Fisher v Firkins

[2004] WASCA 26

FISHER -v- FIRKINS [2004] WASCA 26

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 26
Case No:	SJA:1052/2003	Heard:	21 JULY 2003
Coram:	EM HEENAN J	Delivered:	4/03/04
No of pages:	27	Judgment Part:	1 of 1
Result:	Appeal allowed Conviction quashed
Category:	B
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Parties:	KIMBERLEY PETER WALKER FISHER JAMES BENJAMIN WILLIAM FIRKINS
Catchwords:	Justices Act Appeal Civil Aviation Regulations 1988 Maintenance release Obligation to endorse particulars of defect Justices Act s 43 Complaint to be for one matter only Duplicity Nature of "defect"
Legislation:	Civil Aviation Regulations 1988, reg 50 Justices Act 1902
Case References:	Bank of South Australia v Ferguson (1998) 192 CLR 248 Byrne v Baker [1964] VR 443 Fox v Percy (2003) 77 ALJR 989 Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934 Johnson v Miller (1937) 59 CLR 467 Jones v The Queen (1989) 166 CLR 409 McHenry v Boardman [1981] WAR 356 Montgomery v Stewart (1967) 116 CLR 220 Mraz v The Queen (1955) 93 CLR 493 Palmer v The Queen (1992) 66 ALJR 270 R v Traino (1987) 45 SASR 473 Stanton v Abernathy (1990) 19 NSWLR 656 TKWJ v The Queen (2002) 76 ALJR 1579 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Walsh v Tattersall (1996) 188 CLR 77 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 Wilde v The Queen (1987) 164 CLR 365 Brown v The Queen, unreported; CCA SCt of WA; Library No 6028; 3 October 1985 Coleman & Anor v R (1988) WAR 196 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Lloyd v Faraone [1989] WAR 154 Pallot & Ors v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 S v The Queen (1989) 168 CLR 266 Shepherd v The Queen (1990) 170 CLR 573 Stojkovski v Fitzgerald [1989] WAR 328

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FISHER -v- FIRKINS [2004] WASCA 26 CORAM : EM HEENAN J HEARD : 21 JULY 2003 DELIVERED : 4 MARCH 2004 FILE NO/S : SJA 1052 of 2003 MATTER : Section 184 of the Justices Act 1902 BETWEEN : KIMBERLEY PETER WALKER FISHER

Appellant

AND

JAMES BENJAMIN WILLIAM FIRKINS
Respondent

Catchwords:

Justices Act - Appeal - Civil Aviation Regulations 1988 - Maintenance release - Obligation to endorse particulars of defect - Justices Act s 43 - Complaint to be for one matter only - Duplicity - Nature of "defect"

Legislation:

Civil Aviation Regulations 1988, reg 50

Justices Act 1902





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Result:

Appeal allowed

Conviction quashed

Category: B

Representation:

Counsel:

Appellant : Mr R W Richardson
Respondent : Mr A L Troy

Solicitors:

Appellant : Lynn Hudson
Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bank of South Australia v Ferguson (1998) 192 CLR 248
Byrne v Baker [1964] VR 443
Fox v Percy (2003) 77 ALJR 989
Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934
Johnson v Miller (1937) 59 CLR 467
Jones v The Queen (1989) 166 CLR 409
McHenry v Boardman [1981] WAR 356
Montgomery v Stewart (1967) 116 CLR 220
Mraz v The Queen (1955) 93 CLR 493
Palmer v The Queen (1992) 66 ALJR 270
R v Traino (1987) 45 SASR 473
Stanton v Abernathy (1990) 19 NSWLR 656
TKWJ v The Queen (2002) 76 ALJR 1579
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Walsh v Tattersall (1996) 188 CLR 77
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598
Wilde v The Queen (1987) 164 CLR 365



(Page 3)

Case(s) also cited:

Brown v The Queen, unreported; CCA SCt of WA; Library No 6028; 3 October 1985
Coleman & Anor v R (1988) WAR 196
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Lloyd v Faraone [1989] WAR 154
Pallot & Ors v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
S v The Queen (1989) 168 CLR 266
Shepherd v The Queen (1990) 170 CLR 573
Stojkovski v Fitzgerald [1989] WAR 328


(Page 4)

1 EM HEENAN J: This is an appeal by leave granted by Barker J on 4 June 2003 from the decision of Mr R Black SM in the Court of Petty Sessions at Perth on 23 April 2003 to convict the appellant of a breach of reg 50 of the Civil Aviation Regulations 1988. The charge against the appellant was that on or about 25 April 1999 at Derby he, being a flight crew member of an Australian aircraft, namely Australian aircraft registration VH-MNH, on becoming aware of the existence of defects in the aircraft failed to enter on the maintenance release or other documentation approved for use as an alternative for the maintenance release for the purposes of reg 50 of the Civil Aviation Regulations an endorsement signed by him setting out the particulars of the defects, contrary to reg 50 of the Civil Aviation Regulations 1988.

2 The appellant had pleaded not guilty to the charge and a trial took place before his Worship on 7 and 8 November 2002 and it continued on 13 and 14 February 2003. At the conclusion of the trial the learned Magistrate reserved his decision and later delivered his decision with reasons convicting the appellant on 23 April 2003. After hearing further submissions the learned Magistrate imposed a fine of $700 and ordered the appellant to pay costs and disbursements of $2,988. This appeal is only from the decision convicting the appellant.

3 The appellant had also been charged with another offence and that complaint was heard concurrently. He was alleged to have carried out maintenance on an Australian aircraft in an Australian Territory when not permitted to do so by the Civil Aviation Regulations contrary to s 20AB(2) of the Civil Aviation Act 1988, but that charge was dismissed.

4 Regulation 50 of the Civil Aviation Regulations 1988 provides as follows:

"Where the holder of the certificate of registration for, or the operator or a flight crew member of, an Australian aircraft:

(a) becomes aware of the existence of a defect in the aircraft; or

(b) becomes aware that the aircraft has suffered damage that in the opinion of the holder, the operator or the flight crew member, is major damage;


he or she shall enter on the maintenance release, or other document approved for use as an alternative to the maintenance

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release for the purposes of this regulation, an endorsement signed by him or her setting out the particulars of the defect or damage, as the case may be."

