Hajdu v Brown
[2005] TASSC 61
•7 July 2005
[2005] TASSC 61
CITATION: Hajdu v Brown [2005] TASSC 61
PARTIES: HAJDU, Louie
v
BROWN, Graeme Maxwell
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LDR LCA 30/2004
DELIVERED ON: 7 July 2005
DELIVERED AT: Hobart
HEARING DATE: 8 April 2005
JUDGMENT OF: Blow J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: G D Wendler
Respondent: F C Neasey
Solicitors:
Applicant: Zeeman Kable & Page
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 61
Number of paragraphs: 78
Serial No 61/2005
File No LDR LCA 30/2004
LOUIE HAJDU v GRAEME MAXWELL BROWN
REASONS FOR JUDGMENT BLOW J
7 July 2005
This is an application for the review of an order of a magistrate by which four charges against the applicant were found proven. The charges all arose out of a single incident on 27 April 2000 near Rodondo Island in Bass Strait. Details of the four charges are as follows:
·By count 1, the applicant was charged with contravening the Living Marine Resources Act 1995, s204, by failing, without reasonable excuse, to comply with a direction under s181(1)(a) by a Constable Pratt, a fisheries officer, by failing to stop a vessel that the applicant was apparently in charge of, when directed to do so.
·By count 2, he was charged with contravening the Fisheries (Abalone) Rules 2000 ("the rules"), r11, by taking about 400 abalone when he was not the holder of a fishing licence (abalone dive), not the holder of a fishing licence (recreational abalone), and not an Aborigine undertaking an Aboriginal cultural activity.
·By count 3, he was charged with contravening the rules, r17(1)(a), by taking more than ten abalone in one day, in that he was alleged to have taken about 400 abalone in one day when not the holder of a fishing licence (abalone dive).
·By count 4, he was charged with contravening the rules, r17(1)(c), by having possession of more than 20 abalone, in that he had possession of about 400 abalone, at a time when he (a) did not have the third copy of a completed diver's docket relating to the abalone, (b) did not have a receipt relating to the purchase of the abalone from a fish merchant, and (c) was not the holder of a fishing licence (abalone dive) who had taken the abalone under that licence and not landed them.
The prosecution case was that the applicant and some companions were illegally fishing for abalone in Tasmanian waters near Rodondo Island; that none of them had any relevant licence; that the applicant was in charge of their vessel, a Shark Cat; that three police officers approached the Shark Cat in a rigid hulled inflatable boat ("the RIB"); that one of them, Constable Pratt, who had the status of a fisheries officer, directed the applicant to stop his vessel; that the applicant did not stop his vessel; that one of his companions so manoeuvred it that a collision with the RIB occurred; that the police officers in the RIB saw a large quantity of abalone in the Shark Cat; and that the applicant sailed the Shark Cat back to Victoria, with all the abalone being thrown overboard, and one of the applicant's companions, his brother, who had been diving at the time of the encounter with the police, being left behind.
The applicant's case was that he and his companions had not been fishing for abalone or doing anything illegal; that he did not realise that the men in the RIB were police officers; that he was not told to stop; that the Shark Cat was deliberately rammed with the RIB; that he sailed away for the sake of safety; and that he left his brother behind only after seeing a large police vessel, which he mistook for a Victorian police vessel, come on the scene, thinking that his brother would be safe once police officers were present.
The hearing before the learned magistrate was the second hearing of the charges against the applicant. The first hearing was before another magistrate. The applicant was convicted on that occasion. A notice to review was filed. It was discovered that the proceedings before the first magistrate had not been properly tape recorded. As a result, it was not possible for a judge to adjudicate upon the grounds of appeal. Evans J therefore ordered a new hearing.
The prosecution called seven witnesses at the second hearing. Three of them – Sergeant Pratt (as he now is), Sergeant Gill (as he now is), and Constable Fogarty – were in the RIB on the day. Two of them – former Constable Power and Constable Massey - were passengers in a surveillance aircraft. The others were Constables Pearce and Stanley. Constable Pearce was the master of the larger police vessel, the Van Diemen. Constable Stanley was not present on the day in question, but was involved in a re-enactment exercise on 30 December 2001. The applicant gave evidence in his own defence. His counsel called as witnesses a Mr Doerre, who had been with the applicant on the day in question; the applicant's brother, Miklos Hajdu, to whom I have referred; and a marine surveyor, Mr Howard.
There are five grounds of appeal. By ground 1, the principal ground, the applicant contends that the learned magistrate's findings were unsafe, unsatisfactory or unreasonable. Since the other grounds of appeal relate to the reasoning of the learned magistrate, it is appropriate that I deal with them first.
Ground 2 – Unshaken witnesses
This ground reads as follows:
"2THAT the Magistrate erred by holding that because a prosecution witness was 'not shaken' in a particular aspect of his evidence, therefore the balance of his evidence should be accepted; alternatively that there was an obligation upon the Applicant to 'shake' a prosecution witness in his evidence before the Applicant could succeed in the trial."
The learned magistrate published reasons for his decision that were 56 pages in length. In the course of those reasons, he said on six occasions that the evidence of a prosecution witness as to a particular point had not been shaken.
The first such comment concerned evidence by Sergeant Pratt that he had seen abalone being thrown overboard from the Shark Cat. The learned magistrate referred to the sergeant being questioned in cross-examination as to that point and said, "His evidence on that point was not shaken in any material respect."
Sergeant Gill was cross-examined as to the speed of the RIB as it approached the Shark Cat prior to the collision. His evidence at the second hearing as to the speed of the RIB was inconsistent with the evidence he gave at the first hearing. The learned magistrate commented, "Mr Wendler put it to him that he was trying to minimise the speed but Sergeant Gill wasn't shaken on that point."
Sergeant Gill also gave evidence of seeing abalone thrown overboard, and was also cross-examined as to that. The learned magistrate commented, "He was unshaken in his evidence of seeing the defendant and another male jettisoning abalone from the Shark Cat during the 'pursuit.'"
Former Constable Power gave evidence of observations from the surveillance aircraft from an altitude of about 3,000 to 3,500 feet. He did not use binoculars. He said he saw activity on the Shark Cat, something being thrown over the starboard side, and splashes in the water. He said he saw only one person throwing something overboard, but that generally he could see people moving on the Shark Cat. He was cross-examined as to his evidence of his observations. The learned magistrate commented, "Mr Power's evidence was not shaken in cross-examination. The main thrust of these questions was aimed at his observations of someone throwing something from the Shark Cat."
