Lewis v Holder & Ors No. Scciv-03-445

LEWIS v HOLDER
[2003] SASC 266
Magistrates Appeal

Gray J This is a Crown appeal against the dismissal of a complaint by a magistrate.
The Magistrate’s Court Proceedings
The Complaint
Dennis Mark Holder, Karen Louise Pty Ltd and Karen Louise Holder were charged with offences contrary to provisions of the Fisheries Act 1982 (SA). The defendants were represented by the same counsel. All pleaded not guilty.
The complaint against Mr Holder was as follows:
Between 15 September 2001 and 16 September 2001 inclusive at Blanche Harbour-Douglas Bank Aquatic Reserve in the waters of the State of South Australia, the first defendant engaged in a fishing activity in an aquatic reserve, which activity was not a permitted activity.
Contrary to section 48G(1)(b) of the Fisheries Act, 1982.
Particulars
1.1At all material times, the first defendant was a registered master by endorsement on the Blue Crab Fishery Licence No K06.
1.2The boat ‘Peter Crombie’ was a registered boat by endorsement on the said licence.
1.3The first defendant, while on the boat ‘Peter Crombie’, used crab pots to take 200kg of Blue Crab (Portunus pelagicus) in an aquatic reserve namely Blanche Harbour-Douglas Bank Aquatic Reserve.
1.4The first defendant was not the holder of a permit issued pursuant to section 48G of the Fisheries Act, 1982.
1.5The taking of Blue Crab using crab pots is not a permitted fishing activity within the Blanche Harbour-Douglas Bank Aquatic reserve, as described in the Schedule to the Fisheries (Aquatic Reserves) Regulations, 1989.
ANDthe complainant further alleges tht the wholesale value of the fish at the time at which they were taken was $1200.
Section 48G provides:
(1) Except as provided by the regulations or pursuant to a permit under this section, a person must not—
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(b) engage in any fishing activity in an aquatic reserve ...
The complaint against Karen Louise Pty Ltd was as follows:
Between 15 September 2001 and 16 September 2001 inclusive at Blanche Harbour-Douglas Bank Aquatic Reserve in the waters of the State of South Australia, the second defendant was the registered owner of the boat ‘Peter Crombie’, as holder of Blue Crab Fishery Licence No K06, on which the first defendant was registered by endorsement as master, which boat was used in the commission of an offence against the Fisheries Act, 1982, when the first defendant used the boat to engage in a fishing activity in an aquatic reserve, which activity was not a permitted activity.
Contrary to section 48G(1)(b) and sections 69(3) and 69(4)(a) of the Fisheries Act, 1982.
Particulars
2.1At all material times, the second defendant was a body corporate and the holder of Blue Crab Fishery Licence No K06.
2.2The first defendant was a registered master by endorsement on the said licence.
2.3The boat ‘Peter Crombie’ was a registered boat by endorsement on the said licence.
2.4Between 15 September 2001 and 16 September 2001, the first defendant, while on the boat ‘Peter Crombie’, used crab pots to take 200kg of Blue Crab (Portunus pelagicus) in an aquatic reserve namely Blanche Harbour-Douglas Bank Aquatic Reserve.
2.5The second defendant was not the holder of a permit issued pursuant to section 48G of the Fisheries Act, 1982.
2.6The taking of Blue Crab using crab pots is not a permitted fishing activity within the Blanche Harbour-Douglas Bank Aquatic Reserve, as described in the Schedule to the Fisheries (Aquatic Reserves) Regulations, 1989.
AND the complainant further alleges that the wholesale value of the fish at the time at which they were taken was $1200.
Section 69(3) provides:
Where a registered boat is used in or in connection with the commission of an offence against this Act, the registered owner of the boat is guilty of an offence and liable to the same penalty as is prescribed for the principal offence.
Section 69(4) provides:
Without limiting the effect of this section—
(a) where the registered master of a registered boat is not the registered owner and—
(i) the registered master, while on the boat, does or omits to do an act or thing the doing or omission of which constitutes an offence against this Act or that would, if done or omitted to be done by the registered owner, constitute an offence against this Act; or
(ii) the registered master does or omits to do, in relation to a fishing activity conducted by use of the boat, an act or thing the doing or omission of which constitutes an offence against this Act or that would, if done or omitted to be done by the registered owner, constitute an offence against this Act,
the registered owner is guilty of an offence and liable to the same penalty as is prescribed for the principal offence or to the penalty to which the registered owner would be liable if the act or thing, if done or omitted to be done by him or her, constituted an offence against this Act;
The complaint against Ms Holder was as follows:
Between 15 September 2001 and 16 September 2001 at Blanche Harbour-Douglas Bank Aquatic Reserve in the waters of the State of South Australia, the third defendant was a member of the governing body of the second defendant, the second defendant being the registered owner of the ‘Peter Crombie’, as holder of Blue Crab Fishery Licence No K06, on which the first defendant was registered by endorsement as master, which boat was used in the commission of an offence against the Fisheries Act, 1982, when the first defendant used the boat to engage in a fishing activity in an aquatic reserve, which activity was not a permitted activity.
