Haseldine v Hemming No. Scgrg-98-927 Judgment No. S6898

HASELDINE v HEMMING
[1998] SASC 6898

Magistrates Appeal
Bleby J

The appellant, together with three others, Messrs Pav, Mullan and Dela‑Roza were jointly charged with the following offences, namely that:

1...... On the 21st day of June, 1996, near Thistle Island in the waters of South Australia, for the purpose of trade or business, they engaged in a fishing activity of a class that constituted a fishery without holding a licence in respect of that fishery nor acting as an agent of a person holding a licence in a respect of that fishery, contrary to s34(1) of the Fisheries Act, 1982.

On the 21st day of June, 1996, near Thistle Island in the waters of the said State, they had in their possession for the purposes of sale, fish taken in contravention of the Fisheries Act, 1982, namely 537 abalone (Haliotis spp), contrary to s44(2)(a) of the Fisheries Act, 1982.

On the 21st day of June, 1996, near Thistle Island in the waters of the said State, they engaged in a fishing activity of a prescribed class, namely an activity described in paragraph 69 of Schedule 1 of the Fisheries (General) Regulations, 1984, contrary to s41 of the Fisheries Act, 1982 and regulation 5 of the said Regulations.

On the 21st day of June, 1996, near West Point in the waters of the said State, the defendants hindered fisheries officers in the execution of their duty, contrary to s28(4)(b) of the Fisheries Act, 1982.

The appellant was further charged with a breach of s28(4)(a) of the Fisheries Act in that on the 21st of June 1996 near Thistle Island, he failed to comply with the direction of a Fisheries officer.
All defendants pleaded not guilty to all charges, and all four defendants were convicted by a magistrate on Counts 1 to 4, and the appellant was further convicted on the fifth count. The appellant now appeals against his conviction on all five counts.
The fishing activity referred to in Count 1 was the taking of abalone. In circumstances which I am about to describe, police divers recovered 537 abalone shells from the seabed in Mitlers Cove, just off Thistle Island, being 508 green‑lip abalone and 29 black‑lip abalone shells. Expert evidence led by the prosecution showed that the estimated weight of meat from those shells, each of which was measured, was 54.2 kilograms of green‑lip abalone meat and 1.8 kilograms of black‑lip abalone meat. The combined wholesale value of the meat at that time was estimated to be $4,774.20. From that the prosecution sought to infer that the fishing activity in Count 1 was for the purpose of trade or business. There was no dispute that the taking of abalone in the area concerned constituted fishing activity of a class that constituted a fishery. There was also no dispute that none of the defendants had a licence in respect of that fishery.
In relation to Count 2, there was an evidentiary aid provided in s44 of the Fisheries Act to the effect that if it were proved that a person had more than 25 abalone in his or her possession or control, it is presumed, in absence of proof to the contrary, that the person had that abalone in his or her possession or control for the purposes of sale.
For the purposes of Count 3 it was necessary to establish that the fishing activity was the taking of more than five abalone per person.
It was also not in dispute that the appellant was at all material times the registered owner of the boat the subject of investigation by Fisheries officers and police on the day in question, and that it was equipped with diving gear appropriate for the taking of abalone and for general fishing. At all material times the defendants were together aboard the appellant’s boat or diving from it at Mitlers Cove off Thistle Island.
Apart from seven abalone on the appellant’s boat when it reached Port Lincoln late in the afternoon of 21st June 1996 which some of the defendants maintained they had taken for their own use, there was no direct evidence that any of the defendants had actually been in possession of the 537 abalone shells or the meat extracted from them. The case against the defendants on Counts 1, 2 and 3 was essentially circumstantial.
As a result of aerial observations of the appellant’s boat, Fisheries officers Donovan and Webb were dispatched to Thistle Island to make closer observations. With some breaks when the boat changed position as a consequence of which they also had to change position, they had the boat under observation from various vantage points on Thistle Island between 2.40pm and 4.43pm that day. Some of their observations were recorded on a video recorder, and they gave evidence of their own observations through that and through binoculars. It was a sunny day, and visibility was good.
