Munday v Jensen
[2004] TASSC 129
•17 November 2004
[2004] TASSC 129
CITATION: Munday v Jensen [2004] TASSC 129
PARTIES: MUNDAY, Michael Francis
v
JENSEN, Kim Alan
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 2/2004
DELIVERED ON: 17 November 2004
DELIVERED AT: Hobart
HEARING DATES: 19, 20 October 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Primary Industry – Fish – Offences – Other cases – Possession of over 20 abalone without appropriate docket, receipt or licence – Sentence – Whether punishable by imprisonment.
Living Marine Resources Management Act 1995 (Tas), s41.
Fisheries (Abalone) Rules 2000 (Tas), r17(1).
Fisheries Penalties Regulations 2001 (Tas), reg7(2).
Aust Dig Primary Industry [35]
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: F C Neasey
Solicitors:
Applicant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2004] TASSC 129
Number of Paragraphs: 54
Serial No 129/2004
File No LCA 2/2004
MICHAEL FRANCIS MUNDAY v KIM ALAN JENSEN
REASONS FOR JUDGMENT BLOW J
17 November 2004
This is a motion for the review of certain convictions and sentencing orders imposed by a magistrate in relation to an abalone diving expedition undertaken by the applicant. He contends that he was wrongly convicted of the more significant charges, and that the penalties imposed in respect of the most serious charge, count 1, were manifestly excessive.
By count 1, the applicant was charged with taking more than 10 abalone in one day without a "fishing licence (abalone dive)" contrary to the Fisheries (Abalone) Rules 2000, r17(1)(a). After some amendments, that count in its final form alleged that on 16 December 2001 at Petal Point in Tasmania he took 125 abalone and abalone meat contained in two hessian bags when he was not the holder of a "fishing licence (abalone dive)". The complaint was further amended so as to allege in the alternative that he unlawfully possessed more than 20 abalone, contrary to the Fisheries (Abalone) Rules, r17(1)(c), in that he possessed a quantity of fish comprising 125 abalone and abalone meat contained in two hessian bags at a time when (a) he did not have the third copy of the completed diver's docket relating to that abalone with the abalone to which the docket related, (b) he did not have a receipt relating to the purchase of that abalone from a fish merchant with the abalone to which the receipt related, and (c) he was "not the holder of a fishing licence (abalone dive) having taken the abalone under that licence and the abalone had not been landed". In relation to count 1, the learned magistrate found the applicant guilty of the alternative charge; convicted him; sentenced him to four months' imprisonment, of which two months were suspended on condition that for a period of three years he commit no offence against the Living Marine Resources Management Act 1995 or any regulation or rule made pursuant thereto; and imposed a special penalty of $14,700.
Count 2 was a charge of failing to carry a measuring device when taking abalone. The applicant pleaded not guilty, but was found guilty, convicted, and fined $150.
Count 3 was a charge of unlawfully possessing greenlip abalone meat weighing less than 70 grams, contrary to the Fisheries (Abalone) Rules, r21(1). Count 4 was a charge of failing to bring abalone ashore above the high-water mark before detaching them from their shell, contrary to the Fisheries (Abalone) Rules, r19(1). On each of counts 3 and 4, the applicant pleaded not guilty, but was found guilty. Convictions were recorded but no other penalties imposed on those counts.
Count 5 was a charge of allowing an unregistered motor boat to be used, contrary to the Marine and Safety (Motor Boats and Licences) By-Laws 1998, cl 5. Count 6 was a charge of being the owner of a motor boat and failing to ensure compliance with minimum safety equipment requirements contrary to the Marine and Safety (Motor Boats and Licences) By-Laws, cl 13(1). The applicant pleaded guilty to counts 5 and 6. The learned magistrate imposed a global penalty in respect of counts 5, 6 and 8. I will therefore mention count 8 at this point. It was a charge of contravening a provision of the International Regulations for Preventing Collisions at Sea 1972, contrary to the Marine and Safety (Collisions) Regulations 1997, reg5. The applicant pleaded not guilty to that charge, but was found guilty. On counts 5, 6 and 8, the learned magistrate recorded convictions and fined the applicant $200.
Count 7 was a charge of assaulting a police officer contrary to the Police Offences Act 1935, s34B(1)(a)(i). The applicant pleaded not guilty to that charge but was found guilty, convicted, and fined $200. On the whole complaint he was further ordered to pay costs of $576.42. He was also ordered to pay a victims of crime compensation levy of $20, which must have related to count 7: Victims of Crime Compensation Act 1994, s3 (definition of "serious offence", par(d)).
None of the applicant's submissions related to counts 2, 5, 6 or 8. I therefore take it that he does not contend that he was wrongly convicted of those counts. I will not mention them again.