Contrary to section 48G(1)(b) and section 69(1) of the Fisheries Act, 1982.
Particulars
3.1At all material times, the third defendant was the sole director of the second defendant.
3.2The second defendant was a body corporate and the holder of Blue Crab Fishery Licence No K06.
3.3The first defendant was a registered master by endorsement on the said licence.
3.4The boat ‘Peter Crombie’ was a registered boat by endorsement on the said licence.
3.5Between 15 September 2001 and 16 September 2001, the first defendant, while on the boat ‘Peter Crombie’, used crab pots to take 200kg of Blue Crab (Portunus pelagicus) in an aquatic reserve namely Blanche Harbour-Douglas Bank Aquatic Reserve.
3.6The third defendant was not the holder of a permit issued pursuant to section 48G of the Fisheries Act, 1982.
3.7The taking of Blue Crab using crab pots is not a permitted fishing activity within the Blanche Harbour-Douglas Bank Aquatic Reserve, as described in the Schedule to the Fisheries (Aquatic Reserves) Regulations, 1989.
AND the complainant further alleges that the wholesale value of the fish at the time at which they were taken was $1200.
Section 69(1) of the Act provides:
Where a body corporate is guilty of an offence against this Act, every member of the governing body of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the member proves that he or she exercised all reasonable diligence to prevent the commission of the offence.
The Trial
The Crown Case
It was the Crown case that on 15 and 16 September 2001 whilst on the Peter Crombie Mr Holder used crab pots to take 200 kilograms of blue crab from Blanche Harbour-Douglas Bank Aquatic Reserve. It was said that this conduct was a breach of section 48(G)(1)(b) of the Fisheries Act. Mr Holder was a registered master by endorsement on Blue Crab Fishery Licence No. K06. The registered boat by endorsement on the licence was the vessel Peter Crombie. It was alleged that a vessel of the Department of Marine and Harbours approached the Peter Crombie in the area of the Blanche Harbour-Douglas Bank Aquatic Reserve and made observations of crab pot markers. It was said that this approach was observed by Mr Holder.
Two officers from the Department of Fisheries attended at Port Broughton on 26 September 2001 intending to conduct an interview with Mr Holder. They met Mr Holder on the wharf. He took them on board the Peter Crombie. It was said that in the course of the interview Mr Holder made relevant admissions.
The Crown claimed that Karen Louise Pty Ltd and Ms Holder were liable as a result of their “status”. The Crown indicated during its opening that it proposed to tender registration documents relating to the Blue Crab licence KO6 as well as company records of Karen Louise Pty Ltd. It was said that once the complaint against Mr Holder was made out the registered owner of the boat had also committed an offence[1]. It was claimed that where the registered owner was a body corporate, as in the present case, the directors of the company also committed an offence[2]. Company records disclosed Ms Holder to be the sole director of Karen Louise Pty Ltd.
The Voir Dire Hearing
[1] Section 69(3)
[2] Section 69(1)
Following the Crown opening counsel for the defendants indicated that the admissibility of the evidence of the interview between the fisheries officers and Mr Holder was challenged. It was said that the inadequacy of the caution administered should have led to the exclusion of the record of interview.
At counsel for the defendants request the magistrate conducted a voir dire hearing. The Crown called Aaron Wade Hanson, a fisheries officer, who identified his written statement containing the record of interview. The parties treated the written statement as Mr Hanson’s evidence in chief on the voir dire. The statement was received without objection as an exhibit. Mr Hanson was then cross-examined. At the conclusion of the voir dire hearing the magistrate ruled that the record of interview would not be admitted into evidence. The magistrate provided reasons for this ruling.
The Dismissal of the Complaint
The Crown was unable to make out a case to answer without the evidence of the statements by Mr Holder made in the interview. The magistrate was invited by counsel for the defendants to dismiss the complaint against all defendants. Through a misunderstanding of the prosecutor, a copy of an extract from a gazette and registration, licence and company documents that had been referred to in the opening were not tendered. The magistrate dismissed the complaint against all defendants. No reasons were provided. Counsel for the defendants accepted that no complaint had been made to the magistrate about the failure to tender the documents that had been opened.
The Appeal – Preliminary Issues
The Competence of the Appeal
The Crown now seeks to set aside the order dismissing the complaint against all defendants. The Crown challenges the correctness of the voir dire ruling.