When first observed, the appellant’s boat was anchored just off Nose Point, at one end of Mitlers Cover. They were some 800 metres from the boat. The boat then moved slowly towards the island into Mitlers Cove, and the officers took up a vantage point about 400 metres from the boat. They observed four people on or about the boat. At various times a person or persons on board were throwing abalone shells over the side of the boat. They heard noises emanating from the boat consistent with actions involved in shucking abalone, a term used to describe extracting the valuable meat from the shell. They also observed a green catch bag hanging over the side of the boat furthest from them. From time to time it was retrieved and replaced in the water and appeared to contain something consistent with abalone meat. That consistency was observed by reference to the shape of the bag and the colour of the contents. They said it was inconsistent with the irregular shape that would have been caused by the bag containing abalone shells. They observed that activity to continue for about one hour in one location, and the boat was moved about another 200 metres close to a buoy, and some diving activity by two of the men took place during the next thirty minutes or so.
In the meantime, Fisheries officers Lehman and Jennings had commandeered a white “Devil Cat” boat from a local fisherman and were travelling from Port Lincoln towards Thistle Island. They were in voice contact with Donovan and Webb who guided them to the position of the appellant’s boat. The boat came under observation by Lehman and Jennings from a point about 800 metres distant as they rounded Nose Point and headed into Mitlers Cove. The appellant was one of the divers and he had surfaced, followed by the other diver. As the boat containing Lehman and Jennings approached, there appeared to be much activity on the appellant’s boat. The main engine of the boat was started and it proceeded before the anchor was even retrieved and whilst the hooker line, being an air hose attached to an air compressor used for diving purposes, was still trailing in the water.
All four Fisheries officers estimated that the Devil Cat came to within three metres of the appellant’s boat before it moved off. The defendants in their evidence claimed that it came no closer than 10 to 15 metres. The magistrate seems to have preferred the evidence of the Fisheries officers, and that appeared to be consistent with the video film taken from Thistle Island.
Jennings’ evidence was that, whilst standing on the port side of the boat adjacent to the windscreen and about three metres from the starboard side of the appellant’s boat, he called out to the defendants to heave to and stop their engines, and also called out “Fisheries officers” and held up his identification badge - a wallet approximately 4 inches by 3 inches containing a silver metal badge depicting the State emblem and the words “Fisheries Officer”.
Lehman said that he was on the bow of the Devil Cat and also yelled to the defendants to stop at the same time as the appellant moved to the helm of his vessel and started the engine. He claimed to have a side view of the appellant, who looked up at him and ignored him. It was his intention to board the appellant’s boat, but this proved impossible with the floating hooker hose and the unpredictability in the movement of the appellant’s boat.
The appellant’s boat headed off in a northerly direction at high speed with the boat containing the Fisheries officers in pursuit. It went over a known reef, which the Fisheries boat, in the interest of safety, went round, thereby initially losing some ground. However it eventually caught up and was said by the Fisheries officers to be trailing the appellant’s boat by about 30 metres. Their evidence was that there was activity on board with items being thrown overboard. The appellant’s boat headed in a general northerly direction towards Port Lincoln, still trailing its hooker hose. After about two kilometres, in the vicinity of Black Rock, north of Thistle Island, the vessel did a U‑turn and travelled south at a consistently high speed. Travelling in a general south‑westerly direction, it passed Hopkins Island and Cape Catastrophe to starboard and proceeded between Williams Island and the mainland. Just past Williams Island a large dark blue cylindrically shaped item, in the form of a tied garbage bag secured at both ends, was seen to be lifted by Dela‑Roza and Mullan and rolled over the starboard side of the boat. The Fisheries officers drew up to the point where the object entered the water, but it had sunk. The water at that point was approximately 44 metres deep. The officers had no facilities for marking that point with a buoy, and had no global positioning facility on board. The water there was significantly deeper than the boat had previously travelled through, and the retrieval of anything off the ocean floor at that depth would have required substantially more equipment, including a decompression chamber, and personnel than were readily available at Port Lincoln.
The bag having been dropped overboard, the appellant’s boat then did another U‑turn and headed in a north‑easterly and then northerly direction along the coast towards Port Lincoln. It was Jennings’ evidence that the boat stopped near Cape Catastrophe and that the appellant was told to proceed to Port Lincoln, an instruction which he then acknowledged. The boat continued north towards Port Lincoln travelling between Taylor Island and the mainland and proceeded towards a remote landing known as Taylor’s Landing. At a point about 30 metres from the shore Pav was seen to leave the boat and swim ashore. The appellant’s boat then proceeded to Port Lincoln where the remaining three on board were arrested. Pav was arrested by police at Taylor’s Landing.
