Lewis v Lester & Green; Lester v Hemming No. Sccrm-02-1266, Sccrm-02-1265

HEMMING v LESTER & GREEN; LESTER v HEMMING
[2003] SASC 261
Magistrates Appeal
GRAY J
Introduction

This is a Crown appeal against a magistrate’s dismissal of charges against two defendants. One of the defendants has also appealed against a conviction on a further charge and against the sentence imposed. All appeals were heard together. The defendants were separately represented at trial and on appeal.
Dale Anthony Lester and Philip Christopher Green were charged with offences against the Fisheries Act 1982 (SA). Mr Lester and Mr Green were jointly charged on two counts with Shane Neville Braithwaite. Mr Braithwaite pleaded guilty prior to the joint trial of Mr Lester and Mr Green.
The complaint charged a number of separate counts:
Count 1
On the 3^rd day of November, 2000 at Camden Park in the State of South Australia the [Mr Lester, Mr Green and Mr Braithwaite], had in their possession for the purposes of sale, fish taken in contravention of the Fisheries Act, 1982.
Contrary to section 44(2)(a) of the Fisheries Act, 1982.
Particulars
1.1The defendants were in possession of 1,486 blacklip Abalone (Haliotis rubra) weighing 143.248kg and 1,369 greenlip Abalone (Haliotis laevigata) weighing 168.375 kg, being fish of a prescribed class.
1.2The defendants were not the holders of a licence authorising the taking of the said fish.
1.3The defendants were not registered fish processors.
1.4The defendants were in possession of more than the prescribed quantity of fish.
Contrary to regulation 7(2) and schedule 8 of the Fisheries (General) Regulations, 2000.
AND the complainant alleges that the wholesale value of these fish at the time at which the offence was committed was $47,836.58.
Count 2
On the 3^rd day of November, 2000 at Camden Park in the State of South Australia [Mr Lester, Mr Green and Mr Braithwaite], had in their possession fish of a prescribed class.
Contrary to section 44(2)(b) of the Fisheries Act, 1982 and Regulation 7(1) of the Fisheries (General) Regulations, 2000.
Particulars
2.1The defendants were in possession of 938 greenlip Abalone (Haliotis laevigata) which were each less than the legal size and weighted 96.456kg.
2.2The defendants were in possession of 1,108 blacklip Abalone (Haliotis rubra) which were each less than the legal size and weighted 91.482kg.
Contrary to regulation 7(1) and Schedule 6 of the Fisheries (General) Regulations, 2000.
AND the complainant alleges that the wholesale value of these fish at the time at which the offence was committed was $28,722.72.[1]
[1] Mr Lester and Mr Green were further charged with giving a false address to fisheries officers. These charges were dismissed. The Crown has not appealed against this dismissal.
Hearing Before the Magistrate
Count 1
The Crown Case – A Summary
The Crown alleged that Mr Lester and Mr Green had in their possession for the purposes of sale abalone taken in contravention of section 44(2)(a) of the Fisheries Act. It was said that the evidence of the observations of fisheries officers and statements made by Mr Lester together with statutory presumptions established each of the elements of the offence beyond reasonable doubt.
It was the Crown case that Mr Lester and Mr Green flew from Port Lincoln to Adelaide on 3 November 2000. Upon arrival at Adelaide airport they hired a vehicle and drove to 384 Anzac Highway Camden Park. Mr Lester was the driver. He reversed into the driveway at Camden Park. Another vehicle was already parked in the driveway. The back of the vehicle faced towards the hired vehicle. The vehicles were in close proximity. Fisheries officers had followed the hired vehicle from the airport to the Camden Park property. They made observations of foam boxes being transferred between the vehicles. They observed boxes being loaded into the hired vehicle from the other vehicle. Later inspection revealed that a total of eleven boxes containing abalone had been loaded into the hired vehicle. Items associated with abalone fishing were seized from the hired vehicle. Three men were observed to be present in the driveway between the vehicles at that time. Mr Lester was also found in possession of a backpack at the scene. The backpack contained three kilograms of frozen abalone.
The Defence Case – A Summary
No evidence was called on behalf of Mr Lester or Mr Green. Challenges were made to the admissibility of parts of the Crown evidence. Submissions were made to the magistrate that the Crown had failed to establish the elements necessary to prove the offence beyond reasonable doubt.
The Magistrate’s Findings and Conclusions
The magistrate dismissed count 1 against Mr Lester and Mr Green. He did so on the basis that the Crown had not proved that the abalone had been taken in contravention of the Fisheries Act. The magistrate observed:
Although the primary contention … was that the evidence did not establish beyond reasonable doubt that [Mr Lester and Mr Green] had the subject abalone in their possession (custody, power or control) a further submission was put on their behalf that the evidence did not establish beyond reasonable doubt that the fish were ‘…taken in contravention of the Fisheries Act 1982’
It was submitted that even if possession were proved (as against either Lester or Green) that the prosecution must establish that the abalone were from South Australian waters…
As there was no evidence placed before the court concerning the origin of the abalone it is my duty to dismiss count 1 which I do.
Count 2
The Respective Cases – A Summary
The Crown case relied on the facts outlined earlier. The Crown alleged that Mr Lester and Mr Green had in their possession abalone being fish of a prescribed class contrary to section 44(2)(b) of the Fisheries Act and Regulation 7(1) of the Fisheries (General) Regulations 2000. It was the Crown case that the abalone were less than the legal size.
The fact that the abalone were undersize was not disputed. It was the defendants’ case that the Crown had not established the elements of the offence beyond reasonable doubt.
The Magistrate’s Conclusions
The magistrate convicted Mr Lester on count 2. He concluded:
As ‘possession’ has had such a prominent position in this case it is appropriate that I discuss what ‘possession’ the prosecution is required to prove.
