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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hindrum v Lane

Details

AGLC: Hindrum v Lane [2014] TASFC 5
Case: [2014] TASFC 5
Decision Date: 1 July 2014

CaseChat Overview and Summary

The appeal in *Hindrum v Lane* concerned a criminal law matter where the appellant, Hindrum, sought to rely on the defence of honest and reasonable mistake of fact. The specific nature of the dispute and the charges laid against Hindrum are not detailed in the provided text, but the core of the appeal revolved around the availability and application of this defence. The case was heard by Tennent, Porter, and Pearce JJ.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Hindrum v Lane [2014] TASFC 5

Most Recent Citation

Aregar v Cox [2018] NTCA 3

Cases citing this decision · 9 of 9 shown

Aviation Consolidated Holdings Pty Ltd v McMullen
[2025] TASFC 6

…Cases cited: He Kaw Teh v R [1985] HCA 43, 157 CLR 523 Hindrum v Lane [2014] TASFC 5 Jones v Bonde [2021] TASSC 35 Kent v Gunns Limited [2009] [30], 18 Tas R 454 Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173 Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 Robinson v Chatters [2010] TASSC 66 REPRESENTATION :…
TT-Line Company Pty Ltd v Burrows
[2023] TASFC 4

…doubt that the accused person did not have an honest and reasonable but mistaken belief : CTM v The Queen [2008] HCA 25, 236 CLR 440; Hindrum v Lane [2014] TASFC 5." (Emphasis added.)…
Gamble v Kingborough Council
[2020] TASSC 12 Para 5

…raised, the ultimate legal onus of disproving the ground lies on the prosecution: He Kaw Teh at 534- 535 and 574-575; CTM at 447, [8]; Hindrum v Lane [2014] TASFC 5, 24 Tas R 290. The standard of proof for the prosecution is beyond reasonable doubt: He Kaw Teh at 534-535 and 592-593; CTM at [8] and [199].…
Director of Public Prosecutions v JSP
[2020] TASCCA 3 Para 1

…e doubt that the accused person did not have an honest and reasonable but mistaken belief: CTM v The Queen [2008] HCA 25, 236 CLR 440; Hindrum v Lane [2014] TASFC 5. Thus, in this case, if the prosecution failed to prove beyond reasonable doubt that the respondent did not have an honest and reasonable belief that…
Tasmania v Bell
[2019] TASSC 34 Para 10

…Ms Baumeler relied on the Full Court's decision in Hindrum v Lane [2014] TASFC 5. The appellant in that case was convicted on charges of taking and possessing an undersize male rock lobster contrary to the Fisheries (Rock Lobster) Rules 2011, r 17. He contended that he held an honest and reasonable mistaken belie…
Irons v Moore
[2019] TASSC 22 Para 15

…The same principles will apply in a summary hearing before a magistrate: Hindrum v Lane [2014] TASFC 5. In particular, the magistrate will not be required to consider the issue of self-defence unless it is raised as a reasonable possibility on the evidence, and in that event the prosecution will have the onus of…
Sims v Elmer
[2019] TASSC 21 Para 9

…ity for a statutory offence, including with respect to the relevant burden of proof, was explained in some detail by the Full Court in Hindrum v Lane [2014] TASFC 5. The Full Court's consideration of the question of the evidentiary burden is of significance to the determination of this case. The Court accepted th…
Aregar v Cox
[2018] NTCA 3

…Gallagher v Cendak [1988] VR 731; Hindrum v Lane [2014] TASFC 5;…
Aregar v Australian Fisheries
[2015] NTSC 61

…7; E&J Gallo Winery v Lion Nathan Australia Pty Limited [2008] FCA 934; He Kaw Teh v The Queen (1985) 157 CLR 523; Hindrum v Lane [2014] TASFC 5; Mei Ying Su v Australian Fisheries Management Authority (No 2) (2008) 251 ALR 135; Ministry of Agriculture and Fisheries v Wallace [1998] DCR 837; North Sydney Leagues’…

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Cases cited in this decision · 24 of 24 shown

Lane v Hindrum
[2013] TASSC 50 Para 4

…The magistrate's decision was subject to a notice to review which was determined by Estcourt J in Lane v Hindrum [2013] TASSC 50. His Honour upheld the motion, and set aside the dismissal. The appellant now appeals to this Court.…
Momcilovic v The Queen
[2011] HCA 34 Para 3