Constable Pearce gave evidence as to the collision between the two vessels, the damage to the RIB, and the "Police" markings on that vessel. The learned magistrate commented, "Mr Wendler asked a number of questions about the RIB but the substantive evidence given by Constable Pearce was not shaken."
A major issue at the trial concerned the markings on the Shark Cat. At the first hearing, Sergeant Pratt had given evidence that the Shark Cat had the name "Air Supply" on its side, and that he saw the registration number PV688, but the applicant adduced reliable evidence that the words were in fact "Air Sea Rescue" and that the boat's registration number was PV883. Under cross-examination at the second hearing, Sergeant Pratt said he certainly believed that the wording was "Air Supply", but that he would have to concede that that was an error on his behalf. Mr Wendler put to him that he might be mistaken as to the registration number, but he said that he was not mistaken, and that the number on the boat was PV688. Sergeant Gill had also given evidence at the first hearing of seeing the words "Air Supply" on the side of the Shark Cat. Under cross-examination at the second hearing, he insisted that his memory was that the words he saw were "Air Supply", but he conceded that he was perhaps incorrect, having seen photos of the applicant's Shark Cat showing the words "Air Sea Rescue". He also said that he remembered seeing the registration number PV688 on the Shark Cat, and that the number PV883 was not correct. Constable Fogarty gave evidence that he saw the words "Air Supply" along the port side of the Shark Cat and the registration number PV688 on the bow of the vessel. Mr Wendler put to him in cross-examination that the registration number was PV883, but the constable insisted that it was PV688 and that he could still picture "Air Supply" on the side of the boat.
Mr Howard, the marine surveyor who was called as a defence witness, gave evidence of having taken photographs of the applicant's Shark Cat that were tendered as exhibits at the second hearing. They were apparently taken about four months after the alleged offences. The photographs clearly show the registration number PV883. He said that he had inspected the certificate of registration. Apparently PV883 was the correct registered number of the boat. He said he inspected the boat and saw no evidence of its registration numbers having been changed. The words "Air Sea Rescue" are visible in his photographs, but very faint. Under cross-examination, he said that normal marine adhesive lettering could be used to change registration numbers; that such lettering often leaves a mark where it is taken off; that the longer such lettering is left, the harder it is to remove any trace of it; and that if it is put on and taken off relatively quickly, it is easier to remove without a trace.
The learned magistrate said the following about the registration number:
"None of the officers was shaken about the registration number and I accept their evidence on that point. I have already said that Mr Howard's evidence did not help me on the point and this really comes down to credit. It would have been a fairly simple task for the defendant to put a false number on the boat and then remove it and replace or uncover the original numbers later that night or early the next day before taking the Shark Cat to Bay Marine. After all, the only photos we have of the Shark Cat were those taken by Mr Howard some 4 months after the event. However, whilst I believe that the officers were mistaken about the name they say was on the Shark Cat, I do not think this was really damaging to their overall credibility. Indeed, one of the officers was prepared to admit he had made a mistake about that and, whilst the others were not I believe that their view was an honest but mistaken one rather than an attempt on their part to fabricate this evidence."
Mr Neasey was good enough to identify these six references to unshaken evidence in the course of his submissions. Mr Wendler did not suggest that there were any other such references. Mr Wendler argued in his submissions in reply that the very use of the words "not shaken" indicated reasoning that the witness was not shaken on one point, that his credibility was therefore not disturbed in any respect, and that he was therefore believed. I reject that submission. There is nothing whatever in the reasons of the learned magistrate to suggest that he reasoned in such a way. There was no basis at all for this submission. The learned magistrate was entitled to observe that witnesses were not shaken as to certain matters. The learned magistrate undertook a thorough assessment of the credibility of each material witness, did not lose sight of the onus of proof, and did not err as to the significance of individual witnesses not having been shaken on particular points. This ground must fail.
Ground 3 – Expert evidence as to speeds
This ground reads as follows:
"3THAT the Magistrate erred by holding that the evidence from the defence expert witness, Mr Howard, concerning the estimated relative speeds of the Shark Cat Vessel and the Police tender was unreliable."
Mr Howard gave expert opinion evidence to the effect that, based on the damage to the Shark Cat, the RIB would have been travelling at about 25 to 30 knots at the moment of impact. There was no other expert evidence as to the speed of the RIB at the time of the collision. After analysing and reviewing Mr Howard's evidence as to this point, the learned magistrate concluded, "In the end result, his evidence did not greatly assist me in reaching any conclusion as to the speed of the RIB at impact." He went on to consider the evidence of the police witnesses, the applicant, and Mr Doerre as to the collision. He rejected the suggestion that the Shark Cat was deliberately rammed; accepted the evidence of the police officers that the Shark Cat had turned hard to port and accelerated just prior to the collision; rejected the evidence of the applicant and Mr Doerre as to the speed of the RIB; and made a finding that its speed was in the region of 10 knots and slowing as it came close to the Shark Cat.
Mr Howard gave evidence to the effect that he had devised a formula to estimate the relative speeds of vessels in collisions at sea, and that his estimate of the speed of the RIB upon impact was derived from the application of that formula. The formula itself was not disclosed by him in his oral evidence. In an earlier report, which was tendered as an exhibit, he expressed the opinion that the Shark Cat had been "involved in a collision with another craft at high speed", but did not mention any formula or any speed estimate. In the course of reviewing Mr Howard's evidence, the learned magistrate made comments as to his formula. He commented, "I accept that Mr Howard has done these calculations in the past when called upon to do so but it seems to me that his formula has not been adequately scientifically tested or approved. It is merely his opinion." Mr Wendler submitted that the learned magistrate erred in law by dismissing Mr Howard's expert evidence as "merely his opinion". However the comment that Mr Wendler focused on related only to the status of Mr Howard's formula. The learned magistrate was perfectly correct to characterise the formula as "merely his opinion", since there was no evidence that the formula had been investigated or approved by anyone with scientific qualifications or expertise, though Mr Howard did give evidence that he had undertaken some tests in relation to collisions, vessels and objects at given speeds about 25 years previously, and that his results had been accepted by an insurance company as a basis for policy exclusions.
After reviewing Mr Howard's evidence, the learned magistrate commented, "Overall, the effect of Mr Howard's evidence in chief was substantially lessened by the rather confused answers he gave in cross-examination." Mr Wendler submitted that that was an erroneous observation because there was nothing confusing about Mr Howard's evidence-in-chief or cross-examination. He submitted that there was no justification for the learned magistrate holding that he was not greatly assisted by Mr Howard's expert evidence as to the speed of the RIB at impact.