In the meantime, Officers Jennings and Lehman remained on Thistle Island overnight in the vicinity of Mitlers Cove until the police diving team arrived next morning. No other boats had been in the vicinity overnight.
On 22nd June 1996 Fisheries officers and police divers returned to Mitlers Cove and investigated, underwater, the points at which the appellant’s boat had been seen on the previous day. At the point where abalone shells were seen to be thrown overboard, 537 shells were recovered. Some of them still containing fragments of meat.
Evidence was given that in shucking abalone, the viscera normally remain attached to the shell. Expert evidence indicated that shells in that condition, when returned to the sea, would normally be eaten clean within four to five hours, with maybe ten to twenty per cent intact after 24 hours, but after another day, nothing would be left. This cleaning up of the shells was attributed in particular to stingrays and other fish which had been seen in the vicinity of the shells by the police divers whilst they were recovering the shells.
The blue bag that was thrown overboard from the appellant’s boat by Williams Island was never recovered, because of the depth of the water.
A record of interview taken during the evening of 21 June between Fisheries officers and Pav was read. In that statement he claimed that they had left Port Lincoln that morning, had done some diving and fishing at Thistle Island, and whilst there had retrieved an anchor and taken five abalone himself. The appellant was the other diver but he (Pav) could not see what the appellant was doing. He surfaced about the time when the Fisheries officers approached and was trying to untangle the hooker line from the propeller shaft. He said he did not hear any commands from the Fisheries officers because he had his hood on, the hooker engine was running and the boat engine was running. He thought that someone was coming to challenge them about the anchor. The Devil Cat carried no Fisheries Department identification. He claimed that the anchor he had recovered had about six feet of chain attached to it and about 15 feet of rope, all of which he placed into a blue garbag during the chase and threw overboard, although later in his statement he claimed that Dela‑Roza had bagged the anchor and had thrown it over. Nothing was said in that statement about anyone throwing shells overboard in Mitlers Cove, nor did Pav suggest that they had been recovering empty shells and that these were being sorted on the boat and the ones not needed thrown back. He had, however, been asked what they were doing and had volunteered the information mentioned above.
In his record of interview, Dela‑Roza acknowledged being on the boat but claimed to be “nursing a hangover” and was “flaked out most of the time”. He saw the Fisheries officers’ boat approach, but claimed to see nothing else and declined to answer further questions.
In his record of interview, also recorded that night, Mullan identified who was on the boat and claimed that they went out for a “fun trip” to collect some shells off the bottom and fishing. He claimed that he merely sat on the deck, ate some Ricecream and smoked cigarettes. He declined to answer any further questions when asked about the approach of the Fisheries officers’ boat.
The appellant exercised his right to silence and declined to answer any questions.
At the trial, each of the defendants, including the appellant, gave evidence. They said that they had left Port Lincoln the previous day and were involved in diving and fishing activities at Mitlers Cove on 21st June. They all referred to the fact that they had been collecting some abalone shells for the appellant’s wife, who painted them on the outside for decoration. She herself gave evidence that that was what she did with shells supplied by her sons. The defendants claimed that they had found a buoy and anchor at Mitlers Cove and lifted it into their boat. A Mr Schultz gave evidence that an anchor of his had become wedged in Mitlers Cove, that he had attached a buoy to it with the intention at some stage of returning to retrieve it.
The evidence of the defendants was that they had seen another boat in the vicinity of Hopkins Island, just off Thistle Island, the previous day. On 21st June they went over to investigate the seabed where that boat had been and found a number of empty abalone shells. They recovered about three bags full. They returned to Mitlers Cove and proceeded to sort the shells, keeping those which were suitable for Mrs Haseldine’s activities and discarding the rest.
