Dietman v Feast - [2015] SASC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DIETMAN v FEAST
[2015] SASC 148
Judgment of The Honourable Justice Peek
25 September 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING PROHIBITED TYPE OF FISH
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - STATUTORY OFFENCES - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PRESUMPTIONS AS TO LEGISLATIVE INTENTION - NOT TO ALTER COMMON LAW RIGHT, PRIVILEGE OR DOCTRINE
MAGISTRATES - COMMENCEMENT OF PROCEEDINGS - DUPLICITY, AMBIGUITY AND UNCERTAINTY - PARTICULAR CASES - OTHER CASES
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
Section 71 of the Fisheries Management Act 2007 creates offences concerning protected species, including Southern Rock lobsters carrying external eggs. Section 71(3) is a reverse onus defence provision. 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.
The appellant is a professional fisherman and the registered owner of the registered boat the Coral Raider. Very early one morning, fisheries officers raised seven of his 98 lobster pots, micro-chipped nine lobsters which were carrying external eggs, and left them in situ. The appellant, with his crew member McElroy, later raised his pots. In addition to the lobsters returned because they were undersized or carrying external eggs, the appellant’s total catch for the day was 152 lobsters. Fisheries officers later inspected them and found one only of the nine micro-chipped lobsters, which was no longer carrying any external eggs. Expert evidence at trial supported the allegation that the eggs had been manually scrubbed from the lobster.
The appellant (but not McElroy) was charged with taking a lobster carrying external eggs (count 1), and removing its eggs (count 3). As alternative counts, he was charged with two offences against s 120(3), the respective underlying principal offences being 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 either he or McElroy, committed the underlying charges.
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 this Court.
Held, allowing the appeal, and dismissing the complaint:
1.       The Magistrate did not err in finding beyond reasonable doubt that the lobster was carrying external eggs when aboard the Coral Raider and therefore that someone had removed its eggs.
2. Liability under s 120(3) is secondary to, and dependent upon, strict proof of the commission of a specified principal offence against the Act.
3. Section 120(3), although appearing to be very wide in its terms, must be construed in accordance with the principle of legality. There is a strong presumption that a guilty intent is an essential ingredient of an offence and it is unlikely that Parliament would intend to interfere with this presumption unless such an intention was made absolutely clear.
4. The proceedings here are against both ss 120(3) and 71. The underlying offence provision provides what must be proven, what the sentence is, and what the defence provisions are.
5. The application of the principle of legality leads to the correct construction that the words “defendant” and “defence” in s 71(3) apply distributively to both the primary alleged offender and a secondary alleged offender charged under both ss 71 and 120.
6. The Magistrate erred as a matter of law in failing to address the question of whether the appellant had proven the s 71(3) defence.
7. Section 120(3) is to be construed against normal common law principles which require specificity of allegation and proof. The doctrine of uncertainty of conviction nullifies the purported convictions on counts 2 and 4 which record that the underlying offence was committed by “the appellant or McElroy”.
8.       Further, counts 2 and 4 which charge that the underlying offence was committed by “the appellant or McElroy” (and the convictions founded thereon), are also bad for disjunctive duplicity.
9.       In all the circumstances it is appropriate to dismiss the complaint rather than to order a retrial.
Fisheries Management Act 2007 (SA) ss 7, 71, 71(1)(a), 71(2)(a), 71(3), 71(3)(a), 120 120(1), 120(3); Fisheries Management (General) Regulations 2007 (SA) cl 6; Statutes Amendment (Directors' Liability) Act 2013 (SA) s 40; Firearms Act 1977 (SA) s 36A; Summary Procedure Act 1921 (SA) ss 22A, 181, referred to.
Bastin v Davies [1950] 2 KB 579; Benedetto v Huffa [1969] SASR 448; Cameron v Holt (1980) 142 CLR 342; Carr v Western Australia (2007) 232 CLR 138; Coco v The Queen (1994) 179 CLR 427; CTM v The Queen (2008) 236 CLR 440; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; R v Fuller [2012] SASCFC 101; R v Giam (1999) 104 A Crim R 416; Hardgrave v The King (1906) 4 CLR 232; He Kaw Teh v The Queen (1985) 157 CLR 523; Iannella v French (1968) 119 CLR 84; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; Johnson v Miller (1937) 59 CLR 467; R v Kerin (2013) 116 SASR 316; R v Khouzame (1999) 108 A Crim R 170; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Lee v New South Wales Crime Commission (2013) 251 CLR 196; Linehan v Australian Public Service Association (Fourth Division Officers) (1982) 66 FLR 90; Mertin v Carr-Fish [1940] SASR 449; P v The Queen (1986) 41 SASR 360; Parker v Sutherland (1917) 86 LJKB 1052; R v Thompson (1996) 90 A Crim R 416; R v Zampogna (2003) 85 SASR 56; Reedy v O’Sullivan [1953] SASR 114; Romeyko v Samuels (1972) 2 SASR 529; S v The Queen (1989) 168 CLR 266; South Australia v Totani (2010) 242 CLR 1; Taylor v Hayes (1990) 53 SASR 282; Thomas v Ducret (1984) 153 CLR 506; Walsh v Tattersall (1996) 188 CLR 77; R v Kerin (2013) 116 SASR 316, discussed.
R v Beach (1994) 75 A Crim R 447; Bond v Foran (1934) 52 CLR 364; R v Bruce (1986) 23 A Crim R 123; R v Clarke and Johnstone (1986) 21 A Crim R 135; R v Cramp (1999) 110 A Crim R 198; R v Dally (2000) 115 A Crim R 582; Georgiadis v The Queen (2002) 11 Tas R 137; R v Glattback [2004] QCA 356; Jones v The Queen [1980] WAR 203; KBT v The Queen (1997) 191 CLR 417; R v Lake, Carstein and Geerlings (2007) 174 A Crim R 491; Lapthorne v The Queen [1990] WAR 207; R v Leivers and Ballinger (1998) 101 A Crim R 175; R v Levidis (1990) 51 A Crim R 216; The Queen v LM [2004] QCA 192; Maher v Musson (1934) 52 CLR 100; Montgomery v Stewart (1967) 116 CLR 220; Mouritz v Western Australia [2006] WASCA 165; Murphy v Police [2011] SASC 138; R v Serratore (1999) 48 NSWLR 101; R v Serratore (No 2) [2001] NSWCCA 123; Sherras v De Rutzen [1895] 1 QB 918; Snell v Ryan [1951] SASR 59; R v Spathis and Patsalis [2001] NSWCCA 476; R v Suckling (1998) 104 A Crim R 59; R v Trotter (1982) 7 A Crim R 8; R v Walsh (2002) 131 A Crim R 299; WGC v The Queen (2007) 223 CLR 66; Willers v The Queen (1995) 125 FLR 221, considered.

DIETMAN v FEAST
[2015] SASC 148
Magistrates Appeal

PEEK J. Appeal against conviction and sentence.
When lobsters carrying external eggs are found in fishermen’s pots, they must by law be returned to the sea immediately. In this case, the prosecution alleges that one such pregnant lobster was not.
Summary of the facts
The appellant, Mr Feast, is a professional fisherman and the registered owner of the registered boat, the Coral Raider. In October 2012, fisheries officers were investigating whether professional fishermen in the south east of South Australia were unlawfully removing external eggs from lobsters and retaining and selling the lobsters.[1] In the very early hours of 14 October 2012, (unknown to the appellant and well before he checked his pots), fisheries officers raised seven of his pots from the seabed and inspected their contents.[2] Of the lobsters found in those pots, nine were carrying external eggs; these nine were all micro-chipped by the officers and were then left, with all of the other lobsters in the pots, in situ.
[1] Contrary to s 71 of the Fisheries Management Act 2007 (“the Act”).
[2] Agreed fact No 6 states that “The officers inspected 7 of 31 lobster pots belonging to the defendant.” The appellant during his interview on 14 October 2012 stated that he was licensed for 100 pots and had pulled about 98 that day, the pots being set at various locations and varying depths of water. In his evidence he repeated that 98 pots had been pulled that day. There is no inconsistency here. The officers checked 7 of 31 pots belonging to the appellant that they noticed; they did not claim to have checked all of his pots at all of their various locations that day.
Later that morning, the appellant, in company with one crew member, Mr McElroy, began checking his 98 pots, including the seven pots that had been interfered with by the fisheries officers. In addition to the lobsters that were returned because they were undersized or carrying external eggs, the appellant’s total catch for the day was 152 lobsters which were immediately sold to commercial buyers in the normal way.
Fisheries officers later inspected those 152 lobsters and found one only of the original nine micro-chipped lobsters (“the subject lobster”); at this time it was no longer carrying any external eggs.[3] Dr Bremner, an expert on the subject of lobsters, gave evidence at trial that lobsters breed only once a year and that the females carry their eggs externally, quite firmly attached in a “basket” formed by the lobster’s curled up tail and its underside. He examined the subject lobster and was of the opinion that eggs had been recently manually[4] scrubbed from it.
[3] The prosecution conceded that the other eight lobsters carrying external eggs were unlikely to have escaped from the pots and that the most likely explanation is that they were properly released back into the sea from the Coral Raider.
[4] As distinct from chemical scrubbing which is sometimes employed.
It is to be noted that at the time of the seizure of the subject lobster, the other 151 lobsters in the appellant’s catch were all examined when searching for any lobsters having implanted microchips. No sign of tampering was reported on any of those 151 lobsters and none were undersized.
At 3:41pm that same day, 14 October 2012, two fisheries officers attended at the appellant’s home and interviewed him. The interview was recorded visually and aurally on disc[5] and lasted for about 15 minutes. In summary, he stated that it had been a normal day’s fishing with his crew member, Mr McElroy. He was licensed to use 100 pots and that day they had pulled 98 pots; they had returned many lobsters carrying external eggs, probably about as many as the number they had kept (152). He stated that he had not taken any lobster with eggs and had no reason to believe that McElroy had. The appellant answered all questions without hesitation or prevarication. In my view his demeanour was impressive.
[5] It was received at trial as exhibit P6, which I have viewed.