A little information as to Mr Howard's formula was revealed by the following question and answer during his evidence-in-chief:
"And what is that formula? … The formula basically is the angle of projection which is the line that the boat is taking at the time, in other words the direction that the boat is travelling, the angle of the projection in which the boats – the two boats are approaching each other, the relevant weights of the vessels and we – it is basically accepted that the projected – the projected collision is 80% of the relevant weight of the vessel."
This answer revealed that the application of the formula involved multiplying the weight of one of the two vessels by 80 per cent, but otherwise it did not reveal what mathematical processes were required to be undertaken.
Mr Howard went on to say that his estimate of the speed of the RIB at impact was based in part upon his inspection of the damage to the Shark Cat. His evidence did not reveal how he took into account his observations of the damage in performing mathematical calculations in accordance with his formula.
When asked what he relied on to come to the conclusion that the speed of the RIB on impact would have been in the vicinity of 25 to 30 knots, he said the following:
"We rely on the calculation of the weight of the – of the particular vessel. We go – the approach angle of the particular vessel, the sea characteristics and wind characteristics at the time and the – we take 80% of the projection of the weight of the vessel as the projected momentum forward. I mean obviously all projections and all energies are projected in a forward line, no matter in which way they're facing or what they're doing it's always projected forwards. Now, the Shark Cat in this case was crossing the bow of the RIB. Obviously that had collided but the RIB would've had to collide with the Shark Cat and the projected – I – if I can perhaps – this was the – that was the actual RIB that I did a projection on and the – "
At that point Mr Wendler stopped the witness. He said, "I need to just stop you because your evidence is getting out of hand."
Although the witness revealed by that answer that his formula involved calculations that took into account the sea and wind characteristics at the relevant time, his later evidence did not reveal how that was done. His report included a comment that "the sea was rough and the wind at some 20 knots", but in the course of his cross-examination he said that he took the sea conditions to be "good conditions" on the basis of the police statements that were available to him.
Subsequently, the witness said that he had originally undertaken a calculation on the basis that the weight of the RIB was approximately 1,400 kilograms, but that he had later learned that its weight was about 800 kilograms. He revealed that his formula involved taking 80 per cent of that figure, and then reducing that by a further 25 per cent because the RIB was a rubber vessel. Further light, but not much, was shed on his approach by the following questions and answers:
"Why? … Because of the absorption of the rubber – of the rubber duck as against versus two fibreglass vessels, if – and the rubber duck will reflect 25% of the back into the rib itself.
Reflect what force? … 25% of the energy, yes.
Yes, the energy. Right? … Yes.
Go on? … And then we calculate that at approximately 10 kilometres per one kilo of energy.
And is that how you came to the conclusion it was in the area of 25, did you? … Yes, we erred on the lighter side. Yes."
Apparently the reference to "one kilo of energy" was not intended as a reference to a kilojoule, which is a unit of energy, but to a kilogram, which is not. In the course of his cross-examination the witness said:
"For each five knots of speed you could reduce the impact damage by approximately half a kilogram of energy."
The cross-examination of Mr Howard also revealed that his formula operated in such a way that recalculating to allow for the correct weight of the RIB (800Kg instead of 1,400Kg) would have resulted in a significantly higher figure for that vessel's speed, but the witness did not abandon his original estimate of 25 to 30 knots. In the report that was tendered as an exhibit, Mr Howard had predicted that the RIB would have been severely damaged, holed along the starboard underside, and taking water. When cross-examined about that opinion, he said he understood that the RIB was significantly damaged and taking significant water to being at the point of sinking or completely unseaworthy. That evidence was inconsistent with undisputed evidence that the RIB had pursued the Shark Cat at high speed for some minutes in the open ocean after the collision. Mr Howard revealed that he had formed his opinion upon the basis that the Shark Cat was almost stationary at the moment of impact. It emerged that his formula enables him to estimate the combined speed of the two vessels, and that he had deduced that the RIB was travelling at a high speed as a result of having been informed that the Shark Cat was almost stationary.
If one assembles the limited information that Mr Howard provided as to his formula, the following picture emerges. He took the weight of the RIB, calculated 80 per cent of its weight, and reduced the resulting figure by 25 per cent because it was a rubber vessel. He then performed further calculations, whose nature was not disclosed to any extent, to take into account the weight of the Shark Cat, the angle between the two boats at the moment of impact as he understood it to be, the sea characteristics as he understood them to be, the wind characteristics as he understood them to be, and his observations of the damage to the Shark Cat. Ultimately he arrived at a figure expressed in units known to him as "kilograms of energy". A kilojoule is the amount of energy required to move an item weighing 1,000 kilograms over a distance of 1 metre at a rate of acceleration of 1 metre per second per second. It seems, therefore, that Mr Howard's "kilogram of energy" is not a unit of energy, but some other sort of unit. The final steps in his calculations were to divide the number of "kilograms of energy" by 10, which gave him a speed in kilometres per hour, which he then converted to knots. How one could possibly make allowance in a mathematical way for observations of damage to a Shark Cat is a complete mystery to me, as is the meaning of Mr Howard's "kilogram of energy".
The learned magistrate wrote several pages of unfavourable observations concerning Mr Howard's evidence. I need not review everything he said. Ground 3 asserts only that the learned magistrate erred in holding that Mr Howard's evidence as to the relative speeds of the vessels was unreliable. A court is not obliged to accept expert evidence in preference to the evidence of eye witnesses: Hollingsworth v Hopkins [1967] Qd R 168. The evidence of Mr Howard as to his formula was no better than pseudo-scientific gibberish. Even if his calculations were reliable, which I very much doubt, they could not establish anything other than the approximate combined speed of the two vessels, and that information was of little use in the assessment of the conflicting accounts as to how the collision occurred. The learned magistrate was right to conclude that Mr Howard's evidence did not greatly assist him in reaching any conclusion as to the speed of the RIB at impact. This ground must fail.
Ground 4 – Evidence of deliberate ramming
This ground reads as follows:
"4THAT the Magistrate erred by holding that the Applicant's evidence and that of his witness, Mr Doerre, that the collision between the Applicant's vessel and the Police vessel was a deliberate one, was 'fanciful'."
The applicant's evidence as to the collision was that Mr Doerre was at the controls of the Shark Cat; that he accelerated forwards; that the approaching RIB turned about 20 metres away from the Shark Cat; that it rammed the Shark Cat amidships at high speed; and that "if anything, the boat had accelerated over the last few metres". Mr Doerre's evidence was that the RIB did not seem to slow down at all; and that it just came straight in and rammed the Shark Cat.
