumstances are known, a consideration of the area identified and the other circumstances discloses that the conduct alleged cannot be regarded as one or a single activity of clearance.
In other words, if it is permissible to lay a charge in a form that alleges the defendant cleared native vegetation from an area which is identified (and in my opinion this is permissible), it will not be a fatal flaw that the particulars of the charge allege that within the area in question there were multiple areas or stands of native vegetation. In such a case the question is whether, once the facts are known, the activity relied on as amounting to the clearance of native vegetation from that area can, in all the circumstances, be treated as one act or activity of clearance.
[17] Ibid at [43]-[44].
Debelle J, who agreed substantially with Doyle CJ, also observed that the decisions in Johnson v Miller[18] and Walsh v Tattersall,[19] on which the Brinkworths relied, were cases which proceeded on the fundamental premise that the relevant statutory provision in each case imposed a distinct liability for a separate offence.
[18] (1937) 59 CLR 467.
[19] (1996) 188 CLR 77.
The decision in Brinkworth also demonstrates that whether a count is duplex or uncertain depends on the proper construction of the offence provision it charges.[20]
[20] See also Montgomery v Stewart (1967) 116 CLR 220. The High Court there considered a conviction for an offence against s 43 of the Companies Act 1958 (Vic). The High Court held that a single offence, not a multiplicity of offences, against s 43 of the Companies Act 1958 (Vic) is committed by the issue of a prospectus containing more than one untrue statement or wilful non-disclosure. The Court held that if a number of untrue statements or wilful non-disclosures are particularised in an information the defendant may exculpate himself by proving that some or all were immaterial and/or that some or all, being material, he believed then to be true.
The decision of the Judge that the counts charged in this matter were bad for uncertainty and duplicity was premised on his Honour’s construction of s 120 of the Act to the effect that the identity of the offender against s 71 of the Act was an element of the s 120 offence. For the reasons I have given, that construction of s 120(3) is erroneous.
Section 120(3) of the Act creates a single offence. An offence against s 120(3) of the Act is committed by the use of a single registered boat in or in connection with a single offence against another provision of the Act. To allege in the one count of an offence against s 120(3) of Act that the boat was used to commit offences against several different provisions of the Act, whether conjunctively or disjunctively, would be bad for duplicity. However, on each of the counts of which the respondent was convicted in the Magistrates Court, only one referential offence is alleged with respect to a single occasion of offending.
The s 71(3) defence
The Judge also held that it is a defence to a prosecution of the registered owner on a prosecution pursuant to s 120 of the Act when the referential offence is one against s 71 of the Act that the registered owner of the boat did not act intentionally or negligently pursuant to s 71(3)(a) of the Act:[21]
[21] Dietman v Feast [2015] SASC 148 at [63]-[64],[71].
[63]In my view, the present proceedings are proceedings against both sections 120(3) and 71 of the Act and are therefore within the conditional words “proceedings for an offence against s 71”. It is common place for an offence to be charged as being against more than one section of an Act (or indeed, against sections of different Acts). Obvious examples include charges of attempt and of liability for complicity which are offences “against” more than one section of an Act. Here, the charges in counts 2 and 4 are against both ss 120(3) and 71 of the Act because a charge under s 120(3) requires that an underlying “principal offence” against a different “section of the Act” be averred. One has to go to the principal offence provision (here s 71) to find what has to be proven, what the sentence is, and it must follow, what the defence provisions are.
[64]Although the wording of s 5(1) of the Crimes Act 1914 (Cth) was different from s 120(3) of the Act in that it deems another offence to have been committed,[22] the decision of the High Court in Thomas v Ducret is nevertheless of assistance here. There it was contended that while the Federal Court had jurisdiction to hear charges under the Trade Practices Act 1974 (Cth), it had no jurisdiction to hear charges against the Crimes Act and, the contention went, the charge in question was laid pursuant to s 5 of the Crimes Act (even though it then referred to an offence contrary to s 79 of the Trade Practices Act). The High Court rejected that contention and stated:[23]
[22] Section 5(1) provided: ‘Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence and shall be punishable accordingly.’