Fisheries officers also later separately interviewed McElroy. It has not been suggested that McElroy in any way implicated the appellant and it would appear that McElroy denied any wrongdoing. In due course, a complaint was laid against the appellant but no charge was laid against McElroy.
The complaint and the legislation
On 10 April 2013 the appellant was charged with four counts on the following complaint:
Complainant  Complainant’s reference: CSO 132786
Name:       Peter Dietman (a Public Officer)
Address:    1-25 George Robertson Drive, Largs North SA 5016
Defendant
Name:       Jonathon Mark Feast             DOB/Date of Incorporation: 21/03/1972
Address:    Lot 101 Pelican Point Road, Carpenter Rocks SA 5291
Offence details
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) 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 Raider 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 71(2)(a)[6] of the Fisheries Management Act, 2007 and clause 6 of the Fisheries Management (General) Regulations, 2007.
[6]    Section 72(2)(a) was originally erroneously stated and was amended by consent at trial.
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 Raider 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)[7] 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.
(Emphasis added)
[7]    Section 72(2)(a) was originally erroneously stated and was amended by consent at trial.
It can be seen that the complaint charged two pairs of alternative charges, the first pair being counts 1 and 2 and the second pair being counts 3 and 4.
Count 1 was a substantive charge against s 71(1)(a) of the Act[8] that the appellant “took” (in the sense of kept when he should have released) a lobster carrying external eggs. Count 3 was a substantive charge against s 71(2)(a) of the Act[9] that the appellant interfered with, harassed or molested a lobster carrying external eggs by removing its eggs (being the very same lobster the subject of count 1). Section 71 appears as follows:
[8]    Together with clause 6 of the Fisheries Management (General) Regulations 2007. Section 71(1)(a) of the Act is erroneously stated as 71(1)(1).
[9]    Together with clause 6 of the Fisheries Management (General) Regulations 2007.
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; or
(b)injure, damage or otherwise harm an aquatic mammal or aquatic resource of a protected species.
Maximum Penalty:
(a)    if the offence involves an aquatic mammal—
(i)     in the case of a body corporate—$250 000;
(ii)in the case of a natural person—$100 000 or imprisonment for 2 years;
(b)    in any other case—
(i)     for a first offence—
(A)     in the case of a body corporate—$50 000;
(B)     in the case of a natural person—$10 000;
(ii)    for a second or subsequent offence—
(A)     in the case of a body corporate—$100 000;
(B)     in the case of a natural person—$20 000.
Expiation fee: In the case of an offence not involving an aquatic mammal—$500.
(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.
Maximum penalty:
(a)    if the offence involves an aquatic mammal—
(i)     in the case of a body corporate—$250 000;
(ii)in the case of a natural person—$100 000 or imprisonment for 2 years;
(b)    in any other case—
(i)     for a first offence—
(A)     in the case of a body corporate—$50 000;
(B)     in the case of a natural person—$10 000;
(ii)    for a second or subsequent offence—
(A)     in the case of a body corporate—$100 000;
(B)     in the case of a natural person—$20 000.
Expiation fee: In the case of an offence not involving an aquatic mammal—$500.
(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.      (Emphasis added)
Thus, counts 1 and 3 directly charged that the appellant “took” the subject lobster (count 1 — s 71(1)(a) of the Act) and removed its eggs (count 3 — s 71(2)(a) of the Act) after it was emptied from a pot raised from the seabed onto the Coral Raider and before it was later sold with the other 151 legitimate lobsters. I note that there was no difference of approach to these two principal offences in that exactly the same issues of proof arose. (For convenience, further discussion references the wording of count 4 but equally applies to count 2.)
The position of the appellant, as appears from both his police interview, and his evidence, was that he had committed neither offence; he had returned all lobsters carrying external eggs; and he had endeavoured to ensure that McElroy did the same. And, as will be seen below, the Magistrate did not reject the appellant’s sworn denials.
However, when one turns to counts 2 and 4, a major complication emerges. Those counts purported to charge offences under s 120(3) of the Act on the basis that the appellant was the registered owner of the registered boat Coral Raider. Section 120 (as at 12 October 2012) appeared as follows:
120—Offences committed by bodies corporate or agents, or involving registered boats
(1)     If a body corporate is guilty of an offence against this Act, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless he or she proves that he or she exercised all reasonable diligence to prevent the commission of the offence.
(2)     If a person is guilty of an offence against this Act committed while he or she was acting as the agent of another person, that other person is guilty of an offence and liable to the same penalty as is prescribed for the principal offence.
(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.
(4)     Without limiting the effect of this section—
(a)if the registered master of a registered boat is not the registered owner and—
(i)the registered master, while on the boat, does or omits to do an act or thing the doing or omission of which constitutes an offence against this Act or that would, if done or omitted to be done by the registered owner, constitute an offence against this Act; or
(ii)the registered master does or omits to do, in relation to a fishing activity conducted by use of the boat, an act or thing the doing or omission of which constitutes an offence against this Act or that would, if done or omitted to be done by the registered owner, constitute an offence against this Act,
the registered owner is guilty of an offence and liable to the same penalty as is prescribed for the principal offence or to the penalty to which the registered owner would be liable if the act or thing, if done or omitted to be done by him or her, constituted an offence against this Act;
(b)    if—
(i)an employee or other agent of the registered owner or the registered master, while on the boat, does or omits to do an act or thing the doing or omission of which constitutes an offence against this Act or that would, if done or omitted to be done by the registered owner, constitute an offence against this Act; or
(ii)an employee or other agent of the registered owner or the registered master does or omits to do, in relation to a fishing activity conducted by use of the boat, an act or thing the doing or omission of which constitutes an offence against this Act or that would, if done or omitted to be done by the registered owner, constitute an offence against this Act,
then—
(iii)the registered owner is guilty of an offence and liable to the same penalty as is prescribed for the principal offence or to the penalty to which the registered owner would be liable if the act or thing, if done or omitted to be done by him or her, constituted an offence against this Act; or
(iv)if the registered owner is not the registered master, the registered owner and the registered master are each guilty of an offence and liable to the same penalty as is prescribed for the principal offence or to the penalty to which the registered owner would be liable if the act or thing, if done or omitted to be done by him or her, constituted an offence against this Act.
(Emphasis added)

It can be seen in counts 2 and 4 that the prosecution purported to charge an offence against s 120(3) on the basis that the underlying principal offence against s 71(3) was committed by either the appellant or McElroy. Before addressing this somewhat interesting averment, I will refer to the course of the trial.
The course of the trial
On the day of the trial, before the trial was called on, the prosecutor interviewed McElroy. He then indicated to counsel for the appellant that he was not calling McElroy to give evidence on the basis that he had proofed him that morning and considered that he could not call him as a witness of truth.[10]
[10] Affidavit of the prosecutor, Mr Rodriquez sworn 18 September 2014 and received on the appeal.
When the trial was called on, and before any plea was taken, counts 1 and 3 were unconditionally withdrawn by the prosecutor. On the hearing of the appeal, counsel for the respondent (who also appeared at trial) confirmed that the reason for that withdrawal was “because we made the assessment that we couldn’t prove beyond reasonable doubt that it was Mr Feast in particular as opposed to either him or Mr McElroy that could be proven to have taken the lobster … .”[11]
[11] These counts are to be treated as dismissed by the Court.
Pleas of not guilty were then entered to counts 2 and 4 and the trial proceeded. The prosecution contended before the Magistrate essentially as follows:
·First, the case on counts 2 and 4 simply turned on s 120(3) of the Act which is in wide terms.
·Second, the appellant admitted that he was the registered owner of the registered boat Coral Raider.
·Third, the appellant admitted that he and McElroy were the only persons aboard the Coral Raider at the relevant time.
·Fourth, the only further proof necessary to establish that the Coral Raider was used “in connection with the commission of an offence against this Act”, was that it must have been one or other of the appellant or McElroy who had removed the external eggs of the subject lobster (but it was not necessary to prove which).
·Fifth, proof of the above fourth aspect was established by the whole of the circumstantial evidence, including the changed condition of the subject lobster as observed by prosecution witnesses before and after the pot containing it was retrieved by the Coral Raider.
The approach taken by defence counsel
Of course, the defence case always was that the appellant had not removed eggs from the subject lobster and that he did not believe that McElroy had done so. Unfortunately, defence counsel (who appeared at trial and on appeal[12]) did not challenge the prosecutor’s analysis of the law (or the form of the complaint). He accepted that the s 71(3) defence was not available and that counts 2 and 4 would be made out if any person aboard the Coral Raider intentionally removed eggs from the subject lobster, and this would necessarily be so if (unbeknown to the appellant and in defiance of his instructions), McElroy had done so.
[12] Unfortunately, counsel Mr Nugent was suffering from a terminal illness during the trial and appeal and died after judgment was reserved.
Thus the defence case was relegated to the contention that the prosecution could not disprove the hypothesis (equally applicable to counts 2 and 4) that the subject lobster may have shed its eggs between the time that it was micro-chipped and the time it was taken from the pot on the Coral Raider, and therefore it was not proven that anyone on the Coral Raider removed the eggs.
The Magistrate’s judgment
In his judgment, the Magistrate accepted the above prosecution submissions as to the approach to be taken to the case and made no reference whatsoever to the s 71(3) defence. The respondent accepts that this is because his Honour considered, consonant with the prosecution position taken at trial, that that defence was unavailable as a matter of law. His Honour stated:
[3]     To establish count 2 the prosecution must prove beyond a reasonable doubt:
1.     The defendant was the registered owner of a registered boat on 14 October 2012.
2.     On that date the boat was used in or in connection with the commission of an offence against the Fisheries Management Act, 2007 (the Act).
3.     Either the defendant or Mr McElroy took a Southern Rock Lobster carrying external eggs near Nene Valley in the waters of South Australia.