On the hearing of the appeal counsel for the defendants submitted that as the Crown had not tendered the registration and company documents at trial there was a deficiency of proof. It was said that this deficiency could not be remedied on appeal. It was argued that if the Crown succeeded in overturning the voir dire ruling this deficiency of proof remained. It was said that the appeal was incompetent. Attention was drawn to the decision in Police v Dorizzi [3]. It was argued that, as in Dorizzi, this appeal was no more than a “thinly veiled” attempt to impermissibly seek to review an evidentiary ruling. It was claimed that the appeal was not authorised by section 42 of the Magistrates Courts Act 1991 (SA).
[3] (2002) 84 SASR 416
Section 42 of the Magistrates Courts Act provides:
(1)     A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.
(2) The appeal lies—
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(b)     in any other case—to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court).
(4) On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.
(5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)     it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)     it may remit the case for hearing or further hearing before the Magistrates Court;
(c)     it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
(6) Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance.
Section 3(1) provides:
In this Act, unless the contrary intention appears – ‘judgment’ means a judgment, order or decision and includes an interlocutory judgement or order.
The powers of this Court on appeal are also governed by Rule 97 the Supreme Court Rules 1987 which relevantly provide:
97.17 An appeal under Rule 97 is to be by way of rehearing.
97.18 On the hearing of an appeal governed by Rule 97 the Court:
(a) is to have all the powers and duties as to amendment and otherwise as the Court or tribunal appealed from had;
(b)     may in its discretion receive further evidence upon any question of fact;
(c)     may draw inferences of fact;
(d)     may amend, set aside or discharge any judgment appealed from;
(e) may give any judgment, assessment or award or make any order which might have been made by the Court or tribunal appealed from and make such further or other order as the justice of the case may require;
(f) may direct that the proceedings be remitted for a new trial or further consideration with or without special direction, provided that where it appears to the Court that a wrong decision or miscarriage of justice affects part only of the matter in controversy, or some, or only one of the parties, the Court may give final judgment as to part thereof, for some or one only of the parties, and direct a new trial as to the other part only or as to the other party or parties;
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(i) may reverse or vary any interlocutory orders on the appeal.
In CDJ v VAJ[4] the High Court considered the nature of an appeal by way of rehearing. That case concerned an appeal to the Full Court of the Family Court pursuant to section 93A(2) of the Family Law Act 1975 (Cth). After acknowledging that a provision conferring jurisdiction on the court should be construed liberally, McHugh, Gummow and Callinan JJ observed:
Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court’s jurisdiction is neither purely appellate nor purely original Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR(NSW) 283. In Attorney-General v Sillem (1864) 10 HLC 704 [11 ER 1200], Lord Westbury LC pointed out that ‘[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below’ Sillem (1864) 10 HLC 704 at 724 [11 ER 1200 at 1209]. Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable Ponnamma v Arumogam [1905] AC 383 at 388; Victorian Stevedoring (1931) 46 CLR 73 at 109. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal Victorian Stevedoring (1931) 46 CLR 73 at 107. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a ‘trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence’ In re Chennell; Jones v Chennell (1878) 8 Ch D 492 at 505. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
[4] (1998) 197 CLR 172 at 201-2.
Counsel for the defendants submitted that in substance the appeal in the present case related to a ruling on a point of evidence. The appeal should be characterised as nothing more than an attempt to review an evidentiary ruling. Counsel contended that it followed that the appeal was incompetent. The appeal was not authorised by section 42 of the Magistrates Court Act. Reliance was placed on Dorizzi where Duggan J observed[5]:
Section 42(1a) specifically excludes appeals from interlocutory judgments given in summary proceedings. Presumably, the policy behind the restricted right of appeal is to prevent summary proceedings from being fragmented. Furthermore, it is relevant to bear in mind that a ruling on the admissibility of evidence is not a judgment in any event. In Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 King CJ considered the nature of the right to appeal provided for in s 50 of the Supreme Court Act 1935 which applies, inter alia, to ‘every judgment . . . order, or direction of a judge’. King CJ said (127):
‘A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.’