Despite the prosecution submissions to the contrary I am of the opinion, consistent with He Kaw Teh (1984-1985) 157 CLR 523 that to prove possession of the abalone the subject of these counts that the prosecution must show that each defendant had physical power over them knowing that they were abalone. The requirements of possession are set out in R v GNN 78 SASR 293 at [24] in the remarks of Doyle CJ – possession, knowledge, custody and control…
The evidence to which I have referred supports the finding (beyond reasonable doubt) that all 3 men present between the vehicles were observed to handle at least one foam box and that the foam box which they handled contained abalone. Each of those boxes seized contained more than the prescribed quantity (25).
I find that Mr Lester was in possession of at least one foam box, which contained more than the prescribed quantity of abalone (25).
…
The weight of the abalone was not in issue. I find that the total weight of the 11 boxes was168.375 kg of green lip and 143.248 kg of black lip – a total of 311.623 kg of abalone.
The number and weight of undersize abalone was not in issue. I find that of the abalone seized 938 green lip weighting a total of 96.456 kg were undersize. I find that of the abalone seized 1,108 black lip weighing a total of 91.482 kg were undersize.
The wholesale value of the fish was not in issue. I find that the wholesale value of the undersize abalone (both green and black lip) was $28,722.22.
The magistrate sentenced Mr Lester to nine months imprisonment. He declined to exercise his discretion to suspend the term of imprisonment in its entirety. However, he exercised his power pursuant to section 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) and ordered that Mr Lester served 6 months of that sentence of imprisonment with the remainder suspended on a bond to be of good behaviour. The magistrate imposed an additional penalty of $30,000 and ordered the forfeiture of a number of items of property associated with the offence. He confirmed the forfeiture of the undersized abalone the subject of the charge. He set aside the forfeiture order with respect to the remaining abalone. Mr Lester was ordered to pay costs in the amount of $5,000.00.
The magistrate dismissed the charge of possession of fish of a prescribed class against Mr Green. The magistrate reasoned:
Whilst I have a suspicion about the activities of Mr Green, the evidence is not sufficient to find that Mr Green is guilty of count 2. An hypothesis of innocent association between the two men has not been excluded. I find Mr Green is not guilty of count 2.
The Appeals
As earlier observed the Crown has appealed against the dismissal of count 1 against Mr Lester and Mr Green. It has also appealed against the dismissal of count 2 against Mr Green. Mr Lester has appealed against his conviction and sentence on count 2.
The Fisheries Legislation
The Legislative Purpose
The long title provides that the Fisheries Act is for:
… the conservation, enhancement and management of fisheries, the regulation of fishing and the protection of certain fish; to provide for the protection of marine mammals and the aquatic habitat; to provide for the control of exotic fish and disease in fish, and the regulation of fish processing; and for other purposes.
Section 20 provides:
In the administration of this Act, the Minister, the Director and management committees have as their principal objectives:
(a) ensuring, through proper conservation, preservation and fisheries management measures, that the living resources of the waters to which this Act applies are not endangered or over exploited; and
(b) achieving the optimum utilisation and equitable distribution of those resources.
The purposes of the Act include the protection, preservation and conservation of fisheries in South Australia. The Act addresses these purposes by regulating the way in which fish can be taken from South Australian waters so that the State's fish stocks are not endangered or exploited. The objects and purposes of the Act provide an explanation for the statutory presumptions that are discussed later in these reasons.
The Legislation
Section 44 of the Fisheries Act provides:
(2)     Subject to this section, if a person sells or purchases, or has possession or control of—
(a)     fish taken in contravention of this Act; or
…
(b)     fish of a prescribed class,
the person is guilty of an offence.
Penalty:     For an offence involving the sale or purchase of abalone or the possession or control of abalone for the purposes of sale—division 1 fine or division 5 imprisonment, or both;
In any other case—division 5 fine.
Schedule 6 to the regulations provide:
Undersize fish
Abalone taken by unlicensed person
2. (1) Abalone of all species (except greenlip) is undersize—
(a)     if it is less than 13 centimetres in length; or
(b)    if the meat, having been removed from the shell, weighs less than 113 grams.
(2) Abalone, greenlip is undersize—
(a)     if taken in the waters of the Western Zone—
(i)    it is less than 14.5 centimetres in length; or
(ii)the meat, having been removed from the shell, weighs less than 140 grams; or
(b)     if taken in any other waters of the State—
(i)    it is less than 13 centimetres in length; or
(ii)the meat, having been removed from the shell, weighs less than 113 grams.
(3) In this clause—
‘length’, of an abalone, means the length of the abalone as measured at its greatest dimension as shown in diagram 1 in clause 1;
‘meat’, in relation to an abalone, means all the muscular foot from which the viscera have been detached by the usual shucking procedure;
‘Southern Zone’ means all coastal waters east of the meridian of longitude 139° east such waters not including the waters of the Coorong or any other waters above the Murray Mouth;
‘Western Zone’ means all coastal waters west of the meridian of longitude 136° 30¢ 00² east;
(4) This clause applies only in relation to abalone taken by an unlicensed person.
Regulation 7 of the Fisheries (General) Regulations 2000 provides:
(1) For the purposes of section 44(2) of the Act, undersize fish are fish of a prescribed class.
(2)For the purposes of section 44(2aa) of the Act, 25 abalone is the prescribed quantity.
Schedule 8 to the regulations relevantly provided that the quantity of the abalone prescribed for the purposes of section 44(4) of the Act was more than 25.
Some General Matters
Before coming to consider the merits of each appeal it is convenient to deal with a number of matters of general application. These concern the magistrate’s factual findings, the legality of the search of the backpack, the admissibility of statements made by Mr Lester to the fisheries officer, the evidence of common purpose, the evidence of prior association, the topic of possession and the scope of the statutory presumptions.
