Lowe v Maher

[1990] TASSC 52

[1987] Tas R 153
50/1990

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Lowe v Maher [1990] TASSC 52; (1990) Tas R 153; A50/1990

PARTIES:  Lowe
  v
  MAHER

FILE NO/S:  LCA 3/1989
DELIVERED ON:  2 October 1990
JUDGMENT OF:  Cox J

Judgment Number:  A50/1990
Number of paragraphs:  16

Serial No 50/1990
File No LCA 3/1989

LOWE v MAHER

REASONS FOR JUDGMENT  COX J

2 October 1990

1. By this Notice to Review the applicant seeks to have the order of the Court of Petty Sessions convicting him on his plea of guilty and the sentence imposed upon him set aside on a variety of grounds. So far as conviction is concerned, the appeal is brought on the following three grounds:

1That the learned magistrate erred in law in accepting a plea of guilty from counsel and should not therefore have proceeded to convict the applicant.

2That the conviction should be set aside because the facts stated by the prosecution did not demonstrate or prove that an offence under reg43(1)(a) had taken place.

3That the learned magistrate after the facts were stated should have drawn the attention of counsel for the applicant to the fact that the complaint had not been proved and ask the applicant whether he wished to withdraw his plea of guilty.

1. The remaining grounds relate to sentence. If the applicant succeeds on grounds 2 or 3, the conviction should be quashed and that will be the end of the matter. If he succeeds on ground 1 but not on grounds 2 or 3, the conviction will be set aside and the matter remitted to the Court of Petty Sessions for the taking of a plea and further determination in the light of that plea. The parties agreed, in the circumstances, that I should hear argument only on the first three grounds and should adjourn the hearing of the remaining grounds sine die pending the outcome.

1. The applicant was charged by complaint with a total of six offences against the Sea Fisheries Regulations 1962, such offences having allegedly occurred on 21 March 1988. On 15 September 1988 the court record of proceedings shows that Mr Moore appeared for the defendant and pleas of not guilty were entered. There was a series of adjournments and on 9 March 1989 Mr Hay appeared for the applicant who, it was conceded, was not physically present and Mr Hay purported to change his client's plea in respect of one count of exporting unprocessed abalone from King Island in Tasmania to Queenscliff, Victoria, when he had not, at least 24 hours before exporting the abalone, delivered or caused to be delivered to the Director or an officer at the port or aerodrome from which the unprocessed abalone was to be exported, a statement in writing setting forth the details as required by reg43(1)(a) of the Sea Fisheries Regulations 1962. Mr Hay maintained the plea in respect of the remaining charges. Miss Lambert for the prosecution tendered no evidence thereon and the learned magistrate accordingly dismissed them.

1. In a plea in mitigation, Mr Hay asserted a belief on the part of the applicant from alleged conversations with Departmental officers that the regulation in question was not one the Sea Fisheries Department regarded as needing to be complied with strictly in the circumstances that the catch was procured at the extremities of Tasmanian fishing waters. This was disputed by Miss Lambert, and the learned magistrate quite rightly said he would need to take evidence to resolve the dispute. Accordingly, the further hearing of the matter was adjourned until 16 March 1989 when sworn evidence was given by the applicant and officers called by the respondent. On 5 May 1989 the learned magistrate resolved the controversy in favour of the respondent and imposed a fine and special penalties upon the applicant.

1. By s144(4)(C)(a) of the Justices Act 1959, the Governor is empowered to make regulations making provision as to the simple offences and breaches of duty in respect of which a defendant who is served with a summons to answer a complaint of such an offence or breach is, on filing a plea of guilty or not guilty to the charge in the complaint, not required to appear as summoned. By the Justices Rules 1976, r25 and sch3, offences against the Sea Fisheries Regulations 1962 are offences in respect of which a defendant may plead in writing. Rule 26 provides for the manner of pleading guilty, and if this method is adopted, the defendant is excused from attending pursuant to the summons. Rule 27 provides for a plea of not guilty, excuses the defendant's non–attendance at court on the day specified in the summons and requires the bench clerk to give him notice of a new hearing date. Rule 31 empowers justices to compel by notice or warrant the attendance of a defendant who fails to appear at the original or adjourned hearing, but this rule applies only to defendants who are not entitled to plead in writing. The applicant then had the right to lodge a written plea and whether he exercised it or not, could not be compelled to attend a hearing.