…
[12]    Consequently the factual issue I need to make a finding on is whether lobster A was carrying external eggs when taken by the defendant or his deck hand. The prosecution submits that from all the evidence in particular that of Dr Bremner I can be satisfied beyond reasonable doubt that it did. The prosecution submits that I can be satisfied beyond reasonable doubt that the eggs depicted in P2 photo 14 and absent in P3 were removed by one or other of those on board by mechanically scrubbing lobster A so as to remove the visible eggs.   (Emphasis added)
His Honour proceeded to apply that approach to the evidence thus:
[38]    The defendant was interviewed by fisheries officers Tarr and Henwood on 14 October at about 3.40pm outside his property at Pelican Point. He answered questions put by fisheries officers. He said it was not correct that a lobster had eggs removed on the boat as they were protected and the industry relies upon the pregnant females being returned for its continuation. He said any spawning lobster were returned to the water. He guessed there may have been 150 spawning lobster returned to the water. He said there should be no lobster eggs on the boat unless they had fallen off when the pots were brought in. He said the scrubbing brush on the boat was used to scrub the decks. He said that he was not going to “fuck my industry for the sake of one lobster … one lobster amongst all of the fish … handled during the day.” He thought he had landed 150 lobster that day.
…
[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.
…
[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 careful 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 thereabouts 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.
[45]    It follows that in relation to count 2 I am satisfied beyond a reasonable doubt that lobster A was carrying external eggs when taken by the defendant or McElroy on 14 October 2012.
[46]    It also follows in relation to count 4 that I am satisfied beyond a reasonable doubt that either the defendant or McElroy removed lobster A’s eggs by manual scrubbing. I am therefore satisfied the prosecution has established both counts 2 and 4 to the requisite standard and I find the charges proven.   (Emphasis added)
Thus the Magistrate found the appellant guilty of counts 2 and 4, each relating to the subject lobster which had a wholesale value of $26.50. Convictions on both charges were recorded and the appellant was ordered to pay a fine of $3,000, an additional penalty of $132.50 pursuant to s 110 of the Act, and prosecution costs of $6,010. Further, his fishing licence was suspended for a period of one month from 1 November 2014 and various items which had been seized by fisheries officers were ordered to be forfeited.
The appeal to the Supreme Court
The appellant appealed against conviction and sentence. The appeal was originally called on for hearing but then adjourned to enable the parties to make written submissions concerning the fact that count 2 (at 2.4) and count 4 (at 4.4) charged that the identity of the person charged with the relevant offence was “the defendant or Daron George McElroy”. When the appeal was called on again following the receipt of those submissions, permission was granted to the appellant to amend his notice of appeal so as to add ground 3 of appeal against conviction dealing with this and associated issues. The appeal was then argued but was adjourned pending the decision of the High Court in the case of Australian Communications And Media Authority v Today FM (Sydney) Pty Ltd[13] which, it was then thought, might potentially have some effect on the present case. Subsequent to the delivery of that decision, it was considered that it would not have any significant effect, but the present case was called on again for further argument concerning a number of other matters and counsel were given leave to supply further written submissions. Those submissions have been received and considered.
[13] (2015) 89 ALJR 382.
The grounds of appeal
As amended, the grounds of appeal are as follows:
1. His Honour erred in law in concluding, to the requisite standard, on the evidence before the Court, that the Fisheries Officer’s “suspicion” that something had been done or omitted to be done or is intended to be done or omitted to be done, in contravention of the Fisheries Act in relation to an aquatic resource, was “reasonable” within the meaning of s 81(1)(b) Fisheries Management Act 2007.
2. His Honour erred in law in concluding, on the evidence before the Court, that each of the two charges brought against the defendant was proven beyond reasonable doubt.
3. Counts 2 and 4 of the complaint, and the purported findings of guilt and convictions founded thereon, are each invalid in that no valid principal offence against the Fisheries Management Act 2007 is either specified or established.
I find that grounds 2 and 3 of appeal (but not ground 1) are made out, that the appeal must be allowed and the convictions[14] must be set aside. My reasons follow.
[14] Both in the sense of finding of guilt and recording of conviction.
GROUND ONE OF APPEAL
The appellant applied for his Honour to exclude the evidence that fisheries officers lifted the appellant’s pots, implanted identification microchips and subsequently retrieved the lobsters on the basis that it was illegally obtained. His Honour declined to do so. I consider that the authorities his Honour cited, and the principles he applied, were appropriate to this case. His Honour made relevant factual findings which were open to him on the evidence. I detect no error in his Honour’s decision to admit the evidence. This ground of appeal is rejected.
GROUND TWO OF APPEAL
2. His Honour erred in law in concluding, on the evidence before the Court, that each of the two charges brought against the defendant was proven beyond reasonable doubt.
Ground 2 is broadly drawn and was argued on two bases.
A. The contention that it was not proven that the subject lobster was carrying eggs when it was taken from the pot aboard the Coral Raider
Counsel for the appellant vigorously contended that the Magistrate erred in finding it proven that the subject lobster was carrying external eggs when it was taken from the pot aboard the Coral Raider.
Counsel particularly stressed that the prosecution conceded that the subject lobster was the only one of the nine micro-chipped lobsters found in the appellant’s catch with the most likely explanation being that the other eight lobsters carrying external eggs had been properly returned to the water. Counsel submitted that it was therefore very unlikely that one lobster that was seen to be carrying external eggs would have been deliberately taken.
Counsel further emphasised that the evidence was that the subject lobster was the only one of the nine lobsters that was in the process of shedding her eggs. Dr Bremner had examined the photographs taken by fisheries officers of the lobsters after they were micro-chipped and before they were replaced in the appellant’s pots and was of the opinion that the subject lobster had begun hatching her eggs and “half the eggs were already gone.” Counsel contended that this was no coincidence; he submitted that the subject lobster (perhaps as a reaction to her imprisonment in the pot and then the indignity of being removed, injected with a chip and then once again being imprisoned in the pot) may well have shed her remaining eggs between when she was replaced in the pot by the fisheries officers and later removed when the pot was retrieved onto the Coral Raider.
As noted above, Dr Bremner examined the subject lobster and, based on observed damage, was of the opinion that eggs had been manually removed from it. To this the defence responded that such damage could have been caused by fighting between the lobsters while trapped in the lobster pot or by predation on the lobsters while in the pot by other sea creatures. The appellant himself gave evidence of “(v)ermin of the ocean, octopus, other animals of the sea, leather jackets, parrot fish that prey upon lobsters when they’re in our cray pots.” This evidence was plausible and uncontested.
Some lobster eggs were found trapped in “Velcro” material on a jacket found on the boat and said to have been worn by McElroy. The prosecution contended that this was evidence confirming removal of eggs. The defence pointed to the fact that no eggs were found on the scrubbing brush or elsewhere on the boat and submitted that the eggs on the jacket could have got there during the process of handling and returning to the ocean numerous lobsters carrying external eggs.
I must say that the circumstantial case that the subject lobster was still bearing external eggs when it was taken from the pot on board the Coral Raider was neither compelling nor overwhelming and my mind has fluctuated greatly as to whether all hypotheses of innocence[15] were negated. But in the end, I am not prepared to find that the Magistrate erred in finding beyond reasonable doubt that the subject lobster was carrying external eggs when aboard the Coral Raider and that therefore someone had removed its eggs.
[15] In the sense of a failure to prove beyond reasonable doubt that the subject lobster was still bearing external eggs when it was taken from the pot on board the Coral Raider.
B. The contention that the Magistrate failed to consider the s 71(3) defence
Sections 71 and 120 are reproduced in full above but it is convenient to again reproduce s 71(3)(a) and s 120(3):
Section 71(3)(a)
(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 …
Section 120(3)
(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.
In my view, if this defence had been treated as open at trial, the Magistrate would likely have found that it had been proven by the appellant. But before pursuing that aspect, the fundamental question of whether, as a matter of law, a registered boat owner who is charged under s 120(3), alleging a principal offence against s 71, can call in aid the s 71(3) defence provision must first be addressed. In doing so, regard must be had to the following preliminary matters.
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.
At the same time, the position of the boat owner is not to be prejudiced by the subsequent actions of the person alleged to be the principal offender. If that person wishes to plead guilty on the basis that he has no money, has no lawyer, wants to get it over with, or all of the foregoing, he may do so. However, the charge against the boat owner must be strictly proven as against the owner himself; the mere fact that the alleged principal offender waives a defence and pleads guilty will not avail the prosecution if the owner contests the commission of the primary charge. As an obvious example, it would be open to the owner to call evidence to establish that (in the words of s 71(3)), the alleged offence “was not committed intentionally and did not result from any failure on the part of the [principal] defendant to take reasonable care to avoid the commission of the offence”. If such evidence is accepted, the s 71(3) offence will be demonstrated to be applicable and the primary offence will not have been established as against the owner.
The construction of the Act by reference to the principle of legality
The third preliminary matter is the correct interpretation of the relationship between s 120(3) and s 71(3) of the Act in the light of the principle of legality.
Before going to the more modern expositions of that principle, it is helpful to note an earlier approach. In his highly respected work Strict Responsibility, Professor Howard commented:[16]
A status offence is one which attaches criminal responsibility to someone merely by reason of his status, capacity, or physical situation apparently dispensing with the need for either act or omission as a prerequisite for conviction. Some of these offences, as interpreted by the courts, have come as near as the nature of things allows to the absurdity of crime without either actus reus or mens rea. Such a situation, as the cases which follow will show, is indefensible.
…
It is suggested that nothing more complicated is called for here than a reversal by the courts themselves of the tendency towards undue preoccupation with the literal meanings of statutory words which, on the whole, they at present exhibit. There is no ground at all for presupposing in the approach to status offences that the legislature intended to be unreasonable when creating them. Still less is there ground for such a presupposition when it is clear that in the vast majority of regulatory statutes, if not in all, the legislature cannot be realistically said to have had any intention whatever in regard to the minute niceties of wording in question here.
… Obviously the statutory statement of an offence, however minor, does not normally set out any more than a minimum set of conditions for conviction.
This general rule applies as much to status offences as to other crimes. The inference follows that merely because there is no express mention in the definition of an offence of such a basic prerequisite for criminal responsibility as actus reus, some conscious, voluntary act or omission by D, such a requirement is not necessarily to be excluded from that offence. The mere fact that a statute makes no express mention of some act or omission by D is an utterly inadequate reason for failing to imply such a requirement.
[Footnotes omitted]
[16] Colin Howard, Strict Responsibility (Sweet & Maxwell, 1963), 46-47; 50-51.