Findings of Fact
The magistrate delivered considered reasons. During the course of those reasons he discussed the evidence led by the Crown. He indicated his acceptance of particular aspects of the evidence of the Crown witnesses. He appears to have generally accepted the evidence of the fisheries officers. The magistrate made the following findings of fact beyond reasonable doubt:
The evidence to which I have already referred establishes some facts beyond reasonable doubt and so I make these intermediate findings of fact:
That Mr Lester drove the hire car directly from the airport to 384 Anzac Highway. That Mr Lester reversed the hire car into the driveway at 9.32 am. That a Toyota land cruiser was present in the driveway when the hire vehicle arrived. That between 9.32 am and 9.35 am the white foam boxes were placed into the hire car.
That three people, Mr S Braithwaite, Mr Lester and Mr Green were observed to be present in the driveway between the two vehicles between 9.32 am and 9.35 am.
That no other person was observed to be present in the driveway between 9.32 am and 9.35 am and that no other person was present in the driveway between 9.32 am and 9.35am.
That the driver of the hire vehicle was aware prior to attending at the Anzac Highway address that some item/s were to be loaded into the hire vehicle. Such awareness can, I find, be inferred - beyond reasonable doubt - because the hire vehicle was reversed into the driveway. I find that the hire vehicle was reversed into the driveway to facilitate the loading of an item/s into the hire vehicle from the Toyota landcruiser.
Fisheries officers found Mr Lester with a backpack at the scene. Their subsequent search revealed that it contained three kilograms of frozen abalone meat. The magistrate observed:
The search of Mr Lester’s backpack … revealed 3 kgs of frozen abalone meat…
It is obvious that Mr Lester’s backpack came with him from Adelaide to Port Lincoln. I so find.
…
I find that when the backpack was examined that [another fisheries officer] believed on reasonable grounds that the eleven foam boxes contained abalone and that those foam boxes in the hire vehicle were ‘evidence of an offence against this Act’ (s28(1)(b)
…
I find that the 3 kg of frozen abalone was placed into Mr Lester’s backpack, either by Mr Lester or by another person with the knowledge of Mr Lester and with his consent. It is also appropriate to find that when it was placed in the backpack that Mr Lester knew that it was abalone and that it was frozen…
The magistrate then concluded:
The evidence to which I have referred supports the finding (beyond reasonable doubt) that all 3 men present between the vehicles were observed to handle at least one foam box and that the foam box which they handled contained abalone. Each of those boxes seized contained more than the prescribed quantity (25).
I find that Mr Lester was in possession of at least one foam box, which contained more than the prescribed quantity of abalone (25).
After reviewing the evidence relevant to Mr Lester the magistrate concluded:
In my opinion the evidence of attendance at the property, the rapid loading of the vehicle, the presence of frozen abalone in the backpack, the presence of 11 foam boxes in the hire car and the utterance to [the fisheries officer], shows that Mr Lester hired the vehicle intending to load it rapidly with a large quantity of abalone. No other hypothesis was put to me by counsel on his behalf. I find that the prosecution has excluded any reasonable hypothesis consistent with innocence.
It follows that count 2 is proved against Mr Lester.
The magistrate then summarised the evidence against Mr Green:
The evidence against Mr Green amounts to the following: He was in company with Mr Lester at Port Lincoln, Adelaide Airport and Anzac Highway. He was a passenger in the hire vehicle. His bag contained a dive boot and an abalone bar. He was observed to handle a white foam box (in the loading of the hire vehicle). There was no room for a passenger once the eleven white boxes had been loaded in to the hire vehicle.
Counsel for Mr Lester and Mr Green attacked the magistrate’s conclusion that the evidence of a fisheries officer, Mr Donovan, was reliable and acceptable evidence. It was said that his evidence was materially inconsistent with the evidence of fisheries officer Ms Stevenson. The alleged inconsistency related to the content of a conversation said to have occurred between Ms Stevenson and Mr Donovan while they were in a motor vehicle observing the events at Camden Park. Ms Stevenson recorded in her notebook remarks that she recalled being conveyed by radio. Mr Donovan recalled making remarks to Ms Stevenson that he thought she had recorded. In giving evidence Mr Donovan said that he had refreshed his memory from Ms Stevenson’s notes believing that she had recorded what he had said. Counsel argued that Mr Donovan’s credibility had been severely damaged.
This submission should be rejected. There is no reason to doubt the evidence of Ms Stevenson or Mr Donovan on this topic. It is possible that Ms Stevenson noted what she heard on the radio and that Mr Donovan thought she was noting what he told her.
Passages of the transcript were analysed and the arguments put to the magistrate were re-ventilated. Suggested inconsistencies were advanced.
The evidence supported the conclusions reached by the magistrate. There is no reason to doubt the correctness of the magistrate’s decision to accept Mr Donovan’s evidence. A review of the transcript demonstrates that there was ample evidence from which the magistrate to conclude that Mr Donovan was a credible and reliable witness. There was no reason to doubt the veracity and accuracy of his account. In important respects his account was supported by independent evidence.
Search of the Backpack
As earlier observed the fisheries officers found Mr Lester with a backpack at the scene. A subsequent search of the backpack revealed that it contained 3 kg of frozen abalone. The officers seized and searched the backpack.
It was argued before the magistrate that the seizure and search of the backpack was “illegal”. This contention raised for consideration the power of a fishery officer to “search and seize”.
