Galic, Radosevic, Blanusa v Police No. Scgrg-98-818 Judgment No. S6900

GALIC, RADOSEVIC, BLANUSA v POLICE
[1998] SASC 6900

Magistrates Appeal
Bleby J

This is an appeal against conviction and sentence.
Smelisha Blanusa (Smelisha), Stojan Galic (Galic), Milan Radosevic (Radosevic) and Dusan Blanusa (Dusan) were all charged with two offences under the Mining Act 1971 and one under the Criminal Law Consolidation Act 1935. The charges were:

1...... That together on the 19th day of August 1996 at Coober Pedy, they were on a precious stones claim for the purpose of mining without being duly authorised under the Mining Act contrary to s74(2) of the Mining Act 1971.

That on the 19th day of August 1996 at Coober Pedy without lawful excuse they entered onto land comprised in a precious stones claim without first obtaining the owner’s permission contrary to s51a of the Mining Act 1971.

That on the 19th day of August 1996 at Coober Pedy, they severed precious stones with intent to steal them from land comprised in a mine, contrary to s152a of the Criminal Law Consolidation Act 1935.

Section 74 of the Mining Act 1971, on which Count 1 was based, relevantly provided:
“74. (1) A person who -
(a)... mines;
or
(b)... sells, or disposes of, minerals recovered by him in the course of mining operations, or utilizes any such minerals for a commercial or industrial purpose,
without being duly authorized by or under this Act shall be guilty of an offence and liable to a penalty not exceeding $2 000 or imprisonment for 2 years.
(1a) A person who encourages, or procures the commission of an offence under subsection (1) shall be guilty of an offence and liable to a penalty not exceeding $2 000 or imprisonment for 2 years.
(2) Where a person is upon a precious stones claim for the purpose of mining in contravention of subsection (1), he shall be guilty of an offence and liable to a penalty not exceeding $2 000 or imprisonment for 2 years.”

It will be necessary to return to the definition of some of the words appearing in that section.

Count 2 was based on s51a of the Mining Act 1971. So far as is material it read:
“51a. (1) Subject to subsection (2), a person must not, without lawful authority or excuse, enter or remain on land comprising, or comprised in, a precious stones claim, without first obtaining the permission of the owner of the claim.”

Subsections (2) and (3) are not relevant for present purposes.