Later, Professor Howard refers with enthusiasm to three important Australian decisions, Maher v Musson,[17] Bond v Foran[18] and Snell v Ryan,[19] and observes that they “illustrate very well that there is no need for the courts to be unduly impressed by the impersonal wording which characterises status offences.”[20] With respect to the High Court decision in Maher v Musson (where the defendant was charged with an offence against s 74(4) of the Distillation Act 1901 (Cth), which provided: “No person shall … have … in his custody … any illicit spirit”) he says:[21]
On an unimaginatively literal reading, it can well be argued that there is no express requirement of either knowledge or act or omission in this offence. If D, wittingly or unwittingly, fulfils the requirements for the status of custodian of a container which contains spirit the status of which is illegality, the offence is committed; so that he might well be liable to conviction if someone secreted illicit spirit among his possessions without his knowledge. Four members of a court of five[22] firmly rejected such an interpretation of the statute, two of them bluntly on the ground that it would be “a palpable and evident absurdity”.[23] The same can be said with some force of the result of Larsonneur.
[17] (1934) 52 CLR 100.
[18] (1934) 52 CLR 364.
[19] [1951] SASR 59.
[20] Colin Howard, Strict Responsibility (Sweet & Maxwell, 1963) 51.
[21] Colin Howard, Strict Responsibility (Sweet & Maxwell, 1963) 51.
[22] Rich, Dixon, McTiernan and Evatt JJ, Starke J dissenting.
[23] 52 CLR 100, 109 (McTiernan and Evatt JJ).
So here, s 120(3) of the Act might initially appear to be very wide in its terms. On an unduly literal meaning, it might appear to mean that a registered boat owner is guilty of an offence if thieves in the night, without his knowledge or consent, steal his boat, take it to sea, and there one shoots a seal, a serious offence under s 71(1)(a) with a maximum penalty of $100,000 or imprisonment for two years. In that scenario, the boat is “used in or in connection with the commission of an offence against this Act”. However, as Professor Howard observed, it is a mistake to take too literal a meaning. It is unlikely in the extreme that Parliament would intend to visit such criminal liability on an innocent person such as the owner of the stolen boat in the postulated circumstances.[24]
[24] If any further justification for that statement is required, it can be found in the contrasting position of two different boat owners who have their boats stolen in the above circumstances. The first is an amateur fisherman who has lost his or her boat and is appalled at the subsequent conduct of the thieves in shooting a seal; he or she is a victim of serious crime and is to be treated sympathetically. The second is the registered owner of a registered boat who has also lost his or her boat and is appalled at the subsequent conduct of the thieves; he or she too is a victim of crime and is to be treated sympathetically. It cannot be rationally (let alone fairly) be said that, because the second owner happens to be the registered owner of a registered boat, he or she is criminally liable for the actions of the thieves in circumstances whereas the first owner is not.
Professor Howard’s approach, and the more modern statements of the principle of legality referred to below, proceed on the basis that fundamental assumptions, which may be expressed in terms of rights and freedoms, are deeply embedded in the fundamental structure and general rules of the common law.
One such rule was expressed thus by Griffith CJ in Hardgrave v The King:[25]
The general rule is that a person is not criminally responsible for an act which is done independently of the exercise of his will or by accident. It is also a general rule that a person who does an act under a reasonable misapprehension of fact is not criminally responsible for it even if the facts which he believed did not exist. I do not think the first rule has ever been excluded by any Statute. (Emphasis added)
[25] (1906) 4 CLR 232, 237.
Much later, in Cameron v Holt, the High Court held that mens rea is an ingredient of an offence against s 138(1)(d) of the Social Services Act 1947 (Cth). Barwick CJ (with whom Aickin J concurred) said:[26]
Further, there is a presumption—in my opinion, a strong presumption—that in creating a criminal offence the legislature intends a guilty intent appropriate to the nature of the offence to be an ingredient of the offence. This presumption can only be displaced if the language of the statute read along with its subject matter requires the conclusion that the legislature intended that such guilty intent should not form part of the prescription of the offence …
[26] (1980) 142 CLR 342, 346. See also, 348 (Mason J).
And in the context of possession of prohibited imports, in He Kaw Teh v The Queen, Gibbs CJ (Mason J concurring) stated:[27]
(T)he provision has to be read in the light of the general principles of the common law which govern criminal responsibility. The relevant principle is stated in Sherras v De Rutzen,[28] as follows:
There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.
[27] (1985) 157 CLR 523, 528.
[28] [1895] 1 QB 918, 921.
Brennan J also referred to this passage in Sherras v De Rutzen and stated:[29]
That statement has not been doubted. I would respectfully agree with Lord Goddard CJ who said in Brend v Wood:
It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.
[29] (1985) 157 CLR 523, 565-566.
In CTM v The Queen,[30] a question arose as to whether an offence created by the Crimes Act 1900 (NSW) was subject to a “defence” of honest and reasonable mistake. The plurality observed:[31]
[5] What is involved is a basic legal principle of criminal responsibility which informs our understanding, and interpretation, of the criminal law. That law is, to a large extent, although in most Australian jurisdictions not completely, governed by statute. The Crimes Act 1900 (NSW) is not a code, but it contains provisions dealing with most serious offences against the person. The legal effect of some of those provisions, of which those relating to homicide are a well-known example, can be understood only against a background of common law principle.[32] Where the problem is one of interpretation of what Parliament has enacted, general principles of criminal responsibility inform such interpretation, but ultimately it is the language of the statute that is controlling. A principle as to criminal responsibility, such as that described above, as is acknowledged, may be excluded by a sufficiently plain manifestation of legislative intention.
[30] (2008) 236 CLR 440.
[31] (2008) 236 CLR 440, 446 (Gleeson CJ, Gummow, Crennan, and Kiefel JJ).
[32] See for example R v Lavender (2005) 222 CLR 67.
In similar vein, Hayne J stated:[33]
[148] To read a statute which creates a statutory offence that forms part of the general criminal law as subject to the general principles according to which the criminal law is administered does no more than reflect the fact that “[s]ociety and the law have moved away from the primitive response of punishment for the actus reus alone”. It avoids what has been called “the public scandal of convicting on a serious charge persons who are in no way blameworthy”. And “[i]t is now firmly established that mens rea is an essential element in every statutory offence unless, having regard to the language of the statute and to its subject matter, it is excluded expressly or by necessary implication”.
[Citations omitted]
[33] (2008) 236 CLR 440, 483-484.
The principle of legality
Traditionally, the common law has strictly construed statutes which interfere with fundamental rights and freedoms, resolving any ambiguity in favour of the subject; this approach is now recognised as an important aspect of the principle of legality. The principle of legality has been expressed by reference to a premise that the courts perceive it to be highly unlikely that Parliament would intend to interfere with fundamental common law rights and freedoms, and therefore interpret statutes as not doing so, unless the words made it absolutely clear that the Parliament was indeed intending to take that unlikely course. The decision of the High Court in Coco v The Queen[34] is a strong exemplar of that approach. The plurality there stated:[35]
The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
… At the same time, in our view, the principle was expressed more simply by Brennan J in Re Bolton; Ex parte Beane[36] in these terms:
Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation. [Some citations omitted]
[34] (1994) 179 CLR 427.
[35] (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).
[36] (1987) 162 CLR 514, 523.
And in Lee v New South Wales Crime Commission, Kiefel J stated:[37]
[173] The applicable rule of construction recognises that legislation may be taken necessarily to intend that a fundamental right, freedom or immunity be abrogated. As was pointed out in X7, it is not sufficient for such a conclusion that an implication be available or somehow thought to be desirable. The emphasis must be on the condition that the intendment is “necessary”, which suggests that it is compelled by a reading of the statute. Assumptions cannot be made. It will not suffice that a statute’s language and purpose might permit of such a construction, given what was said in Coco v The Queen.
[Citations omitted]
[37] (2013) 251 CLR 196, 265.
The application of rules of interpretation accepted by all arms of government
However, more recently the principle of legality has been approached on the more refined basis that Parliament may now be taken to be well aware that courts will construe legislation on the basis of the principle of legality and, therefore, the courts are well justified in proceeding on that basis, safe in the knowledge that Parliament would have used appropriate language if it did indeed wish and intend to oust fundamental freedoms. Thus in Electrolux Home Products Pty Ltd v Australian Workers’ Union, Gleeson CJ said:[38]
The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law. (Emphasis added)
[38] (2004) 221 CLR 309, 329 [21].
And in Lacey v Attorney-General (Qld), the plurality stated:[39]
[43] The objective of statutory construction was defined in Project Blue Sky Inc v Australian Broadcasting Authority[40] as giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have. An example of a canon of construction directed to that objective and given in Project Blue Sky is “the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities”. That is frequently called the principle of legality. The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. As this Court said recently in Zheng v Cai:[41]
It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws. As explained in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs,[42] the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. [Some citations omitted]
[39] (2011) 242 CLR 573, 591 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[40] (1998) 194 CLR 355.
[41] (2009) 239 CLR 446, 455-456 [28] (some footnotes omitted).
[42] (2002) 123 FCR 298, 410-412.
An interpretation so as to minimise infringement with fundamental rights
Importantly, a manifestation of an intention to interfere with fundamental rights to some extent in no way forecloses the application of the principle of legality. Thus in Carr v Western Australia, Gleeson CJ said:[43]
[7] … the general purpose of legislation of the kind here in issue is reasonably clear; but it reflects a political compromise. The competing interests and forces at work in achieving that compromise are well known. The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object? (Emphasis added)
[43] (2007) 232 CLR 138, 143.
In South Australia v Totani, French CJ stated:[44]
Applying the “principle of legality”, courts will, of course, construe statutes, where constructional choices are open, so as to minimise their impact upon common law rights and freedoms. That principle, well known to the drafters of legislation, seeks to give effect to the presumed intention of the enacting Parliament not to interfere with such rights and freedoms except by clear and unequivocal language for which the Parliament may be accountable to the electorate. Save to the extent that it imposes something approaching a formal requirement of clear statutory language, the principle of legality does not constrain legislative power. (Emphasis added; citations omitted)
[44] (2010) 242 CLR 1, 28-29 [31].