5 Aircraft No VH-MNH is a Beech 58 and on 25 April 1999 the appellant was based at Derby and was generally the pilot of this aircraft in the course of his employment with Ord Air Pty Ltd. The aircraft was usually engaged in both charter work and regular public transport but on this day it was not in use but was in the hangar at Derby Airport. The appellant carried out a visual inspection of the aircraft and prepared a document (exhibit "D") containing a range of information which, near the end, bore the endorsement:

"50 hrly completed 25/4/99 K Fisher 414260"

On 12 October 1999 at the Civil Aviation Safety Authority ("CASA") office in Perth the appellant was interviewed by Mr Andric about several matters including the document which he had completed on 25 April 1999. The interview was recorded on audiotape and was conducted at a time when the appellant had ceased employment with Ord Air Pty Ltd more than five months before. In the course of the interview the appellant said words to the effect that on 25 April 1999 he had been conducting a 50 hour inspection of the aircraft.

6 A "maintenance release" is a document provided for in a prescribed form by the Civil Aviation Regulations. A maintenance release contains information relevant to the particular aircraft and must be entered up with a variety of details and kept current. The regulations oblige flight crew members to enter details of damage and/or any defect to the aircraft promptly on the maintenance release so that a suitably qualified person can examine these and either repair the damage or defect or certify that it does not need repair. It was accepted at the trial and on the appeal that for a Beech 58 aircraft the maintenance release must be renewed every 100 hours of flying time and that the 50 hourly inspection, to which reference has already been made, is an optional inspection in the sense that it is not obligatory but, if and when it is performed, the procedures outlined at page 17G of the "Integrated Manual" must be completed. In the course of the interview of the appellant by Mr Andric the appellant was questioned about various alleged defects or deficiencies in the aircraft which were noted on the alleged 50 hour inspection and, more significantly, was asked why these were not entered on the relevant maintenance release either then or later. This enquiry eventually led to the charge being preferred against the appellant alleging a breach of

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reg 50 in several respects in failing to record the following defects on the maintenance release:

1. fuel calibration card missing;

2. door/co-pilot will not open from the outside;

3. (landing) gear warning horn goes off at 17 inch MP;

4. autopilot u/s (heading hold); and

5. inch and 1/2 split underside flap right side


and, consequently, the case for the respondent was that these five matters constituted defects and should have been entered in the maintenance release but were not.

7 These five defects were not identified in the complaint which was merely drafted using an adaptation of reg 55 and which, materially, alleged that the appellant:

"becoming aware of the existence of defects in the aircraft failed to enter on the maintenance release or other documentation ... an endorsement signed by him setting out the particulars for the defects contrary to reg 50 ... "

However, the appellant's solicitor before the trial sought and was provided with details of these allegations of fact and, in opening the case counsel for the claimant identified these allegations as being those matters contained on a handwritten list of defects and, throughout the trial, these were treated, in effect, as particulars of the charge.

8 Although there was no objection on this ground at the trial, one of the grounds of the appeal is that the complaint was bad for duplicity being in breach of s 43 of the Justices Act (ground 10). Additionally, when the appeal came on for hearing the appellant sought and obtained leave to amend his grounds of appeal by including an additional ground (ground 11) that the charge in the complaint numbered 19794 "is not a charge that is known to the law". Consequently, before turning to a more detailed examination of the facts of this case and the learned Magistrate's findings, it is necessary to address these issues of form about the complaint.

9 The wording of the complaint plainly alleges that the appellant became aware of the existence of several defects in the aircraft and then failed to enter on the maintenance release an endorsement setting out the particulars of those defects. There is, therefore, ambiguity as to whether the offence alleged was one failure to make an endorsement of all of the

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defects actually discovered; or one failure to make an endorsement of some or all of the defects discovered; or that there were as many failures to endorse a particular defect as there were particular defects discovered; or, for that matter, one failure to make an endorsement of all the five defects alleged to have been discovered. The regulation, as is apparent from its language, creates an obligation upon an operator or a flight crew member who becomes aware of the existence of a defect in the aircraft to enter on the maintenance release (or elsewhere) an endorsement signed by him setting out the particulars of that defect. In other words, the regulation creates a singular obligation in respect of each and every defect that may be discovered.

10 This complaint fails to identify clearly whether or not there has been one breach of the regulation by a failure to record the five defects alleged, or five breaches arising from those defects, or any of the other permutations just described. Strictly construed, the language of the complaint is capable of being read as meaning that there has been one only breach of the regulation by the one failure to enter an endorsement of the five defects alleged. However, that is not the way in which the complaint was treated or determined at trial. The learned Magistrate concluded that the respondent had failed to establish that one of the alleged defects (the absence of a fuel gauge calibration card) was a defect in the material sense or that the respondent's failure to make an endorsement in respect of it was a breach of the regulation. The conviction, therefore, was based on a finding that there had been one breach of the regulation constituted by a failure to make endorsements in respect of four of the five defects alleged to have been discovered. This was treated as establishing "the charge" rather than as establishing four distinct breaches of the regulation. Conversely, the failure of the prosecution to establish that there had been a breach of the regulation in relation to the allegation of a failure to make an endorsement in respect of the missing fuel gauge calibration card, was not seen in any way as detracting from proof of the offence alleged.

11 In these circumstances it is apparent that despite the ability to read the complaint presented in different ways as described, it was in fact treated as a complaint alleging five distinct breaches of the obligation created by reg 50 to endorse on the maintenance release particulars of the alleged defect discovered by the appellant as pilot of this aircraft. In other words, the complaint alleged five distinct breaches of the regulation and, if proved, five offences. This does not appear to have been recognised at the trial. Despite this effect, the complaint was treated as alleging only one offence without the singular details of that particular offence ever

(Page 8)

being isolated. It follows that this complaint offends the proscription contained in s 43 of the Justices Act that every complaint shall be for one matter only. The manner in which this complaint infringes that law is the same as the corresponding infringement identified in Vrisakis v Australian Securities Commission (1993) 9 WAR 395.

Not a charge known to the law

12 This ground of appeal, introduced by amendment at the commencement of the hearing, adopts the analysis of Gaudron and Gummow JJ in Walsh v Tattersall (supra) of approaching the sufficiency of the complaint presented in a slightly different manner (at 87):

"The question upon which the appeal turns is not whether in a single count the appellant was charged with more than one offence. It turns upon an anterior question. This is whether the appellant was charged with any offence created by the Workers Rehabilitation and Compensation Act 1986 (SA). In our view, the appellant was not so charged and his appeal succeeds."