Section 152a of the Criminal Law Consolidation Act 1935, which formed the basis of Count 3, provides:
“152a Any person who steals, or severs with intent to steal, any precious stones from land comprised in a mine shall be guilty of an offence and liable to be imprisoned for a term not exceeding five years.”
Count 1 was drawn in a way which might suggest some form of joint illegal enterprise or common purpose. However, as the actus reus of the offence is being on a precious stone claim, that element had to be proved against each defendant, as did the particular purpose for which it was alleged that the particular defendant was there. It was not alleged that anyone was in breach of s74(1a) by encouraging or procuring the commission of an offence under subsection (1).
Count 2 likewise required proof that each defendant had entered the land comprised in a precious stones claim. Count 3 was capable of being the subject of an arrangement or understanding whereby not all defendants were actually engaged in the severing, but contributed to the joint enterprise. However, the case was not conducted in that manner, and the magistrate, initially at least, seems to have required proof of all the elements of each offence against each defendant, otherwise he would not have made the rulings to which I am about to refer.
At the conclusion of the prosecution case the Magistrate gave himself a “Prasad” direction in relation to all charges concerning Smelisha, and all charges against him were dismissed. This was upon the footing that it had not been proved that Smelisha, at any material time, had actually been on the claim, and it was never part of the prosecution case that he had been down the mine or that he had personally severed any opal. Thus, at the close of the prosecution case it seemed that the case was proceeding on the basis, particularly in respect of Count 3, of each defendant having individually committed each element of each offence. I should add, however, that by the end of the case the magistrate was firmly of the view, as expressed in his sentencing remarks, that it was a case of a “joint dishonest enterprise”.
Galic was found to have no case to answer on Count 3 because, it seems, the prosecution was unable to prove at any material time that he had opal in his possession. That was said to be because of the mixing of samples, giving rise to substantial doubt about what it was that Galic was said to have had in his possession when he emerged from the mine. Galic was found guilty of Counts 1 and 2.
Radosevic was held to have no case to answer on Count 1 but was found guilty of Counts 2 and 3. The finding of no case to answer was apparently on the footing that Radosevic held a current precious stones prospecting permit. The magistrate seems to have taken the view that that was sufficient authority under the Act to enable him to have been on another person’s claim without being in contravention of s74(1), even if he was there for the purpose of mining. As will appear in due course, I think that this is a mistaken view of the law. However, I am not now concerned with whether Radosevic was properly acquitted of Count 1.
Dusan was found guilty of all three counts.
For the defence, Smelisha was called by counsel for Dusan, but Dusan did not give evidence himself. Galic gave evidence in his own defence. Radosevic did not give evidence. As part of the prosecution case there had been tendered records of interview of Smelisha and Dusan. There was no record of interview admitted of either Galic or Radosevic.
The prosecution case was that the defendants were all seen to be on or emerging from a precious stones claim registered in the names of a number of partners, none of whom included the defendants. The owners of the claim and through them police had been alerted to the presence of strangers by an alarm which had been activated from within the mine. That was about as much in common as there was between the four defendants, as they were each observed or gave evidence of performing quite different activities at the site and different evidence of their respective states of knowledge and understanding upon going to the site.
Before dealing further with the evidence, one ground of appeal can conveniently be disposed of at the outset. That relates to an alleged latent duplicity in relation to Counts 1 and 2 in so far as they concern the identity of the precious stones claim. No question of duplicity can arise in respect of Count 3. There was never any suggestion that that offence had been committed in other than one mine for the purposes of the Criminal Law Consolidation Act 1935, even though that mine, on the evidence, extended over three claims.
The precious stones claim referred to in Counts 1 and 2 had not been particularised prior to trial. The prosecution evidence showed that there were three adjacent claims held by the owners, with all shafts to the mine except one being on one of the claims (PSC 53580). There was one machinery shaft and several horizontal drives on another claim, and the end of three horizontal drives extended onto the third claim. From the position of ladders found at the mine, the irresistible inference was that the three appellants had entered the mine through a shaft on PSC 58530. The evidence showed that they all came out of the mine at that point. Galic was located in the mine at a point on PSC 58530. A plastic bag containing opal was found at a point on that claim. Footprints said to be those of other than the mine partners were all confined to the area covered by that claim and the sensor which had triggered the alarm was on that claim. Thus, all the activity said to relate to the charges took place on the one claim, although there was said to have been evidence of recent digging, not that of the partners, at a number of points on PSC 58530 and at two points on one of the other claims and one point on the third claim. No request for particulars was made, and at the close of the prosecution case, no request was made to require the prosecution to elect as to which claim the charges related. It was only after Smelisha had given evidence during Dusan’s defence case that the question of election was raised by Mr Retalic, counsel for Dusan. The hearing was then adjourned, and there was no further discussion about the question of election. Immediately upon the resumption Mr Retalic closed his case.
The defence could have called on the prosecution, at the close of its case, to elect in respect of which claim Counts 1 and 2 were said to relate. Had that been done, and had the prosecution failed to elect, the magistrate could have dismissed the charges. The law does not demand the dismissal of charges unless the prosecution refuses to elect: SA Police v Durbridge (1993) 61 SASR 22 at 29. The prosecution in this case was not required to elect. It was only raised as a possibility and not further pursued at the end of the case of the defendant on whose behalf the possibility was raised.
The purpose of requiring an election is to ensure that the accused knows what case he or she has to meet, i.e. to prevent unfairness or prejudice: S v The Queen (1989) 168 CLR 266 per Gaudron and McHugh JJ at 285. If the level of uncertainty is not such as to disable the defendant from properly meeting the charge, an appellate court will not interfere: ibid at 285-286. Even if the magistrate in this case was required to call upon the prosecution to elect without being requested to do so by the defence, I am satisfied that no prejudice or unfairness was caused to the appellants by that failure. It was quite clear at the close of the prosecution case what case the appellants had to defend, and it cannot be said in those circumstances that a miscarriage of justice occurred.
Before considering the particular charges against the particular defendants, it is necessary to understand the scheme as it then was of the Mining Act 1971 concerning prospecting and mining for precious stones. The Act made provision in s42 for the issue of a precious stone prospecting permit. Section 44 relevantly provided:
“44. (1) A precious stones prospecting permit shall, subject to this Act, authorize the holder to prospect for precious stones and to peg out a precious stones claim in accordance with the regulations.
(2) A precious stones prospecting permit does not authorize the conduct of mining operations that involve disturbance of any land by machinery or explosives.
...”
“Mining” and “mining operations” were defined in s6. The definition provided:
“‘mining’ or ‘mining operations’ means all operations carried on in the course of prospecting, exploring or mining for minerals, or quarrying,.... but does not include fossicking, and ‘to mine’ has a corresponding meaning:”
A number of words used in that definition were themselves the subject of definition. “Prospecting” was defined to mean:
“operations of any kind in the course of exploring for minerals except such as involve the disturbance of land or water by machinery or explosives, and ‘to prospect’ has a corresponding meaning:”
“Exploring” was defined to mean:
“operations of any kind in the course of -
(a).... exploring for minerals; or
(b)establishing the extent of a mineral deposit,
and includes prospecting, and ‘to explore’ and ‘exploratory’ have corresponding meanings:”
“Fossicking” was defined as follows:
“‘fossicking’ means the gathering of minerals -
(a)... as a recreation;
and
(b)... without any intention to sell the minerals or to utilize them for a commercial or industrial purpose,
but does not include the gathering of minerals by any means involving disturbance of land or water by machinery or explosives:”
A prospecting permit therefore conferred limited powers on the holder. He or she could mine for minerals, but only by hand, and could prospect for precious stones but without mechanical drilling or by using explosives. However, it was necessary to have a precious stones prospecting permit before one could peg out a precious stones claim.
Section 47 of the Act set out the rights which attached to a precious stones claim. It provided:
“47. A precious stones claim confers an exclusive right upon the owner of the claim -
(a)... to conduct mining operations, subject to the provisions of this Act, for the recovery of precious stones from the land comprised in the claim;
and
(b)... to sell, or dispose of, precious stones recovered in the course of such operations or to utilize any such precious stones for any commercial or industrial purpose.”
It is to be noted that a precious stones claim conferred an exclusive right on the owner to do what the section permitted, including prospecting and exploring for minerals on the claim, and it was only with the aid of a precious stones claim that prospecting or exploration could be undertaken by mechanical means. Although the right was exclusive to the owner of the claim, it must mean, in my opinion, that the owner might permit or employ others to carry out the operations provided that such operations were at all times carried out on behalf of and for the benefit of the owner of the claim. This was implicitly recognised by the Full Court of this Court in Georgiev v Tanfara (1976) 13 SASR 306. In that case a previous stones claim was being worked by the claim owner in conjunction with two other persons who had agreed to provide their services in return for a percentage of opal won. The Full Court, although not specifically called upon to decide the issue, clearly proceeded on the basis that this was a permissible arrangement. I do not consider that my view of the effect of s47 conflicts with the requirement presently contained in Regulation 57(1) of the Mining Regulations 1971 that a precious stones claim shall be personally worked by the claim owner. Regulation 57(1) at the time of these alleged offences provided and still provides as follows:
“57(1) Within 14 days after the date of pegging out, a precious stones claim shall be personally worked by the claim owner diligently mining for precious stones for not less than 20 hours per week or, in such manner as may be approved by the Warden’s Court provided that such approval require not less than 20 hours per week to be spent diligently mining for precious stones.”
The regulation is clearly designed to give effect to one of the main policies underpinning the Mining Act. This policy was described by Wells J in Taylor and Schultz v North Flinders Mines Ltd (1977) 76 LSJS 225 at 233 in the following terms:
“One manifest policy of the Act is to encourage mining activity, and to discourage those holding some prescribed privilege under the Act from going to sleep on his rights; the Act and the regulations look with disfavour on the dog in the manger.”
In my opinion Regulation 57(1) creates only a requirement that the claim must be personally worked by the claim owner as provided. It does not render it impermissible for others to work on the claim in conjunction, and on behalf of the claim holder, as long as the personal labour requirement is also satisfied. There is nothing in the wording of the Regulation or the policy of the Act to suggest that it has that effect. Indeed, to so hold would be to frustrate the objects and policy of the Act by making it more difficult for claim holders, many of whom may not possess the necessary skills and equipment to work their claims single handedly, to go about the business of mining.
With those background comments I turn first to the convictions against Galic on Counts 1 and 2.
In order to succeed on a prosecution for a breach of s74(2) the prosecution had to prove beyond reasonable doubt the following:

(a).... That the land on which Galic was found to be was the subject of a precious stones claim, that is that it had been pegged out in accordance with the requirements of s44 of the Act or registered under s46. This point was not in dispute;
(b)That Galic at the relevant time was upon the claim. That too was not in dispute;
(c)That he was there for the purpose of mining. That element needs some elaboration, but it was an element very much in dispute;
(d)That he was not duly authorised by or under the Mining Act.

The last point can be quickly disposed of. Galic at the material time did not hold a precious stones prospecting permit under the Mining Act. Even if he did, it would not have authorised him to conduct any sort of mining operations on another person’s precious stones claim, be those operations in the course of prospecting, exploring or mining. Those activities were the exclusive right of the owner of the claim or whoever he or she might appoint to conduct them on his or her behalf. It follows that, in order to be authorised by or under the Mining Act to conduct mining operations on a precious stones claim, Galic had to be authorised by the owner of the claim. It would not matter whether he held a precious stones prospecting permit or not. There can be no doubt that he was not authorised by the owner of the claim to conduct mining operations on the claim, and this element was therefore satisfactorily proved.
The first question in Galic’s case was whether the prosecution had proved that he was upon the claim for the purpose of carrying out an operation in the course of prospecting, exploring (which by definition included prospecting) or mining for minerals (as defined). It was not essential to prove that he had actually carried out any mining operations, although proof of such operations would no doubt have gone a long way towards establishing the purpose for which he was there. The prosecution bore the onus of proving that purpose beyond reasonable doubt.
The second question raised on Galic’s evidence was whether he had an honest and reasonable belief in a state of facts which, if they existed, would make his act innocent (see Proudman v Dayman (1941) 67 CLR 536). As will be seen, he claimed that he believed that he was going to assist Radosevic at his claim, and not at someone else’s. He did not know where Radosevic’s claim was, nor did he inquire. He claimed that he was acting at all times with the lawful permission of Radosevic on what he believed to be his claim. The burden of negating that defence was also on the prosecution: Holt v Cameron (1979) 22 SASR 321 at 323-324.
So far as the breach of s51a of the Mining Act 1971 was concerned (Count 2) the prosecution had to prove beyond reasonable doubt the following:

(a).... That the land on which Galic was found to be was the subject of a precious stones claim;
(b)That Galic at the relevant time had entered or remained on the land;
(c)That he was there without lawful authority or excuse; and
(d)He did not first obtain the permission of the owner of the claim.

On the prosecution case, these elements were satisfactorily proved, but once again, on Galic’s case, the prosecution had to negative honest and reasonable belief on Galic’s part that it was Radosevic’s claim.
It is necessary to summarise the prosecution case in order to put the respective charges in an appropriate factual context. It was Sedelbauer (one of the owners of the claim) who, at 7.40pm on 19 August 1996, was alerted by the alarm going off. In company with one of his partners and the police, he proceeded to the mine. He saw what appeared to be headlights of a car moving away from the vicinity of the claim. That vehicle was driven by Smelisha. It appeared that the reason for the charges being dismissed against him was that it could not be established by satisfactory evidence that he was actually on the claim. There was never any suggestion that he was in the mine. After the car had been stopped, Sedelbauer and one of his partners then went to one of the shafts of the mine and saw metal ladders, not belonging to him or his partners, in the shaft. After they called down the shaft for anyone there to come out, Dusan came up the ladder, wearing a mining helmet with a battery powered light. He was carrying a mining pick. There was then an altercation between the other partner and Dusan before the police arrived. The police observed that he was wearing a mining hard hat and light and had a battery belt around his waist and was covered in dust. When asked by a police officer what he was doing, he replied “Mining”. When asked, he indicated that he did not know whose claim it was that he was on. Police seized from his front right hand trouser pocket a small amount of opal. He was then arrested.