In Lee v New South Wales Crime Commission, French CJ stated:[45]
[29] A statute said to affect important common law rights and procedural and other safeguards of individual rights and freedoms will be construed “as effecting no more than is strictly required by clear words or as a matter of necessary implication” …
[45] (2013) 251 CLR 196, 217 [29].
And Crennan J there stated:[46]
[126] In some cases, a legislative object may involve a public interest which cannot be pursued without some impairment of some private right or immunity. An underlying legislative object is not necessarily to be achieved at any cost, but commonly by striking a balance between competing interests. (Emphasis added)
[46] (2013) 251 CLR 196, 250 [126].
The objects of the Fisheries Management Act 2007
Turning to the matter of the stated objects of the Act, s 7 provides in part:
7—Objects of Act
(1)An object of this Act is to protect, manage, use and develop the aquatic resources of the State in a manner that is consistent with ecologically sustainable development and, to that end, the following principles apply:
(a)     proper conservation and management measures are to be implemented to protect the aquatic resources of the State from over-exploitation and ensure that those resources are not endangered;
(b)     access to the aquatic resources of the State is to be allocated between users of the resources in a manner that achieves optimum utilisation and equitable distribution of those resources to the benefit of the community;
(c)     aquatic habitats are to be protected and conserved, and aquatic ecosystems and genetic diversity are to be maintained and enhanced;
(d)     recreational fishing and commercial fishing activities are to be fostered for the benefit of the whole community;
(e)     the participation of users of the aquatic resources of the State, and of the community more generally, in the management of fisheries is to be encouraged.
(2)The principle set out in subsection (1)(a) has priority over the other principles.
(3)A further object of this Act is that the aquatic resources of the State are to be managed in an efficient and cost effective manner and targets set for the recovery of management costs.
…
I consider that there is nothing about s 7 (or any other provision of the Act) which suggests that the interpretation of the offence provisions of the Act is to proceed other than by reference to the principle of legality.
The application of the s 71(3) defence provision to the present case
In order to determine whether s 71(3) applies to the present case, it is necessary to consider two questions in the light of the preliminary matters discussed above, including the principle of legality. The first question is: are these “proceedings for an offence against s 71”? The second is: what do the words “the alleged offence was not committed intentionally” mean?
Are these “proceedings for an offence against s 71”?
Section 71(3) commences with the words “In proceedings for an offence against this section” and therefore the s 71(3) defence provision will only apply to such proceedings.
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.
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,[47] 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:[48]
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,[49] Latham CJ, in the course of a discussion of the effect of s 5 of the Crimes Act, said:[50]
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 added)
[47] 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.”
[48] (1984) 153 CLR 506, 508-509 (Gibbs CJ, Mason, Murphy, Wilson and Deane JJ).
[49] (1949) 80 CLR 198.
[50] (1949) 80 CLR, 212.
What do the words “the alleged offence was not committed intentionally” mean?

In R v Fuller, this Court referred to a defence section[51] in the same terms as s 71(3) thus:[52]
The existence of this section prevents a person who can prove that they had no intention to do anything wrong and no knowledge that they were doing so from being convicted of an offence against the Act. This defence would extend to an accused who was deemed to be in possession of a firearm by operation s 5(14) but can prove, for example that they did not know that the object the subject of the charge was in fact a firearm.
[51] Firearms Act1977, s 36A.
[52] [2012] SASCFC 101, [71].
Reverting to the thief shooting the seal scenario above, the respondent submits that the words “the alleged offence was not committed intentionally” require the conclusion that if the thief fired the shot “intentionally”, it will be impossible for the boat owner to demonstrate that “the alleged offence was not committed intentionally” (even though he was miles away, looking for the stolen boat, and completely unaware of the shooting).
In my view, such an interpretation is entirely contrary to the principle of legality and the fundamental common law rules referred to above. Still further, if the defence is otherwise to apply, such an interpretation produces the absurd result that the owner of the stolen boat would be shut out from a s 71(3) defence if it happened that the thief shot the seal intentionally but that he would be able to assert the defence if the thief was negligently brandishing the gun and shot the seal carelessly, but unintentionally.[53]
[53] Of course, the thief could be convicted of a s 71 charge whether he or she killed the seal intentionally or accidentally, since in the latter case the thief would not be able to satisfy the second limb of the s 71(3) defence.
The application of the principle of legality leads to the correct construction that the words “defendant” and “defence” must be read distributively.
In the seal scenario, when the thief who stole the boat and shot the seal is charged under s 71, he is the defendant and the s 71(3) defence is his defence. He would have to prove both that he did not commit the offence intentionally and that the offence did not result from any failure on his part to take reasonable care to avoid the commission of the offence. On the predicated facts, he obviously would not be able to make out that defence.
However, if the owner of the boat is charged in relation to that same incident, he is, as explained above, charged under both s 120(3) and s 71. He is the defendant and the s 71(3) defence is his defence. Again, he would have to prove both limbs of the defence. On the predicated facts, he would be able to satisfy the first limb that he had no intention to bring about the shooting of the seal by proving his lack of complicity in, and knowledge of, the thief’s venture. He would be able to satisfy the second limb by proving that he had taken reasonable steps to secure his boat against theft over night. The owner of the boat would therefore be acquitted, as accords with both common sense and the principle of legality.
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:[54]
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 added)
[54] [1940] SASR 449, 462.
There are many examples of cases where a construction of a statute in accordance with the principle of legality is preferred to what might be contended to be a more “obvious” construction, but which is not in accordance with that principle. The principle of legality is the touchstone, but it is not dissimilar to the approach taken under “the golden rule” of statutory interpretation[55] or indeed the “well-known principle of statutory interpretation that constructions leading to absurd results are to be avoided, if possible”.[56]
[55] DC Pearce and RS Geddes, in Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th ed, 2014), state at page 37: “Put shortly, the golden rule contemplated that a mistake had been made in the wording of the Act: President, etc of Shire of Arapiles v Board of Land and Works (1904) 1 CLR 679 per Griffith CJ at 687. The term ‘linguistic absurdity’ might be used to describe the nature of the absurdity referred to in the paragraphs above as bringing into play the golden rule. Several examples are discussed at 2.28-2.30. In Footscray City College v Ruzicka [2007] VSCA 136; (2007) 16 VR 498 at [16] Chernov JA (with whose reasons Warren CJ and Maxwell P agreed at [1] and [2] respectively) acknowledged this application of the golden rule, adding ‘the rule is also otherwise applied to avoid construing legislation so as to produce patently unintended or absurd results’. See also JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297; 218 IR 454 at [50] per Flick J. Adler v George [1964] 2 QB 7, a decision of the English Queen’s Bench Division, illustrates this extended application of the golden rule. In that case the court had to interpret an Act that made it an offence to obstruct a member of Her Majesty’s forces ‘in the vicinity of’ a prohibited place. The defendant had actually carried out the obstruction in the prohibited place. The court considered that the failure of the legislature to proscribe this latter conduct was clearly an oversight that could have led to an absurd result. Instead, the golden rule was applied and the court treated the Act as if it read ‘in or in the vicinity of’. The alternative would have been to conclude that an offence had only been committed if the obstruction occurred near, not when it occurred in, a prohibited place.”
[56] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, 80 (Gaudron, Gummow, Hayne and Callinan JJ). See also Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 304 (Gibbs CJ): “… if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.”
The respondent’s position concerning the availability of the s 71(3) defence
The respondent submits that it is demonstrated, on the basis of a rather convoluted legislative history, that there is a positive statutory intent that the s 71(3) defence is not to be available where the charge is laid via s 120(3). With respect, I do not accept that the previous pattern of assorted legislative amendments (reminiscent of the oft referred to patchwork quilt), demonstrates, with the required specificity, a statutory intent to override fundamental principle such that, in the predicated thief shooting a seal offence, the boat owner would also be guilty of that same offence simply because his boat was used in connection therewith. In my view, the High Court decisions on the principle of legality demonstrate that a much clearer manifestation of legislative intent to overturn such fundamental principles is required.
Although entirely unnecessary to my decision, I note that the availability of the s 71(3) defence in fact appears to be confirmed by an amendment subsequent to 12 October 2012. Pursuant to s 40, Statutes Amendment (Directors’ Liability) Act 2013, the following subsection was added to s 71 of the Act:
(4)Subsection (3)(a) does not apply in relation to a person who is charged with an offence under section 120(1) or (1a).
The Honourable Attorney-General, Mr Rau recounted in the second reading speech that the purpose of the Bill was to bring about consistency in company directors’ defences as found in a large number of Acts, one of which was the present Act. He continued:[57]
It has been common, … to include in legislation provisions that impose personal criminal liability that goes beyond the normal principles of accessorial liability. In many Acts there are provisions that hold each director criminally liable on proof of the company’s offending, subject to a defence of due diligence that must be proved by the director. …
Explanation of Clauses
…
Part 20—Amendment of Fisheries Management Act 2007.
29—Amendment of section 71—Taking, injuring etc aquatic mammals and protected species prohibited.
The defence under section 71 is not available to a director of a body corporate charged with a directors' liability offence under section 120(1) or (1a). The defence available to such a director is incorporated within section 120(1) or (1a). …”
(Emphasis added)
[57] South Australia, Parliamentary Debates, House of Assembly, 28 November 2012, 4009-4013 (John Rau, Attorney-General).
Thus, it was clearly appreciated that the position prior to this amendment was that a company director charged with an offence against ss 120 and 71(1) (as the sections then stood) did in fact then have the benefit of the s 71(3) defence.
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.
Conclusion as to ground 2 of appeal
I summarise the present position discussed above as follows.
·First, if McElroy (without the appellant’s knowledge) intentionally committed a s 71 offence, that denied to him the s 71(3) defence, but it had no impact upon the appellant. Section 71(3) applies distributively to both the primary (alleged) offender charged under s 71 and a secondary (alleged) offender charged under both s 71 and s 120.
·Second, the appellant could discharge his onus under s 71(3) to prove that the principal offence was “not committed intentionally” by proving that he had not directed McElroy to commit the offence and that he was not otherwise complicit in its commission.
·Third, the appellant could prove that “the alleged offence … did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence” by reference to the same considerations and evidence upon which he relied in the context of the different question of whether it was proven that the subject lobster was carrying exposed eggs while on board the Coral Raider.