Section 28 of the Fisheries Act relevantly provides:
(1) Subject to this section, a fisheries officer may for the purposes of the administration or enforcement of this Act—
(a) where he or she reasonably suspects that any premises, land, waters, boat or vehicle is being, has been or is intended to be, used for, or in connection with, an activity regulated by or under this Act—at any time, enter and search and inspect and, where necessary for the purpose, break into or open any part of, or thing in, the premises, land, waters, boat or vehicle; or
(b) where he or she reasonably suspects that anything has been done or omitted to be done in contravention of this Act in relation to any fish, boat, vehicle, device, equipment, document, record or other thing, or that it affords evidence of an offence against this Act—seize and retain the fish, boat, vehicle, device, equipment, document, record or other thing; or

The magistrate rejected the submissions of counsel for Mr Lester and concluded:
[the fisheries officer] acted upon the utterance and began a search of the backpack believing on reasonable grounds that a search of the backpack was warranted. In any event no protest was made by Mr Lester to a search of the backpack – and after the utterance he placed it upon the ground…
…I find that when the backpack was examined that [a fisheries officer] believed on reasonable grounds that the eleven foam boxes contained abalone and that those foam boxes in the hire vehicle were ‘evidence of an offence against this Act’ (s28(1)(b).
…
It is also to be noted that the backpack was transported to Anzac Highway in the hire vehicle – as such it was liable to both search and seizure in any event. It would be quite artificial to suggest that mere removal of the backpack from the hire vehicle on arrival at the Anzac Highway address rendered it no longer capable of being searched. In my opinion the search of the backpack was lawful.
If the search of the backpack was unlawful it would be necessary to consider the matter further (R v Lobban 77 SASR 24). Public Policy does not, in my opinion, require the exclusion of the evidence of the contents of the backpack. To receive the evidence would not, in my opinion, ‘demean’ the court or bring the system of criminal justice into disrepute through the use of the court in this matter. This is not, I find, a case of blatant disregard for rights enjoyed by a citizen and the evidence should not therefore be excluded.
Nor, in my opinion, would it be unfair in the case that the trial would be unfair to Mr Lester to receive the evidence.
If the conduct of the search of the backpack was improper (and I think that it was not) then it cannot be said that the evidence of the search of the backpack could not be ‘…effectively tested’, nor can it be said that it has ‘…more prejudicial than probative value and so may be misused by the jury.’…
On appeal it was submitted that the magistrate erred in his ruling. Counsel contended that the seizure and search were not authorised by section 28 and were therefore “illegal”. The facts established that at the time the seizure and search occurred, Mr Lester had left the premises at Camden Park and was standing nearby. The backpack was on the ground. It was said that the magistrate should have exercised his discretion to exclude the evidence of the search and seizure.
Counsel for the Crown submitted that the search and seizure were authorised by section 28. It was the Crown case that the fisheries officers reasonably suspected that the premises at Camden Park and the hired vehicle were used in connection with an activity regulated by the Fisheries Act. Accordingly they were entitled to inspect “things” in the premises or in the motor vehicle. The fact that Mr Lester had been observed with the backpack led to the inevitable conclusion that it was a “thing” that had been “relevantly in the premises” and “in the hired vehicle”. It was said that these circumstances justified the search.
Counsel for the Crown submitted that the evidence supported the magistrate’s finding that Mr Lester had the backpack with him that day. The fact that Mr Lester left the premises and put the backpack on the footpath did not render the search illegal. At relevant times the backpack was “in the hired vehicle” and “in the premises” at Camden Park. The search of the backpack was authorised.
It was further that the fisheries officer reasonably suspected that an offence had been committed in contravention of the Act and that the backpack afforded evidence of that offence. It was said that the seizure and retention of the backpack was authorised. The right to seize and retain necessarily carried with it the right to search the contents of the backpack.
Section 28(1)(b) of the Fisheries Act authorised the seizure of the backpack. The fisheries officer concerned reasonably suspected that the backpack would afford evidence of offences against the Act. The contents of the backpack provided such evidence. The backpack itself was used in the course of committing the offence. In these circumstances the seizure and retention of the backpack and its contents were authorised by the Act. The right to seize and retain carries the right to inspect the content of that which has been seized and is retained.
The magistrate considered that even if there was some “illegality” he would exercise his discretion to admit the evidence. If the search had been illegal, then no basis to interfere with that exercise of the magistrate’s discretion had been established. There is no substance to the complaints.
The Impugned Statement
At the scene the fisheries officer approached and spoke to Mr Lester. At the outset and before the fisheries officer had started to ask questions, Mr Lester said “I don’t feel too good”. The fisheries officer then replied “Take a seat, I don’t want you falling over or hurting yourself. Got a headache or something?” Mr Lester responded “That’s it for me. I’m giving this up. I’m fucked. I’m going to gaol”. The fisheries officer said “You haven’t got any warrants for arrest have you?” Mr Lester responded “No”. The fisheries officer said “What about your mate? Phillip is it?” Mr Lester responded “No, I don’t think so”. Mr Lester then said “What are your guys names again?” The fisheries officer responded “I’m Gary Darter and this is Derek Donovan”. Following this interchange a caution was administered.
Counsel for Mr Lester submitted that the above conversation should be excluded as no caution had been provided. The magistrate rejected this submission. He took the view that Mr Lester’s statement “That’s it for me. I’m giving this up. I’m fucked. I’m going to gaol” (“the statements”) were not induced by the fisheries officer. The statements were not responsive to questions put by the fisheries officers. At that time Mr Lester had not been apprehended and was not under arrest. In the magistrate’s view, the statements were spontaneous and voluntary utterances. In these circumstances the magistrate was not prepared to exclude evidence of the statements. He recognised that reasonable minds might differ as to whether the discretion to exclude may arise for exercise. However, he considered that in the circumstances that he would not exercise his discretion to exclude the evidence.