The key to this approach was explained by their Honours (at 89) and took the statutory definition of the particular offence as one involving the commission of an offence where "any payment or other benefit" was obtained by dishonest means. The emphasis upon the singularity of the payment or the benefit meant that not only did every separate payment or benefit dishonestly obtained constitute a separate offence but that an allegation that an offence had been committed by obtaining multiple payments or benefits by dishonest means, did not identify or reveal the offence which the statute created. Consequently, in this present case where this complaint alleges, as has previously been described, that the appellant had committed an offence by becoming aware of the existence of "defects" and then by failing to enter on the maintenance release an endorsement setting out the particulars of the "defects", the plural used in the allegation does not disclose the commission of an offence and, as distinct from constituting separate offences, a failure to make endorsements in respect of several defects discovered, is not an offence established by the regulation.

13 It was argued for the respondent that this degree of precision of analysis is strict indeed and that insistence upon it may frustrate the enforcement of the law and elevate technicality to an unmerited degree of prominence. Arguments to that effect were fully deployed in Walsh v Tattersall (supra) and were rejected by the majority, Gaudron, Gummow and Kirby JJ, who pointed to a consistent line of authority in Australia

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which required strict observance of the principle that a complaint, except in those instances in which it could include more than one charge arising out of similar or closely contemporaneous events, must deal with one matter only and that that single matter must be for the particular offence created by the statutory provision or regulation relied upon. The short point raised by the appellant by this ground is that reg 50 of the Air Navigation Regulations does not make it a single offence to discover four defects on an aircraft and then fail to endorse on the maintenance release those four, the more so, when the charge alleges that five defects were discovered and that the appellant failed to endorse the maintenance release with a record of all five.

14 Although the result in McHenry v Boardman [1981] WAR 356 was explained in terms of duplicity and contravention of s 43 of the Justices Act (see per Burt CJ at 357) the result is consistent with the grounds identified by Gaudron and Gummow JJ in Walsh v Tattersall (supra). The decisions in Montgomery v Stewart (1967) 116 CLR 220 and Johnson v Miller (1937) 59 CLR 467 are to like effect. The consequence of this conclusion is that the conviction should be quashed and that the charge should also be quashed rather than dismissed. The fact that objection on these grounds was not taken at the trial, and only introduced by a late amendment at the hearing of this appeal does not affect this conclusion – per Kirby J in Walsh v Tattersall (supra) at 109 – 110 citing, among other authorities, R v Traino (1987) 45 SASR 473 and Stanton v Abernathy (1990) 19 NSWLR 656 at 665. It is not to the point that the error in the formulation of the charge could have been cured by an amendment and a joinder of other charges at the trial under the provisions of s 43 of the Justices Act. This was not done and no attempt has ever been made to amend the complaint which, in the form which led to the conviction, is bad.

15 The issue which now arises is whether, notwithstanding that this complaint alleged more than one matter only, contrary to s 43 of the Justices Act, and instead charged the appellant with an offence not known to the law, the appeal on these grounds should nevertheless be dismissed under s 199(1)(b) of the Justices Act on the basis that no substantial miscarriage of justice has thereby occurred. In this respect the onus of establishing that there has been no substantial miscarriage of justice caused by this error in the proceedings, rests upon the respondent – Mraz v The Queen (1955) 93 CLR 493 per Fullagar J at 514 and TKWJ v The Queen (2002) 76 ALJR 1579 per McHugh J at 1590.

(Page 10)

16 In an effort to discharge this onus the respondent has submitted that the five alleged breaches of reg 50 in effect advanced by this complaint, constituted a series of acts omitted to be done in the prosecution of a single purpose and, accordingly, could have been joined in the same complaint under s 43. I accept that the five alleged breaches could have been joined in the one complaint but no effort to do so was attempted, nor did the respondent bring to the attention of the court that, in reality, there were five charges before it and not one. More to the point, in this regard, is the question of whether or not any actual or potential prejudice was caused in the circumstances of this case by the irregular course which was followed in a situation where, as has now been identified, five charges could have been joined in the one complaint – Walsh v Tattersall (1996) 188 CLR 77.

17 The obligation to identify the five separate offences being alleged by this complaint advances several purposes. Firstly, it identifies and directs attention to the particular fact or facts which must be proved in order to establish the offence. In the present case the obligation requires the identification of the particular alleged defect said to have been discovered by the appellant and the need to ascertain whether or not he failed to endorse a record of that defect in the maintenance release and, if he did, whether there were any facts or circumstances, such as an honest but mistaken belief about the existence or significance of the alleged defect or any other material factor, which would justify or excuse that omission. Secondly, observance of the required procedure should ensure that the need to characterise the alleged defect said to have been discovered as a defect of the requisite character giving rise to the obligation created by the regulation is undertaken in each distinct instance. Thirdly, observance of the required procedure should ensure that defences such as honest mistake or other defences are considered with respect to each particular defect and omission rather than collectively. Another important object sustained by observance of the principle that every complaint shall be for one matter only, is that the requirement ensures that the person charged is distinctly informed of the allegations against him or her and therefore has an adequate opportunity to prepare for and meet the charge and to adduce evidence or otherwise make answer to refute, justify or excuse the particular allegations brought against him or her. It was a denial of this capacity to know and prepare to meet the implications of the charges which, in part, accounted for the quashing of the conviction in Vrisakis v Australian Securities Commission (supra).

18 The existence of five separate alleged offences was never directly addressed in the proceedings in the Court of Petty Sessions – even the

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result involved one conviction and penalty for what were really four separate offences. In these circumstances it is simply not possible to conclude that if the proceedings had been differently instituted and conducted the result would have inevitably led to four separate convictions. Even now there is still only the one defective complaint which cannot support any conviction. As the trial was never properly instituted, this prevents the operation of s 199(1)(b) of the Justices Act. As was said in Wilde v The Queen (1987) 164 CLR 365 at 373 by Brennan, Dawson and Toohey JJ:

"It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen (1977) 137 CLR, at p 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice."