The applicant's brother gave evidence that he was underwater when the RIB approached, and that he looked up and saw it collide with the Shark Cat. He did not claim to have made any observations as to the manoeuvring of the two vessels before the collision. The three police officers who had been aboard the RIB each gave evidence to the effect that the RIB was slowing down, and manoeuvring to come alongside the Shark Cat, but that the Shark Cat suddenly turned hard and accelerated into the path of the RIB, which collided with it. Constable Massey gave a similar account as to his observations from the surveillance aircraft. Mr Power gave evidence to the effect that he could see the Shark Cat lift up and start to move; that he could see the wash from its motors at the rear; that it cut across the front of the RIB; and that the vessels then collided. All of the witnesses on both sides were substantially unshaken as to the evidence that they gave concerning the collision.
The wording of ground 4 would suggest that the learned magistrate commented that the evidence of the applicant and Mr Doerre as to the collision was "fanciful". He did not say that. His findings as to whether the collision was deliberate were as follows:
"I am not persuaded that it was the intention of the police to deliberately ram the Shark Cat. I believe that the overall evidence shows that a vessel such as the RIB would not be capable of disabling or stopping a 23 foot Shark Cat in such a way and, in my view, such an exercise would have been pointless and potentially very dangerous to the occupants of the RIB. I am satisfied that Sergeant Gill and the other two officers would have understood that and that such a manoeuvre was not within their contemplation. I do not accept the evidence of the defendant and his witnesses to a contrary effect.
I accept that it was the intention of the police to approach the Shark Cat from the rear portside. …
The preponderance of the evidence is that the Shark Cat was moving at the moment of impact. I am satisfied that it was and I also accept the evidence of the police officers that just prior to the collision the Shark Cat had turned hard to port and accelerated."
Mr Wendler made a submission to the effect that the learned magistrate had no evidence that an RIB would not be able to stop a Shark Cat by ramming it. However there was Mr Howard's expert evidence to the effect that the ramming of a Shark Cat that was nearly stationary by an RIB travelling at 25 to 30 knots would be likely to result in the RIB being severely damaged, holed along the underside, taking water, being close to sinking, and being unseaworthy. There was also evidence that Sergeant Gill had been in the Tasmania Police Marine and Rescue Service for over seven years at the time of the alleged offences; and that he had a full coxswain's certificate. Sergeant Pratt's evidence was that he had been in the Marine and Rescue Service for about three years, that he possessed an unrestricted coxswain's certificate, and that he had been diving for abalone recreationally ever since he was about 12 years old. Constable Fogarty's evidence was that he had been in the Marine and Rescue Service since about 1991, and that he had held a full coxswain's ticket since about 1995 or 1996. It was plainly open to the learned magistrate to make findings to the effect that ramming the Shark Cat would have been pointless and dangerous, and that the three officers would have understood that.
Mr Wendler submitted that the learned magistrate's conclusions as to the quality of Mr Doerre's evidence were unfair, unsupported by the evidence, and unnecessarily hypercritical. Those submissions related to the following paragraph in the learned magistrate's reasons:
"Mr Doerre was not an impressive witness and I have serious doubts about the veracity of his evidence. I found his answers to many questions to be unconvincing. He was furtive and at times somewhat evasive in his responses. It was as if he perceived his evidence to be weak and I formed the impression that he was not being entirely truthful. He was directed to evidence that he had given at the previous trial, which was clearly inconsistent with what he was now saying. In my view, he did not adequately explain these inconsistencies."
Mr Doerre said a number of times during his evidence that he had not seen any police markings on the RIB at any stage. He did however say that the occupants of the RIB appeared to be wearing wet weather gear and caps. Under cross-examination, he denied that he knew that the RIB was a police vessel, and said that he had no idea who the people in it were, and that they could have been anybody. When asked why, after the collision, he did not immediately swing the Shark Cat around and go back and get the applicant's brother, who had been diving nearby, instead of taking off, he replied, "Well, I didn't know who these people were. … They just rammed us and it was just then panic. It was just, as I said, I had no guarantees who – I – yeah, that is what I did." Under cross-examination, Mr Doerre agreed that the Shark Cat was faster than the RIB, and said that he had headed in a north-westerly direction in the Shark Cat for several minutes before turning back for the purpose of picking up the applicant's brother. When asked why he had headed away from the RIB for a few minutes, he replied, "Just to keep them away." He denied that the Shark Cat had headed away from the RIB until the Shark Cat had been emptied of abalone, saying that there was no abalone on the boat. He was cross-examined as to why he had turned back, and whether his state of mind had changed. He said he did not understand the question. When asked whether he was still fearful when he turned around, he said that that was why he kept the other vessel at a safe distance. When asked why he did not keep going when nothing had changed, he said, "Because we went to Mick." That was a reference to the applicant's brother. Eventually he said that the other vessel was a safe distance away, and could not come close enough, and that that was why a decision had been made to go and get the applicant's brother. He gave evidence that, after turning back to the island, the Shark Cat circumnavigated the island. He was asked whether he remembered giving evidence at the first hearing that he and his companions did not circle the island, two questions and answers being read out to him, but he replied, "No, not clearly."
I do not think I need say any more about the extent to which support for the learned magistrate's conclusions as to Mr Doerre's credibility can be found in the transcript. I reject the submissions of Mr Wendler as to Mr Doerre's credibility. It was plainly open to the learned magistrate to form the views expressed in the paragraph that I have quoted.
It was plainly open to the learned magistrate to accept the evidence of the police witnesses as to the RIB not having rammed the Shark Cat, in preference to the evidence of the applicant and Mr Doerre as to there having been a deliberate ramming. Ground 4 must fail.
Ground 5 – Onus of proof
This ground reads as follows:
"5THAT the Magistrate erred by holding that there was an obligation upon the Applicant to prove his innocence in the trial before he could succeed in having the charges dismissed."
In part this ground was based upon the submission that the learned magistrate proceeded on the basis that the applicant had an obligation to shake prosecution witnesses before he could succeed. I have already rejected that submission when dealing with ground 2. Mr Wendler also relied on the sentence in which the learned magistrate said, "I am not persuaded that it was the intention of the police to deliberately ram the Shark Cat." Mr Wendler submitted that this sentence indicated that the learned magistrate thought the defendant bore an onus of persuasion, and had been distracted from the question whether the charges were proved beyond reasonable doubt. I reject that submission. A magistrate may make a finding of fact favourable to a defendant, or may consider making a finding of fact favourable to a defendant and decide not to do so. In either situation, it does not follow that the magistrate has forgotten who bears the onus of proof. When making his critical findings as to the presence of abalone in the Shark Cat, the learned magistrate said twice that he was satisfied beyond reasonable doubt.
