Ely v Town

[2009] QDC 16

[2009] QDC 16

DISTRICT COURT
CIVIL JURISDICTION

JUDGE CLARE SC

No 2741 of 2008

GUY ELY	Appellant/Defendant
and
DARRYL JOHN TOWN	Respondent/Plaintiff
BRISBANE ..DATE 29/01/2009
ORDER

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HER HONOUR: The respondent was prosecuted for the possession	1
of undersized or illegal crabs and Moreton Bay bugs. There were three charges for that offence and a fourth charge of operating a vessel and failing to ensure that those under the respondent's authority complied with the regulations. The

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Magistrate dismissed all charges. This is an appeal against that dismissal.

The evidence at trial was uncontested. The only issue was whether the evidence made out any defence.

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The respondent was a skipper of a licensed fishing trawler.
On the trawler were two deckhands. They sorted the catch
while the respondent drove the vessel from the wheelhouse.

The respondent was required to remain in the wheelhouse by

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force of the marine laws.

All of the product, the subject of the charges, was caught by, and in the possession of, the deckhands. One of the deckhands was said to be experienced. The other, the junior deckhand,

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was given some instruction on the way out to the catch. It
was not disputed at trial that the deckhands had possession of
the illegal fish and bugs or that all elements of all of the
offences had been proved. The question, as I said, was

whether or not the respondent had a defence.

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The ground of the appeal against conviction for the first

three charges of possession was that the Magistrate erred in fact and in law in finding that the conduct of the defendant amounted to taking all reasonable steps to prevent the acts or 1-2 ORDER 60

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omissions. The grounds in relation to the fourth charge were
these; that the Magistrate erred in fact and in law in
applying section 216, subsection 4, of the Fisheries Act 1994;

that the Magistrate erred in fact and in law in failing to

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make findings in relation to the matters raised by section
219, subsection 4, of the Fisheries Act 1994; that he erred in
failing to determine the defendant had proven matters raised
in section 219 of the Fisheries Act in the balance of

probabilities; and that he erred in finding that the defendant

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not guilty of all four charges and in dismissing the

complaint.

The essence of the appellant's submission is that the

Magistrate misdirected himself as to the onus of proof in

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respect to the applicable defences. The Act includes a regime
of vicarious liability. Responsibility for the acts or
omissions of representatives, including employees, are dealt
with in section 216 of the Act. That provision deals with the

state of knowledge and also the defence open to the person in

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authority.

As I said, there is no question that the deckhands had
committed offences in relation to the possession of the catch.

The respondent’s liability and his defence to the possession

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charges rested upon section 216, subsection 4. Section 216, subsection 4, provides an act or omission done or omitted to be done for a person by a representative of the person within

the scope of the representative's actual or apparent authority

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is taken to have been done or omitted to be done also by the	1
person unless the person proves the person took all reasonable steps to prevent the act or omission.
For the first three charges, that is, the charges of the

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unlawful possession of the catch, the respondent had to prove
then that he took all reasonable steps to prevent the
possession of those fish. The onus was on the respondent to

prove that on the balance of probabilities.

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The fourth charge was laid under section 219 of the Act.

Section 219 provides:

(1) the holder of an authority must ensure that everyone

acting under the authority complies with this Act;

(2) if another person acting under the authority commits

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an offence against a provision of this Act the
holder of the authority also commits an offence,
namely, the offence of failing to ensure the other

person complied with the provision...

(4) however, it is a defence for the holder of the

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authority to prove -

(a) the holder issued appropriate instructions and

used all reasonable precautions to ensure

compliance with the act; and

(b) the offence was committed without the holder's

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knowledge; and

(c) the holder could not by the exercise of

reasonable diligence have stopped the

commission of the offence.

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The commission of an offence by the respondent's deckhands would mean that the respondent was guilty of the offence in subsection 2 of section 219, that is, the offence of failing to ensure that the person under his authority complied with

the provisions of the Act.