19 This is enough to dispose of the appeal but as the other grounds of appeal were fully argued, it is necessary that I should also decide them: Jones v The Queen (1989) 166 CLR 409 at 411 and 414; Palmer v The Queen (1992) 66 ALJR 270 and Bank of South Australia v Ferguson (1998) 192 CLR 248 at 263. However, it is only possible to do this on the footing that, contrary to my conclusion about the wrong form and content of the complaint heard and determined, it was permissible for the Court of Petty Sessions to proceed with the trial of the defective complaint. On that basis only, the remaining issues in the appeal can be addressed. But the conclusions reached on this basis can only depend on the evidence adduced and the conduct of this trial which was, on my conclusions, defective in form. If there were to be any further trial on a different complaint or complaints involving these allegations then the decision in such further proceedings would depend on the evidence then adduced, and the defences then raised which may well be different to or more extensive than that adduced in the current proceedings.
(Page 12)

20 The significance of these grounds emerges once the nature of the case for the respondent prosecutor is outlined. The case for the prosecution consisted of the evidence of two witnesses, Mr G Andric, an investigator for the CASA based at Darwin, who interviewed the appellant at Perth on 12 October 1999, an interview which was recorded by audiotape, and Mr R A Koch, an officer from the Airworthiness Section of the CASA, who commented, by providing his opinion, upon the significance of information which emerged from the interview with the appellant and from exhibit "D", the handwritten list made by the appellant following his inspection of the aircraft on 25 April 1999. The case for the prosecution also included a transcript of the written interview of 12 October 1999, the manuscript list completed by the appellant following the inspection on 25 April 1999 (exhibit "D") and various other documents.

21 Significantly, neither Mr Andric nor Mr Koch had inspected the Beech 58 aircraft VH-MNH on or after 25 April 1999 nor had either personally seen, confirmed the continued presence of, or evaluated the alleged defects said to have been listed on exhibit "D" or conducted any personal evaluation of those for this aircraft at the time, as opposed to drawing conclusions from exhibit "D" and from descriptions of those features given by the appellant in the course of the interview.

22 The appellant gave evidence himself at the trial and was cross-examined and, therefore, his description of what he had discovered on the aircraft on 25 April 1999, and his answers given in cross-examination on these issues, was further material which the learned Magistrate no doubt considered in reaching his decision. There was a second witness for the appellant, Mr J Godolley, whose evidence was taken by video-link connection. He is an aircraft maintenance engineer and was the maintenance engineer for Ord Air Charter Pty Ltd in 1999 and whose evidence was mainly directed to the nature of a 50 hour inspection for a Beech 58 aircraft and the significance of the split in the underside of the aircraft flap which had been reported and which as it emerged had previously been worked on.

Further grounds of appeal

23 The grounds of appeal, other than those dealing with the form of the complaint which have already been examined can be summarised, with some paraphrasing, as follows:

1. the learned Magistrate made an error of law or of fact;

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2. under reg 50 it is essential for the prosecution to prove beyond reasonable doubt that at the material time there was a defect in the aircraft, whereas the Magistrate held that an offence had been committed if the appellant believed an item constituted a defect even if it did not;

3. the learned Magistrate erred in law and in fact and finding that "the split [in the flap]" constituted a defect when the only admissible evidence was that the split was not a defect and did not affect the safety of the aircraft;

4. the learned Magistrate erred in fact in finding that the gear warning horn was a defect because "it went off at a manifold pressure greater than it was designed to do", in that there was no evidence of any design;

5. the learned Magistrate erred in law and in fact in finding that the prosecution had established beyond reasonable doubt that there were defects in the autopilot and the door within the meaning of reg 50;

6. the learned Magistrate erred in fact in finding that the prosecution had proved beyond reasonable doubt that the items particularised as defects had the potential to affect the safety of the aircraft in that there was no evidence to support such a finding;

7. the learned Magistrate erred in law in failing to give any reasons for his finding that each of the defects "had at least the potential though perhaps not immediately, to affect the safety of the aircraft";

8. the learned Magistrate erred in fact and in law in finding that the prosecution had negatived mistake beyond reasonable doubt in that the learned Magistrate:


(a) failed to have any regard to the evidence that the applicant was not a licensed aircraft maintenance engineer and was an inexperienced pilot; and

(b) found, erroneously, that there was evidence that the applicant had a positive belief that the items were faulty or defective and that they had the potential to affect the safety of the aircraft when the applicant's evidence was to the contrary;


9. the conviction is unsafe and unsatisfactory, in that there was no evidence of any inspection by any person, expert or

(Page 14)

otherwise, that established that there was any defect or any imperfection or fault in any of the items the prosecution alleged were defects, nor was there any evidence that the items had the potential to affect the safe operation of the aircraft.

A further ground of appeal (1(9)) relating to costs was not pursued by counsel for the appellant at the hearing.

24 As the concept of "defect" within reg 50 was central to the prosecution and because it is at the heart of grounds 2, 6, 7 and 9 of the grounds of appeal as I have listed them, it is an obvious starting point for this aspect of the appeal.

Need for a "Defect" to exist in fact

25 Regulation 50 creates an obligation upon the holder of the certificate of registration for, or the operator or a flight crew member of, an Australian aircraft, where that person becomes aware of the existence of a defect in the aircraft, to enter on the maintenance release or other approved document an endorsement signed by him or her setting out the particulars of the defect. The obligation arises upon the discovery of a defect, the existence of which triggers the obligation as soon as it comes to notice. If there is no defect there can, therefore, be no such obligation. If there is a defect but where the holder of a certificate of registration, or the operator or a flight crew member, does not become aware of its existence there will be no obligation to make an entry imposed by this regulation. If the holder of the certificate of registration, or the operator or a flight crew member, mistakenly believes that some innocuous feature in the aircraft constitutes a defect but fails to enter an endorsement of it on the maintenance release or other approved document, then, again, there will be no breach of the regulation because the obligation to enter the endorsement is not predicated upon the subjective interpretation of the feature by the individual concerned but, rather by its objective character as a "defect" within the meaning of the regulation. Similarly, if a "defect" exists and the holder of the certificate of registration, or the operator or a flight crew member becomes aware of its existence but erroneously fails to recognize or classify it as a "defect" then, apart from the defence of honest mistake, if it exists on the particular facts, there will be a breach of the regulation if the person discovering that "defect" fails to enter an endorsement of it upon the maintenance release or other approved document.

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26 Accordingly, in the present case, I consider that it was essential for the respondent to prove, to the satisfaction of the learned Magistrate beyond reasonable doubt, that each of the alleged defects was a defect within the meaning of the regulation. This onus would not necessarily be discharged by proving that at one time or another the appellant had thought, or even admitted, that it was. Proof of any such acknowledgement or admission by the appellant is certainly evidence for consideration on that issue but it may not be conclusive especially, where, as here, the appellant put this aspect of the case in issue by his plea of not guilty, and by his evidence at the trial.