1. As it stood at the relevant time, the Justices Act 1959, s74A, provided:

"74A – (1)    When a person charged with a simple offence appears before justices, the justices, if they are satisfied that there is alleged against that person an act or omission that would constitute an offence, shall, if he is not represented by counsel –

(a)explain to him with what he is charged and in the prescribed form of words, or in words of like import, explain his rights and duties under this Act in respect of the charge; and

(b)inform the defendant that he is entitled to an adjournment if he wants time to consider his course of action or to obtain legal advice.

(2)       Subject to subsection (1), when the defendant is brought before a court of summary jurisdiction on a charge of a simple offence, the justices or their clerk shall read the charge to the defendant and require him to plead that –

(a)he is guilty of the offence charged or, with the consent of the justices and the prosecutor, of any other offence of which he might be convicted on the complaint;

(b)he is not guilty;

(c)further proceedings ought not to be had on the complaint; or

(d)he has cause to show why he should not be convicted of the charge.

(3)       If the defendant, on being asked to plead, stands mute or does not answer directly to the charge, he shall be deemed to plead not guilty."

1. This section was considered by Green CJ in Hennicke v Lowe Serial No 27/1988, by Underwood J in Petrie v Visser [1987] Tas R 73 and by myself in Allen v Lowe Serial No 31/1988. In each case, the failure to substantially comply with the section resulted in the conviction being quashed as an irregularity requiring intervention by the Supreme Court. In the last case, I held that such a course should be adopted, notwithstanding that there was no suggestion there that the applicant had suffered any injustice.

1. In the present case, although it is not clear whether the applicant was physically present on 15 September 1989 when the pleas of not guilty were entered, the presumption of regularity must apply and this court must proceed on the basis that such pleas were regularly entered and that there was compliance with s74A above. That section does not, in its terms, have any application where a defendant, having duly pleaded not guilty, wishes to change his plea on a subsequent occasion. Indeed, there is no express provision in the Justices Act 1959 governing that eventuality. Section 38(2), however, provides in a form derived from Act 6 and 7, William IV, Ch114 sec2 and reproduced substantially in most Australian jurisdictions, "a defendant shall be admitted, by himself, his counsel, or attorney to make his full answer and defence to the complaint, and to examine and cross–examine witnesses." Such a provision has been held by Rice J in the Supreme Court of the Northern Territory (Sesar v Haymon (1987) A Crim R 188) to authorise the entry of a plea by counsel. His Honour said at p190:

"There is little doubt in my mind that counsel is entitled at law to enter a plea on behalf of a defendant charged on complaint since, omitting the proviso to s 29 of the Justices Act, the section itself provides as follows:

'Every party to any proceeding before Justices shall be at large to conduct his case or make his application or his full answer to the charge or complaint (as the case may be) and to have the witness examined and cross–examined, by a legal practitioner: ...'

Moreover, there is little doubt, in my mind, that in relation to a complaint for a simple offence, counsel has, by virtue of the combined effect of ss 29 and 64 of the Justices Act, if the defendant is not present at the hearing, full statutory power and authority to enter a plea and to conduct his case; but that if the defendant is present at the hearing it is mandatory, by virtue of s 67, that the substance of the complaint shall be stated to the defendant and he shall be asked how he pleads. My reasons for this view are that, first of all, the provision is by its very terms, mandatory. Secondly, it ensures that a defendant unequivocally through his own mouth enters a plea which can be accepted by the court without reservation to the same extent that a legal practitioner, can, under s 64, in the absence of the defendant, enter a plea without reservation since, in those circumstances, the defendant has clothed his legal representative with all the trappings of ostensible authority. The reading of the charge to a defendant in those circumstances can be dispensed with because, by his own election, he is not present at the hearing. The position is different, however, when the defendant, either unrepresented or represented by counsel or solicitor, is present at the hearing since s 67 in clear and unequivocal terms requires that in that event 'the substance of the complaint shall be stated to him'."