There is nothing in the learned magistrate's reasons to suggest that he proceeded on the basis that the applicant needed to prove his innocence. Ground 5 must fail.
Ground 1 – Unsafe or unsatisfactory
By this ground, the applicant contends that the finding that the four charges were proved beyond reasonable doubt was "unsafe, unsatisfactory or unreasonable having regard to the totality of the evidence in the trial."
It is clear that this is a proper ground on a motion to review an order of a magistrate: Kelly v O'Sullivan (1995) 4 Tas R 446. That case establishes that a judge's function when reviewing a magistrate's decision on an issue of fact is similar to that which the Court of Criminal Appeal performs when it is hearing an appeal from a verdict of a jury. The test to be applied when considering whether a conviction was unsafe or unsatisfactory was explained by Mason CJ in Chidiac v R (1991) 171 CLR 432 at 442 – 443 as follows:
"It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted … In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused …".
In M v R (1994) 181 CLR 487 at 494 – 495, Mason CJ, Deane, Dawson and Toohey JJ said the following as to the role of an appellate court in relation to an appeal on the basis that a jury's verdict was unsafe or unsatisfactory:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461-462)."
Mr Wendler submitted that in various respects the evidence of the prosecution witnesses before the learned magistrate lacked credibility, contained discrepancies and inadequacies, was unreliable, and otherwise lacked probative force. The evidence of the prosecution witnesses certainly had some weaknesses. It is necessary to analyse the submissions of Mr Wendler and the relevant evidence in order to determine whether, on the basis of the record of the evidence, it is apparent that the learned magistrate should have entertained a reasonable doubt.
In his evidence-in-chief, Sergeant Pratt said that, when the RIB first came into view of the Shark Cat, there were three men on that vessel who appeared to observe that he and his companions were present, and "were amazed or certainly shocked". However, he also said that those men were about 250 metres away when the RIB came into view, and that he could not see the men's facial expressions, but that they turned and looked fixedly. Mr Wendler submitted that Sergeant Pratt had given evidence of alleged facial expressions that was exaggerated. The learned magistrate commented that Sergeant Pratt may have been exaggerating somewhat. However there was nothing in the evidence of the applicant or Mr Doerre to suggest that they were not surprised by the appearance of the RIB.
When cross-examining Sergeant Pratt, Mr Wendler asked him about evidence he had given at the first hearing about signs reading "Police" on the sides of the RIB. He apparently said at the first hearing that being front-on to the RIB might have made it more difficult to see the "Police" signs, which were more prominent if one was side-on to that vessel. He agreed that he had not suggested that the RIB was marked "Police" on the front. Mr Wendler put to the sergeant that that was not the case at the time, but the sergeant replied that he believed there was a large "Police" sticker on the front of the console at the time. Mr Wendler submitted to me that that evidence was unreliable. It may be that that evidence was true, and that the witness had not remembered the sign on the front of the RIB at the first hearing. It may be that he was mistaken or dishonest at the second hearing. The evidence as to there having been a sign on the front of the vessel that was not mentioned at the first hearing is and was a minor matter relevant to the assessment of the credibility of Sergeant Pratt.
It was common ground that, when the two vessels collided, the RIB had struck the port side of the Shark Cat in the area of its dive door. Mr Wendler put to Sergeant Pratt that, when the RIB hit the Shark Cat, it rode up it, and then partially fell into the dive door area, but the sergeant said that that was not correct at all. Mr Wendler said that the witness was being evasive when he said this. I do not accept that submission. The transcript indicates that the sergeant clearly and simply denied what was put to him. There is nothing evasive about a clear denial. Sergeant Pratt was also cross-examined by Mr Wendler about a bill dated 5 November 2000 for work done to the RIB. He said in his evidence-in-chief that the RIB was not significantly damaged in the collision. He was cross-examined about a repair quotation dated 5 May 2000 which referred to a hole in the hull, a crack in the bow stem, damage to the bow, and damage to the deck. Mr Wendler submitted to me that the sergeant's evidence as to the May 2000 quote and the November 2000 account was evasive. I do not accept that submission. The transcript gives every indication of the sergeant's answers having been concise and forthright, though not what Mr Wendler wanted to hear. At worst, it might be said that Sergeant Pratt should have categorised the damage as significant in light of the quote for its repair amounting to $1,446.10.
Sergeant Pratt gave evidence that, at the time of impact, he looked into the Shark Cat and saw five bins with abalone in them, all of them about half to two-thirds full of abalone, and approximately 100 more loose abalone on the deck in front of those bins. He said he subsequently saw bags being thrown from the boat, but did not believe he had seen the bags in the boat at the time of impact. Mr Wendler cross-examined him about his evidence at the first trial, when he had apparently said that he saw abalone in bins, abalone on the deck, "and other bags". The sergeant said he did not remember saying that, but obviously did if it was in the transcript. He said he had no present recollection of seeing bags other than when they were thrown over the side. Mr Wendler cross-examined the sergeant about a statement he had made soon after the events in question, in which he made no mention of having seen bins, or abalone in bins, at the time of the collision. The sergeant said that that was an omission on his behalf. However, the statement did say that he had seen at least 200 individual abalone being thrown over the side of the boat after impact. The evidence in question was given on 1 April 2004, nearly four years after the incident in question. The sergeant could well have seen bags on the vessel in 2000, and forgotten about them by 2004. He could well have seen abalone in bins on the deck, and not thought to mention them in his first statement. An ideal witness would no doubt have done better in relation to these points, but I do not think these matters impinge on the sergeant's credibility. Mr Wendler pointed out that in his statement in 2000 the witness had said that he saw at least 200 abalone being thrown over the side, whereas he said in his evidence in 2004 that he saw over 200 abalone being thrown over the side. I do not regard that point as significant. I think Mr Wendler was just nit picking.
The sergeant gave evidence that he did not see any abalone irons or a compressor. Mr Wendler submitted that this was a factor that tended to suggest that the findings of guilt were unsafe or unsatisfactory. However, the witness gave evidence that people harvest abalone in the area in question without scuba gear or compressors, by free diving. He said the water was 50 metres deep, but only where the abalone were being thrown off the boat. I do not know what abalone irons are. I do not think I can take judicial notice of what they are, or what they are used for. In my view the evidence that the sergeant did not see abalone irons or a compressor is of no significance.