None of them claimed to hear what the Fisheries officers said as their boat approached because of other noise on their own vessel, and the appellant said that he was not aware they were even Fisheries officers until they spoke to him again at Taylors Landing. Each of the defendants said that they feared some form of attack, presumably in relation to the apparently stolen anchor, which caused their hasty evacuation from Mitlers Cove. Their evidence was that during the pursuit the anchor was placed in the blue plastic bag then containing the good shells for Mrs Haseldine, and was thrown overboard, together with the buoy which had also been recovered. No explanation was given as to why it was necessary to place the anchor in a plastic bag. The appellant’s evidence was that he had arranged to meet other friends at Taylors Landing that day, and Pav was dispatched to swim ashore and to tell the friends that they would not be landing, but would be returning by sea to Port Lincoln.
Their evidence was that in order properly to inspect, clean and select the appropriate shells it was necessary to knock crustaceans off them from time to time, which accounted for the banging noise in the boat, and the selected shells were then placed in a catch bag on the side of the boat in order to clean them. Although the appellant claimed to have taken about three bags of shells from near Hopkins Island, the shells recovered next day by the police divers filled in excess of eight bags. His evidence was that 5-6 dozen shells were retained and were placed in a blue plastic garbage bag.
The case for the prosecution in relation to Counts 1, 2 and 3, insofar as it concerned fishing for and possession of abalone was purely circumstantial. The act of hindering referred to in Count 4 was said to relate to the sinking of the blue bag in deep water. The inference sought to be drawn by the prosecution was that the bag, whatever else it contained, also contained a substantial quantity of abalone meat. The charge against the appellant on Count 5 related to his failure to stop when requested by the Fisheries officers in Mitlers Cove.
In the absence of abalone meat, the prosecution case turned on circumstantial evidence based on the visual observations of the Fisheries officers, supported by video film and still photographs and the inferences to be drawn from the flight, the unusual course taken by the appellant’s boat, the dumping of the blue plastic bag in deep water and the arrangement to meet a land based party that evening at a remote part of the shoreline.
The defendants denied any involvement in illegal activity and contended that because the prosecution failed to produce any abalone meat and because the explanation given by the defendants was a reasonable explanation consistent with innocence, they should be acquitted. Whilst in their sworn evidence the defendants all gave an apparently consistent story as to the collection and sorting of abalone shells, there were a number of inconsistencies in detail between their respective stories and inconsistencies between Pav’s record of interview on the one hand and his and the other defendants’ evidence on the other.
A number of grounds of appeal were argued by the appellant. They conveniently fall into three groups. In the first place it was argued that the prosecution evidence was just insufficient to justify a conviction and that, furthermore, the magistrate should have held that there was no case to answer. There was no evidence that the appellant was ever in possession of the abalone identified in the particulars, and possession of the abalone meat was incapable of being proved to the required degree by recovery of the shells on the following day. It was said that there were deficiencies in the police investigation with inadequate resources and equipment, and no attempt to recover the blue bag or means of identifying precisely where it went down.
The second main ground was that the magistrate misdirected himself as to the onus of proof and reached a conclusion of guilt merely by rejection of the defendants’ evidence. It was said that he failed to consider the evidence for and against each defendant separately, that he failed to consider what evidence was capable of proving each element of the separate counts.
The third general ground was that the magistrate erroneously relied on his rejection of the evidence of the other defendants in rejecting the explanation of the appellant, based as it was, in part, on evidence said to be inadmissible against the appellant. In particular the magistrate was said to have relied on the failure by Pav or any of the other defendants during their record of interview to mention diving for abalone shells for Mrs Haseldine - from which he had wrongly drawn an inference that their evidence was untrue. Such an inference, it was argued, could not be drawn against them consistent with the exercise of their right to silence, and it could not be drawn against the appellant by virtue of his having declined to answer any questions. It was also said that the magistrate erred in relying on the demeanour of the other defendants in giving their evidence to conclude that all the defendants were lying, particularly when there could be no inconsistency on the appellant’s part between any evidence given by him and any prior out of court statements, he having exercised his right to silence.

I deal with these general grounds in reverse order.
From the outset, the case for the prosecution was presented as one of a joint enterprise and a common purpose, at least with respect to Counts 1 to 4 inclusive. In those circumstances it was not necessary for the prosecution to prove every individual element of every charge against every defendant. Once there was evidence from which a common purpose or joint enterprise could be inferred, as there clearly was, and once the individual acts of the respective defendants were shown to be in fulfilment of that alleged common purpose, it did not matter that a particular element of one of the offences was not proved against a particular defendant.
