[2014] TASFC 5
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Hindrum v Lane [2014] TASFC 5
PARTIES: HINDRUM, Marcus John
v
LANE, Sergeant Richard Adam
FILE NO: 1009/2013
JUDGMENT
APPEALED FROM: Lane v Hindrum [2013] TASSC 50
DELIVERED ON: 1 July 2014
DELIVERED AT: Hobart
HEARING DATE: 16 April 2014
JUDGMENT OF: Tennent, Porter and Pearce JJ
CATCHWORDS:
Criminal Law – Criminal liability and capacity – Defence matters – Ignorance and mistake of fact – Availability of defence of honest and reasonable mistake – Generally – Evidential burden on the defendant to raise the ground of exculpation – Defendant only required to show or adduce sufficient evidence to raise the issue and not required to establish matters relevant to the defence.
He Kaw Teh v The Queen (1985) 157 CLR 523; CTM v The Queen (2008) 236 CLR 440, applied.
Aust Dig Criminal Law [2064]
Primary Industry – Fish – Offences – Taking or possessing under prescribed weight or size – Taking or possessing – Defence of honest and reasonable but mistaken belief in size – System of measurement – Measurement by visual assessment and application of measure when thought necessary – Whether belief that all fish of size was a reasonable mistake in the circumstances.
Mei Ying Su v Australian Fisheries Management Authority (No 2) (2008) 251 ALR 135; Pearce v Stanton [1984] WAR 359, considered.
Aust Dig Primary Industry [1123]
REPRESENTATION:
Counsel:
Appellant: M Rinaldi and G O'Rafferty
Respondent: H Virs
Solicitors:
Appellant: Leonard Fernandez
Respondent: Director of Public Prosecutions
Judgment Number: [2014] TASFC 5
Number of paragraphs: 72
Serial No 5/2014
File No 1009/2013
MARCUS JOHN HINDRUM v SERGEANT RICHARD ADAM LANE
REASONS FOR JUDGMENT FULL COURT
TENNENT J
PORTER J
PEARCE J
1 July 2014
Orders of the Court
Appeal dismissed.
Counsel will be heard further on consequential orders to be made.
Serial No 5/2014
File No 1009/2013
MARCUS JOHN HINDRUM v SERGEANT RICHARD ADAM LANE
REASONS FOR JUDGMENT FULL COURT
TENNENT J
1 July 2014
The appellant, Marcus Hindrum, is a commercial fisherman. This appeal concerns whether a magistrate was in error in dismissing charges brought against him for taking and possessing one undersize rock lobster on the ground of honest and reasonable mistake.
On 17 August 2012, the appellant's fishing boat was inspected by marine police officers at the Triabunna wharf. At the time of the inspection there were five or six male rock lobsters on board the boat. The fish were measured. One had a carapace length of 108 millimetres. By the Fisheries (Rock Lobster) Rules 2011 ("the Rules"), rl7, a person who takes or is in possession of a male rock lobster that has a carapace shorter than 110 millimetres commits an offence.
The appellant was charged with one count of taking an undersize male rock lobster and one count of possessing an undersize male rock lobster. The hearing of the complaint was conducted before a magistrate on 13 May…
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CaseChat Overview and Summary
The central legal issue before the court was the evidential burden placed upon a defendant seeking to raise the defence of honest and reasonable mistake of fact. Specifically, the court was required to determine the threshold of evidence a defendant must adduce to successfully raise this ground of exculpation, and whether the defendant is required to establish the matters relevant to the defence at that stage, or merely to show sufficient evidence to raise the issue.
The court's reasoning, as indicated by the catchwords, affirmed the general principle that the evidential burden rests on the defendant to raise the defence of honest and reasonable mistake of fact. However, the court clarified that the defendant is not required to establish the defence itself at this preliminary stage. Instead, the defendant only needs to adduce or show sufficient evidence to raise the issue, thereby shifting the legal burden to the prosecution to disprove the defence beyond a reasonable doubt.
Ultimately, the appeal was dismissed. The court indicated that further submissions would be heard on consequential orders.
Orders
Orders of the court
1. Appeal dismissed.
2. Counsel will be heard further on consequential orders to be made.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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