On appeal counsel for Mr Lester submitted the statements of Mr Lester should have been excluded as they had been obtained by impropriety or by unlawful or improper conduct. Attention was drawn to the decision in R v Lobban[2]. It was submitted that the statements in the present case were made in response to a conversation initiated by the fisheries officer and that a caution should have been administered immediately.
[2] (2000) 77 SASR 24
There is no substance to this complaint. Mr Lester said that he felt unwell and then made the statements in circumstances where he volunteered the information in a spontaneous way. There was no impropriety on the part of the fisheries officers. There was no unlawfulness in their conduct. The magistrate had a discretion to exclude evidence that might give rise to some unfairness to Mr Lester. However he decided not to exercise his discretion to exclude the evidence. There is no basis to suggest that the magistrate’s exercise of discretion miscarried.
Common Purpose
In Corak and Palmer[3] the court considered the admissibility of statements made in the absence of an accused in circumstances where the Crown alleged that the statements were made in furtherance of a common purpose. King CJ, with whom Mitchell and Zelling JJ agreed, observed:
On trials of substantive charges, at least where proof of the charge is not inseparably linked with proof of common purpose, the evidence is not admitted unless there is some other reasonable evidence which makes the existence of a common purpose a real possibility. Once admitted, of course, the evidence is available to prove the existence of the common purpose. ...
In cases such as the present case, there must, as I have already pointed out, be evidence raising at least a real possibility of pre-concert before the challenged evidence is admitted. The real possibility of the common design or purpose which in appropriate cases is a condition precedent to admission of the evidence, may, however, be indicated by evidence of acts or statements done or made by the accused or in his presence, whether those acts or statements were done or made before or after the challenged conversations, if they tend to show the existence of a common purpose in pursuance of which the conversations under challenge took place. Moreover, it is not in all cases necessary that the common design precede the statements or actions whose admissibility is under challenge. A person by joining a criminal venture may make admissible against him the prior conversations and actions of the other parties to the joint venture which occurred in the course of setting up and furthering the joint venture before the accession of the first mentioned person, in order to prove against him the nature and scope of the joint venture which he has joined.”
These principles are apposite.
[3] (1982) 30 SASR 404 at 405-406
In the present case there was reasonable evidence raising the real possibility of pre-concert between Mr Lester and Mr Green. The evidence of their travel arrangements from Port Lincoln to Adelaide and then to Camden Park suggest a common purpose. This evidence together with their joint activity in unloading and loading the boxes was reasonable evidence of the real possibility of pre-concert and admissible in proving the charges against Mr Green. The evidence of common purpose and the acts and statements of Mr Lester added to the overall body of evidence available to prove the case against Mr Green. The magistrate erred in excluding this evidence.
Evidence of Prior Association
Counsel for the Crown complained about the magistrate’s refusal to admit evidence of prior association between Mr Lester and Mr Green. The proposed evidence was said to establish a past association between the two men involving the illegal possession of abalone. It was said that evidence would establish that Mr Lester and Mr Green had been jointly charged in Victoria with an offence involving the illegal possession of a commercial quantity of abalone. In his defence at that time Mr Green had advanced an innocent explanation for his involvement with Mr Lester at the time of the alleged offending. However both men were convicted on the basis of their joint activity.
It was the Crown case that this evidence was relevant and probative of the character of the association between Mr Lester and Mr Green on 3 November 2000 and demonstrated the nature of their relationship. It had a particular relevance because it suggested that their association on 3 November 2000 was not innocent. The evidence was said to be admissible to rebut the suggestion of innocent association.
Counsel for the Crown relied on the observations of Brennan J in Harriman v The Queen[4]:
Evidence of prior involvement by Harriman and Martin in the sale of heroin in association, evidence (from the witness Lisk) of prior sales of heroin by Harriman and evidence of Harriman's use of heroin were clearly prejudicial and were not admissible unless something more than the commission of prior offences was thereby revealed. In my opinion, more was revealed. The concatenation of these pieces of evidence showed that Harriman, prior to April 1987, had participated repeatedly in one role or another in heroin dealing in Western Australia. He had participated in a trade notorious for its clandestine organization, the creation of distribution networks of dealer-users, the payment of large sums of money enforced (if need be) by vicious measures, and the urgent demand by addicts for sources of supply. A person who is shown to have participated to a substantial degree in that trade — I am not speaking of mere use or of an isolated sale — is likely to have incentives to continue his participation in the trade and, because of the nature of the trade, is more likely to have done so than one who has not been a substantial participant. Evidence of substantial participation in the heroin trade can support an inference of continued participation although, of course, each case depends on its own facts. In determining whether or not evidence of participation can support such an inference, regard must be had to the extent and duration of past participation, the proximity in time between the past participation and the offence charged and the whole of the circumstances of the case. In this case, the extent of Harriman's participation was such that, in the absence of anything to suggest that the participation by Harriman and Martin in the sale of heroin in Western Australia had been discontinued, the guilty inference might properly have been drawn.
Evidence of Harriman's participation in the heroin trade not only strengthened the Crown allegation of motive; it tended to make it more likely that Harriman's relevant contacts with Martin — providing Martin with his (Harriman's) address in Bangkok and arranging to meet there, the visit to Chiang Mai, the furnishing of addresses in Western Australia — were for a guilty rather than an innocent purpose: see Plomp v The Queen (1963) 110 CLR 234. That evidence was highly probative of the offences charged. It was admissible, whether or not Harriman had raised in cross-examination the ‘defence’ that Martin was acting alone. There was no ground for excluding it in the exercise of a discretion.
In Pfennig v The Queen[5] Toohey J described Harriman as:
not truly a decision on similar fact or propensity evidence. The evidence in question was admissible for the light it threw on an association between the accused and another man. This was directly relevant to the primary issue raised by the indictment, where the accused was ‘knowingly concerned’ in the importation of heroin.