27 The evidence of acknowledgement or admission came entirely from the interview with Mr Andric which was conducted in circumstances of some haste, where the appellant claimed he was very nervous and unprepared and where a number of other concessions that features of the aircraft discovered at an inspection on 25 April 1999 were regarded by the appellant as "defects" were not the subject of any allegation by the respondent and, thus, were indicative of over scrupulous self-criticism by the appellant at the time of the interview. Indeed, the learned Magistrate concluded that this evidence could not be relied upon in its entirety (AB 29). Perhaps the most telling illustration of this is the allegation that there was a defect because of the lack of a fuel gauge calibration card, an allegation which the appellant seemed inclined to accept at the interview, although one which was ultimately withdrawn by the prosecution at the trial as being untenable because there was no regulation, specification or other requirement for such a calibration card to be available for this particular aircraft. Accordingly, belief by the appellant alone that a feature of the aircraft constitutes a defect is not sufficient to establish a breach of the regulation in the event that that "defect" has not been recorded. It is the actuality of the existence of the defect and not a belief, which may be mistaken, which must be established.

28 The evidence of belief by the defendant that a feature constituted a defect will, nevertheless, be significant because that may be evidence which tends to prove that the feature was a defect, but unless that is satisfactorily established belief alone will not establish the charge. At this trial the learned Magistrate appears to have been conscious that proof of the alleged offence required proof of the objective existence of a defect because he said (at AB 32):

"The issue is whether or not the remaining items asserted to be defects are defects within the meaning of that word and, if so,

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whether the defendant had an honest belief that those items did not constitute defects."

and his Worship then went on to examine whether or not the respondent had negatived the defence of mistake. In the course of doing so, his Worship concluded that:

"It is clear in my view that he believed there may be problems in relation to those items ... "

and:

"These were defects of which he was aware and which ought to have been entered on the maintenance release by him."

and:

"On the evidence he had a positive belief that these items were faulty or defective and constituted defects."

In the context of his Worship's reasons these observations are plainly directed to whether or not the appellant had an honest belief on 25 April 1999 that the items identified by the respondent were not "defects" and his Worship concluded that the assertion of such an honest mistaken belief had been disproved. I do not understand his Worship to have concluded that a belief by the appellant that the features relied upon were "defects" was sufficient to establish a charge if that belief was objectively unfounded. Rather, I consider that his Worship had, by this stage, concluded that the features relied upon by the prosecution in this regard did constitute "defects" within the meaning of the regulation and that this characterisation was not dependant upon the appellant's view of them, notwithstanding that the learned Magistrate was satisfied that the appellant regarded them as abnormalities which should have been the subject of an endorsement on the maintenance release. Accordingly, were it necessary to make the finding, I would conclude that ground 2 of the appeal as set out above should fail.

Meaning of "Defect"

29 At the trial, and on the appeal, counsel for the respondent acknowledged that there was no definition of the word "defect" as used in reg 50 contained in the Civil Aviation Regulations or in any applicable legislation. There is a definition of "major defect" in reg 2(1) to which resort was made in construing reg 50. That definition provides:

(Page 17)

"Major defect, in relation to an aircraft, means a defect of such a kind that it may affect the safety of the aircraft or cause the aircraft to become a danger to person or property."

A "major defect" as so defined becomes the subject of various more rigorous obligations because of its potential effect on safety. These are provided for specifically by regs 29, 43, 47, 48, 51 and 51A. Among the consequences of the discovery of the existence of a "major defect" is an obligation for its existence to be reported to CASA as well as to others and, the endorsement of a "major defect" upon an aircraft's maintenance release thereupon renders the aircraft un-airworthy and the maintenance release ceases to have force. One of the consequences, therefore, of the discovery of a "major defect" is that in most, if not all, cases the aircraft will immediately be grounded. Additionally the defect is reported to CASA and the maintenance release will not again become operative unless there is a certification in accordance with reg 42ZE or reg 42ZN by a person with the requisite authority or with the approval of CASA.

30 Consequently, it should be inferred that a "defect" of the kind referred to in reg 50 involves some feature or aspect of an aircraft with less serious effects or consequences than a "major defect" and, one which would not necessitate, as a matter of air safety, the immediate grounding of the aircraft. By further implication it may be deduced that such a "defect" is one which may involve some feature or aspect of the aircraft which, with all reasonable care, may be left for further investigation or attention until the maintenance release for that particular aircraft is due to be renewed of ceases to have effect.

31 At the trial there were various attempts to establish the meaning which the word "defect" bore in its context within reg 50. This even went as far as inviting the opinion of witnesses upon the subject although, perhaps wisely, no attempt was made to justify this practice or the utility of the answers given (AB 21). In coming to his decision on the case, the learned Magistrate adopted the following approach to the proper interpretation of "defect" within reg 50 (at AB 31):

"What is set out in the regulations as a major defect is not repeated here however it is my view that a defect simpliciter, within the statutory scheme, must mean something less serious than a major defect. Guidance may be had as to the meaning of the word both by way of looking at a dictionary definition and at the statutory scheme and its intent. The shorter Oxford English Dictionary, Third edition, defines defect as, inter alia –

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'lack or absence of something necessary to completeness; deficiency – a shortcoming; a fault, flaw, imperfection.'

It would appear therefore that if there is something in which there is a fault, a flaw, an imperfection or an incompleteness it can be said that a defect exists. As I understand it the statutory scheme that the Act and Regulations form part of is primarily directed towards the safety of an aircraft, its operators, its passengers and the public generally. Given the definition of a major defect it would appear to me that such a defect is something that has the direct potential to immediately affect the safety of an aircraft or cause it to become a danger to a person or to property. On the basis previously expressed it is my view that a defect simpliciter, being something less serious than a major defect, can be characterized as a fault, flaw or imperfection that has the potential to affect the safety of an aircraft or cause it to become a danger to person or property, though not necessarily directly or immediately. It is something, in my view, that needs investigation but which does not necessarily mean that the safety of the aircraft may immediately be put in jeopardy."