The consequence of the above conclusions is that the Magistrate erred as a matter of law in failing to address the question of whether the appellant had proven the s 71(3) defence and the convictions and orders must be set aside.
Before turning to the question as to whether the complaint should be finally dismissed or whether there should be a retrial before a different Magistrate it is appropriate to consider ground 3 of appeal.
GROUND THREE OF APPEAL
3. Counts 2 and 4 of the complaint, and the purported findings of guilt and convictions founded thereon, are each invalid in that no valid principal offence against the Fisheries Management Act 2007 is either specified or established.
Ground of appeal 3 raises a number of issues relating to the validity of the averment in counts 2 and 4 “by the defendant or Daron George McElroy” in the context of the common law doctrines of uncertainty of conviction and duplicity.
The common law doctrines of uncertainty of conviction and duplicity
Uncertainty of conviction is an old common law doctrine.[58] It is encountered in its simplest form in cases where a count charges only one offence, but evidence is led of two (or more) incidents, each of which could constitute that offence. In such a case, the verdict or conviction[59] may be bad for “uncertainty” because it is unclear exactly of what the defendant has been convicted.[60] An example often referred to is the decision in Parker v Sutherland[61] where a barman was charged with permitting patrons to “treat” another person to a drink contrary to a World War I regulation, but the evidence disclosed two possible such offences on the specified date, one occurring at 7:55pm and the other 35 minutes later at 8:30pm. The conviction did not state to which incident it referred and was found to be bad for uncertainty. Viscount Reading CJ stated:[62]
Although not bad for duplicity, it has left it in doubt in respect of which of the two offences the appellant was really convicted; no one can say whether it is the offence at 7.55, or the offence at 8.30. We must be careful so to administer the criminal law that the offence of which a person is convicted shall be plain and certain. Otherwise the person convicted would be in a difficulty if charged again, for he would not be able to plead autrefois convict to either of two offences, if it is not made quite clear which of the two was the real ground of the conviction.
[58] High Court authority concerning uncertainty and the closely related doctrine of duplicity includes Johnson v Miller (1937) 59 CLR 467; Montgomery v Stewart (1967) 116 CLR 220; Iannella v French (1968) 119 CLR 84; S v The Queen (1989) 168 CLR 266; Walsh v Tattersall (1996) 188 CLR 77 and KBT v The Queen (1997) 191 CLR 417.
[59] The term “conviction” is here used in an expansive sense to cover both verdict and resultant conviction.
[60] It is the application of this doctrine of uncertainty to cases of the above nature that forms the content of what has relatively recently come to be known as “latent duplicity”.
[61] (1917) 86 LJKB 1052. Parker was applied by the High Court in both Johnson v Miller (1937) 59 CLR 467, 488-489 (Dixon J) and S v The Queen (1989) 168 CLR 266, 269 (Brennan J); 275 (Dawson J).
[62] Parker v Sutherland (1917) 86 LJKB 1052, 1054. See also Avory J at 1054-1055.
Australian Courts have regularly quashed convictions on this basis.[63] The Courts have referred to various jurisprudential bases of the doctrine,[64] but one important aspect is certainty of the basis of sentencing. Thus in S v The Queen Gaudron and McHugh JJ stated:[65]
However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict: … (Emphasis added)
[63] As recently illustrated in R v Kerin (2013) 116 SASR 316. Some earlier examples are: Jones v The Queen [1980] WAR 203; R v Trotter (1982) 7 A Crim R 8; Lapthorne v The Queen [1990] WAR 207; Willers v The Queen (1995) 125 FLR 221; R v Suckling (1998) 104 A Crim R 59.
[64] The principles of autrefois acquit and convict were once much stressed but today receive less prominence. Cf S v The Queen (1989) 168 CLR 266 (Brennan J) at 271-272 and (Toohey J) at 279.
[65] (1989) 168 CLR 267, 288.
Similarly, in Walsh v Tattersall, both the majority[66] and the minority noted the importance of certainty in sentencing. Thus Dawson and Toohey JJ stated:[67]
The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation.
[66] (1996) 188 CLR 77. See Gaudron and Gummow JJ at 90 and Kirby J at 102-112, particularly at 111.
[67] (1996) 188 CLR 77, 84.
And in R v Khouzame, Kirby J of the New South Wales Court of Criminal Appeal stated:[68]
Plainly, the trial judge would have been assisted by knowing whether the jury had regarded each act of sexual intercourse as non-consensual. If, contrary to the trial judge’s surmise, the jury believed that some, but not all, such acts were non-consensual, his Honour’s assumption (and the sentences imposed upon the basis of that assumption) was unfair to the accused.
[68] (1999) 108 A Crim R 170, 180 [62] (Ireland and Bell JJ concurring).
And in R v Giam where the false statement alleged to have been made by the accused was that he was the secretary of named companies and that he had been authorised to enter into an arrangement with the bank to obtain a facility, the verdict was quashed for uncertainty as to whether one or both statements had been found. Spigelman CJ stated:[69]
The doctrine of duplicity plays a number of different roles and performs a number of different functions. With respect to the case before this Court, the relevant role performed by the doctrine of duplicity is that of ensuring that a sentencing judge has before him or her a clear indication as to the facts that have been found on the elements of the crime. (Emphasis added)
[69] (1999) 104 A Crim R 416, 420 [24] (Abadee and Adams JJ concurring).
The problem of uncertainty may be particularly stark in a jury trial in several types of situations. One situation is that presented in cases such as S v The Queen[70] where there are at least two acts that may each constitute the charged offence; here a verdict of guilty may mean that different jurors convicted on the basis of different acts. Another situation occurs where there are several alternative routes to conviction, the particular route taken having consequences for both requisite “jury unanimity” and sentencing; here it has been held in certain types of cases that the jurors must be unanimous as to which route has been proven.[71]
[70] (1989) 168 CLR 266.
[71] This is a large topic which need not be investigated here. Relevant Australian decisions include (in chronological order): R v Clarke and Johnstone (1986) 21 A Crim R 135 (Vic CCA; drug trafficking); R v Bruce (1986) 23 A Crim R 123 (Vic CCA; handling stolen goods); R v Levidis (1990) 51 A Crim R 216 (Vic CCA; theft); R v Beach (1994) 75 A Crim R 447 (Vic CCA; culpable driving); KBT v The Queen (1997) 191 CLR 417; R v Leivers and Ballinger (1998) 101 A Crim R 175 (Qld CCA; murder); R v Serratore (1999) 48 NSWLR 101 (NSW CCA; murder); R v Cramp (1999) 110 A Crim R 198 (NSW CCA; manslaughter ); R v Dally (2000) 115 A Crim R 582 (NSW CCA; murder); R v Serratore (No 2) [2001] NSWCCA 123 (murder); R v Spathis and Patsalis [2001] NSWCCA 476 (murder); R v Walsh (2002) 131 A Crim R 299 (Vic CCA; conspiracy to defraud); Georgiadis v The Queen (2002) 11 Tas R 137 (conspiracy); R v Zampogna (2003) 85 SASR 56; The Queen v LM [2004] QCA 192 (torture) ; R v Glattback [2004] QCA 356 (murder); Mouritz v Western Australia [2006] WASCA 165 (assault and inflict grievous bodily harm); R v Lake, Carstein and Geerlings (2007) 174 A Crim R 491 (Qld CCA; conspiracy); WGC v The Queen (2007) 233 CLR 66.
The differences between the doctrines of uncertainty and duplicity

It is to be stressed that if a s 71(3) defence is available as a matter of law, then ex hypothesi, liability for a breach of s 71 is not absolute. The very rationale of such a defence is that, with the best will in the world, and despite the exercise of appropriate and reasonable care to prevent it, a prohibited occurrence may nevertheless occasionally occur. In other words, if the appellant established that he was not knowingly involved in the removal of eggs from the subject lobster and that he took reasonable care to avoid the commission of this type of offence (by the implementation of, and adherence to, appropriate systems), then a fact later established that McElroy had, on a frolic on his own, been able to transgress in relation to a single lobster without the appellant noticing, would not prevent the defence being established.[121]
[121] Some of the discussion in the decision of the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 is of assistance in this area, at least by way of analogy.
For the reasons explained above, the appellant did not address the s 71(3) defence and erroneously considered that he was relegated to an all or nothing contention that no eggs were removed from a lobster on board the Coral Raider on 14 October 2012. However, his position was always constant. It was that he did not remove external eggs; that he believed that McElroy did not do so; and that he had reasonable systems in place to prevent this.
Thus, counsel for the appellant cross-examined prosecution witnesses and led evidence by the appellant (consistent with his interview with fisheries officers) that he had not removed any external eggs; that to his knowledge, McElroy had not done so; that a total of about 150 lobsters carrying external eggs were returned to the sea; and that he had systems in place to ensure that all lobsters carrying external eggs would be returned to the sea forthwith, including the giving of explicit instructions to McElroy to return all lobsters that were undersize or were bearing eggs as soon as possible and general supervision of McElroy to the extent that “I can see most of what he (McElroy) does”. The appellant gave the following evidence of the detailed practice of checking lobsters for size and whether or not they are carrying eggs:
QHow are the lobsters sorted and by whom?
ADarren McElroy does a visual search. ... Anything that he thinks is undersized he returned to the ocean immediately. Anything that he obviously sees as spawning, he returns to the ocean immediately.
QStopping there. Have you given Mr McElory any instructions as to what he’s required to do in reaction to either undersized or spawning lobster?
AYes, I have.
QWhat were those instructions?
ATo throw them away as soon as possible. …
QMr McElory you’ve said undertakes an examination for both size and whether they’re female who are spawning. What happens after Mr McElory’s inspection and returning by him of whatever aren’t appropriate lobsters to be taken?
AThe lobsters that are close to size or size go into a pile. The pile, then I come down and gauge. I gauge the fish and do a quick visual myself. …
QWhat is your usual practice if, during the process of measuring, you observe a female bearing eggs?
AReturn it to the ocean immediately. …
QAfter the lobster have been measured by you, what becomes of them?