[5] (2002) 84 SASR 416 at 419
In Dorizzi the magistrate conducted a voir dire hearing. He decided to exclude video evidence as a matter of discretion. The prosecutor was then faced with a dilemma of proceeding with the trial for several months in circumstances where it was considered that without the video evidence being admitted the complaints would fail. The prosecutor made a deliberate and considered decision not to lead other evidence and invited the magistrate to dismiss the complaint indicating that an appeal would be lodged to test the voir dire ruling. No further evidence was sought to be led on appeal. It was in this circumstance that the Full Court later ruled that the appeal was no more than a “thinly veiled” attack on an evidentiary ruling. Duggan J observed[6]:
[6] (2002) 83 SASR 416 at 420-424
The appeal from the magistrate to the single judge did not purport to be other than an appeal against a final judgment, namely, the dismissal of the information. However, when the veil is lifted to reveal the true nature of the appeal, it is clear that its purpose was to test the magistrate’s ruling on admissibility. It was always the intention of the prosecution to seek a favourable decision on this issue on appeal and an order that there be a retrial on the charges. The prosecution was motivated by what appeared to be practical reasons for this approach. It was considered inappropriate to call a large number of witnesses after the magistrate’s ruling when there was a clear possibility, or even likelihood, that, at least in the case of some of the appellants, there would not have been sufficient evidence for a case to answer without the evidence which had been excluded. Nevertheless, for the reasons which follow, it is my view that an appeal on this basis is contrary to the intent and purpose of the appeal provisions in the Act.
As I have suggested, the appeal provisions recognise the well accepted principle that, as a general rule, proceedings in trial courts should not be fragmented as a result of appeals against interlocutory judgments or rulings on admissibility. It is a consequence of this principle that hitherto the invariable practice has been for the prosecution to establish a case at first instance before initiating an appeal against acquittal.
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In the present case no evidence was called by the prosecution on the hearing of the appeal before the judge appealed from and an important consequence of the prosecution’s decision not to call any evidence at the summary trial except that which related to the video material, is that the appeal court was deprived of the opportunity to reach a conclusion on the case as a whole so as to finally dispose of it. In other words, the appeal court could not consider the combined effect of the evidence which the prosecution proposed to lead together with the video evidence which the judge decided should have been admitted into evidence.
As for the alternative course of considering whether to remit the matter for retrial, the court was also deprived of the opportunity to consider the video evidence in the context of the remainder of the prosecution case as disclosed by evidence which had been led in the usual way. All that it could refer to was an intimation by the police prosecutor of the broad nature of the evidence which the prosecution proposed to lead. This information was contained in an affidavit by the police prosecutor which set out his recollection of what he had said to the magistrate in the course of opening his case.
These considerations confirm further the fact that an appeal in these circumstances is contrary to the nature and purpose of the appeal provisions in the Act. If the prosecution evidence had been led, a proper assessment could have been undertaken by the appellate court as to whether the prosecution had established a case to answer by reference to the video evidence and the rest of the evidence in the prosecution case.
Instead, the prosecution has had the advantage of securing an order for a retrial solely by reason of the incorrect ruling by the magistrate. As I stated previously, the practical purpose of the appeal was to appeal against an evidentiary ruling in order that the proceedings could be reopened in the event of a decision favourable to the prosecution.
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For the reasons which I have given, the present appeal is flawed, however it is viewed. If it is to be regarded as an appeal against the dismissal then it cannot succeed because the magistrate acted correctly in dismissing the charges. The prosecution decided not to call evidence to establish a case to answer and I reject the respondent’s argument that the original appeal should have been allowed because the prosecution acted in this way by reason of an incorrect ruling on the evidence.
If on the other hand, the purpose of the appeal is to do no more than overturn an evidentiary ruling so as to enable the case to be reopened, then the appeal provisions are being used for a purpose which is not authorised by the Act and the appeal should be dismissed.

In Dorizzi a deliberate decision not to lead other evidence was made. However, in the present case the circumstances were different. During its opening, the Crown identified the documents that were to be tendered. However through a misunderstanding this did not occur. It was said that the interests of justice should lead to the reception of the further evidence. The deficiencies in the Crown case could be attended to in a formal way. The deficiencies related to matters that were not the subject of any serious factual dispute. It was submitted that on the face of the documents comprising the further evidence the appeal court could come to the correct factual conclusion.
Counsel for the Crown submitted that the magistrate had a discretion even after the close of the Crown case to allow the reception of this material. It was pointed out that a judge of this court has the same powers as a magistrate. In these circumstances it was contended that subject to any particular prejudice the justice of this case required the reception of the further evidence.
In Dorizzi the court did not consider the issue of the reception of further evidence. There was no suggestion that the prosecutor had overlooked attending to proof of formal matters through a misunderstanding.
In Dorizzi the appeal court was unable to make any assessment of the evidence that the Crown had proposed to call. Many witnesses were to be called. The appeal court was unable to reach any conclusion as to whether the Crown would make out a case to answer. In the present case the statements made by Mr Holder in the interview and the documents identified by the Crown would make out a case to answer against all defendants. The difficulty that confronted the appeal court in Dorizzi does not arise in the present case. This appeal is not a “thinly veiled” attempt to challenge an evidentiary ruling.
For reasons that appear later the Crown case was established against Mr Holder if the statements of Mr Holder to the fisheries officers were admitted into evidence. On that evidence Mr Holder had a case to answer. However the further evidence was necessary to establish formal matters concerning the status of the other defendants. As discussed later those documents should be received as further evidence.