The only defence available in respect of this charge was that in subsection 4. The onus was on the defendant to prove those matters in subsection 4 on the balance of probabilities. The

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prosecution had accepted that the illegal possession was
without the respondent’s consent. This left only the matter in
subsection 4(a) and 4(b) for consideration. The respondent had
to prove that he had issued appropriate instructions and used

all reasonable precautions to ensure compliance with the Act

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and that he could not, by the exercise of reasonable
diligence, have stopped the commission of the offence.

Mr Curran, for the respondent, accepted that if an error had been made in respect of the onus of proof for the defence the

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matter should properly be remitted back to the Magistrates
Court. Mr Curran argued, however, that a fair reading of the
Magistrate's comments and judgment disclosed a proper
understanding of the onus of proof. He submitted that the

Magistrate's comments went no further than indicating that His

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Honour had been satisfied firstly that there was a prima facie
defence and secondly that there was no evidence to contradict

that.

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It is clear, from the transcript, that the Magistrate was	1
cognisant of an onus on the defendant. For example, at page 41, he said that respondent would be guilty "unless Mr Town proves that he took all reasonable steps to prevent the act". At page 42 he said, "It comes down to his onus of proof on the

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balance of probabilities to show that he took all reasonable
steps and later if Mr Town shows he took all reasonable steps
to prevent the act then he is not guilty". Those remarks are
obviously in respect to the defence to the first three

charges.

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The are unexceptional. Subsequent comments however need to be considered. His Honour questioned the Prosecutor about what would be reasonable and he indicated and emphasised an absence of evidence as to what a reasonable skipper might do in

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respect to the training of a deckhand.

At page 44 he said, "Now the onus of proof is on him on the balance of probabilities but you have to negative to get the conviction" and, again, "but don't you have to show that what

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he did in all of the circumstances was unreasonable?" These things were put to the Prosecutor and apparently accepted by the Prosecutor unfortunately.

At page 47 of the transcript shortly before delivering his

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judgment the Magistrate said in respect of the second defence,
that is, the defence to the fourth charge, under section 219:
"Where's the evidence as to whether his instructions were

appropriate?" Taking his Honour's remarks as a whole and in

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the context of the erroneous concession by the Prosecutor it	1
is apparent that the Magistrate misplaced the onus of proof for the defences upon prosecution.
While the evidence was not in contest in this case, the live

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issue was whether the evidence disclosed reasonable
precautions or those matters of due diligence within the terms
required by section 219 and section 216. There were positive
obligations upon the respondent. Because the onus was on the

respondent to prove the defences the issue for the Magistrate

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was not in the negative. For example: the issue was not
whether the evidence had established that it was unreasonable
for the respondent to have limited himself to what he had

actually done.

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The prosecution had disputed that the evidence disclosed reasonable precautions or due diligence. The Magistrate appeared to have considered that it was for the prosecution to prove what was reasonable within the appropriate standard. He was mistaken. The Crown was not obliged to call evidence. It

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was entitled to rely upon shortfalls in the defence case.

The evidence of what were reasonable steps or the exercise of due diligence was limited to what had been said on the way to the catch in the course of an hour and a-half journey. The

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content of what was discussed, according to the evidence,
extended, not only to all of the necessary regulations and
requirements relating to the catching of crabs and bugs and

fish, but it was mingled with other issues such as safety.

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Whether or not that amounted to all reasonable steps or to due	1
diligence was a question of fact to be proved by the respondent.
Misapplication of the onus of proof means that the charges

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have not been properly considered; they were dismissed on an erroneous basis. All four charges are to be remitted to the Magistrates Court for proper determination.

...

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HER HONOUR: In respect to the costs of this appeal I make no order. The Magistrate was led into error by the Prosecutor; that error was defended by the respondent on appeal. In those circumstances, I am not inclined to award costs to either

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party.

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