[4] (1988-19899) 167 CLR 590 at 595-6
[5] (1995) 182 CLR 461
In the present case the evidence was relevant to and probative of the nature of the association between the two men. This was not their first association in regard to abalone. The evidence was relevant to rebut any suggestion of innocent association. The evidence was relevant and probative evidence which should have been admitted.
Against the background of the evidence of past association it was submitted by counsel for the Crown that Mr Lester and Mr Green were acting in concert to achieve a common purpose. That purpose was to travel to Adelaide to collect and load boxes of abalone. It was said that the inescapable inference to be drawn from all of the evidence was that when they handled the boxes they were aware that they were handling abalone.
Possession
In Bahri Kural v The Queen[6] the High Court observed:
Because the mental elements in different crimes vary widely it is impossible to make a statement which is universally valid for all purposes about the essential elements of a guilty mind. Depending upon the nature of the particular offence the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence. Where the offence charged is the commission of a proscribed act, a guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.
Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact.
[6] (1986-1987) 162 CLR 502 at 504-505
The Crown accepted that it had to prove beyond reasonable doubt that Mr Lester and Mr Green knew that they had abalone in their possession. It was submitted that the ordinary meaning of the word “possession” applied. Physical control or custody of a thing together with knowledge that the thing was in the person’s custody or control was said to be possession. It was accepted that elements critical to the concept of possession were the capacity to physically control and knowledge of the thing controlled or to be controlled.
A question that arose for determination in the present case was whether the evidence led by the Crown was sufficient to prove beyond reasonable doubt that Mr Lester and Mr Green were each in possession or control of a box or the boxes being transferred between the vehicles in the driveway at Camden Park. It was submitted that Mr Lester and Mr Green’s guilty knowledge was established by looking at the evidence as a whole.
Counsel for the Crown submitted that this court is in a position to assess the evidence and draw its own conclusions as to the inferences fairly open. Counsel pointed out that this court had a duty to reach its own view of the case by an independent review of all of the evidence whilst taking into account the advantages that the magistrate had in seeing and hearing the witnesses. It was emphasised that this was not a case of competing versions of events given under oath. It was said that the issues for determination were the inferences and conclusions to be drawn from the proven facts.
The evidence established that fisheries officers had mounted an operation which involved undercover surveillance of both Mr Lester and Mr Green as they arrived together at the Port Lincoln airport on 3 November 2000. As earlier observed, on arrival at Adelaide airport Mr Lester and Mr Green hired a vehicle and drove to premises at Camden Park. White boxes were unloaded from the vehicle parked in the driveway into the hired vehicle. Both Mr Lester and Mr Green transferred at least one of the white boxes from the parked vehicle to the hired vehicle.
After observing these events the fisheries officers approached Mr Lester and Mr Green. By that time eleven white foam boxes had been transferred. The transfer process took place between 9.32 and 9.35 am. The transfer of the boxes occurred immediately upon the arrival of the hired vehicle. Seven white boxes each of a size of approximately 60 by 40cm were stacked in the cabin of the hired vehicle and four boxes were stacked in the boot. All boxes contained abalone of the weights referred to in the complaint. A neoprene diving suit, a neoprene diving boot and an abalone bar were also found in the bag in the hired vehicle.

Other evidence upon which the magistrate acted in making his finding that Mr Lester was in possession of the abalone included the frozen abalone contained in the backpack carried by Mr Lester and the statements made by him at the scene.
As earlier observed the magistrate came to the conclusion that Mr Lester was in possession of more than 25 abalone. The magistrate found that the requisite degree of control and knowledge existed. The magistrate concluded that Mr Lester was in possession of more than 25 abalone.
The conclusions of the magistrate about Mr Lester’s physical control and knowledge were reasonably open. It might be said that those conclusions were overwhelming. No error has been demonstrated. There was ample evidence to support the magistrate’s conclusion that Mr Lester was in possession of abalone. This was a conclusion open on the evidence and supported by the evidence.
Counsel for the Crown submitted that the magistrate erred in his conclusion that the Crown had not established beyond reasonable doubt that Mr Green was in possession of more than the prescribed amount of abalone. The magistrate concluded that although Mr Green was observed to transfer a foam box between the vehicles it did not follow that he had knowledge of the contents of the box. It was submitted that the magistrate’s finding that possession had not been established should be set aside. Further it was said that the magistrate erred in not concluding that Mr Green was also in possession of more than 25 abalone.
There was a considerable body of evidence that supported the conclusion that Mr Green was in possession of more than 25 of abalone. Mr Green was seen to arrive with Mr Lester in a motor vehicle at the Port Lincoln airport at about 7.30 am on 3 November 2000. Both men boarded the same flight to Adelaide at about 8.10 am. On arrival at the Adelaide Airport both Mr Green and Mr Lester were seen together at the hire car counter. They left the Adelaide Airport together in a hired vehicle. At that time Mr Green was a front seat passenger. They arrived together at the Camden Park premises. Mr Green and Mr Lester were seen to handle at least one of the foam boxes between the vehicles. The loading procedure in which Mr Green was involved led to the transfer of eleven foam boxes to the hired vehicle. Mr Green was found to be in possession of a bag that contained equipment associated with the taking of abalone (a neoprene diving suit, a neoprene diving boot and an abalone bar). This evidence leads to the overwhelming conclusion that Mr Green like Mr Lester was in possess of more than 25 of abalone.
The inference that both Mr Green and Mr Lester had knowledge of the contents of the boxes is overwhelming. It is far fetched to suggest to the contrary. However there are further considerations. The evidence of the prior association between Mr Lester and Mr Green and the evidence of common purpose provide additional support to this conclusion.