…her there was sufficient evidence to raise the issue beyond that which was required. An evidentiary burden is not an onus of disproof: Momcilovic v R (2011) 245 CLR 1, per Bell J at [665]. The appellant carried no onus to prove he held an honest and reasonable belief. There was sufficient evidence to raise the issu…
Nilsson v McDonald
[2009] TASSC 66 Para 4

…able person, have come to the conclusion to which he did: see for example Wood v Smith [1991] TASSC 12; Phillips v Arnold (2009) 19 Tas R 21 at [46]; Nilsson v McDonald (2009) 19 Tas R 21. In Kent v Gunns Limited (2009) 18 Tas R 454, Porter J expressed the function of a judge in determining a review of a decision of a magis…
Phillips v Arnold
[2009] TASSC 43 Para 4

…the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he did: see for example Wood v Smith [1991] TASSC 12; Phillips v Arnold (2009) 19 Tas R 21 at [46]; Nilsson v McDonald (2009) 19 Tas R 21. In Kent v Gunns Limited (2009) 18 Tas R 454, Porter J expressed the function of a judge i…
Kent v Gunns Ltd
[2009] TASSC 30 Para 4

…o which he did: see for example Wood v Smith [1991] TASSC 12; Phillips v Arnold (2009) 19 Tas R 21 at [46]; Nilsson v McDonald (2009) 19 Tas R 21. In Kent v Gunns Limited (2009) 18 Tas R 454, Porter J expressed the function of a judge in determining a review of a decision of a magistrate of this kind in the following terms: "…
AMP Capital Investors Ltd v Transport Infrastructure Development Corporation
[2008] NSWCA 325 Para 4

…en is of no consequence. It is not an error which vitiates the decision itself: see for example, in the context of appeals on questions of law alone, AMP Capital Investors Ltd v Transport Infrastructure Development Corporation (2008) 163 LGERA 245 at 271 [120] per Gyles AJA (with whom Bell JA agreed), and Roads and Traffıc Authority (NSW) v Mosca (2006) 146 LGERA 335 at 340 [22] p…
Mei Ying Su v Australian Fisheries Management Authority (No 2)
[2008] FCA 1485 Para 5

…e absence of knowledge, or not turning one's mind to the issue, is not sufficient: see Mei Ying Su v Australian Fisheries Management Authority (No 2) (2008) 251 ALR 135, where Reeves J referred to Proudman at 541 per Dixon J; State Rail Authority of NSW v Hunter Water Board (above) at 725 per Gleeson CJ, and CTM v R…
CTM v The Queen
[2008] HCA 25 Para 1

…ld have made his or her act innocent: Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v R (1985) 157 CLR 523; Jiminez v R (1992) 173 CLR 572; CTM v R (2008) 236 CLR 440.…
Mei Ying Su v Australian Fisheries Management Authority
[2008] FCA 915 Para 5

…The mistaken belief must be one of fact, not law, and be about an element of the offence: Ostrowski v Palmer (2004) 218 CLR 493. It must be an affirmative belief about a fact in question. Inadvertence, a mere absence of knowledge, or not turning one's mind to the issue, is not sufficient: see Mei Yi…
Murray v Maingay
[2008] TASSC 18 Para 4

…, Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 at [7], Phillips v Arnold [2008] TASSC 6 at [13], Murray v Maingay [2008] TASSC 18 at [13]. On this motion I am concerned with the question of whether the magistrate's decision was reasonably open on the evidence; that is, whether o…
Phillips v Arnold
[2008] TASSC 6 Para 4

…chardson v Shipp [1970] Tas SR 105 at 117, Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 at [7], Phillips v Arnold [2008] TASSC 6 at [13], Murray v Maingay [2008] TASSC 18 at [13]. On this motion I am concerned with the question of whether the magistrate's decision was reasonabl…
Aubertin v The State of Western Australia
[2006] WASCA 229 Para 2

…her appreciation or perception of the circumstances in which he or she found himself or herself', in Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229 at [43] per McLure JA (with whom Roberts-Smith JA and Buss JA agreed). [105] The Queensland Court of Appeal considered the equivalent expression (in s…
R v Mrzljak
[2004] QCA 420 Para 2