AThe lobster that I have sized go into a separate bin for another visual check by Darren McElory before they go into our lobster tank.
Q...What number do you say is your best estimate of the number of female lobsters bearing external eggs which were returned to the ocean by either you or your deckhand that day?
AApproximately 150.[122]
[122] Care must be taken here not to confuse the appellant’s estimated figure of “about 150” lobsters carrying external eggs being returned to the water with the exact figure of 152 lobsters comprising his total retained catch. The sense of his interview is that during the course of fishing that day, he made the observation that about as many lobsters were being returned as were being retained and hence the estimate of about 150.
Could the appellant prove that he did not intend to bring about the removal of external eggs?
If the Magistrate had considered the s 71(3) defence, the first finding that his Honour would have been required to make was as to whether the appellant intended to bring about the removal of external eggs. Obviously, if the appellant was in any way knowingly complicit with McElroy in removing the eggs, he could not prove that he did intend to bring about the removal of external eggs. Thus the burden of the appellant was to prove on the balance of probabilities that he was in no way knowingly involved with any deliberate removal of the eggs by any person.
However, while that burden lay on the appellant, it is to be remembered that the Magistrate was well aware that the prosecution conceded that they could not prove beyond reasonable doubt that it was not McElroy who was responsible for the removal of eggs from the subject lobster. That was the basis of the withdrawal of counts 1 and 3 and also, of course, the purported justification of this stratagem of charging “was taken by the defendant or Daron George McElroy”.
While there is a difference between the appellant pointing to the reasonable possibility of personal innocence (on the one hand) and proving personal innocence on the balance of probabilities (on the other hand), there is an important indication that the Magistrate would likely have accepted the appellant’s evidence that he was not knowingly concerned in the scrubbing of the lobster. The Magistrate had the advantage of considering the appellant’s interview when the disc exhibit P6 was played and seeing him give evidence and be cross-examined at length and, as noted above, his Honour stated:
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. …
Thus, there are good grounds for thinking that the appellant’s straight forward and consistent statements in his interview and in his evidence at trial would have been sufficient to discharge his onus of proving that he was in no way knowingly involved with any deliberate removal of the eggs by any person. Further, there were a number of other aspects of the evidence in the case that supported the veracity of the appellant’s evidence. These matters are more conveniently considered in the context of the wider question of whether the appellant could prove that the alleged offence “did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence” to which I now turn.
Could the appellant prove that the alleged offence “did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence”?
General reference to the decision of the High Court in Kirk v Industrial Court (NSW)[123] confirms that the requirement “to take reasonable care to avoid the commission of the offence” must be gauged by reference to both the realities of the industry to which the Act is addressed and the circumstances in a particular case.
[123] (2010) 239 CLR 531.
A situation of a small boat at sea, with a skipper and one crew member, must be distinguished from a static factory floor. Such a skipper will have concurrent responsibilities and duties including keeping a proper lookout concerning the state of the boat, the wind, the water, and other boat traffic; it is not reasonable to expect that he will be able to watch his crew member at all times. Obviously the state of the weather will be important. Thus the appellant stated in his evidence:
AWeather obviously is a crucial role. Obviously it’s not like the courtroom here. In rough weather the boat’s pitching, rolling, you have trouble standing, everything gets knocked about.
Q     Are you in a position to see what he’s doing?
A     I can see most of what he does.
Q     You didn’t see him scrub any lobsters that day?
A     No, not at all.
Putting the matter another way, it is not reasonable to expect that one can eliminate all possibility of a disobedient crew member taking advantage of the skipper being momentarily required to focus his attention on other important matters.
Here, the defendant gave evidence that he had put in place a system to prevent transgressions of the law, namely strict instructions to the crew member to release all undersize lobsters and all lobsters carrying exposed eggs. It is important to note that these two aspects of the appellant’s system were proven to be in place and were working well.
The system as to returning undersize lobsters was working well
Fishermen in the position of the appellant are required to have regard to a number of matters that are regulated so as to ensure sustainability of the industry, in the context of ecologically sustainable development. Two such matters in focus here are the prohibition on taking lobsters under a certain size (directed to ensure that lobsters attain breeding status) and the prohibition on taking lobsters carrying external eggs (directed to ensure that lobsters successfully breed).
While it is not known precisely how many undersize lobsters were released over the day’s fishing on 14 October 2012,[124] the indisputable fact is that of the retained catch of 152 lobsters, not one was undersize. Weight must be accorded to the fact that the appellant’s system as to ensuring the release of undersize lobsters was shown to have had a 100 per cent success rate on this day.
[124] An answer by the appellant to the Magistrate in his evidence at T115 was indicative of a rough estimate of in the vicinity of 50 per cent of lobsters emptied from pots being released as undersized.
The system as to returning lobsters carrying exposed eggs was working well
As foreshadowed above, one of the agreed facts at trial was that the whole of the appellant’s catch was inspected by fisheries officers and, of the nine lobsters carrying external eggs which had been micro-chipped, only the subject lobster was found. Further, the evidence was that all the lobsters in the appellant’s catch were checked and there is no suggestion that any other lobster bore any marks or damage similar to those apparent on the subject lobster.
Even if one were to restrict consideration to the nine micro-chipped lobsters, the returning to the water of eight of those nine lobsters constitutes a percentage return rate of almost 89 per cent of lobsters carrying eggs, a rate which would of itself indicate that there was a system in operation that was working largely successfully.
However, one is not restricted to the nine micro-chipped lobsters. The fisheries officers pulled up only seven of the appellant’s 98 pots on that day and it is obvious that if nine lobsters carrying external eggs were found by the fisheries officers in those seven pots, there would have been other lobsters carrying external eggs in the other 91 pots of the appellant that were not checked by the fisheries officers. The appellant stated in his interview, and in his evidence, that he retrieved on this day some 98 pots and that the total number of lobsters carrying external eggs found in all the pots that day and returned to the sea was approximately 150. This was not disputed in cross-examination of the appellant. On that basis therefore, the appellant can claim that the success rate of his system on this day was not just eight out of nine, but rather about 149 out of 150, or above 99 per cent.
The only suggestion made by the prosecutor at trial as to why the subject lobster was the only lobster carrying external eggs that was retained was made in his closing address thus:
We would have to accept that there is a reasonable possibility that the other(s) were returned to the water. I don’t think we could shy away from that. The difference between the others and this lobster was that this was the only one that was referred to as semi-berried so, that may well explain what has happened here, it may well be that Mr Feast has decided that, ‘I will just get rid of the eggs of this one, there’s not many eggs left, whereas the others have got a more complete set of eggs waiting to be hatched.’ That is the only other piece of evidence that might assist on that particular point but, at the end of the day, on our case it doesn’t matter. (Emphasis added)
Notably, the prosecutor here targets “Mr Feast” as distinct from “one of Mr Feast or Mr McElroy”. However, the prosecution had withdrawn counts 1 and 3 on the explicit basis that they could not prove that it was the appellant who had removed the external eggs from the subject lobster. To this must be added the obvious corollary that they could not disprove that McElroy had removed the eggs to the exclusion of any participation by, or knowledge of, the appellant.
Importantly, the prosecutor made no suggestion to the appellant in cross-examination that he had “scrubbed” the subject lobster or that he was aware that McElroy had done so. Nor did the prosecutor dispute in cross-examination of the appellant his assertions made in examination-in-chief (referred to above).
The prosecutor’s only suggested justification for his differentiation as between the appellant and McElroy was his assertion that McElroy had only ten per cent of the wholesale value to gain ($2.65)[125] whereas the appellant had 90 per cent of the wholesale value to gain ($23.85).[126] This assertion fails to take into account the following matters.
[125] Ten per cent of the wholesale price.
[126] The wholesale price less the $2.65 payable to McElroy.
First, both amounts are objectively very small. The amount of $23.85 may mean even less to the appellant than $2.65 means to McElroy, due to their different financial circumstances.
Second, the appellant had much more to lose than McElroy. In his interview, the appellant stressed the importance of spawning lobsters to the viability of the industry and to his business. The minimal additional value to him of the subject lobster balanced against the risk of being prosecuted and losing his valuable licence, temporarily or permanently, is a cogent consideration militating against the conclusion that the appellant scrubbed the subject lobster or was aware of McElroy doing so.
Third, in any event, financial gain cannot have been a motive for the appellant given that only the subject lobster was retained and not the much larger number of lobsters carrying exposed eggs that could have been retained.
The reverse onus defence in s 71(3)
I note that a reverse onus provision is involved in the present case, but this does not prevent an appellate court from substituting its view that such onus has been discharged in appropriate circumstances provided that it proceeds with due caution and circumspection.[127] In my view, if his Honour had not made the errors of approach and analysis that I have identified, it is likely that he would have found that the appellant had discharged his onus.
[127] See Murphy v Police [2011] SASC 138 where the appeal was allowed and the complaint dismissed on the basis that the appellant had satisfied a reverse onus provision. And see also the case of P v The Queen (1986) 41 SASR 360 discussed below.
I consider that guidance is to be found in the decision of the Court of Criminal Appeal in P v The Queen.[128] There, a doctor was prosecuted in relation to his charging for two claimed sequential consultations on 16 May 1984 with the patient Wastell, the first concerning her health (count 1) and the second concerning the health of another person, Spaeth, who could not personally attend (count 2). A reverse onus defence was provided by 129(3) of the Health Insurance Act 1973 (Cth):
In a prosecution of a person for an offence against this section, it is a defence if the person proves that he did not know, and had no reason to suspect, that the statement, document, return or information to which the prosecution relates was false or misleading, as the case may be.
[128] (1986) 41 SASR 360.
As to the first count, the doctor’s version as to the facts surrounding the consultations differed from that of Wastell but his acquittal of that count demonstrated that his version was preferred. The reverse onus defence was only of relevance to count 2, but the trial Judge refused to leave it to the jury and the doctor was convicted of that count. King CJ, having concluded that the verdict had to be set aside due to the failure to leave the defence, stated:[129]
It remains to consider whether there should be a new trial. I think that the question of the bona fides of the appellant depended very much upon what occurred on the 16th May. Clearly the jury was not satisfied that there was a want of bona fides in the appellant’s claim with respect to the attendance upon Lee-Anne Wastell concerning her health. In those circumstances it is difficult to see why they would not accept, given a proper direction, the appellant’s assertion that he believed that the attendance upon Lee-Anne Wastell with respect to Spaeth’s health was covered by Item 5. I do not think, in all the circumstances, that a new trial would be justified.