The Presumptions
As earlier observed the complaint alleging possession of abalone for sale alleged a breach of section 44(2)(a) of the Fisheries Act. The type, weight and number of abalone the subject of the charge were uncontested facts.
The Fisheries Act contains aids to proof. The Crown relied on the provisions of section 44(4):
In proceedings for an offence against subsection (2)(a) relating to fish of a class prescribed for the purposes of this subsection, if it is proved—
(a)     that the defendant was not—
(i)the holder of a licence authorising the taking of fish of that class; or
(ii)    a registered fish processor; and
(b)     that the defendant sold or purchased or had possession or control of more than the prescribed quantity of fish of that class,
the offence is proved unless the defendant establishes the defence under subsection (3).
As earlier observed the prescribed quantity of abalone for the purpose of section 44(4) was set in Schedule 8 of the Regulations and was more than 25.
The evidence established that Mr Lester and Mr Green were not the holders of a licence to take abalone or registered fish processors. It was an agreed fact that the fish were abalone. It was accepted by counsel for Mr Lester and Mr Green that more than 25 abalone were seized. Neither Mr Lester nor Mr Green offered evidence to contradict these facts or rebut the presumption contained in section 44(4) by establishing a defence under section 44(3). Accordingly, counsel for the Crown submitted that the magistrate should have found that the offence of possession of fish for sale had been proved in accordance with the provisions of section 44(4).
The Crown also relied on the statutory presumption that possession of more that the prescribed quantity of abalone is possession for the purposes of sale. This presumption is found in section 44(2aa):
In proceedings for an offence against subsection (2), if it is proved that a person had more than the prescribed quantity of abalone in his or her possession or control, it will be presumed, in the absence of proof to the contrary, that the person had that abalone in his or her possession or control for the purposes of sale.
In the case of abalone, Regulation 7 provides that the prescribed quantity referred to in section 44(2aa) is “25”. It was the Crown case that the abalone were in the possession of the defendants for the purpose of sale.
The Remaining Issues
Count 1
As earlier observed Mr Lester and Mr Green were charged that on 3 November 2000 they had in their possession for the purposes of sale abalone taken in contravention of the Fisheries Act contrary to section 44(2)(a) of the Act.
Counsel for the Crown submitted that the magistrate overlooked the presumptive provisions contained in sections 44(4) and 44(3). It was said that when these provisions were properly understood the Crown did not have to prove that the abalone had been taken from South Australian waters.
Counsel for Mr Lester and Mr Green contended that the Crown was obliged to prove that the abalone had been taken from the waters of South Australia. It was submitted that this had not been proved. Counsel relied on the following reasoning of the magistrate:
…the primary contention in the defence…was that the evidence did not establish beyond a reasonable doubt that [Mr Lester and Mr Green] had the subject abalone in their possession (custody, power or control) a further submission was put on their behalf that the evidence did not establish beyond reasonable doubt that the fish were ‘…taken in contravention of the Fisheries Act 1982.’
It was submitted that even if possession were proved (as against either Lester or Green) that the prosecution must establish that the abalone were from South Australian waters.
…if possession of undersize abalone is proved to the requisite degree then it is not necessary for the prosecution to establish that they were ‘…taken…in waters to which this Act applies.’
However, in my opinion the submission (that the prosecution must prove beyond reasonable doubt that the fish were taken in contravention of the Fisheries Act 1982) is true insofar as the fish which is not undersize is concerned.
As there is no evidence placed before the court concerning the origin of the abalone it is my duty to dismiss count 1 which I do.
It was further submitted that Mr Lester and Mr Green had a defence under section 44(3) of the Act in that they “did not know or have reason to believe that the fish were taken in contravention of the Act”.
In addressing a charge under section 44(2)(a) once it was established that Mr Lester and Mr Green were in possession of more than the prescribed quantity of abalone, were not the holders of a licence authorised in the taking of abalone and were not registered fish processors, section 44(4) operated and the offences were proved. An evidential and presumptive burden was then placed on Mr Lester and Mr Green by section 44(3) to prove that they did not take the abalone in contravention of the Act and did not know and had no reason to believe that the abalone were taken in contravention of the Act.
The Crown did not have to prove that a defendant knew that abalone had been taken in contravention of the Fisheries Act. As earlier observed section 44(3) provides that it is a defence in proceedings for an offence against section 44(2)(a) if a defendant proves that the fish were purchased in the ordinary course of business from a person whose ordinary business was selling fish and that the defendant did not take the fish in contravention of the Act and that the defendant did not know and had no reason to believe that the fish taken in contravention of the Act. It was submitted that there would be no purpose for section 44(3) if the Crown carried the onus of proving knowledge that the fish had been taken in contravention of the Act.
Certificates tendered at trial established that neither Mr Lester nor Mr Green were the holders of a licence which authorised them to take abalone. It was also established that they were not registered fish processors. The consequence of them being in possession of more than 25 of abalone on 3 November 2000 was that they were in possession of more than the prescribed quantity of fish.
In these circumstances the two statutory presumptions were enlivened. Section 44(4) operated and the offence was proved unless Mr Lester and Mr Green established a defence under section 44(3). There was no need for the Crown to establish from where the abalone was taken.
Having proved that Mr Lester and Mr Green had more than the prescribed quantity of abalone in their possession the Crown was entitled to rely on the presumption in section 44(2aa) that the men had the abalone in their possession for the purposes of sale. This presumption arose in the absence of proof to the contrary. There was no proof to the contrary.