The appeal is authorised by section 42. This court has jurisdiction to hear and determine the appeal.
Further Evidence
Counsel for the Crown made an application to this Court to receive further evidence. It was not submitted that this evidence was strictly necessary, but out of an abundance of caution, the application was pressed. An affidavit in support of the application sworn by counsel for the crown at trial provided inter alia:
I was instructed to prosecute Dennis Mark Holder (“the first defendant”), Karen Louise Holder Pty Ltd (“the second defendant”) and Karen Louise Holder (“the third defendant”). The defendants were charged with fishing in an aquatic reserve, contrary to section 48G(1) of the Fisheries Act, 1984. The defendants indicated that they would be pleading not guilty, and the matter was set down for trial on 10 March 2003.
Exhibited to this affidavit and marked as indicated are the following documents:
(a)    Section 67 certificate indicating that the second defendant was the holder of a Blue Crab Fishery Licence, No K06 – “Exhibit FLL1”;
(b)   Copy of Blue Crab Fishery Licence No K06 – “Exhibit FLL2”;
(c)    Section 67 certificate indicating that the first defendant was a registered master by endorsement on licence K06 – “Exhibit FLL3”;
(d)   Company extract indicating that the third defendant was the sole director of the second defendant – “Exhibit FLL4”
(e)    Copy of the gazettal dated 27 July 1989 by which the Blanche Harbour – Douglas Bank Aquatic Reserve was proclaimed – “Exhibit FLL5”
(f) Bundle of three section 67 certificates, one for each defendant, indicating that none of the defendants were the holder of a permit under section 48G – “Exhibit FLL6”
The documents comprising Exhibits FLL1-5 were provided to the defence well in advance of the trial as documents upon which the prosecution would rely. The bundle of documents comprising Exhibit FLL6 was provided to the defence of the morning of the trial as further documents upon which the prosecution would rely.
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After some discussion, [the magistrate] decided that a voir dire would be held. Prior to the commencement of the voir dire, [the magistrate] invited a brief opening from me to provide some background to the matter. During the course of my opening submissions, I attempted to tender a number of documents. [Defence counsel] objected to this course. Subsequently, [the magistrate] indicated that it was not the appropriate time to tender them, and that they could be dealt with after the voir dire. Had I been permitted to tender documents as part of my opening, I would have tendered the documents in Exhibits FLL1-6, as outlined in [the paragraph] above.
Subsequently, [the magistrate] ruled that the interview was inadmissible. After that ruling, I tendered no further evidence as I thought it would be futile to continue with the case in the absence of the record of interview. At the time, I did not consider the potential significance of tendering the documents marked Exhibit FLL1-6 in relation to a possible appeal.
In CDJ v VAJ[7] the High Court addressed the approach to be taken to the reception of further evidence on appeal. McHugh, Gummow and Callinan JJ considered that the terms of a statutory right to appeal determined the nature of the appeal and the right, if any, to adduce further evidence. The power, if any, to receive further evidence was regulated by the statutory provision and not by common law doctrines. The statutory power under consideration was in relevantly similar terms to the South Australian rule. Their Honours observed:
One consideration in construing s 93A(2) [of the Family Law Act (Cth)] is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Another consideration is the effect of the principle that a provision conferring judicial power upon a court should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by the legislature. That is so whether the limitation derives from the common law principles governing the grant of new trials upon proof of fresh evidence or from some other source. ...
[7] (1998) 197 CLR 172 at 201
The discretion conferred by Rule 97.17 to receive further evidence on appeal is not expressed to be limited in any way. The sub-rule does not require that “special grounds” be shown before the evidence can be adduced. Section 42 refers to the rehearing of witnesses or the receiving of “fresh evidence” rather than further evidence. Relevantly the power conferred by section 42 is not constrained. McHugh, Gummow and Callinan JJ continued:
Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by he trial judge and put that person to the expense, inconvenience and worry of a new trial.
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No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge’s decision. In that context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration.
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The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
Counsel for the defendants submitted that this court did not have the power to receive further evidence if the purpose of the tender was to overcome a deficiency of proof at trial. This submission should be rejected. The discretion to receive further evidence is wide. The overriding consideration is the interests of justice. There is no basis identified for fettering the discretion in the manner suggested. When an appellate court comes to exercise its discretion to admit or reject evidence, the fact that the tender is intended to overcome a deficiency of proof will be a relevant matter for the court to weigh with all other relevant considerations in the exercise of its discretion.