Not only was the prosecution case one of common purpose, but that is how each of the defendants presented their respective cases. Whereas the common purpose alleged by the Crown was the taking of abalone and the various offences alleged in Counts 1 to 4, the common purpose in which each of the defendants was said to be participating was some recreational fishing and diving, the recovery of spent abalone shells for the purpose of selecting suitable shells for Mrs Haseldine to decorate, and the avoidance of possible violence consequent upon their having taken possession of someone else’s anchor and buoy. All were said to be participating, in one way or another in that same common purpose. If accepted, their explanation raised an hypothesis consistent with innocence, but it was an hypothesis common to them all, and an hypothesis which, if accepted, would have required a finding of not guilty in respect of all four defendants. No‑one raised some alternative hypothesis applicable to only one defendant.
Once there was evidence of a common purpose and evidence of individual acts being performed in fulfilment of that common purpose, the evidence proving those individual acts was evidence against all defendants. In the same way, evidence of one defendant by way of explanation of the primary facts - an explanation consistent with innocence said to relate to them all - was evidence against or in favour of all defendants. It could be used to negate proof of the elements of the offence or to show an hypothesis consistent with innocence of the whole group relating to the execution of their common purpose.
That evidence of one was admissible to the benefit of everyone in the group. If accepted, it cast doubt on the common purpose of all of them as alleged by the prosecution. If it were rejected because different members of the group gave inconsistent or otherwise unbelievable evidence relating to their alleged common purpose, it could be rejected as evidence which raised an hypothesis consistent with innocence concerning the purpose of the combination. It could be used to cast doubt on a similar explanation given by another member of the group. It could be used, if there were no other possible explanation for the inconsistencies or anomalies, to suggest a concoction advanced out of a consciousness of guilt, and therefore as another piece of circumstantial evidence of guilt of the members of the combination.
All this is because the basis of the admissibility of the evidence of acts and declarations of one defendant in the absence of another is that the combination or pre‑concert is considered as implying an authority to each of them to act and speak in furtherance of the common purpose and on behalf of the others: Tripodi v The Queen (1961) 104 CLR 1 per Dixon CJ, Fullagar and Windeyer JJ at 7. If the defendants then give evidence of another common purpose, in this case to collect shells for the appellant’s wife and to dispose of an anchor illegally taken, and if that explanation is rejected because the evidence given by the defendants is inconsistent within itself, or inconsistent with inferences properly to be drawn from the prosecution evidence, or inconsistent with a prior out of court statement given by one of the defendants, it is open to the court, because the defendants are speaking on behalf of each other in fulfilment of their alleged common purpose, to rely on the evidence of one in rejecting the evidence of another.
That is not to say, however, the court may rely on the exercise of the right to silence upon police interrogation in order to prove guilt by inferring that failure to give the explanation at that time gives rise to a lack of genuineness in giving evidence. Such an inference would be improperly drawn: Petty v The Queen (1991) 173 CLR 95 per Mason CJ, Deane, Toohey and McHugh JJ at 101. However, that rule does not apply where the right to silence has not been exercised and an explanation has been given which does not include the explanation advanced in evidence at the trial. Where such an explanation is given by those said by the prosecution to have been acting in pursuance of a common purpose, and particularly where they themselves raise in evidence a different common purpose, the explanation of one becomes the explanation of them all and may properly be assessed against an earlier out of court statement where a different explanation is given.
In his reasons the magistrate did observe that “in perusing the defendants’ evidence, and reading the records of interview, ... there was never any mention of collecting shells for Mrs Haseldine”. I do not take that passage as referring to the appellant’s failure to answer questions. I take the magistrate in that passage to be referring to the records of interview of the other three defendants where each of them was asked to and did give an explanation for what they were doing in the boat on 21st June 1996. They each freely offered an explanation. Pav gave a full explanation of what he said they were doing. Both Mullan and Dela‑Roza offered an explanation of what they had been doing on the boat that day before they exercised their right to silence. None of the explanations included the gathering and sorting of shells for Mrs Haseldine. In the circumstances of an acknowledged joint enterprise, that evidence was able to be used in determining whether the sworn evidence of all four defendants could be accepted.