The prosecution case in relation to counts 1, 3 and 4, can be summarised as follows. On the afternoon of 16 December 2001, the applicant and a man named Pressnell were fishing from the applicant's inflatable dinghy in waters off Petal Point on the north coast of Tasmania. The applicant had a recreational abalone fishing licence, which allowed him to take 10 abalone per day. He did not have any other form of licence that allowed him to take or possess abalone. Pressnell also had a recreational abalone fishing licence that authorised him to take 10 abalone per day, but no other relevant licence. The applicant dived from the dinghy twice. Each time, he collected a quantity of abalone, shucked them underwater, and brought them to the surface in a hessian bag. After his second dive, he and Pressnell took the hessian bags ashore on Baynes Island, where they were hidden. They then motored out from the island to a point where Pressnell went diving. He collected a large number of abalone. He shucked some of them underwater. He then brought the shucked and unshucked abalone to the surface in a pillow case. The two men returned to the island, where the applicant hid the pillow case containing the abalone taken by Pressnell. They then returned in the dinghy to the boat ramp from which they had launched it, taking with them only 9 abalone. They were intercepted at the boat ramp by two police officers, Constables Smith and Crawford. Prior to their interception, the applicant, Pressnell and their boat had been observed at a distance by another police officer, Constable Stanley, and a fisheries officer from the Department of Primary Industries, Water and Environment, Mr Binns. They had also been observed by three other men in a passing boat. There were no other boats in the area. As a result of a radio call, two police officers aboard the police vessel Van Diemen, Sergeant Webberly and Constable Hooker, went to the vicinity of the boat ramp and joined Constables Crawford and Smith. Mr Binns arrived. He went to the island with Constable Hooker and Sergeant Webberly. Constable Hooker found the pillow case which contained 106 shucked and 10 unshucked abalone, but the two hessian bags were not located. The abalone in the pillow case were fresh when Constable Hooker located them.
The defence case in relation to counts 1, 3 and 4 can be summarised as follows. The applicant dived for abalone twice, but did not take an excessive quantity of them, and did not detach any from their shells. After his second dive he took the boat to more sheltered waters near the island, where he let Pressnell dive for abalone. To his surprise, Pressnell came to the surface with a large quantity of abalone in the pillow case. The applicant refused to let him bring it on board the boat, but took Pressnell to the island, where he hid the pillow case. Neither of them took or hid other abalone in hessian bags.
The prosecution case in relation to the assault charge was that, after his interception by Constables Crawford and Smith, but before the arrival of the Van Diemen and Mr Binns, the applicant twice pushed Constable Crawford forcibly in the chest with his hands, and then got Constable Crawford in a bear hug and began wrestling with him, whereupon Constable Smith came to his assistance, and they wrestled the applicant to the ground. The charge related only to the pushing to the chest. The applicant contended that Constable Crawford had initiated the use of force by putting his hand on the applicant's shoulder; that that was unlawful because he was not then under arrest; and that the subsequent pushing to the chest was a lawful attempt to make Constable Crawford leave him alone.
The applicant argued four grounds of appeal. I will deal first with ground 4, which relates to the evidence of Pressnell; then with grounds 1 and 2, which relate to the impugned convictions; and finally with ground 3, which relates to the penalties on count 1.
Ground 4 ¾ Evidence of Pressnell
This ground reads as follows:
"4 The Learned Magistrate erred in law in failing to adequately direct herself as to the dangers of convicting on evidence of a person who at law was an Accomplice."
On the prosecution case, Pressnell and the applicant were accomplices, in that Pressnell was a principal offender in relation to the abalone he took, as well as aiding and abetting the taking of abalone by the applicant. Prior to the commencement of the Evidence Act 2001, the common law required judges to warn juries in similar circumstances that it was dangerous to convict on the evidence of an accomplice unless it was corroborated: Davies v Director of Public Prosecutions [1954] AC 378. The common law, when it applies, also requires magistrates to treat the evidence of accomplices similarly: McNee v Kay [1953] VLR 520 at 533 – 534; Betts v Hardcastle (2001) 23 WAR 559.
The situation in relation to jury trials is now governed by the Evidence Act, s165, which includes the following:
"165 ¾ (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
…
(d)evidence given in a criminal proceeding by a witness who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding;
…
(2) If there is a jury and a party so requests, the judge is to ¾
(a)warn the jury that the evidence may be unreliable; and
(b)inform the jury of matters that may cause it to be unreliable; and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it."
The learned magistrate delivered lengthy and thorough reasons for finding all the defended charges proven. In those reasons she said the following as to the evidence of Pressnell:
"The prosecution also called Pressnell to give evidence. His evidence to say the least was surprising and must be treated with some care as a result of the circumstances in which it was given. He first gave evidence on the 2nd October 2002. As he began to give his evidence it became clear that to continue to do so might result in his incriminating himself in respect of possible offences under fisheries legislation. He was warned about this and objected to answering further questions. His position under the Evidence Act 2001 was explained to him and the possibility of his being granted a certificate pursuant to section 128 of that act [sic] was also outlined. After hearing his application in that regard and submissions from both the prosecutor and the defendant, that certificate was given. Pressnell then gave extensive evidence about his dealings with the defendant.