1. In Rex v Thompson [1909] 2 KB 614 recognition was given by Lord Alverstone CJ, Jelf and A T Lawrence JJ, in the absence of statutory provision to the contrary, to the authority of counsel to act on a defendant's behalf and to bind him in his absence (see also Reg v Paauwe [1971] 2 NSWLR 235). In the absence in this State of any statutory provision whether directory or mandatory, I am of the view that the ostensible authority of counsel in the present case was sufficient to give an acknowledgment of guilt on behalf of the applicant.

1. There may be cases where, due to an absence of actual authority, a plea entered by counsel may be set aside, but there is no basis in the present case for such a course. On the adjourned hearing which occurred on 16 March 1989, the applicant was present and gave evidence directed to mitigation of penalty. After being sworn and identifying himself, he was asked questions by his counsel, who, by way of preamble, said:

"Mr Lowe, you are aware of the factual situation surrounding the reason you are in court to–day and the export of abalone to Victoria last year. One of the matters that has come into dispute, as you are no doubt aware, is some discussions you may or may not have had with members of the Fisheries Department."

The applicant in evidence said:

"I was a little bit concerned about taking abalone into Melbourne, but I thought I would do the right thing and go down and see the Inspector of Fisheries, who our inspector is, Mr Ron Macey, and just explain to him that we were taking abalone. So I just thought I would go and see the inspector personally and explain to him that I was taking sized green lip abalone from the top of King Island into David Tonkin, the head manager of Safcol Victoria, and also the main man here in Tasmania, and just to find out if there was going to be any laws to be broken, and Ron at the time said to me he wasn't quite sure; but as far as he was concerned, as long as I got in touch with somebody like the police on King Island or someone like that, everything would be OK. I also explained things to him, like if a bit southerly roll (sic) come up, it was seven hours steaming into Queenscliff, where it would be 14 hours to punch back into Stanley, and he just virtually said to me, as far back as I could remember, virtually, 'Please yourself what you do, Gary', I think, I wouldn't be quite sure, because I didn't really take much notice. I just went in to explain to him what I was doing, but I was under the impression I was allowed to take fish to Melbourne, seeing I had seen the inspector and a number of times I tried to ring the police up on King Island."

1. In cross–examination, this exchange took place:

"QYou are not saying that Inspector Macey said that you can ignore the 24 hour requirement and a written notice requirement?

ANo. I'm not saying that. He said that if you can try and get in touch with the police alright. But we rung the police station on King Island numerous times and the police were never there or the Fisheries officers were never in their offices, and you saw that when the weather was blowing a gale and you can't sit out in front of the Harbour and you have to get going sort of thing like."

There can be no doubt that he understood what the nature of the charge was, that he was admitting his guilt in respect of it and was merely asking that his understanding of his obligations should be taken into account in mitigation of penalty.

1. In the circumstances, there being no infringement of any statutory requirement that his plea be taken from him in person, or that any change in plea should likewise be taken from him in person, and there being no question of any injustice flowing from the change of plea tendered on his behalf by his counsel, I see no basis for regarding the course followed as an irregularity in procedure. There is no substance in ground 1.