Mr Wendler submitted that the sergeant gave unreliable evidence concerning abalone being jettisoned overboard from the Shark Cat while the officers were pursuing it in the RIB. The only reason to doubt that evidence is that it was contradicted by the applicant and his witnesses. There was nothing inherently unreliable about that evidence.
Sergeant Pratt gave evidence that he did not observe any fuel containers aboard the Shark Cat. It had come from Victoria. There is no doubt that the applicant was in a Shark Cat near Rodondo Island on the day in question. I cannot see how the presence or absence of fuel containers is of any significance. For all I know, there might have been fuel containers aboard the Shark Cat positioned where the sergeant could not see them. For all I know he might not have noticed them, as a result of hundreds of abalone commanding his attention.
Apparently the identity of the applicant became known to the police officers involved in this incident within days, and they also heard that he was proposing to claim damages from Tasmania Police. The applicant was not charged until more than nine months after the incident. Mr Wendler submitted that such a delay, when a damages claim was known to be proposed, was relevant to the credibility of Sergeant Pratt and Sergeant Gill. I disagree. There are a great many reasons why there might be an inordinate delay between an incident giving rise to charges and the laying of a complaint. The reasons for the delay were not explored to any significant degree at the hearing. There is nothing to suggest that a reason for the delay was a fear of the truth.
The second witness before the learned magistrate was the pilot of the RIB, Sergeant Gill. He had been a constable at the time of the incident in question. He gave evidence that, as the RIB approached the Shark Cat, he accelerated so as to increase its speed by about 5 knots. At the first hearing, in December 2001, he said that he increased its speed from about 25 knots to 30 knots. Before the learned magistrate, in April 2004, his evidence was that he accelerated from about 20 knots to about 25 knots. Mr Wendler cross-examined him about this inconsistency. The witness gave evidence to the effect that he reduced the speed of the RIB shortly before the collision. Mr Wendler submitted to me that the evidence of the witness as to speeds was evasive, and that he had deliberately attempted to minimise the speed of the RIB on its approach to the Shark Cat before impact. This is the sort of minor inconsistency that could be relevant to an assessment of credibility, but it may very well be attributable simply to the memory of the witness being a little different in April 2004 from what it was in December 2001, and I therefore think it is of very little significance.
Sergeant Gill gave evidence that he had prepared a statement a matter of weeks after the incident, but within four weeks after it. Mr Wendler made a submission to the effect that the applicant had threatened to sue the Tasmania Police by the time of the making of the statement, and that therefore the contents of the statement and Sergeant Gill's evidence were unreliable. In my view, the delay of up to four weeks between the incident and the making of the statement was not of itself a bad sign, but the suggestion that the evidence of the major prosecution witnesses had been falsified in order to shift blame in relation to the collision between the two vessels was relevant to the assessment of the credibility of those witnesses.
In his statement, Sergeant Gill did not say that the word "Police" was on the front of the RIB, but before the learned magistrate he said that there were such signs at the front and back, as well as on the sides. In his statement he said that he had observed at least 200 individual abalone in crates on the Shark Cat, but he called them crates rather than bins, and did not say how many crates he saw. Before the learned magistrate he said that the abalone were of the blacklip variety, but he did not say in his statement what sort of abalone he saw. He said in his statement that he said he saw six or eight bags lying on the deck, but did not say what sort of bags, whereas he told the learned magistrate that they were sports bags. He gave evidence that he saw the bags being discarded from the stern of the boat, but that he only saw one bin emptied. Minor inconsistencies between the statement of this witness and his oral evidence are only to be expected. I do not regard any of these matters as impinging on his credibility to the slightest degree.
Because there had been a collision between the two vessels, Sergeant Gill was required to submit a report to a Tasmanian government agency named Marine and Safety Tasmania ("MAST"). He gave evidence that he did so, and that he also submitted an insurance claim. Mr Wendler submitted to me that Sergeant Gill's evidence as to the MAST report and the insurance claim was wholly unreliable and evasive. Mr Wendler suggested to the witness that he had not submitted the MAST report at all, and tendered a letter from an officer of MAST saying that he had searched the files for any information relating to this incident and had failed to find any reports or letters of any kind relating to it. However it may very well be that the witness sent the report off to MAST, and that it did not reach its destination, or that it was incorrectly filed, or that the man who looked for it did not look carefully enough. I do not wish to suggest that public servants are ever inefficient or other than conscientious, but I do not think the failure to find the MAST report in its proper place has any impact on the credibility of the witness who says he sent it in.
Mr Wendler had more points to make about the MAST report and the insurance claim. As to the cause of the collision, the witness wrote in the MAST report, "offender evading apprehension and or attempting to disable police vessel". In his statement, the witness said "I believed that he was attempting to evade apprehension" and "I am unable to say if the driver of the Shark Cat deliberately attempted to cause a collision or disable my vessel". There is an inconsistency between these two documents that Mr Wendler seized upon – in the statement, the witness regarded the evasion of apprehension as something definite, but in the MAST report he expressed it to be no more than a possibility. This inconsistency is completely insignificant. If the driver of the Shark Cat was attempting to disable the police vessel, he was obviously doing so for the purpose of evading apprehension. If the witness had approached the completion of the MAST form with the disciplined mind of a logician, I am sure he would not have expressed himself as he did. Since he was not a logician but a police officer, his shortcoming in this regard is of no significance.
The MAST form had a section where Sergeant Gill was required to fill in details of the person in charge of the police vessel. He had been the person in charge. Mr Wendler made the point that he did not state his name in that section of the form. That omission is not surprising, since that section of the form required all sorts of information about the person in charge, but did not specify that the person's name was to be stated. The witness had written his name and phone numbers on the form, with a note that he should be contacted about any queries or for any further information. The point that he had not written his name in a place where he was not asked to write it is therefore not a strong one.
When filling in the details about himself, Sergeant Gill was required to specify the type of certificate or licence that he had. Mr Wendler made the point that he wrote "Ltd Cox", indicating that he had a limited coxswain's certificate, when in fact he had a full coxswain's certificate. That was careless of him, but I think the impact of that carelessness on his credibility must be microscopic in the extreme. Mr Wendler complained that the learned magistrate did not make any findings as to this. No doubt he thought that it was not worth mentioning. In making my own assessment of the probative force of the evidence, it is of no real help to me to know what the learned magistrate did not mention.