…onsidered the equivalent expression (in s 24 of the Queensland Criminal Code 1899 (Qld)) in R v Mrzljak (2005) 1 Qd R 308; (2004) 152 A Crim R 315; [2004] QCA 420, and described it as requiring: (a)'...a consideration of whether there were reasonable grounds for the belief, not what a reasonable person would have…
Ostrowski v Palmer
[2004] HCA 30 Para 5

…The mistaken belief must be one of fact, not law, and be about an element of the offence: Ostrowski v Palmer (2004) 218 CLR 493. It must be an affirmative belief about a fact in question. Inadvertence, a mere absence of knowledge, or not turning one's mind to the issue, is not sufficient: see Mei Ying Su v Australian…
BRK v The Queen
[2001] WASCA 161 Para 2

…ess it will always be necessary to advert to the circumstances as they existed at the time in so far as they were known to the accused', in BRK v R [2001] WASCA 161 at [34] and [36] per Murray J. (d)'For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence…
Hanlon v McKay Investments Pty Ltd
[2001] TASSC 37 Para 5

…the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the appellant. That is a question of fact, not of law: see Hanlon v McKay Investments Pty Ltd (2001) 10 Tas R 247 per Evans J at [14]. Although he found that the appellant had not discharged the evidential burden as to the holding of an actual or pos…
Hibble v Cannon
[2001] TASSC 1 Para 5

…8) 236 CLR 440 at 445 – 447; Browning v Barrett [1987] Tas R 122 (per Neasey J at 127 - 128; Cosgrove J at 137 - 138; Underwood J at 142 - 143) and Hibble v Cannon (2001) 10 Tas R 129 per Crawford J (as he then was) at 139."…
Australian Securities and Investments Commission v Hosken (No 2)
[2000] TASSC 12 Para 1

…, to succeed an appellant must show that an error in point of law has occurred. In Australian Securities and Investments Commission v Hosken [No 2] [2000] TASSC 12 at [33] to [35] Wright J discussed the nature of the appellate process pursuant to s123. In particular, he highlighted the often difficult distinction…
O'Brien v Ostrowski
[1999] WASCA 184 Para 2

…r woman in the position of the defendant carrying out the same actions in the same circumstances may make the same mistake', in O'Brien v Ostrowski [1999] WASCA 184 at [108] per McKechnie J; (c)'It is that belief which must be reasonable; i.e., in all the circumstances it must have been reasonable for the accused p…
Jiminez v the Queen
[1992] HCA 14 Para 1

…f facts, which, if true, would have made his or her act innocent: Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v R (1985) 157 CLR 523; Jiminez v R (1992) 173 CLR 572; CTM v R (2008) 236 CLR 440.…
He Kaw Teh v The Queen
[1985] HCA 43 Para 1

…nable mistake as the existence of facts, which, if true, would have made his or her act innocent: Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v R (1985) 157 CLR 523; Jiminez v R (1992) 173 CLR 572; CTM v R (2008) 236 CLR 440.…
Proudman v Dayman
[1941] HCA 28 Para 1

…he acted under an honest and reasonable mistake as the existence of facts, which, if true, would have made his or her act innocent: Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v R (1985) 157 CLR 523; Jiminez v R (1992) 173 CLR 572; CTM v R (2008) 236 CLR 440.…
Wood v Smith
[1991] TASSC 12 Para 4

…is, whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he did: see for example Wood v Smith [1991] TASSC 12; Phillips v Arnold (2009) 19 Tas R 21 at [46]; Nilsson v McDonald (2009) 19 Tas R 21. In Kent v Gunns Limited (2009) 18 Tas R 454, Porter J expressed…
A further example of a "result offence" is to be found in Valsane Pty Ltd v Environment Protection Authority
[1996] NSWLEC 265 Para 7

…A further example of a "result offence" is to be found in Valsane Pty Ltd v Environment Protection Authority [1996] NSWLEC 265, in which the State Rail Authority case was followed. The charge was one of allowing the use of a motor vehicle which emitted excessive air impurities. A truck was seen to be emitting black…

Legislation cited in this decision · 2

Justices Act 1959 (TAS)
123 1 mention (from Para 1)
Living Marine Resources Management Act 1995 (TAS)
1 mention (from Para 3)