One can readily agree with his Worship in deducing that a "defect" is less serious than a "major defect". The problem, however, is that by classifying such a "defect" as any kind of flaw or imperfection that has the potential to affect the safety of an aircraft or cause it to become a danger to a person or property, one is still left with a spectrum of imperfections ranging from the very minor to the more significant and, unless one can conclude that even very minor imperfections are defects within the meaning of this regulation then it is necessary for a line to be drawn at some point, according to the potential severity of the defect. The obligation for the court is to establish that line, consistently with the policy in the legislative scheme that intends that the discovery of such a defect will give rise to penal consequences, if it is not immediately followed by the action which reg 50 commands.

32 Plainly, there must be some imperfections or flaws on an aircraft which are of a minor nature and do not immediately give rise to any safety concerns about the airworthiness of the aircraft. A torn cushion on a pilot or passenger seat, a missing fastening clip on a seat-back pocket or side curtain, a minor scratch on an instrument glass or aircraft window, a missing mat or a faulty arm rest may be of this character. There may be some other flaws or imperfections in operating parts of the aircraft whose

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significance may range from the innocuous to the potentially serious. Where none of these constitute a major defect, depending upon their particular features and aspects in situ, it may not be possible to assign a classification of whether or not any of them constitutes a defect of the requisite kind without inspection or evaluation by a qualified observer or inspector. Again, it may be possible to say that a flaw or imperfection may have the potential to affect the safety of an aircraft, though not directly or immediately, but only if it were to be left unattended for a very long time, well beyond the time horizon of the next comprehensive inspection of the aircraft or renewal of the maintenance release.

33 It would seem to be seldom that if a thorough examination of an aircraft, or any other machine or vehicle were undertaken some imperfection or flaw of a minor kind would not be found. Perfection in quality and condition is, unfortunately, rare and care must be taken to ensure, that while the desired and essential quality of safety is maintained for all aircraft, that an idealistic rather than a high standard of quality is not imposed. Clearly, a feature of the aircraft which will attract the obligation for recording an endorsement on the maintenance release by virtue of the operation of reg 50 must be a feature or an aspect which will, or may, diminish the operational safety of the aircraft, including in that regard even a diminution in the in-built margins of safety of the various operating parts and systems of the aircraft. The flaw or imperfection must also be of a kind which, to a reasonably prudent holder of a certificate of registration, or an operator or flight crew member of an aircraft, should not be left unattended such as, possibly, some of the examples of minor faults which I have already cited. The need for attention must be prompted by a concern for safety and not merely for appearance. It should involve an assessment by the observer that the opinion of a qualified and experienced examiner or inspector should specifically be sought at the next compulsory examination or renewal of the maintenance release.

34 However, as I have already explained, there will not be a breach of the regulation merely because a person charged with the obligation under reg 50 believes there is a defect but fails to record an endorsement of it unless a defect of the requisite kind actually exists. The obligation is not in the eye of the beholder, it is in the quality or character of the flaw or imperfection.

35 Therefore, on the basis of the analysis so far, it is possible to say that the obligation to record and endorse a "defect" which arises from reg 50 occurs when such a defect actually exists and is of a kind which is less

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serious than a major defect which would immediately lead to the grounding of the aircraft. The nature of the defect must include an actual or potential capacity to cause a deterioration in the safe operation of the aircraft, whether in ordinary circumstances or in the event of an emergency, and be of a nature which warrants the specific attention of an inspector or examiner on the next occasion that the aircraft is subject to a compulsory inspection or renewal of the maintenance release. Another way of expressing the idea is to say that a "defect" is a flaw or imperfection which deserves specific attention by a qualified maintenance engineer, not immediately, but on the occasion of the next compulsory inspection when the opinion of that inspector or examiner can be given about what, if any, remedial work on the flaw or imperfection is required.

36 Whichever way one approaches the search for the meaning of the term "defect" within reg 50, one eventually comes to the point where the classification is one of fact and degree depending upon the judgment of a suitably qualified flight crew member, aircraft operator or holder of the aircraft certificate of registration. Consequently an intermittent fault in some instrument or apparatus on the aircraft may or may not constitute a "defect" of this kind depending upon the frequency of the fault, the importance and function of the apparatus and the potential consequences of the fault. A fault of any kind which means, or involves the potential that, some helpful or necessary apparatus may not function immediately when required to do so would be a defect of the kind referred to in this regulation. Nevertheless, this dimension of fact and degree in the characterization of whether or not a fault or imperfection is a "defect" within the meaning of reg 50 may often require the opinion of a qualified air crew, licensed operator, certificate holder or inspector. Such a witness should be one who has either inspected the aircraft or who has obtained an adequate appreciation of the flaw or imperfection alleged to constitute the "defect" to be able to give evidence of his or her classification of the gravity of the alleged defect, as a matter upon which the witness is competent to express an opinion, in order for a determination to be made in cases where the categorization may not be clear-cut or obvious. Such evidence will not always be essential because the nature of the flaw or imperfection alleged to constitute the defect may be clearly ascertainable from other evidence but in cases, such as the present, where one of the issues was the potential significance of the split found in the wing flap which had been the subject of earlier repair, such evidence may be essential in order to determine whether or not the alleged imperfection or flaw was, objectively, a "defect".
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37 In the present case there was no evidence for the prosecution from any person who had directly examined the aircraft or the alleged defects. The evidence, such as it was, by which the respondent sought to categorize the imperfections or flaws was evidence of interpretation or opinion of the significance of the items recorded on exhibit "D", the manuscript list made by the appellant at the inspection on 25 April 1999, and the answers which he gave in the course of the interview by Mr Andric and later in cross-examination. This depended very greatly upon the reliability and the comprehensiveness of the descriptions provided by the appellant, both in exhibit "D" and in the course of the interview and upon the interpretation of that data given by the prosecution witnesses. This was, at best, a secondary approach to a classification of the alleged defects on the aircraft which were never viewed by those witnesses. There may, possibly, be some occasions where this approach will be sufficient to discharge the onus of proof resting upon the prosecution but it is difficult to see how it can achieve that effect if the characterisation of the alleged defects is put in issue at a trial or where there is evidence from direct observers that the flaws or imperfections were of an innocuous character.

38 To reject the evidence of a qualified witness who has made a direct observation of the aircraft, in favour of an inference or conclusion drawn by another witness who has not seen the alleged "defect" and who bases his conclusion upon a description of the alleged "defect" given by others, since qualified or retracted, does not seem to constitute proof beyond reasonable doubt. More is need to make out a case on that basis and the additional requirement must be found in conclusions or characterisations of the alleged "defect" which can clearly and confidently be drawn from direct evidence of its features.