Before dealing with the second general ground, it is necessary to analyse in a little more detail how the magistrate went about his task. The magistrate summarised the prosecution evidentiary case, identified the evidence that was not in dispute and summarised the defendants’ evidentiary case. He concluded:
“The defence thus contend that because the prosecution have failed to produce the abalone meat, coupled with the explanation given by the defendants as to what they were doing, which they say is a reasonable explanation consistent with innocence, then the defendants should be acquitted.
I agree with the defence submission that it is not for the defendants to prove anything, it is up to the prosecution to prove its case beyond reasonable doubt.”
He then dealt incidentally with some perceived inadequacies of the equipment available to the Fisheries officers but decided that the video tape was nevertheless of assistance, and proceeded to deal in detail with some aspects of the defendants’ evidence which they had put forward as their explanation consistent with innocence. He pointed to a number of anomalies in the explanation common to the defendants for which there was no apparent logical explanation. He pointed to inconsistencies in their evidence with some aspects of the prosecution evidence. He dealt with some of the inconsistencies between the evidence of the defendants themselves and inconsistencies between their stated activities and what was observed by Fisheries officers and recorded on video film. He noted the failure, to which I have already referred, of the defendants to mention the collection of shells for Mrs Haseldine in their records of interview. He then concluded:
“From a perusal of all the evidence before me, and having observed the witnesses and the defendants’ demeanour in giving their evidence, I am satisfied beyond reasonable doubt that the defendants were lying and that the explanations offered by them were of recent invention....The explanations tendered had the distinct ring of recent invention, were not convincing and was not a reasonable hypothesis, consistent with innocence.
On the totality of the evidence, I find the four defendants guilty in respect to all the matters before the court.”
The process thus undertaken by the magistrate was one of the assessment of the credibility of the explanation offered by each of the defendants in their evidence. It was an explanation which, for a number of valid reasons, the magistrate found not credible, and which he rejected. He certainly compared some aspects of their explanation with some aspect of the circumstantial case of the prosecution, and brought some of those inconsistencies into account in determining whether or not to accept or reject their evidence. At one point he observed that the evidence of the observations of Donovan and Webb whilst the boat was in Mitlers Cove and the general activity on board the vessel and the diving activity “does not fit comfortably with the defendants’ version”. He referred to the fact that the expert evidence relating to viscera and fragments of meat found on the shells recovered on 22nd June “fits much more comfortably with the fact that the abalone shells were shucked on the 21st of June, 1996 than with the suggestion by the defendants that the shells were left near Hopkins Island by another abalone fisherman the previous day, namely 20th June, 1996”.
It was argued that these and other similar observations constituted a misdirection and the reaching of a conclusion of guilt by virtue solely of a rejection of the defendants’ evidence. It was argued that the magistrate had fallen into the error of treating credibility as the only real issue, against the warning sounded by a number of judges of this Court, exemplified in a passage from the judgment of Jacobs J in Selig v Hayes (1989) 52 SASR 169 at 171‑172:
“There is not the slightest doubt that the fact that the appellant lied to the police when they first approached him had a profound influence on the learned special magistrate’s decision. The risk of error in treating credibility as the only real issue was aptly stated by von Doussa J in Harris v Mill (unreported, Supreme Court, SA, von Doussa J, 7 April 1988) in a passage which I gratefully adopt:
‘In a sense the key issue in many trials is credibility, but to pose the question as “who to believe” is apt to be misleading and to cause a tribunal in a criminal trial to fall into error of the kind exposed in R v Calides (1983) 34 SASR 355. There is a very real risk that the inquiry will become: “Which of the parties giving the competing stories is to be preferred”. The preference of the victim’s evidence to that of the defendant, even where the defendant’s evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant’s evidence does not provide positive proof of guilt. The preference of the victim’s evidence does not lead inevitably to a conclusion that his or her evidence should be accepted as proof beyond reasonable doubt. Even a finding that the victim was a truthful witness does not mean that the victim’s evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt about the defendant’s guilt.’”
Certain passages of the magistrate’s reasons for decision, taken alone, might give the impression that he engaged in that forbidden process. However, viewing the judgment as a whole in its overall structure, it appears to me that the magistrate correctly directed himself initially as to the task before him. There was one explanation consistent with innocence that was relied on by all defendants. Besides analysing that evidence the magistrate gave a number of reasons for rejecting it as a fabrication. That was a conclusion which he was entitled to reach.