Sergeant Parker arrived on the scene and called down the mine. After a minute or so he heard a voice, and Radosevic emerged from the shaft. He too was wearing a mining helmet and lamp with a battery pack and a mining pick on his belt. He was searched and some opal was removed from his trouser pockets. One of the partners and Sergeant Parker were then winched down an adjacent shaft. They saw various footprints which were said not to be those of any of the partners. The footprints were in the vicinity of blower pipes leading to a tunnelling machine. Sergeant Parker saw at least twelve locations where there were pick marks on the walls of the drives and fresh footprints on the ground in the vicinity of the pick marks. He and Mr Radman, the partner with whom he had descended, had reason to believe that someone else was in the mine. They came across Galic at a point about twenty feet along one of the drives from the shaft in which the ladder had been placed. His pick was leaning against a wall nearby. Parker asked him what he was doing in the mine and Galic did not reply but shrugged his shoulders. Parker sent Galic up the ladder without his pick. Another police officer, at the surface, searched him and claimed to have removed some loose opal from his pockets.
In his evidence, Galic disputed the point at which he had been found in the mine by Sergeant Parker, claiming that, after descending the shaft, he had gone no further than two to three metres from its base, and remained there until he was found. He also disputed that he had any material at all in his pocket or that anything was removed from his pocket when he came to the surface. He claimed to be wearing nothing more than a T‑shirt and tracksuit pants with a very small pocket. That was not his normal working uniform.
Galic was an opal miner himself, and had lived in Coober Pedy for 26 or 27 years. His case was that Radosevic had come to his house at about 7.00pm to ask for help to put a ladder down a shaft. He claimed that they watched the evening television news and left his house at about 7.40pm and went to the Blanusa residence to obtain another ladder. Radosevic did not say where they were going, and Galic did not ask him where they were going. He assumed that it was Radosevic’s claim and that he was going to help him. He had no idea where Radosevic’s claim was. He did not see or look for any pegs as the car (driven by Radosevic) drove up to the point where they stopped. He assumed that they were going where Radosevic had pegged a claim. He knew that Radosevic was a miner of some thirty years standing and of good reputation. Smelisha stayed with the car while the other three carried the ladders to the shaft, out of sight of the car because of large mullock heaps.
Radosevic was the first to descend. Galic said he went down because he was cold, wearing only a T‑shirt and tracksuit pants. It was a clear dark night. When he arrived at the bottom of the ladder he saw Radosevic scraping with his pick on some of the walls. Dusan was the last to come down and he had a quick look and noticed pipes on the ground, indicating that someone else was working the mine. Galic said that Dusan, because of that, then ascended the ladder voluntarily and was already on his way up when the first of the partners arrived at the top of the shaft. After hearing the disturbance from the top, Galic said Radosevic then went up the ladder. Galic considered it was unsafe to go up the ladder immediately because of stones falling down so he stayed where he was. He was also aware from what he had heard of a disturbance at the top of the shaft and that police were there. He remained where he was, frightened, until he was found by Sergeant Parker. He explained that he always took a pick down a mine to chip the walls if he thought there might be some opal, and in this case he went down because he was cold and because he wanted to see what Radosevic was doing. He was also curious to see what the ground looked like, as it was an area with which he was not familiar. He maintained that if he had known it was someone else’s claim he would not have gone into the mine. He denied that he had ventured along any of the drives or that he had used his pick or was aware, until Dusan mentioned it, that it was somebody else’s claim. There were a number of features of his evidence, particularly as to time and duration, which did not sit happily with other prosecution evidence. There were therefore factual conflicts to be resolved, which might have had some bearing on the purpose for which he entered upon the claim and his state of belief that it was Radosevic’s claim. Galic’s credibility was therefore very much in issue.
When Smelisha gave evidence, he said that his father, late in the afternoon, had said that he was “going to check out some old dumps” and he (Smelisha) asked if he could come too. He could not recall his father mentioning names, but that he was just going out with some friends to check the dump. He described this as being an area where mining had previously been carried out but was no longer active. He was asked about conversation in the car on the way out to the site. He said that there was chatter amongst the other three about an empty field next to the dumps, and he added “If they saw something nice in there, take out a claim and work it”, the implication from the discussion being that the area was not the subject of any claim. However, Smelisha did not attribute any particular conversation to any particular passenger in the car. He said that when they arrived at the site, the other three left the car carrying ladders and hand mining equipment. He claimed that when he saw the headlights of other vehicles approaching he became anxious, and all he wanted to do was find his father. When he realised the police were there he was relieved and helped them find where his father had gone.
The magistrate also received a copy of a record of interview between Constable Liersch and Smelisha from which it was apparent that he did not know the identity of Galic other than his being a friend of his father. When asked how he came to be out in the field he said “My old man and his two mates were going out on the field, they said they were going out for a bit of a dig...” In the statement he also described his movements that night and denied all knowledge of any suggestion that the others were going to dig on anyone else’s claim or that they intended to steal opal.
As part of the prosecution case there had also been tendered two statements of Dusan, in one of which he admitted that he was at the field “for the purposes of mining exploration”. In a later recorded interview, from which it is apparent that his English is rather limited, he said that he was going out to the field that night “to check a shaft”. He did not know whose claim it was. He went down the shaft and saw “other things there” and believed it was someone’s else’s claim and went straight up again. He was questioned about an incident which occurred after he emerged from the shaft and also about a loaded hand gun found in his jacket in the car. He claimed he did not know that the gun was in his pocket that night. His explanation for its presence was not convincing. [He was also charged with certain firearms offences arising out of the same incident which are not the subject of this appeal.]
The magistrate summarised the evidence led for the prosecution and observed that the only persons who gave evidence for the defence were Galic and Smelisha. He then said:
“The only other assistance available to explain the defendants (sic) presence at the mine was obtained through exhibit P24, the record of interview of Dusan Blanusa.”
He then proceeded to summarise the content of that record of interview. That was followed by a summary of Smelisha’s evidence and his record of interview, followed in turn by a summary of Galic’s evidence. After dealing with the submission concerning duplicity, the magistrate observed:
“The defence as to the charges are gleaned from the record of interview of Dusan Blanusa and the evidence of Stojan Galic. The defendants rely upon a belief that they visited a claim which was not an existing registered claim. Radosevic did not give any evidence (as is his right) and therefore, but from inferences drawn from the record of interview of Dusan Blanusa and the evidence of Galic the court does not know what his belief was. The question to be determined is whether such a belief on the evidence as presented is a reasonable possibility.”
There followed a comparison of the various items of sworn evidence and the records of interview in which the magistrate identified some inconsistencies and inconsistencies with some of the prosecution evidence. In that discussion he was plainly treating all the remaining defendants in the same category and made no attempt to differentiate between the evidence admissible only against Dusan (his written statement and record of interview), Smelisha’s record of interview (admissible against none of the remaining defendants) and the sworn evidence of Galic and Smelisha. It was based on a consideration of all that material, including evidence inadmissible against Galic, that the magistrate rejected Galic’s explanation and found him guilty of Counts 1 and 2.
Where joint trials occur, a trial judge is duty bound to warn the jury to consider the cases against each defendant separately, and not to take into account evidence inadmissible against that defendant. See, for example, Sutton v The Queen (1984) 152 CLR 528 per Brennan J at 541-542; R v Harbach (1973) 6 SASR 427 at 432-433; R v Collie and Ors (1991) 56 SASR 302. The same principles must apply to a magistrate or a judge hearing a case alone as to the directions to be observed by the magistrate or judge in assessing the evidence.
The case had not been treated or presented as one of joint illegal enterprise, if indeed it could have been on Counts 1 and 2. However, the magistrate here treated all three defendants as one collective unit, and in the course of doing so used evidence inadmissible against Galic for the purpose of finding the prosecution case against him proved, particularly by way of negativing his assertion of an honest and reasonable belief in a state of facts which, if true, would have justified his being found not guilty on Counts 1 and 2. He was entitled to have the case against him, based only on the evidence that was admissible against him, assessed independently of the case against the other appellants, and a determination made on that evidence as to whether the prosecution case had been proved beyond reasonable doubt. As it was, the magistrate used inadmissible evidence against him to justify his rejection of Galic’s sworn evidence, and in doing so, he erred.
However, it does not follow that a miscarriage of justice has occurred. By reference to the prosecution evidence, excluding evidence of out of court statements of other defendants, and to Galic’s own evidence, it was proved beyond reasonable doubt that Galic was on the claim for the purpose of mining. “Mining” carried an extremely wide definition. It includes all operations of any kind carried on in the course of prospecting or exploring.
According to the witness Radman, Galic was wearing a helmet when found. It was common ground that he was carrying a pick. He was a professional miner. He had, on his own evidence, agreed to help Radosevic, another professional miner, put a ladder down a shaft. He intended to use the pick to chip the walls if he thought there might be some opal there. He wanted to find out what was there. On his own admission he went there for the purpose of carrying on operations in the course of exploring, and had, by assisting in lowering the ladder, carried out at least one such operation. That element of Count 1 was proved beyond reasonable doubt.
As to Galic’s alleged honest and reasonable belief even if the learned magistrate had approached the question of Galic’s guilt correctly, there was simply insufficient evidence upon which he could have concluded that it was reasonably possible that Galic entertained an honest belief, based upon reasonable grounds, that the claim in question was Radosevic’s. It is now settled law that an accused person bears the burden of pointing to evidence which fairly raises the defence of honest and reasonable mistake of fact. In most cases this evidence must come from the defendant himself, for only he can be presumed to know what his belief was at the relevant time; Holt v Cameron (1979) 22 SASR 321 per King CJ at p324. It is then up to the prosecution to negative the defence beyond reasonable doubt; He Kaw The v The Queen (1985) 157 CLR 523.
Having carefully considered Galic’s evidence, and bearing in mind the advantage enjoyed by the magistrate in seeing and hearing the witnesses, I do not consider that it would have been open to him to conclude that Galic had made an honest and reasonable mistake of fact. Indeed I doubt whether Galic had even adduced sufficient evidence to make the Proudman v Dayman defence a genuine issue at the trial. In the first place his evidence as to his state of belief at the relevant time contained pronounced inconsistencies and was therefore somewhat equivocal. The first suggestion that Galic believed he was being taken to Radosevic’s claim arose late in his examination in chief and I set out the relevant passage below:
“Q.... You understand that one of the charges remaining against you is being on a precious stones claim for the purpose of mining without being duly authorised under the Act, do you understand that.
A.No I did not know that, I thought it was Milan’s (Radosevic’s) claim and I was only going to help him that is all.”
Earlier in his examination in chief he had stated that Radosevic had not told him, and he had not asked, where they were going. In cross‑examination he repeated his belief that it was Radosevic’s claim that he had been taken to:
“Q.... On the night of 19th of August when you got out of the car did you see any pegs.
A.No I didn’t pay any attention.
Q...... You didn’t look for any pegs.
A.No.
Q...... Why didn’t you look for any pegs.
A.Because Milan invited me to go and help him, his claim.
Q...... You expected there to be pegs.
A.When someone invites you to go there and to lower the ladder it would mean that it would be pegged.
HIS HONOUR
Q.Did you assume that it was his claim or were you told that is his claim.
A...... I didn’t ask him and he didn’t tell me anything.
Q.So you just assumed.
A...... Naturally if you invite somebody to help you with mining you invite him to a pegged claim.”
However, later in cross‑examination he appears to have resiled from that position:
“Q.... I put it to you that you knew full well at the time you went down the shaft that in fact it wasn’t Milan’s claim.
A.I didn’t know whether it was Milan’s claim, I did not ask him, I did not know anything about it.”