[23] (1984) 153 CLR 506, 508-509 (Gibbs CJ, Mason, Murphy, Wilson and Deane JJ).
That submission may be shortly dealt with. By s 86 of the Trade Practices Act jurisdiction is conferred on the Federal Court to hear and determine actions, prosecutions and other proceedings under Pt VI of the Act. Section 79 is contained in Pt VI. The effect of s 5 of the Crimes Act is that the applicant is deemed to have committed offences against s 79. In Mallan v Lee,[24] Latham CJ, in the course of a discussion of the effect of s 5 of the Crimes Act, said:[25]
[24] (1949) 80 CLR 198.
[25] (1949) 80 CLR 212.
But s 5 provides no penalty for any offence. In order to ascertain what penalty is permissible it is necessary to look at the ‘law of the Commonwealth’ against which the offence has been committed. The person is deemed to have committed an offence against that law and is ‘punishable accordingly’. Thus the penalty applicable is the penalty appropriate to the offence against the law of the Commonwealth which a defendant is deemed to have committed. That is the offence for which he is prosecuted, and the law relating to prosecutions for that offence is the law which is applicable.
The law relating to prosecutions for an offence against s 79 of the Trade Practices Act was applicable. Plainly the Federal Court had jurisdiction.
(emphasis in original)
…
[71]Put another way, the very laying of a charge against ss 120(3) and 71 of the Act engages the operation of the whole of s 71 including the defence provision s 71(3). The defendant can only be convicted if, upon the evidence, the prosecution establishes the requisite elements of the charge against ss 120(3) and 71 and the appellant does not make out the s 71(3) defence. In this regard the words of Richards J in Mertin v Carr-Fish concerning a similar defence provision are apt:[26]
When the law provides that a certain ground shall be a defence to a charge of having committed an offence it is difficult to ignore that ground when considering what is the offence itself. The distinction between homicide and murder is an illustration of this. Whatever may be the burden upon the prosecution in a case of homicide, it is clear that if A kills B in self-defence, or by accident, the killing is no offence. On reading sub-sec 3 of sec 140a, it seems clear that, although the burden is on the defendant to prove his defence, if the fact is that he “did not know and could not by the exercise of all practical diligence have known that the said offence (i.e. of the other person) was being committed” then he has not committed the offence constituted by the section. Looked at in that way, the licensee’s offence includes, although the proof of this is not on the prosecution, that on a certain occasion the licensee knew that an offence against sec 62 of the Lottery and Gaming Act was being committed, or did not exercise all practicable diligence to know whether such offence was being committed or not.
(emphasis in original)
[26] [1940] SASR 449, 462.
The appellant accepts that on the prosecution of an offence against s 120(3) of the Act, when the referential offence is one against s 71 of the Act, the prosecution must prove that the principal offender who committed the referential offence, whoever they may be, acted intentionally or failed to take reasonable care to avoid the commission of the offence[27] and that the conduct alleged to constitute the principal offence was not authorised by or under some other Act or law.[28] That proposition follows from a natural reading of s 120(3) of the Act. The referential offence is not committed unless the statutory excuses or defences which limit the scope of the criminal liability it imposes are excluded.
[27] Fisheries Management Act 2007 (SA) s 71(3)(a).
[28] Fisheries Management Act 2007 (SA) s 71(3)(b).
However, the Judge went further and held that the defence in s 71(3)(a) of the Act was available to the registered owner in respect of the registered owner’s conduct and state of mind (as opposed to the principal offender or offenders). The Judge held that the words ‘defendant’ and ‘defence’ in s 71(3) must be read so that on a prosecution pursuant to s 71 of the Act, s 71(3) of the Act gives a defence to the registered owner charged pursuant to s 120(3) of the Act if the registered owner did not act intentionally or negligently in the commission of the offence. His Honour held that a registered owner could therefore make out a defence to s 120(3) of the Act by showing that he or she did not intentionally or negligently commit the offence but that it was committed, albeit intentionally, by his or her crew member.