Neither Mr Lester nor Mr Green had proved that the abalone were purchased from a person whose ordinary business was the selling of abalone and were purchased in the ordinary course of that business or that the abalone was not taken in contravention of the Fisheries Act. Neither Mr Lester nor Mr Green had established that they did not know and had no reason to believe that the abalone were taken from waters to which the Fisheries Act applied but not pursuant to a licence or that they were taken in contravention of the Fisheries Act or that they were fish of a class declared to be protected or that they were fish of a prescribed class. Accordingly Mr Lester and Mr Green had not established a defence pursuant to section 44(3). Section 44 (4) operated on its terms.
Counsel for the Crown’s submission that the magistrate failed to have regard to the presumption in section 44(4) when considering whether the offence against section 44(2)(a) had been made out is correct. The magistrate erred in not having regard to the terms of section 44(4). The offences had been proved against Mr Lester and Mr Green unless they could establish a defence pursuant to section 44(3).
The charge of possession of fish for sale was proven against both Mr Lester and Mr Green. The magistrate was in error in dismissing the charges against both men.
Count 2
Counsel for Mr Lester submitted that this conviction was unsafe and unsatisfactory. It was argued that for the charge to be proven, the Crown had to establish that the abalone had been taken from waters within South Australia. It was submitted that no proof of the location from which the abalone were taken had been proffered.
Counsel for the Crown submitted that a similar process of reasoning as discussed earlier applied to the charge of being in possession of fish of a prescribed class contrary to section 44(2)(b) of the Fisheries Act. Section 44(3) provides that it is a defence to a charge against subsection 44(2) for the defendant to prove various matters prescribed in section 44(3) and in particular to prove that the defendant did not know and had no reason to believe that the fish were fish of a prescribed class.
In accordance with the earlier observations in these reasons Mr Lester and Mr Green were in possession of more than 25 undersize abalone. Possession was proved. It was conceded that more than 25 undersize abalone were involved. In these circumstances the Crown case was proved. Mr Lester and Mr Green could not establish a defence under section 44(3). They did not do so.
The charge of possession of fish of a prescribed class was proved against both Mr Lester and Mr Green. The Magistrate was in error in dismissing the charges against Mr Green.
Appeal against Sentence by Mr Lester
In view of the conclusions that have been reached concerning the Crown appeal the question of sentence must be reconsidered. Mr Lester is to be sentenced with respect to both offences. The possible use of the provisions of section 18A of the Sentencing Act is a relevant consideration.
There are further matters to be considered. When sentencing Mr Lester the magistrate remarked:
…The evidence that I accepted is that in essence that you were in possession of a hire car and that you travelled to the place at Anzac Highway and you there took physical possession of a number of boxes of abalone…
…
In the circumstances here, as to count two, you will stand convicted. You will be imprisoned for nine months. It is inappropriate in my opinion to order that the sentence be suspended…
I am asked by the prosecution to make an order for, by was of additional penalty, pursuant to Section 66 of the Act. A maximum of $30,000 is established by the Parliament…
Pursuant to section 66(1)(b) I impose an additional penalty of $30,000.
Counsel for Mr Lester submitted that count 2 did not contain an allegation of possession for sale. It was submitted that possession for sale was a circumstance of aggravation. The allegation should have been pleaded or particularised. Attention was drawn to R v Hietanen[7] where King CJ said:
The above citations show that it has been authoritatively laid down by the High Court that where a statute fixes different penalties for an offence by reference to the existence or non-existence of circumstances of aggravation, there is a rule of practice that the circumstances which would expose the accused to the higher penalties must be pleaded in the charge and, if issue is joined, must be adjudicated upon by the jury of other tribunal of fact. This situation is not to be confused with the ordinary case in which facts relevant to the exercise of the sentencing discretion within the prescribed range of penalties are decided by the sentencing judge and need not be pleaded.
It was submitted that in the circumstances the Crown could not rely on the allegation of possession for sale with respect to count 2.
[7] (1989) 51 SASR 510 at 514, see also R v Palaga (2001) 80 SASR 19
Counsel for the Crown submitted that the need to plead or particularise matters of aggravation was merely a rule of practice. It was contended that the failure to comply with the rule of practice in this case should not lead to Mr Lester’s sentence of imprisonment being set aside.
In the present case the Crown chose to allege possession for sale as a matter of aggravation on count 1. Count 2 did not include this allegation. It was inappropriate for the magistrate to take the fact of possession for sale into account when sentencing Mr Lester on count 2. In this circumstance a miscarriage of justice may well have arisen.
Additional Penalty
Counsel for Mr Lester complained that the magistrate was not authorised to act pursuant to section 66(1)(b) of the Fisheries Act and impose and additional penalty of $30,000. It was complained that the power to impose an additional penalty could only be exercised when there was a conviction involving the fish taken in contravention to the Act. It was pointed out that the count alleging that fish were taken in contravention of the Act was count 1 on which verdicts for acquittal had been entered. Count 2 did not involve this allegation.
Counsel for the Crown accepted that the magistrate was error in imposing an additional penalty.
Conclusion
The appeal against the dismissal of count 1 against Mr Lester and Mr Green is allowed. Convictions are recorded on count 1 against both Mr Lester and Mr Green.
The appeal against the dismissal of count 2 against Mr Green is allowed. Mr Green is convicted on count 2.
The appeal by Mr Lester against his conviction on count 2 is dismissed. Mr Lester’s appeal against sentence is allowed.
I will hear submissions as to the further orders to be made.

JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT

1Mr Lester and Mr Green were further charged with giving a false address to fisheries officers. These charges were dismissed. The Crown has not appealed against this dismissal.

2 (2000) 77 SASR 24
3 (1982) 30 SASR 404 at 405-406
4 (1988-19899) 167 CLR 590 at 595-6
5 (1995) 182 CLR 461
6 (1986-1987) 162 CLR 502 at 504-505
7 (1989) 51 SASR 510 at 514, see also R v Palaga (2001) 80 SASR 19

[2003] SASC 261

15 August 2003