The important point is, however, that he did that in the course of examining the question which he had properly posed, namely whether there was an hypothesis consistent with innocence. Having rejected the explanations given, the magistrate was left with the inferences to be drawn from the prosecution evidence, upon consideration of which he found the defendants guilty of all the offences beyond reasonable doubt. He did not specifically make a finding that the prosecution evidence left no room for any other hypothesis consistent with innocence, but that is the clearest implication to be drawn from the observations that he made on the prosecution evidence, from the framework he set himself by way of the initial direction and from the conclusion of guilt based on the totality of the evidence which he accepted. I interpret that as meaning that it was the combined force of the circumstantial case presented by the prosecution which excluded, in his view, any hypothesis consistent with innocence. I am not persuaded that the magistrate commenced with a suspicion of guilt on the part of the defendants which he then converted to proof beyond reasonable doubt because of a rejection of their evidence. There may have been infelicities of expression, and there might be some criticism of the detailed structure of the magistrate’s reasons, but in my opinion they do not reveal the fundamental flaw suggested by the appellant.
That brings me to the first general ground, namely the strength of the prosecution case and the sufficiency of evidence to justify a conviction. Once the explanation of the defendants was rejected, the magistrate was left with the body of circumstantial evidence led by the prosecution for consideration. The abalone meat said to be taken was never found in the possession of the defendants. However, the combined force of the circumstantial case left a powerful inference that it had been deliberately disposed of in inaccessible waters in order to avoid detection. The direct evidence of abalone shells being disposed of in Mitlers Cove, coupled with the fact that some of the large quantity of shells recovered the very next day from that exact location still had some viscera attached, together with the observation of the Fisheries officers that no other boat had been in the location, was also overwhelming evidence that a large proportion, if not all of the abalone had been shucked at that spot by persons on the appellant’s boat. There were many other details which supported those conclusions, not least of which were the use of the catch bag on the side of the boat in Mitlers Cove (said to be an inappropriate and ineffective process for cleaning shells), the noise consistent with shucking, the hasty and in one sense dangerous departure from Mitlers Cove, the high speed chase over a somewhat erratic course, the disposal of other items from the boat and the arrangement in place to meet an associate or associates at a remote beach at the end of the day. Although the magistrate did not expressly say so, upon rejection of the similar accounts given by each defendant, he was entitled to infer that there had been collusion and the telling of lies out of a consciousness of guilt, lies for which there was no other possible explanation consistent with innocence, which fact itself formed part of the circumstantial case against the defendants.
Drawing all inferences most favourable to the prosecution which were reasonably open at the close of its case, the evidence was capable of satisfying a reasonable person beyond reasonable doubt that the defendants were in possession of the abalone meat the subject of the charges and had committed the various elements of the offences. See R v Bilick and Starke (1984) 36 SASR 321 per King CJ at 337; Question of Law Reserved (No 2 of 1993) (1993) 61 SASR 1 per King CJ at 4-5. In my opinion there was plainly a case to answer. Having rejected the defendants’ evidence there was also justification for the magistrate to find the defendants guilty beyond reasonable doubt. From the combined force of the circumstances there was an inescapable inference that the abalone meat had been thrown overboard and the meat had previously come from the shells recovered by the police divers. Taken with other evidence not in dispute, a finding beyond reasonable doubt was, in my opinion, inevitable.
Having found the case against the defendants on Counts 1, 2 and 3 proved beyond reasonable doubt, the inference must naturally follow, with the rejection of the defendants’ explanation, that in disposing of the abalone meat in the way they did, the defendants hindered the Fisheries officers in the execution of their duty, and that they were properly found guilty of Count 4.
It also follows, as the magistrate found, that although there was noise from two boat engines and possibly from one compressor when the instruction was given to the appellant to stop, the appellant looked straight at Haseldine, started his boat engine and moved off before the anchor had been fully retracted and whilst the hooker hose was still trailing behind the boat. There was a hasty getaway from Mitlers Cove, and the magistrate was satisfied that Haseldine knew that those on the boat included Fisheries officers who wanted to come aboard, which action he wanted to avoid whilst incriminating evidence was on the boat. In my opinion there was also justification for finding the appellant guilty of Count 5.
It follows that the appeal against the convictions must be dismissed. I will hear counsel further as to any ancillary orders that should now be made.

[1998] SASC 6898

8 October 1998