The last passage establishes only that Galic was ignorant as to the location he had been taken to, and is consistent with his earlier assertion that Radosevic did not tell him, and he did not ask, where they were going. It is pertinent to note in the present context that ignorance of incriminating circumstances is to be distinguished from a positive belief in a set of facts which if true would render the conduct innocent. The defence of honest and reasonable mistake is only available in the latter case and not in cases where a defendant was simply ignorant, or failed to advert to, a particular matter: Kain & Shelton v McDonald (1971) 1 SASR 39 per Hogarth J at p54.

There were other inconsistencies in Galic’s evidence which are also worthy of mention because they undermine the suggestion that he actually believed that he was going to help Radosevic mine his claim. One related to the issue of whether Radosevic had ever asked him to assist him in mining his claim. In examination in chief he stated that he had helped Radosevic with mining on a few previous occasions. However in cross‑examination he asserted that Radosevic had “never asked [him] to help him with anything similar”. Galic also asserted that earlier in the day on which the offences were alleged to have been committed he had been helping Radosevic to mine his claim at Hans Peak, which must surely mean that he knew where Radosevic’s claim was situated, and that he therefore also must have known that the claim to which he had been taken later that night was not Radosevic’s. However he later corrected himself, stating that he had actually been working Radosevic’s partner’s claim earlier that day. Having regard to all these matters, it is my opinion that the evidence, equivocal as it was, was incapable of sustaining the conclusion that Galic held an honest belief that the claim to which he was taken was Radosevic’s. However, if I am wrong about this then equally there was nothing in Galic’s evidence which showed that the mistake made by him, assuming that he made it, was made upon reasonable grounds. At its highest Galic’s evidence established no more than that his belief was founded upon an erroneous assumption the basis of which is not shown and which is not supported by any other evidence.
Therefore, notwithstanding the error of law on the part of the magistrate, in my opinion Galic was properly found guilty of Counts 1 and 2.
The case against Radosevic on Counts 2 and 3 was somewhat different. His presence on the claim was unexplained except by reference to Galic’s sworn evidence to the effect that Radosevic had asked Galic to go and assist him in putting ladders down a shaft. Count 1 against Radosevic had been dismissed. Whatever Galic’s state of belief concerning the existence or otherwise of the claim, it is clear that, by implication, Radosevic could not have been under any misconception that he had no interest in any claim at that site. It was he who, on Galic’s evidence, had organised the expedition. The prosecution had to prove each of the elements of the breach of s51a(1) against Radosevic, including the fact that he was on the land without lawful authority or excuse. There was at least an evidential burden on him to raise the question of lawful authority or excuse or honest and reasonable belief. He did not do that, and those were facts which were peculiarly within Radosevic’s knowledge. Where an accused person in those circumstances fails to explain or contradict the evidence against him, the court may more readily accept the evidence led by the prosecution and the inferences to be drawn from it: Weissensteiner v The Queen (1993) 178 CLR 217.
By considering the case against Radosevic on Count 2 along with all the others, the magistrate plainly took into account and relied on evidence which was not admissible against Radosevic. However, it does not follow that the conviction of Radosevic on Count 2 must therefore be set aside. The inferences drawn against Radosevic from the evidence inadmissible in Radosevic’s case were not used to discredit his evidence. He did not give any, and there was no record of interview of him in evidence. Therefore, setting aside the evidence inadmissible against him, the prosecution had satisfactorily proved each of the elements of the offence necessary to establish the offence in Count 2 against Radosevic. None of the prosecution evidence or evidence in the defence cases admissible against him raised a possible defence. It was therefore open to the magistrate properly to convict Radosevic on Count 2. I would therefore dismiss Radosevic’s appeal against his conviction on Count 2.
In relation to Count 3, the prosecution was required to prove the following elements against Radosevic:

(a).... That he severed precious stones from land:
(b)That he had the intention to steal them; and

(c)That the land from which the stones were severed was comprised in a mine.