[129] (1986) 41 SASR 360, 369.
Prior J agreed with the Chief Justice, stating that “[a] new trial is not justified”.[130] Olsson J also agreed with the Chief Justice and stated:[131]
Having regard to the whole of the circumstances, including the undoubted circumstances giving rise to the raising of the assignment form, the finding of the jury as to Count 1, and the explanation given by the appellant as to Count 2, I am of opinion that it would be oppressive to send him back for a second trial.
[130] (1986) 41 SASR 360, 370.
[131] (1986) 41 SASR 360, 379.
In P v The Queen the appellant did not give evidence but made an unsworn statement to the jury. In the present case the appellant gave evidence on oath and the Magistrate explicitly found that:
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.
Conclusion as to ground 2 of appeal
I consider that in all the circumstances it is likely that, if the Magistrate had adverted to the matter, he would have found that the s 71(3) defence was proven by the appellant. I consider that it is preferable to exercise the discretion as to consequential orders on this basis rather than making a finding for myself but I indicate that if it were necessary for me to follow the course of making a finding on the matter, then I would find that the appellant did make out the s 71(3) defence.
The circumstances surrounding ground 3 of appeal
As to ground 3 of appeal, I bear in mind that often in cases involving findings that a count, or a conviction based thereon, is bad for uncertainty or duplicity, an appropriate exercise of the discretion may be for a retrial. However, the circumstances of the present case are quite unusual.
First, counts 1 and 3 were withdrawn immediately prior to the commencement of the trial and the prosecution have acknowledged that the reason for that withdrawal was “because we made the assessment that we couldn’t prove beyond reasonable doubt that it was Mr Feast in particular as opposed to either him or Mr McElroy that could be proven to have taken the lobster … .”
The trial proceeded on counts 2 and 4 with a common embarrassing and duplicitous pleading that “the defendant or Daron George McElroy” committed the underlying principal offence. Counts 1 and 3 having been withdrawn, it was, according to the prosecution, no longer relevant for the appellant to show that McElroy committed the underlying principal offences without the appellant’s knowledge because the s 71(3) defence did not apply to counts 2 and 4.

However, the case on counts 2 and 4 having been eventually proven on the above basis, the prosecution then proceeded to urge the Magistrate to sentence on the factual basis that the appellant had committed the underlying principal offences. Thus on sentencing submissions on 17 July, the prosecutor made a number of submissions including the following:[132]
The appellant should be sentenced on the basis that either he committed the acts himself or that McElroy did so with his knowledge. He was there and on the evidence it was implausible that McElroy would have committed the offending without Mr Feast being aware of it.
[132] Affidavit of the prosecutor sworn 18 September 2014 and received on the appeal.
To urge the Magistrate to make such findings was in effect to attempt to sentence on the basis that the withdrawn counts 1 and 3 were established and, in my view, was unfair.
It should be obvious, but it may be worth repeating, that it is unnecessary to show a precise operative effect of any of the various bases of the doctrine of uncertainty (including the matter of sentencing) that together may be thought to constitute its justification or rationale. As a matter of law, the doctrine is in place irrespective of its precise original source or bases and is to be applied directly to a particular case under consideration. Nevertheless, as a matter of interest only, it may be observed that while the Magistrate rejected the extreme prosecution position of sentencing the appellant on the basis that it was established that the appellant committed the acts himself, the appellant was sentenced on the nebulous basis of the averment that the prohibited activity was performed “by the defendant or Daron George McElroy”. It can be easily understood that those two alternatives give rise to a broad spectrum from, at one end, the appellant being the innocent and luckless victim of an act being performed without his knowledge by McElroy in disobedience of all instructions and systems to prevent it, to, at the other end, the appellant having himself knowingly and wilfully performed the prohibited act. It would seem that the former situation should excite leniency in all of the circumstances whereas the latter, involving deliberate reprehensible conduct (including the mean offending itself and the lying to fisheries officers and in evidence in court), should excite no leniency at all.
Further, as noted above, while the doctrine of certainty of conviction may be partly based on a need for certainty in sentencing, it is in no way restricted to such considerations. Thus, just as the broad spectrum of offending comprehended within the averment “by the defendant or Daron George McElroy” has relevance to appropriate sentencing, the conviction itself in that form is highly prejudicial to the appellant since it may connote a much more serious set of circumstances than was actually proved at trial; this is of more than idle significance for a person whose livelihood and future is in the very industry to which the conviction refers.
The present is not a case of an infelicitous pleading by a lay police prosecutor. Counts 2 and 4 were very deliberately pleaded in the way chosen. If the pleading in counts 2 and 4 had been non-duplicitous and had properly averred that the appellant was guilty of the underlying offence, then the prosecution would have had to prove that averment beyond reasonable doubt and they have conceded that they were unable to do so. If on the other hand, counts 2 and 4 had averred that McElroy was guilty of the underlying offence, that too would have had to be proven beyond reasonable doubt. Further, it would have necessitated the joining of McElroy as a defendant; not to do so would have been unfair both to the appellant and also to McElroy himself, for to try such an issue in his absence would be tantamount to a trial of McElroy in absentia.
It is all very well for the prosecution to assert that they chose not to call McElroy as a witness. It must not be forgotten that if McElroy had been a defendant, and in due course had given evidence denying that either he or the appellant had interfered with the subject lobster, it may be that the Magistrate may have taken a different view as to his credibility to that of the prosecutor. There is the possibility that in that situation, his evidence, taken together with that of the appellant, may have induced the Magistrate to have a doubt about whether the hypothesis of the lobster ridding itself of its remaining eggs prior to be being unloaded aboard the Coral Raider had really been eliminated beyond reasonable doubt. While I have indicated that I am not prepared to overturn the Magistrate’s finding that this hypothesis had been negated, I should also say that if the Magistrate had found that he was not satisfied beyond reasonable doubt that the hypothesis had been negated, I would certainly not have overturned such a finding on a prosecution appeal.
Matters of speculation are to some extent involved here, but the point is that the prosecution have made a number of considered forensic decisions. They have decided to take the risk of an adverse finding as to the validity of these charges (or the convictions dependent thereon) in a trial in which they neither charged McElroy nor called him as a witness. These risks were specifically drawn to the attention of the prosecutor at the beginning of the hearing of the appeal but the prosecution persisted in seeking to justify the course that had been taken; there is no reason to believe that if attention had been drawn to these matters at trial any different course would have been adopted by the prosecution.
Consideration of the exercise of the discretion
I place heavy weight on the objects and practical enforcement of the Act. It is important that infringements be detected and punished even though individual cases may only involve a relatively small amount or value of produce. The perceived possibility, or likelihood, of detection and prosecution is very important for both private and public deterrence, and particularly so in the case of persons employed in fisheries industries. This is even the more so in the context of matters having direct relevance to the sustainability of a particular fishery, such as in the present case. It is against that background that it is to be recognised that an excuse that “only one” fish or lobster was involved is no excuse at all.
However, giving full weight to those important considerations, it does remain the fact that some offences will be more serious than others by reference to such factors as a great amount of produce being involved or a systematic and planned flouting of the law.
As already noted, the subject of the charges here was one lobster (of the wholesale value of $26.50) from a catch of 152 lobsters in circumstances where it appears that a large number of lobsters carrying external eggs were properly returned to the sea. Furthermore, no undersize lobsters were found in the catch. Clearly no practice of taking lobsters carrying external eggs was established here; rather, a practice of returning such lobsters is demonstrated.
I have noted that it is likely that, if the Magistrate had adverted to the matter, he would have found that the s 71(3) defence was proven by the appellant and that, if it were necessary for me to follow the course of making a finding on the matter, I would find that the appellant did make out the s 71(3) defence. I further consider that if a re-trial before a different Magistrate were ordered, the likely result would be that the appellant would make out the s 71(3) defence.
There is also a strong argument that the prosecution should not be given a further opportunity to present a further case having regard to first, the prosecution contention at trial (accepted by the Magistrate but rejected by me) that the s 71(3) defence was not available to the appellant at trial and second, the deliberate tactical decision of the prosecution to proceed with a duplicitous disjunctive pleading.
To a limited extent, I also have regard to the fact that the case is now quite stale and the appellant has already suffered some punishment through the loss of time associated with the case and the expense of his legal representation which, no doubt, will substantially exceed any order of costs that I make in his favour.
Balancing all of the factors militating in favour of an order for dismissal against all of the factors militating in favour of an order for a retrial, I consider that in the rather unusual circumstances here, a re-trial would be unduly oppressive to the appellant. I therefore dismiss the complaint.
Orders
1The appeal is allowed.
2The convictions of the appellant are quashed, the verdicts of guilty are set aside, and the complaint is dismissed.
3The sentence, including the suspension of the appellant’s licence is set aside, and the appellant is to be repaid all monies paid by him in satisfaction of the orders made by the Magistrate.
4The orders imposed by the Magistrate for forfeiture of items, except insofar as they relate to the subject Southern Rock lobster, are set aside and all such items, with the exception of the subject lobster, are to be returned to the appellant.

[24] There is sometimes confusion between the different concepts of patent duplicity, latent duplicity, ambiguity and uncertainty. Historically the labels have been used in different senses from those in which they are commonly used today.
[25] Duplicity arises on the face of the indictment or prosecution notice if more than one offence is contained, either conjunctively or disjunctively, in the indictment or prosecution notice. Such cases are now commonly now described as one of patent duplicity, although historically the term ‘uncertainty’ was used to describe formal errors in an information which joined more than one offence disjunctively.
[26] Alternatively, ‘duplicity’ might emerge from the facts at trial, in the sense that the way that the prosecution case is to be, or has been, conducted gives rise to the possibility of the accused person being convicted of one of a number of distinct offences. In that case, the prosecution notice or indictment is sometimes now described as giving rise to ‘latent duplicity’. Historically, the notice or indictment would have been described as being bad for ‘ambiguity’.”