1. As to grounds 2 and 3, the relevant regulation at the time is expressed in these terms:

"43 – (1)  No person shall export, or cause or permit to be exported, any crayfish or unprocessed abalone, unless –

(a)  he has, at least 24 hours before exporting the crayfish or unprocessed abalone, delivered or caused to be delivered to the Director or an officer at the port or aerodrome from which the crayfish or unprocessed abalone is to be exported, a statement, in writing, setting forth –

(i)the name and address of the person exporting the crayfish or unprocessed abalone;

(ii)the quantity of crayfish or unprocessed abalone intended to be exported;

(iii)the name of the vessel, aircraft company, or firm by which the crayfish or unprocessed abalone is intended to be exported; and

(iv)the name and address of the person to whom the crayfish or unprocessed abalone is to be consigned; and

(b)  if required by an officer, the crayfish or unprocessed abalone has been submitted, in a whole and unmutilated condition, to an officer for inspection, and has been inspected, at a prescribed place.

(2)       For the purposes of subregulation (1)(b), 'a prescribed place' means any of the following places, that is to say:–

(a)  the ports of Hobart, Dunalley, Triabunna, Swansea, St Helens, George Town, Devonport, Burnie, Wynyard, Stanley, Smithton, Strahan, Lady Barron (Flinders Island), Currie (King Island), Port Arthur, Nubeena, Bicheno, and Whitemark (Flinders Island);

(b)  any aerodrome under the control and management of, or licensed by, the Director–General of Civil Aviation of the Commonwealth."

1. The applicant argues that as the facts stated by counsel for the prosecutor indicated that the abalone allegedly exported to Queenscliff in Victoria had not passed through any Tasmanian port or aerodrome, but had been taken from the Tasmanian fishing waters where they had been caught direct to a Victorian port, there was no act of exportation. It was submitted that it was essential to the concept of export within the meaning of the regulation that the abalone should first be landed and should then be shipped or freighted out through one of the ports or aerodromes where a officer was, or might be expected to be, stationed ready to receive the requisite form. It was further submitted that weight was added to that contention by an amending regulation inserted by Statutory Rule 227 of 1988, which substituted a new Regulation 43, the relevant parts of which are:

"43 – (1)    A person shall not export, or cause or permit to be exported, out of the State or any State fishing waters any fish in any form or for any purpose unless –

(a)  that fish is accompanied by a receipt in the prescribed form within the meaning of regulation 40A (8) relating to that fish issued by that person; and

(b)  that person, for a period of not less than 2 years after being supplied with that receipt, retains, in good condition, a complete copy of that receipt.

(2)     It is a defence to a prosecution under subregulation (1) if the defendant (not being a person who carries on the business of selling or processing fish or fish products) proves that the fish were exported otherwise than for the purpose of sale or storage for reward."

1. In my view, there is no substance in this submission. The primary obligation under the old reg43 is to notify an appropriate officer of the Department of the intended export. For convenience's sake, the notification may be given to an officer at the port or aerodrome from which the abalone is to be exported, if such an officer is in fact there. It seems from sub–reg.(2) that such officers are likely to be at certain places named therein, but there could be ports and aerodromes from which the fish are to be exported which do not have an officer stationed there and hence the obligation will be fulfilled by giving the written statement to the Director. The ordinary meaning of the word "export" is to take away or carry off, and in a commercial sense, to send out (commodities) from one country to another. In the context of State Fisheries legislation, export clearly, to my mind, means the taking of fish from Tasmanian waters (whether passing through a port or aerodrome or not) to some place outside the State. If the amending regulation makes this clearer by specific reference to export, not only from the State but also from "any State fishing waters", it does not derogate from the meaning implicit in the old regulation that export includes removal of the commodity in question from the State, including its fishing waters.

1. To my mind, the meaning is clear. There was no dispute that abalone had been taken from State fishing waters to a port in Victoria without the necessary written statement being given in the appropriate time, and the learned magistrate was right to find the charge made out. These grounds also fail. The conviction must be affirmed. The remaining grounds of appeal should be listed for hearing as soon as convenient so that this protracted matter can be finally resolved.