39 These considerations lead to the conclusion that grounds 6, 7 and 9 of the grounds of appeal (as I have identified them), raise doubts about the findings of the learned Magistrate that each of the four alleged "defects" relied upon by the prosecution were defects within reg 50. However, they do not in my view go so far as to establish that the findings were wrong but, rather, necessitate a closer examination of those particular findings with these considerations in view. It is those findings on the particular allegations which must now be examined.

One and a half inch split underside flap, right side

40 The description of this imperfection or flaw contained in exhibit "D" was an "inch and a 1/2 split underside flap right side". Neither Mr Andric

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nor Mr Koch had ever seen it. Mr Godolley gave evidence that he was aware of the existence of this split on the flap of the Beech 58 and that when he first noticed it the split had been "stop-drilled" and that it had remained in the same condition for several years. He had seen it on several subsequent occasions and there had been no change to it. Stop-drilling is a method used to stop the spreading of a crack. The learned Magistrate accepted the evidence of Mr Godolley to the effect that this split did not affect the safety of the aircraft (AB 32). Nevertheless, his Worship characterised this flaw as a "defect" because the appellant had not seen it until 25 April 1999 and, therefore, was not aware of Godolley's view of its significance and on the evidence "a split in a flap could potentially have an effect on the safety of an aircraft". With respect, the question is not whether some split or splits may have such an effect but whether this one did and, even if the appellant may have believed that this split had the potential to affect the safety of the aircraft, that belief alone will not make it a "defect" within the meaning of the section for reasons already given. As the only evidence as to the nature and potential effect of this particular split came from Mr Godolley and was accepted by his Worship, I consider that it was an error to conclude that, notwithstanding that evidence, a breach of reg 50 had occurred in this case by the appellant failing to endorse the maintenance release with a record of his discovery of that split. I would therefore, have upheld grounds 3, 6, 7 and 9 of the grounds of appeal (as I have identified them) in relation to the allegation of the split existing in the right flap of this aircraft.

Gear warning horn goes off at 17 inch MP

41 This is a reference to the landing gear warning horn operating too early with the result that when the aircraft is descending and on approach for landing, a warning horn in the cockpit, designed to alert the pilot to the fact that the undercarriage has not been lowered, will sound sooner than necessary and, in doing so, may be a distraction to the pilot.

42 The evidence of the appellant at the trial was that on one occasion the gear warning horn had sounded at a manifold pressure greater than it was supposed to do. The appellant said that this did not cause him concern. His Worship found that the appellant was aware that the gear warning horn went off at a manifold pressure greater than it was designed to and that it must be considered to be a fault, flaw or imperfection which had at least the potential, though perhaps not immediately, to affect the safety of the aircraft.

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43 For the appellant, it was submitted that this was not a defect but was the result of the setting of the manifold pressure and was a matter which could readily be corrected and, if anything, gave the pilot even earlier warning of the need to lower the undercarriage. For the respondent, it was argued that not only could the early sounding of the warning horn distract the pilot but, in order to overcome the nuisance the pilot may be tempted to descend too rapidly and make his landing approach too fast to prevent the horn sounding and that such activities could impair the safe operations of the aircraft.

44 I have reservations about accepting conjectures of that kind but it does appear to me that the early sounding of the warning horn was a malfunction of one of the operating safety systems on the aircraft which, while not causing any immediate threat to the safe operations of the aircraft, was something which needed to be rectified at an early convenient opportunity such as, for example, the next compulsorily examination. I do not consider that this malfunction can be consigned to the category of flaws which do not warrant further investigation or attention. Accordingly, on the evidence adduced this constitutes a "defect" within the meaning of reg 50 which should have been recorded by endorsement on the maintenance release for this particular aircraft. Had this been the sole matter which was the subject of the charge, or the sole matter of a separate charge joined in the one complaint under the provisions of s 43 of the Justices Act, I consider that the learned Magistrate would have been correct to conclude that a breach of reg 50 had been established on the evidence before him in this respect.

Co-pilot door will not open from the outside

45 The manuscript notation on exhibit "D" made by the appellant on 25 April 1999 in this respect was: "Door – co-pilot will not open from the outside". His Worship found that the evidence clearly established that the appellant was aware that the co-pilot door on the Beech 58 had not operated correctly on two occasions in that it had not opened when the mechanism was first activated. In the course of cross-examination the appellant made a rather equivocal admission that this constituted a "defect" but his Worship did not treat that as being determinative.

46 The appellant's evidence was that, on two occasions prior to 25 April 1999, when he attempted to open the co-pilot's door from the outside it did not open successfully on the first try but did on the second attempt. It was submitted for the respondent that this was a flaw which could affect safety in that, in the event of an emergency, a rescue crew may not be able

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to obtain access to what was, for most practical purposes, the only avenue of access to and from the cockpit. Reliability of operation of the entry and exit doors to the aircraft is a matter which undoubtedly has a safety dimension. It was not suggested that this door habitually stuck or that any person had been stranded in the aircraft because of its failure to operate but the flaw in its operation was plainly something which needed attention and remedy at the next convenient opportunity.

47 It was not an imperfection which would result in the aircraft being grounded and no practical inconvenience appears to have been caused because of it. Nevertheless, it was a malfunction which needed attention and, in my opinion, on the evidence before him the learned Magistrate was correct to classify it as a "defect" within the meaning of that term in reg 50. Again, if it had been the sole matter of complaint, or if it had been a separate matter correctly joined in this complaint, I consider that the learned Magistrate would have been correct to have recorded a conviction for a breach of reg 50 in this regard.

Autopilot u/s (heading hold)

48 The entry in exhibit "D" in this respect made by the appellant was "autopilot u/s (heading hold)". The evidence of the appellant on this topic was that on two occasions when flying the aircraft he had selected "heading hold" and had pressed the appropriate button on the autopilot but the autopilot did not then engage. On the appellant pressing the button again, it did. The appellant considered that the autopilot was still serviceable. He recorded it upon exhibit "D" in order to bring it to the attention of the chief engineer to decide whether it required repairing.

49 In these circumstances, the learned Magistrate made the inevitable finding that on two occasions when an attempt was made to activate the autopilot (heading hold) it did not operate at the first attempt. His Worship considered this to be a fault, flaw or imperfection which had at least the potential though not perhaps immediately to affect the safety of the aircraft.