There was no doubt that the land concerned was comprised in a mine and that it was a mine in which it could properly be inferred on the whole of the evidence that Radosevic had no interest. The questions in dispute were whether he severed precious stones from the land and whether he did so with intent to steal them.
Galic had given evidence that Radosevic was working with his pick on the walls “scraping the walls of the drive not picking just scraping”. The evidence showed that he was wearing a mining helmet and lamp and was carrying a pick when he emerged from the mine. The magistrate found that some opal was removed from his trouser pockets. According to Galic, Radosevic was a miner of some 30 years standing in the Coober Pedy area. The case against Radosevic on this count was therefore circumstantial and depended heavily on the material said to have been found in Radosevic’s pockets. If, on the evidence, there was a reasonable hypothesis consistent with innocence, he was entitled to the benefit of the doubt.
The prosecution called Mr Nickoloudis, an opal dealer, who described himself as a “small opal dealer”, and who occasionally did a bit of mining. He regularly bought and sold opal in small quantities. Shortly after the events he had been asked by the police to value two quantities of opal. The opal said to have come from Dusan he valued at no more than one dollar. The opal said to have been found on Radosevic he valued at about 25 dollars. Both parcels he was asked to value contained dirt as well, and the impression given was that the pieces of opal were small chips. From his evidence there was some doubt that the packages produced to him in court were still the same quantity of opal and dirt that had actually been taken from the appellants concerned. He agreed that the two packages produced in court contained different coloured dirt, indicating that they came from different places. He claimed to be able to tell the difference between opal mined in quite different locations, such as Coober Pedy and Mintabie, but he conceded that it was possible to have opal taken from two points 30 kilometres apart and not be able to tell whether they came from the same hole. He expressed the view that the different coloured dirt seemed to come from different holes, but in answer to questions from the magistrate, he conceded the possibility that there could be different soil types over a distance of 20 metres within the one hole. However, he also conceded that the dirt he observed was consistent with the samples coming from different parts of a 30 kilometre diameter area. There was no evidence to suggest that the dirt in the samples matched that from any part of the mine.
The police had also found a plastic bag in the mine containing some opal which the owners said had not been mined by them. The magistrate’s only reference to the evidence as to the source of the various samples was as follows:
“Further, all 3 defendants were found with material on their person when searched after leaving the mine. Dusan and Radosevic had material containing opal. Galic at the very least had dirt and rocks in his pockets. It is likely that he also had opal but due to incompetence resulting in the mixing of samples after they were seized by the police this cannot be proved beyond reasonable doubt. (It was on that basis that Galic was found not guilty of Count 3.)
Dusan said he always took plastic bags with him when he went mining and he did so on this night. I find the conclusion irresistible that the opal found in the plastic bag was opal from the subject mine and I similarly find that to be the case with the opal found on Radosevic’s person.”
The magistrate was not required to find a particular conclusion “irresistible”. He was required to find it proved beyond reasonable doubt. Both Radosevic and Dusan were professional miners, and on the occasion in question were wearing their mining clothes. Their argument was that it was not unusual to find bits of stone and chips of opal in their pockets, and that given the evidence of Mr Nickoloudis, there was a reasonable possibility that whatever had been found in their pockets could not be shown beyond reasonable doubt to have been taken from the mine in question. In other words, there was a hypothesis consistent with innocence, namely that he was in the mine, albeit prospecting or exploring, but that he did not sever any opal from that mine, let alone have the required intention to steal it.
Rather than deal with that argument the magistrate appears again to have treated all the appellants together and to have assumed, because he was not satisfied with the explanation for their presence in the mine, that they must have taken something. This was an impermissible line of reasoning. It was not open to the magistrate to infer Radosevic’s guilt on this count by virtue of Radosevic’s silence, and because of the magistrate’s rejection of explanations given by Galic and Dusan for their presence in the mine - rejections based on inadmissible evidence. I respectfully adopt what was said by Anderson J in Harling (1997) 94 A Crim R 437 at 443:
“A finding of guilt is not to be reached simply by rejecting the case put forward by the defendant. There cannot be a guilty verdict unless the court of trial accepts, that is, actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence (and it is trite to say he/she need not do so) the question is not so much whether it is to be preferred to the prosecution evidence but whether, in the light of it, the prosecution has proved its case. Even if the court does not positively believe the defendant’s evidence and in that sense does not ‘prefer’ it, the question remains whether, on the whole of the evidence, the guilt of the defendant has been proved beyond a reasonable doubt. This is not a mere exercise in semantics. There is always a real possibility that whilst the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant. For example, a defendant may give an account which sounds implausible and unlikely: yet the court may be unable to rule it out. The defendant may not go into evidence at all: yet the prosecution evidence may fail to satisfy the court to the required degree.”
In my opinion the magistrate not only erred in inferring guilt by rejection of the other defendants’ cases, but he also misdirected himself with respect to the circumstantial evidence in relation to Radosevic on Count 3, and failed to recognise (which he should have done) that on the evidence led, as it applied to Radosevic, there was a reasonable hypothesis consistent with innocence. In my opinion the appeal against Radosevic’s conviction on Count 3 must be allowed. As the evidence led, regardless of the magistrate’s misdirection, left room for reasonable doubt as to the appellant’s intention, the conviction on Count 3 must be quashed.
I turn to consider the convictions of Dusan on all three counts. The magistrate’s consideration of Count 1 with respect to Dusan suffers a similar defect as it does in respect of Galic. The magistrate treated all the appellants as one, and seems to have taken everything into account in his rolled up consideration of the evidence in respect of all three. There was less inadmissible evidence against Dusan than there was against Galic. Smelisha’s record of interview was not admissible against him. Smelisha’s and Galic’s oral evidence was, but not to the extent that they deposed to conversations with defendants other than Dusan. Dusan’s signed statement and record of interview were of course admissible against him.
For reasons I have given in respect of Galic, the magistrate clearly erred in treating Dusan in the rolled up consideration of all the evidence against both him and Galic.
However, Dusan’s case, as it appears from his record of interview and confirmed to some extent by Smelisha’s and Galic’s oral evidence, was that by arrangement with Radosevic, he was going to “check out a shaft”. He believed it was not the subject of any claim. When he got to the bottom of the shaft, according to his record of interview, he “see other things there, I told I can’t check this, this may be all same claim. I go straight away up”. In his earlier written statement, which was taken largely in connection with an alleged assault on him when he emerged from the shaft, he admitted to being in the area “for the purposes of mining exploration”.
Notwithstanding the possible reliance by the magistrate on evidence that was inadmissible against Dusan, in my opinion there was evidence independent of the inadmissible evidence on which the magistrate could nevertheless have found Count 1 proved against him. The land was the subject of a precious stones claim. Dusan was at the relevant time upon the claim. On his own admission, as in the case of Galic, he was there for the purpose of mining, and for reasons I have given earlier, he was not authorised by or under the Mining Act.
Although there may well have been an error on the part of the magistrate, there was still evidence to support the conviction independently of that error, and that could not justify this Court interfering: Ghys v Crafter [1934] SASR 28; Hopfner v Flavel (1990) 48 A Crim R 149; Walford v McKinney [1997] 2 VR 353.
In my opinion, as in Galic’s case, but for different reasons, the defence of honest and reasonable mistake would inevitably have been unsuccessful. I am prepared to assume for present purposes that Dusan held, upon reasonable grounds, an honest mistaken belief that the mine he and the others visited was deserted, and not the subject of an existing claim. This, however, would not be sufficient to make out the defence of honest and reasonable mistake of fact in Dusan’s case. The defence of honest and reasonable mistake also requires that the mistake must be one as to facts which, if true, would render the act complained of innocent. Innocence in relation to the precise offence charged is not enough. As Fullager J, with whom Williams ACJ agreed, said in Bergin v Stack (1953) 88 CLR 248 at 262:
“The rule as to the effect of an honest and reasonable mistake of fact means, I think, that such a belief excuses if its truth would have meant that no offence was being committed, not if its truth would have meant that some other and different offence was being committed.”
It may well be that Dusan’s belief that the mine was deserted and not the subject of an existing claim, if true, would have rendered his actions innocent for the purposes of s74(2) of the Mining Act. However, it seems to me that on the facts as they emerged, and notwithstanding Dusan’s erroneous belief, he would still have been guilty of an offence against s74(1) of the Mining Act which does not require a person to be on an existing precious stones claim. Plainly, Dusan was engaged in mining operations without being duly authorised; he did not hold a precious stones prospecting permit. A belief that the land upon which he was mining was not an existing claim bore no relevance to any of the elements of an offence under s74(1) of the Mining Act. Thus Dusan’s mistaken belief, even though it may have been honest and reasonable in the circumstances, did not render his actions “innocent” in the sense contemplated by the Proudman v Dayman defence. Accordingly, there is no potential for a miscarriage of justice to have occurred in relation to Dusan, and I need not stay to consider whether the evidence showed that it was an honest and reasonable belief.
So far as Dusan’s conviction on Count 3 is concerned, it suffers from the same defects as in the case of Radosevic’s conviction on Count 3, and his appeal against that conviction must be allowed, and that conviction must also be set aside.
Dusan also argued an additional ground which, in the circumstances, could only have related to Count 3, namely that there was other evidence suggesting possible unauthorised entry by a person or persons unknown which had in fact triggered the alarm in the first place. That possibility was consistent with some of the evidence as to times at which the defendants said they arrived at the mine site. It was said that that hypothesis was consistent with certain other items having been found by the police in the mine. As such it was a hypothesis consistent with innocence. In the circumstances, it is not necessary to consider this ground of appeal, as there are other grounds which justify allowing Dusan’s appeal against his conviction on Count 3.
The result is that Galic and Dusan were both properly found guilty of Counts 1 and 2, that Radosevic was properly convicted on Count 2, but that Radosevic’s and Dusan’s convictions on Count 3 must be set aside and their appeals allowed for that purpose. However, that does not mean that Galic’s and Dusan’s convictions on both Counts 1 and 2 may stand.
Given the nature of the two offences and the sections on which they are based, the essence of both of them is being on the claim without the authority of the owner of the claim. Count 1 requires proof of a particular purpose, but Count 2 does not. The question arises as to whether they can be convicted on both counts, there being sufficient identity between the acts or omissions constituting the two offences to make it improper to convict twice.
This point did not arise in the Magistrates Court because all parties and the magistrate seem to have proceeded on the assumption that one of the essential elements of Count 1 was the failure to hold a precious stones prospecting permit. As I have observed, this seems to have been the basis on which Count 1 was dismissed against Radosevic, because he held a permit. The failure to hold a precious stones prospecting permit might well be relevant to an alleged breach of s74(1) of the Mining Act, but that is not what the defendants were charged with. Count 1 alleged a breach of s74(2), the necessary element of the contravention of subsection (1) relating to a lack of authority other than failure to hold a permit. It related to a lack of authority from the owner of the precious stones claim. When the section is construed in that manner, it seems to me inevitable that there is sufficient identity between Counts 1 and 2 to make it improper to convict a person twice: see R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219 per Bray CJ at 225-226; Hallion v Samuels (1978) 17 SASR 558 at 563. I would therefore dismiss Galic’s and Dusan’s appeals against their convictions on Count 1 but allow the appeal and set aside their convictions on Count 2.
The defendants also appealed against the sentences imposed by the magistrate, the argument being directed particularly towards sentences of imprisonment. The sentences imposed were as follows:

Galic - Count 1: Five months imprisonment

Count 2: $700 fine

Radosevic................... - Count 2: $700 fine
..................................... Count 3: Nine months imprisonment

Dusan.......................... - Count 1: Five months imprisonment
..................................... Count 2: $700 fine

Count 3: Nine months imprisonment concurrent with that on Count 1.

Galic’s fine on Count 2 falls with the setting aside that conviction. Radosevic’s sentence of imprisonment on Count 3 likewise falls, and so does Dusan’s fine on Count 2 and his sentence of imprisonment on Count 3.
The magistrate imposed all sentences upon the footing that these were serious offences of premeditated dishonesty. He described the behaviour of all three men as an aggravated form of larceny, representing a gross breach of trust. He put great emphasis on both personal and general deterrence.
He observed in respect of Galic that, although he had no case to answer on Count 3, the sentence imposed on Count 1 was on the basis that he was on the claim for a dishonest purpose and for the purpose of “illegal mining”. It would appear that he took a similar view concerning Dusan in respect of Count 1. The maximum penalty applicable to Count 1 was a fine of $2,000 or imprisonment for two years.
He described the offending in respect of Count 2 as being “at the more serious end of the scale”. The maximum penalty for that offence was a fine of $1,000.
Many of the magistrate’s remarks cease to have relevance with the setting aside of the convictions on Count 3.
All three appellants had no prior relevant convictions, and were long‑standing and respected members of the Serbian community in Coober Pedy.
In the circumstances, I can impute no intention to the appellants of stealing opals from the mine. It was nevertheless an unlawful and unwise activity in which they engaged.
In the overall scheme of the activities that night, Radosevic appears to have been the organiser and to have played the leading role. However, for reasons I have noted, he was not convicted on Count 1, the more serious offence. He did not give evidence, and his actions as described in the evidence remain unexplained by him. It would appear that not only was he on the claim, but that he was using his pick to search for opal. It was an aggravated breach of s51a of the Mining Act. No argument was addressed to me concerning the fine imposed. I see no reason to vary the fine imposed on Radosevic in respect of Count 2.
The convictions of Galic and Dusan on Count 1 represent a more serious offence, but their subsidiary role to that of Radosevic cannot be ignored. The convictions, in present circumstances, certainly do not warrant sentences of imprisonment. I would set aside the sentences imposed on Count 1 in each case and substitute for those sentences a fine of $500 in each case.
The magistrate allowed two years in which to pay the fines imposed, but in rather different circumstances from those which now confront me. I will hear counsel further as to time to pay the fines resulting from these convictions and as to any ancillary orders arising out of the appeal.

[1998] SASC 6900

8 October 1998