In the present case, there was no challenge to the contents of the affidavit filed by the Crown in support of the application to tender the proposed further evidence. It was accepted that trial counsel had made a mistake and overlooked the tender of the proposed further evidence. It was not suggested that any dispute would arise in regard to the facts the subject of the tender, or the conclusions that could be drawn from the documentation. Apart from the complaint about overcoming a deficiency of proof, no other prejudice could be identified by counsel for the defendants.
Accepting that the tender of the documents was necessary to overcome a deficiency of proof, strong considerations for the admission of the documents arise. The defence were on notice of the proposed tender. The prosecution made a “slip” through a misunderstanding and oversight. To refuse the application to receive the documents as further evidence would mean that a misunderstanding and oversight would result in a situation where the case was resolved without regard to relevant information. In the circumstances the documents should be received on appeal as further evidence. Such a course in this case accords with the interest of justice.
A case to answer on the complaint against Mr Holder would be established if the evidence of the statements made by Mr Holder in the interview were admitted. He made relevant admissions as to the registration of the boat, the particulars of the licence and his status. There was no need to tender the extract from the Gazette. Reference could be made to the Gazette without the need for formal tender. The case to answer against the other defendants required tender of the further documents. Counsel for the Crown argued that Mr Holder’s statements, were admissible against the other defendants as a result of principles of agency. On balance this submission should be rejected. There was no sufficient evidence of agency or other authority.
The Appeal – Challenge to the Voir Dire Ruling
The Magistrate’s Ruling
On the voir dire the adequacy of the caution was challenged. Counsel for the defendants submitted that the cross-examination of Mr Hanson established that Mr Holder was suspected of having committed an offence against section 48(G)(1)(b) of the Fisheries Act by taking crab in an aquatic reserve. It was said that in the circumstances a caution was required. It was accepted that a caution had been given but was it said to be inadequate. Mr Holder should have been told that he was suspected of the particular offence. He should have been given this information prior to the commencement of the interview.
The magistrate identified areas of concern about the adequacy of information being provided by the fisheries officers to Mr Holder:
At 2.30 Mr Hanson commenced his interview with the defendant by saying as follows, ‘Dennis I am currently conducting an investigation into a report to Fish Watch in relation to crab pots set in an Aquatic Reserve and would therefore like to ask you some formal questions in relation to your possible involvement. Do you understand.’ The answer came back ‘Yep’. There are some questions of the defendant’s age, date of birth and address and then the defendant is cautioned. It is not until the interview is some distance into its continuation that the officer said ‘As stated earlier Fish Watch received several complaints about pots being set at the Douglas Banks beacon. Did you have any pots set in this area’ and the defendant answered ‘Yes’. It is the naming of the area which removes any shadow of a doubt whatsoever that to fish for crabs in this area is totally prohibited and at no stage, even up to this stage, had the defendant been informed that he may be facing charges against breaches of the Fisheries Act and/or its regulations or associated legislation. I say associated legislation because there are also schemes of management blue crab fisheries and other Aquatic reserve regulations as well.
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I believe this was such a case where the officer should have added a simple sentence in his initial statement and indeed it would have been preferable even prior to this. If he had said this ‘I would like to ask some formal questions in relation to your possible involvement’ and added the following sentence, ‘You must understand that your involvement may result in you being charged with offences under the Fisheries legislation’, and followed by a caution, then the result in the defendant choosing to answer may very well have been different. Alas, we won’t know that because that additional information was not given to the defendant. It is this lack of informing this defendant that he may be facing charges for breaches of Fisheries legislation which leads me to the view that in all of the circumstances the interview against the defendant was unfair and in exercising my discretion I should therefore not admit that evidence.
The Approach of the Appeal Court
The general approach of an appellate court to overturning discretionary factual findings is well settled. In House v The King[8] the High Court observed:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use of has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable'.
[8] (1936) 55 CLR 499
The magistrate made the following observations concerning Mr Hanson’s credibility and reliability:
Fisheries officer Hanson has been a Fisheries officer for some three years. He gave evidence in a very frank and forthright manner and, although there were times he clearly had difficulty in understanding some of the questions, I put a lot of his misunderstanding down to his nerves and not to any deliberate attempt to mislead the court. In fact he was so frank that he said that the reason why he had not specifically set about informing the defendant of possible potential charges that he believed it appropriate to be friendly to a suspect so as to encourage that suspect to answer questions. The officer is not to be criticized, but to be friendly with a view to encourage a suspect to speak with him, again there is no criticism of that. But if a person in authority, whether he or she be a police officer, or in this instance a Fisheries officer, is asking questions of a potential defendant, whom he or she believes, and believes on reasonable grounds tht an offence had in fact been committed, that he should issue a caution, which this officer did. But the authorities are clear that in many circumstances the issuing of a mere caution does no solve any fairness towards defendant.