On the insurance claim form, Sergeant Gill stated the speed of the RIB at the time of the accident to be "5 – 7 knots". In his evidence-in-chief, he said that his speed on impact would have been under 12 knots. When cross-examined by Mr Wendler he conceded that the speed estimate on the claim form was not accurate, denied that he was deliberately inaccurate, and said that he could not recall why he wrote what he did. The apparent understatement of his speed, and his inability to explain that understatement, are minor matters relevant to the assessment of his credibility.
In the insurance claim form, Sergeant Gill estimated the damage to the RIB at $3,500 to $4,000. Mr Wendler made the point that at the time he completed that form, a quote from a fibreglass business had been obtained by the Marine Division of Tasmania Police, for only $1,446.10. When cross-examined about this, the sergeant said he had never seen that quote before. There seems no reason for anyone to disbelieve him. Mr Wendler did not suggest any reason not to believe him.
The insurance form contained spaces for the names, addresses and telephone numbers of "any independent witnesses". Sergeant Gill left these spaces blank. Mr Wendler cross-examined him about this, and put to him that the two other police officers on the RIB were independent witnesses. Sergeant Gill said he would not have classed them as independent. Mr Wendler submitted to me that that was nonsense. I disagree. I think it is debatable whether a passenger in a small vessel involved in a collision should or should not be regarded as an independent witness. There is no reason to doubt that the sergeant honestly and reasonably believed that his companions were not "independent witnesses" for insurance purposes.
Mr Wendler submitted to me that Sergeant Gill had deliberately tried to understate the damage to the RIB. Before the learned magistrate, he cross-examined him about the bill dated 5 November 2000. It was received by the Marine Division of Tasmania Police from an engineering and welding business for work done on the RIB that was described as follows:
"1remove and repair damaged stainless steel railing on forward console.
2 cut and weld replacement grab rail over aft seat."
Sergeant Gill gave evidence to the effect that, as a result of the collision, it was found that the RIB did not provide enough "holding power for the police when they were actually moving in rough weather", and that an additional rail was therefore installed to the console. He said the console was not damaged in the collision. The suggestion in the bill that the stainless steel railing was damaged was not supported by any oral evidence. The author of the bill could have included the word "damaged" by mistake. The explanation offered by the witness seems reasonable. I do not think the word "damaged" in the bill of November 2000 has any impact on his credibility.
The third police officer in the RIB, Constable Fogarty, gave evidence that he prepared a proof of his evidence a couple of weeks before the December 2001 hearing. In that proof he said that he observed on the deck of the Shark Cat "a number of crates of whole abalone and a number of bags whose contents could not be seen." His oral evidence at the second hearing was more detailed. He said he saw four fish bins, but his statement contained nothing as to the number of bins. He said he saw blacklip abalone, but his statement contained nothing as to the type of abalone. His evidence contained information as to the position of the bins on the vessel, but the statement did not. In his oral evidence, he said that he saw crates of abalone being emptied into the water, and that they were three-quarters full, but in his statement he did not say that they were three-quarters full. In my view these differences have no significance in relation to his credibility. He evidently prepared a proof of evidence that was not as thorough as it could have been. The most that can be said in the applicant's favour as to this point is that the oral evidence of the witness given nearly four years after the incident might be less reliable than it would have been if he had refreshed his memory from a detailed statement made very soon after the incident.
Constable Fogarty said that he could not recall seeing any abalone loose on the floor of the Shark Cat, and that he did not notice any fuel containers or anything like that on the Shark Cat. Mr Wendler submitted that this evidence was inconsistent with the evidence of the other police officers on the RIB. The constable might well have seen loose abalone in April 2000, and have forgotten them by April 2004. There might have been fuel containers that he simply did not observe. I do not think his evidence in relation to these matters is of any significance in relation to his credibility.
Former Constable Power gave evidence at the second hearing, but not the first. Mr Wendler told me that the prosecutor at the first hearing said that the evidence of this witness would be the same as the evidence of the other police officer in the surveillance aircraft, Constable Massey, but that this did not turn out to be the case. Nothing inaccurate said by the prosecutor at the first hearing is relevant to the question whether the verdicts at the second hearing are unsafe or unsatisfactory.
Mr Power was watching the two vessels, without binoculars, when they collided. He said that he could see the Shark Cat lift up and start to move, and could see the wash from the motors at the rear. He said it travelled maybe three or four lengths of the vessel, and cut across in front of the RIB, and that they collided. When asked whether the Shark Cat was turning in any direction, he replied "No, I think it was going straight ahead." This was inconsistent with the evidence of the three officers who were in the RIB that day, all of whom said that the Shark Cat moved off making a hard turn to port. Constable Massey said his recollection was that "as it took off rapidly it came to port slightly". The applicant denied having turned to port at all. Obviously the consistency of Mr Power's recollection as to this point with the applicant's case, and its inconsistency with the evidence of the four other police officers, is relevant to the assessment of those officers' credibility, but it is also relevant to Mr Power's credibility and that of the applicant and Mr Doerre.
Mr Power said that he saw that something was being thrown overboard from the starboard side of the Shark Cat after the collision. He said that he could see the person throwing, and could see splashes in the water since it was calm and a beautiful day. He said he saw this from an aircraft flying at 3,500 feet without binoculars. Before the learned magistrate, Mr Wendler tendered a series of photographs of a person standing on a median strip in front of a traffic sign, apparently somewhere in Victoria. The photos were taken at measured distances of up to one kilometre from the man. Mr Wendler submitted that the man was so indistinct in the photo taken at a distance of one kilometre that Mr Power could not possibly have seen what he claimed to have seen from an altitude of 3,500 feet. I do not accept that. A photograph taken from an aircraft looking down towards a calm sea on a beautiful day might have been of some evidentiary value, but a photograph of a man against a different sort of background in different lighting and atmospheric conditions is of practically no evidentiary value, in my view. More significantly, however, Constable Massey said that, looking through binoculars from the same aircraft, he did not see anyone throw anything overboard, and did not see an activity that suggested people throwing anything overboard. That evidence, but that evidence alone, strongly suggests that Mr Power's evidence of seeing something being thrown overboard is unreliable. However I do not think that Constable Massey's evidence tends to weaken the reliability of the evidence of the three officers in the RIB as to things being thrown overboard since, at worst, it is likely that Constable Massey was simply too far above the water to see whether anything was being thrown overboard or not.