50 Again, there is the disadvantage of the absence of an opinion of any witness for the prosecution who actually examined or observed this instrument in operation or who observed its intermittent failure. Nevertheless, it is plain that the autopilot is one of the operating systems of the aircraft designed to be available in flight for the assistance of the pilot. It may be possible to operate the aircraft without the autopilot, or to overcome this defect without significantly diminishing operational safety, but I still conclude that this was an operating system which was expected

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to function immediately when required and, if it did not, required investigation and remedy. Accordingly, had this been the subject of a separate charge, or a separate matter joined in this complaint in reliance upon s 43 of the Justices Act, I consider that on the evidence before the learned Magistrate and on his Worship's analysis this conviction on such a separate charge could stand.

Rejection of defence of mistake – ground 8

51 This ground of appeal has been partly addressed already in relation to the significance of a positive belief by the appellant that some feature or aspect of the aircraft noted on exhibit "D" constituted a "defect" in his opinion, where that was not in fact so and, objectively, there was no such "defect" – the most obvious and telling example of this is the allegation, not pursued by the respondent, that the absence of a fuel gauge calibration card was a "defect" and where there was evidence that the appellant had acknowledged that this was so.

52 However, the gravamen of ground 8 is that the learned Magistrate erred in finding that the prosecution had negatived mistake in that his Worship had failed to have any regard to the evidence that the appellant was not a licensed aircraft maintenance engineer but was an inexperienced pilot and that his Worship also found that the applicant had a positive belief that the items were faulty or defective and had the potential to affect the safety of the aircraft when the appellant's evidence was to the contrary.

53 With respect, these grounds appear to me to be directed more to matters of weight to be attributed to the evidence of the appellant and do not impeach the finding that there was no such honest but mistaken belief operating upon his mind at the time. Even more so, the fact that the appellant gave evidence at the trial that he did not believe that the items had the potential to affect the safety of the aircraft does not preclude the Magistrate, as the tribunal of fact, rejecting that evidence and reaching a contrary conclusion. The actual finding of fact to be made in these circumstances depends, to a significant degree, upon the impressions formed by the learned Magistrate of the credibility of the appellant and, in the light of the advantage which the Magistrate possessed in seeing the witnesses in person, such a conclusion should not be set aside by any appeal court unless it can be shown that the trier of fact misused his advantage or made some unequivocal error in reaching his conclusions upon credibility – Fox v Percy (2003) 77 ALJR 989; Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598.

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54 It is certainly the case that the appellant has a right of appeal against any finding of fact made by the learned Magistrate in this trial and that it is necessary for this Court to examine submissions to the effect that there was an erroneous finding of fact in this regard but, in doing so, once the court identifies other evidence capable of supporting the learned Magistrate's finding, such as an acknowledgement, even of an equivocal kind, that the alleged defects were of a character referred to by reg 50, the choice of whether to accept that evidence or the appellant's denial turns almost entirely upon the impression as to credit or otherwise made by the witnesses upon the Magistrate at trial. It was not suggested that the learned Magistrate had misconducted himself in any way in conducting the trial or in examining this evidence but, rather, it was submitted that he had erred in reaching the conclusion which he did.

55 If that were the only issue in the appeal I do not consider that it would justify reversing the finding of the learned Magistrate. As the examination of the earlier grounds of appeal shows, I have concluded that there were errors in relation to the findings concerning the significance of the split in the right wing flap and hence it is unnecessary to examine the defence of mistake in relation to that allegation. In relation to the allegations concerning the co-pilot door, the landing gear warning horn and the autopilot switch, I consider that the decisions in relation to the defence of mistake are essentially decisions relating to whether or not the credibility of the appellant was sufficient to raise a doubt against the respondent's evidence to prove that no such mistake had occurred. They were, therefore, findings open to the learned Magistrate and there does not appear to have been an error which would justify the intervention of an appeal court in relation to those findings.

56 There is, however, one other aspect of this defence of mistake which has significance because the complaint before the Magistrate wrongly included what were, in reality, allegations of five separate breaches of the regulation. The question of a mistaken belief by the appellant in relation to the significance of each of the alleged "defects", needed to be examined separately in relation to each separate allegation. It is possible that there may have been a mistaken belief by the appellant in relation to one or more of the alleged flaws or imperfections in the aircraft but not others. There may be different considerations going to the existence or genuineness of a belief entertained by the appellant in relation to one or more of the alleged defects, rather than for all. It does not appear that this was fully realised at the trial, either by counsel or by the learned Magistrate, for the existence or otherwise of a mistaken belief was not examined separately in relation to each allegation in the course of his

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Worship's reasons for decision. There are, however, some signs that his Worship did examine each of the allegations individually and may well have continued this process in relation to his consideration of the issues of mistake without making that expressly clear.

57 However, the need for this to be done in a case where several matters are joined in the one complaint or where separate complaints are heard together is fundamental. The course followed at the trial of presenting the one complaint containing, in reality, five separate allegations may well be the principal cause for this omission. It reveals some of the more insidious problems which can arise from proceeding with a complaint which is bad for duplicity and demonstrates how, in this case, one is left with an unacceptable degree of uncertainty over whether or not a defence expressly raised by the appellant was separately addressed and evaluated on every occasion when it became an issue. Therefore, although the ground of appeal in relation to the learned Magistrate's findings on the issue of mistake has not directly been made out, it reveals another prejudicial aspect of proceeding with the trial of a complaint which, impermissibly, includes more than one matter.

58 Accordingly, I consider that this appeal should be allowed and that the appellant's single conviction on what, in reality, was a complaint wrongly asserting multiple offences, should be quashed. Appeals from convictions based on complaints which offend the law relating to duplicity have generally resulted in orders quashing the convictions without reliance being placed on provisions such as s 191 of the Justices Act: Vrisakis v Australian Securities Commission (supra); Byrne v Baker [1964] VR 443; Johnson v Miller (supra) and McHenry v Boardman (supra). That was also the result in Walsh v Tattersall (supra) although, in that case, as well as quashing the conviction the court quashed a count in the complaint which was bad for duplicity, leaving open the possibility that the complainant may institute fresh proceedings. It will be for the respondent to consider whether or not any further prosecution or prosecutions should be commenced by a fresh complaint or complaints in this present case.