These observations of the magistrate have not been challenged on appeal. The magistrate accepted Mr Hanson’s evidence. The question was whether an adequate caution had been given. This court is in a position to consider the record of interview and draw inferences and come to its own conclusions. In deciding what are the proper inferences to be drawn respect and weight are to be given to the conclusions of the trial magistrate.
The Substance of the Challenge
The Obligation to Caution
On appeal there was no dispute between the parties as to the relevant law concerning cautions. In R v Szach[9] King CJ observed:
In making their inquiries the police were entitled and, indeed, would be expected, to employ all legitimate investigatory skills. These include the skills relevant to conducting inquiries by means of putting questions in a way likely to elicit the truth. Very often a skilful inquiry will involve the non-disclosure of information known to the police. The police are not obliged to disseminate information in their possession. Frequently the prospects of the success of their inquiries would be enhanced by nondisclosure and damaged by disclosure. The truth may emerge when a suspect under questioning imparts information, already known to but not disclosed by the police, which could only be known to the suspect if he were the culprit.
Such legitimate investigatory tactics are not to be confused with falsehood or dishonest trickery. Honesty is to be demanded of the police and other law enforcement agencies at all times. Falsehood, express or implied, and dishonest trickery must always bring the condemnation of the courts however worthy the ends sought to be achieved by such methods. The end can never justify such means, and the courts must be ever ready to use the discretion to exclude evidence obtained by such means, even if technically admissible, in order to preserve the Stream of justice from pollution and protect the citizen from the possibility of oppression. Devices and stratagems have a part to play in police investigation, but they must not be allowed to degenerate into dishonesty in any of its forms.
A stage may come, moreover, in the course of police inquiries when some degree of disclosure is necessary. If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ. from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his right to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position. Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated. These considerations led White J. to exclude confessions in Fieldhouse (1977) 17 SASR 92 and Hart (1977) 17 SASR 100. I think that fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution.
Counsel’s Submissions
[9] (1980) 23 SASR 504 at 580

Counsel for the Crown submitted that the magistrate had erred in his approach to resolving the issue on the voir dire. It was said that the magistrate had overlooked the content of the second stage of the interview which evidenced a clear understanding on the part of Mr Holder that he was under investigation for taking crab from an aquatic reserve. This was the substance and gravamen of the possible charge that he faced. Mr Holder was made aware of these matters from the outset. It was said that careful analysis of the evidence on the voir dire allowed this conclusion to be safely drawn.
It was further submitted that the magistrate had overlooked or failed to give sufficient weight to a statement made by Mr Holder towards the end of the interview when he was asked whether he wished to add anything further. Mr Holder then stated:
[the Fisheries officers] came aboard the vessel [today]. I became aware of an aquatic reserve known as the Blanche Harbour/Douglas Bank Aquatic Reserve. When I became fully aware of that I cooperated fully in the best possible manner I could.
It was said that this answer demonstrated that Mr Holder had known from the outset of the specific nature of the investigation.
The Crown submitted that there were other aspects of the record of interview that clearly demonstrated that Mr Holder was aware of the allegations that he was facing. Reference was made to the production of documents that Mr Holder apparently had on hand in anticipation. Another example was Mr Holder’s reference in the record of interview of the approach of the vessel from the Department of Marine and Harbours.
Counsel for the Crown also complained of a finding made by the magistrate about Mr Holder’s state of mind. The magistrate concluded:
Those answers highlight that [Mr Holder] to my mind had no idea whatsoever that he was facing potential charges under the Fisheries legislation.
It was submitted that there was no basis for this finding in the record of interview. It was pointed out that Mr Holder had to make out appropriate grounds for excluding the record of interview. It was said that in the circumstances as Mr Holder did not give evidence the court was left to draw conclusions as best it could from the record of interview. It was contended that any fair analysis of the record of interview did not support the conclusion drawn by the magistrate.
Counsel for the defendant supported the Magistrate’s conclusion. It was said that his findings were open on the evidence and within his discretion. It was contended that the fisheries officer had arrived with the intention of charging Mr Holder with an offence. In those circumstances the caution was inadequate.
The Interview
The interview can be separated into three stages. At the outset there was a general conversation about the Peter Crombie and fishing. This was accepted to be irrelevant. Then followed a discussion that was not recorded. However, later that day Mr Hanson made a note of the substance of this part of the interview whilst the facts were fresh in his memory. There was a third stage. The commencement of the third stage is identified as the point at which Mr Hanson commenced taking handwritten notes of each question and answer.
Mr Hanson’s written statement tendered on the voir dire contains a reference to the opening remarks, the substance of the conversation at the second stage and then a transcription of the continued interview in question and answer format.
When cross-examined Mr Hanson was not challenged in any substantive way about the accuracy of his part. The written statement setting out the second and third stages of the interview appeared for the purposes of the voir dire to be reliable and accurate.