The three police officers on the RIB all said that they saw abalone in bins on the Shark Cat. The two police officers in the aircraft did not see any bins. A white plastic bin was tendered as an exhibit. Mr Wendler tendered a series of photographs of white plastic bins, taken from distances of 90 metres and 120 metres away, apparently on some sort of playing field. They were quite distinct. The applicant and Mr Doerre both said that there were no such bins on the Shark Cat, and that there was no room for them. The photos are of no evidentiary value. The fact that witnesses flying 3,500 feet above the vessel did not see white plastic bins is just as likely to have been the result of their altitude as the bins' absence. Plainly there is a conflict between the three police officers' evidence on this point and that of the two other men. There is nothing inherently improbable about the evidence of either group as to this point.
Two days after the incident in question, the applicant telephoned the Victorian Water Police Squad and spoke to a Senior Constable Jenkins. He identified himself only as "Lou". Their conversation was tape-recorded. The audiotape was an exhibit before the learned magistrate. Mr Wendler played it during the hearing of the motion to review. During the telephone conversation, the applicant said that he had been about 10 kilometres off Wilson's Promontory in Tasmanian territorial waters, with a diver in the water, when the other boat accelerated as fast as it could, and slammed into the side of his boat, without the men on board identifying themselves or giving any direction to him. He spoke at some length, giving a version of events consistent with that given to the learned magistrate in his evidence. Mr Wendler submitted that the tape was "a cry for help". He criticized the learned magistrate for saying that it was self-serving. I took Mr Wendler to be submitting to me that the tape was strong evidence of the applicant's innocence. However, in my view, the version of events given by the applicant during the conversation is equally consistent with a guilty man pretending to be innocent or an innocent man concerned about false suspicion.
Mr Wendler submitted that Constable Stanley's evidence as to a re-enactment was wholly irrelevant. He pointed out that there were significant differences between the conditions at the time of the re-enactment and those at the time of the incident. The re-enactment was at a different place. It was in the middle of the day in December, but the incident was near dusk in late April. The Shark Cat used in the re-enactment had a heavy compressor in the stern, but no witnesses suggested that there was a compressor aboard the applicant's Shark Cat. I accept that the re-enactment evidence added nothing of significance to the prosecution case.
In my view the greatest weakness of the prosecution case concerned the evidence of Sergeant Pratt, Sergeant Gill and Constable Fogarty as to their observations concerning the Shark Cat's registration number, the faint wording on its side, and its motors. As I have said, all three of those officers gave evidence that they saw the registration number PV688 on the side of the vessel, but the evidence established that its number was PV883. Sergeant Pratt and Sergeant Gill also said that the registration number PV688 was not in the same position as that of the number PV883 in Mr Howard's photos. As I have said, all three gave evidence that they saw the words "Air Supply" on the vessel, but photographic evidence confirms the applicant's evidence that the words were "Air Sea Rescue". Sergeant Pratt said that the Shark Cat's two motors were 200hp saltwater series outboards. Sergeant Gill said that they were 200hp Yamaha outboard engines. When Mr Howard inspected and photographed the Shark Cat in August 2000, it had twin Mariner 175hp outboard motors. The applicant gave evidence that it had had those motors ever since he purchased it. His brother said the same thing.
As I have said, both Sergeant Pratt and Sergeant Gill gave evidence at the first hearing that they had seen the words "Air Supply" on the side of the Shark Cat, but Sergeant Pratt conceded that he had been mistaken, and Sergeant Gill conceded that he was perhaps mistaken. Mr Wendler submitted that the evidence of Sergeant Pratt lacked credibility because he had not corrected his earlier mistake in his evidence-in-chief. However he was not asked about the writing on the Shark Cat in his evidence-in-chief, and there would have been no probative value in him explaining to the learned magistrate that he had made a mistake at the first hearing. This was properly a matter for cross-examination, not evidence-in-chief, and the witness made an appropriate concession in his cross-examination. Mr Wendler submitted to me that the evidence of Sergeant Gill as to the words he saw was evasive. I disagree. He frankly conceded that his memory was inconsistent with the photos he had seen, and that he could have been wrong.
From the evidence of Mr Howard concerning black adhesive tape, it would seem that it would not have been very difficult to disguise the Shark Cat by changing the registration number PV883 to PV688, and to restore the original number later without leaving any evidence that it had been tampered with. Any police officer observing the vessel in hectic and stressful circumstances could easily make a mistake as to the position of the registration number, as to the faint writing on the side of the vessel reading "Air Supply" rather than "Air Sea Rescue", and as to the motors being 200hp Yamahas rather than 175hp Mariners. However there is no real chance that two officers independently made the same mistaken observation as to the positioning of the registration number, that three officers independently made the same mistake as to the wording on the side of the vessel, and that two officers independently made the same mistake as to the horsepower of the two motors. The only rational explanation for two or three officers making any of these mistakes is that each erroneous observation, having been made by one officer, has been adopted by one or two other officers as their own. When one witness adopts as his own the evidence of another witness as to a particular observation, that adoption must be either dishonest or unwitting. If witnesses are not rigorous about noting their observations, preparing statements or proofs of evidence, and not discussing their evidence with one another, and there is a lengthy delay between the making of observations and the giving of evidence, there is a risk that an erroneous observation by one witness will become known to one or more other witnesses, who will later forget that they did not make that observation themselves. Such confusion is less likely to occur in relation to an observation of critical significance, such as the observation of hundreds of abalone on the deck of the Shark Cat, than it is in relation to an observation of less significance, such as the observation of the words on the side of the Shark Cat. The adoption of erroneous observations by the witnesses in question could well have occurred without dishonesty, as the learned magistrate found.
The strength of the prosecution case depended on the credibility of the three officers in the RIB who said they saw abalone aboard the Shark Cat. That is to say, it depended on their honesty and the reliability of their observations. Their erroneous evidence as to details concerning the Shark Cat was very relevant to the assessment of their honesty and reliability. Their errors weakened the probative force of the prosecution case. However, I am not persuaded that this weakness in the prosecution case, either alone or in combination with the other minor matters referred to above, warrants the conclusion that the learned magistrate should have entertained a reasonable doubt as to the guilt of the applicant in respect of the four charges. The prosecution case had substantial probative force. The three officers who were in the RIB all gave evidence of having seen abalone, and having seen it thrown overboard. It was common ground that the Shark Cat left at high speed after the collision with the RIB, returned to the vicinity of the island after some minutes, and then departed for Victoria without picking up the applicant's brother. Those facts very strongly suggest that the applicant and his companions had been offending, that they fled in order to jettison abalone, and that they left without the applicant's brother because they wanted to avoid identification and prevent the police from obtaining any evidence from the Shark Cat. Ground 1 must fail.
Conclusion
The motion to review is dismissed.
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