The Judge’s conclusion depends on reading the opening words of s 71(3) of the Act ‘in proceedings for an offence against this section’ as by necessary implication including a prosecution against s 120(3) of the Act and the word ‘defendant’ as including the registered boat owner charged with that offence. With respect I disagree. The section cannot be rewritten in that way. The defence in s 71(3) of the Act is incorporated into s 120(3) of the Act only insofar as the registered boat owner relies on it to show that the persons using his boat did not act intentionally, negligently or pursuant to lawful authority.
The Judge supported his contention that a defendant to a s 120(3) prosecution could rely directly on the defence in s 71(3) of the Act by reference to a subsequent amendment to the Act. The Statutes Amendment (Directors’ Liability) Act 2013 (SA) amended ss 120(1) and 120(2) of the Act to reflect generally uniform provisions which were inserted into a number of Acts concerning the criminal liability of directors for offences committed by corporations. At the same time as the making of those amendments, s 71(4) was added to the Act. It provided:
Subsection (3)(a) does not apply in relation to a person who is charged with an offence under section 120(1) or (1a).
In an explanation of that clause, the Attorney-General in the second reading speech explained that the defence under s 71(4) of the Act denied the s 71(3)(a) defence to a director of a body corporate charged with a directors’ liability offence under ss 120(1) or (1a) of the Act because the defence available to such a director is incorporated within both ss 120(1) and (1a). Leaving aside the question whether a court can have regard to a subsequent amendment, and the Attorney-General’s statutory construction of the pre-existing provisions, the conclusion of the Judge in [77] does not follow:
In my view, it must follow that if a director charged under s 120(1) did then have the benefit of the s 71(3) defence, so did any other person charged under s 120(3). The amendment only removed that benefit from company directors charged under ss 120(1) and 71(1) (as the sections then stood), because such directors were henceforth to have the benefit of a uniform defence enacted within s 120 itself. The result is that the amendment clearly did not affect other persons charged with an offence under s 120(3). It would thus appear that it was specifically recognised that such other persons already had the benefit of the s 71(3) defence and would continue to have it. The present appellant is one such person.
(emphasis in original)
The enactment of subsection (4), and the statement of the Attorney-General, are consistent with the construction advanced by the appellant in this case. In short, the defence in s 71(3) of the Act is available to the registered owner of a boat only to the extent that the registered owner can show that the perpetrator of the s 71 offence could make out the s 71(3) defence. The point of subsection (4) which made the offence inapplicable to a director was that, as the Attorney‑General explained, the corporation of which the defendant charged with an offence contrary to ss 120(1) or (1a) is a director would already have had the benefit of the defence on the prosecution of the corporation for an offence against s 71 of the Act. The purpose of s 71(4) of the Act is to bind the director and agents to the judicial determination of the defence in the prosecution of the corporation in a way which precludes the director from relitigating it in a s 120(1) or (1a) prosecution.
In terms of the practical operation of the provisions so construed, and leaving aside the allocation of the burden of proof, s 120(3) of the Act would impose criminal liability on a registered proprietor who was complicit in the referential offence or who negligently failed to prevent the crew committing the offence. In a case based on the intentional involvement in the commission of a principal offence, s 120(3) of the Act is not necessary. Liability in negligence generally presupposes the presence of the registered owner on the vessel. The terms in which s 120(3) of the Act is expressed do not suggest such a limitation. Section 120(3) of the Act on its face applies to all registered boat owners including those who are not present on the boat. It would be surprising if a registered owner’s absence (and that is not uncommon), in effect, absolved him or her of liability for offences against s 71 of the Act committed by others with the use of his or her boat.
The effect of the Judge’s construction deprives s 120(3) of the Act of much of its practical utility. For textual, contextual and purposive reasons, it must be rejected.
Conclusion
I would allow the appeal, set aside the judgment and affirm the convictions recorded in the Magistrates Court.
BLUE J: I agree.
STANLEY J: I agree.