At the commencement of the second stage of the interview Mr Holder was informed that “Fishwatch” had received several calls concerning the location of pots set in Upper Spencer Gulf and that those pots had been identified as belonging to Mr Holder. He was then told that the pots had been found in a closed area around the Douglas Bank area. Mr Hanson then informed Mr Holder that he wished to formally record Mr Holder’s side of the story word for word. Mr Holder acknowledged that he understood what Mr Hanson intended to do. Mr Hanson subsequently commenced the contemporaneous recording of the questions and answers. At this point Mr Hanson informed Mr Holder that he was conducting an investigation into a report received by “Fishwatch” in relation to crab pots set in an aquatic reserve and that he wished to ask Mr Holder some formal questions in relation to his possible involvement.
It was the Crown’s submission that Mr Holder as a commercial licensed fisherman had been sufficiently put on notice that he was being investigated concerning his possible involvement in fishing for blue crab in a prohibited area.
Counsel for the Crown submitted that later aspects of the interview evidenced Mr Holder’s state of mind at the outset of the interview. During the course of the interview Mr Holder described that on 16 September 2002 a marine safety vessel came alongside whilst Mr Holder was fishing in the Douglas Bank area and that the vessel pulled alongside each float. Mr Holder then recounted his reaction to his crew member at the time that: “Compliance will turn up here”. Mr Holder then recounted how as a result of earlier conversations he was sure “Compliance would come and rattle my chain within a fortnight.”
Mr Holder then informed Mr Hanson that following the visit by the marine safety vessel he had spoken with the Department to remove any doubt from his mind that he was fishing in a legal manner. He then added: “Consequently I have been waiting for you gentlemen to contact me to discuss it further.”
This interchange allows the conclusion to be drawn that Mr Holder was aware that an issue would arise as to whether he had complied with his obligations to fish legally on 15 and 16 September 2001. Mr Holder was aware that he had been observed and expected that there would be follow up discussion. When the fisheries inspectors arrived on 26 September 2001 Mr Holder was prepared and in a position to put “his side of the story”. During the interview he produced documents and refer to matters that he said supported his position. Later in interview he was asked the question: “Would you like to add anything further to this?” The substance of Mr Holder’s answer was that when the inspectors came on board on the day of interview Mr Holder became aware that they were there to speak about the Blanche Harbour-Douglas Bank Aquatic Reserve and once he knew that was the source of their enquiry he cooperated fully in the best possible manner that he could.
These matters establish that at the commencement of the interview Mr Holder was expecting the officers to discuss the question of whether he was fishing legally at the time he was setting crab pots in the Blanche Harbour-Douglas Bank Aquatic Reserve. He was prepared and ready to answer questions about the specific incident. He knew that it was alleged that he had been involved in illegal fishing. He was ready with his defence. He intended to use the opportunity of the interview to present his side of the story in the most cooperative way he could.
The magistrate failed to have proper regard to all of the evidence. Mr Holder was aware of the specific nature of the offences under enquiry and that he was being investigated about illegal fishing. He was aware of the time, the place and the circumstances of the alleged conduct. He was expecting the investigators to arrive. He had prepared himself to put his side of the story. He sought to demonstrate that he was fishing legally. The magistrate was in error in concluding that Mr Holder had no idea whatsoever that he was facing potential charges under the Fisheries legislation. Such a finding was not supported by the evidence.
Conclusion
In this case the caution that was given was adequate. No unfairness to Mr Holder arose. The magistrate erred in excluding the record of interview. The record of interview was admissible.[10] As earlier observed the further evidence proposed to be led by the Crown should be received.
[10] Counsel for the defendants foreshadowed the possibility of other unspecified challenges to the admissibility of the interview or specific parts of the interview. If other legitimate complaints are identified the magistrate will be able to address these matters on the further hearing.
Having regard to the contents of the record of interview Mr Holder had a case to answer. The charge against him should not have been dismissed. Karen Louise Pty Ltd and Ms Holder also had a case to answer. The order of the magistrate dismissing the complaint against the three defendants is set aside. The matter is remitted for further hearing.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENTS

1 Section 69(3)
2 ection 69(1)
3 (2002) 84 SASR 416
4 (1998) 197 CLR 172 at 201-2.
5 (2002) 84 SASR 416 at 419
6 (2002) 83 SASR 416 at 420-424
7 (1998) 197 CLR 172 at 201
8 (1936) 55 CLR 499
9 (1980) 23 SASR 504 at 580
10 Counsel for the defendants foreshadowed the possibility of other unspecified challenges to the admissibility of the interview or specific parts of the interview. If other legitimate complaints are identified the magistrate will be able to address these matters on the further hearing.

[2003] SASC 266

13 August 2003