…
Before making findings on the evidence heard, comment needs to be made about certain matters. A significant portion of the prosecution case revolved round the evidence of Pressnell. The court must have concerns about the reliability of that evidence given that he was involved with the defendant in the activities at Petal Point on the 16th December 2001, he has in giving evidence (if it is accepted) implicated the defendant in the commission of offences, he has not apparently been charged with any offences arising out of the day and in fact received a certificate pursuant to the Evidence Act. He has also on his own admission lied to police about what happened on the particular day. For these reasons I have not accepted Pressnell's evidence unreservedly and have generally done so only where there is other evidence to support it or where the inferences from other facts before the court are strong enough to render his evidence inherently credible."
Immediately before publishing her reasons, the learned magistrate made some comments, including the following:
"Now I've been obliged to deal with Mr Presnell's evidence with some care because of his role in the events that brought the charges to court and the circumstances in which he gave his evidence. Dealing perhaps however with the defendant, and I make these comments simply because it may explain more clearly why the end results that I've reached have been brought about, I have not accepted him as a truthful witness in general terms. As to Mr Presnell, I have generally only accepted his evidence where it's been supported by other witnesses – or where his evidence was inherently believable as a result of other circumstances or facts."
Mr Neasey submitted that, as a result of the enactment of the Evidence Act, a magistrate no longer has a common law duty to treat the evidence of an accomplice as evidence upon which it would be dangerous to convict without corroboration. I doubt that that is correct, but do not think I need to decide the point since the comments I have quoted establish that the learned magistrate proceeded on the basis that it was dangerous to rely on any evidence given by Pressnell that was uncorroborated. Ground 4 must fail.
Grounds 1 and 2 ¾ Unsafe and unsatisfactory verdicts
These grounds read as follows:
"1The Learned Magistrate erred in law and fact in recording a conviction that went against the weight of evidence.
2The Learned Magistrate erred in law and fact in placing too much weight on the evidence of a witness who was, in law, a Co-Offender and paid police informant & a person who had been advised of the availability of a reward should his assistance bring about the conviction of the applicant."
A judge's function when reviewing a magistrate's decision on an issue of fact is similar to that which the Court of Criminal Appeal performs when it is hearing an appeal from a verdict of a jury: Kelly v O'Sullivan (1995) 4 Tas R 446. When an applicant moves for the review of a conviction on the basis that it was against the weight of the evidence, or on the basis that the magistrate placed too much weigh on particular evidence, the question to be determined by the court is whether the conviction was "unsafe and unsatisfactory" in the sense discussed by the High Court in such cases as Chidiac v R (1991) 171 CLR 432. The relevant test was explained in that case by Mason CJ at 442 – 443 as follows:
"It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted … In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused …".
It follows that the question to be addressed in relation to grounds 1 and 2 is whether the learned magistrate, acting reasonably, should have entertained a reasonable doubt as to the guilt of the applicant in relation to any of the relevant charges. In addressing that question, it is necessary to bear in mind the advantage that the learned magistrate had in seeing and hearing the witnesses.
Count 1
As I have said, count 1 comprised a primary charge and an alternative charge. The primary charge related to the taking of an excessive quantity of abalone in a single day, whereas the alternative charge related to the possession of more than 20 abalone in the absence of circumstances that made the possession of such a quantity of abalone lawful. The learned magistrate made findings that the applicant had caught a significant quantity of abalone, shucked the bulk of it underwater, brought it to the surface in two hessian bags, and hidden them on the island. However, when she came to consider count 1, she did not address the question whether the primary charge had been proven beyond reasonable doubt, but proceeded to consider the alternative charge, and to conclude that it had been proven beyond reasonable doubt. No complaint has been made in these proceedings about her addressing the alternative charge without first having considered the primary charge. I think it must follow that I should ignore the primary charge, and consider whether the learned magistrate ought to have had had a reasonable doubt in relation to the alternative charge.
That charge involved an allegation that the applicant had contravened the Fisheries (Abalone) Rules, r17(1)(c), which read as follows:
"17 ¾ (1) A person must not ¾
(a)
(b)
(c) have possession of more than 20 abalone unless the person ¾
(i) has the yellow sheet of the completed diver’s docket relating to the abalone with the abalone to which the docket relates; or
(ii) has a receipt relating to the purchase of the abalone from a fish merchant with the abalone to which the receipt relates; or
(iii) is the holder of a fishing licence (abalone dive) who has taken the abalone under that licence and the abalone have not been landed.
Penalty:
Fine not exceeding the applicable Grade 3 penalty."
It was common ground that the applicant did not have any docket, receipt or licence that would have made his possession of more than 20 abalone lawful. The critical question was whether he was in possession of more than 20 abalone. The learned magistrate found that he was in possession of the 9 abalone found by the intercepting officers at the boat ramp, the 116 abalone found in the pillow case on the island, and the contents of the two hessian bags that were described by Pressnell that were not found by the police.
Pressnell gave evidence to the effect that the applicant had asked him to accompany him as a "deckie" or deck hand for a few hundred dollars, saying that he was intending to poach abalone; that the applicant undertook two dives, each time producing a hessian bag containing a significant quantity of shucked abalone; that the two men hid the hessian bags on the island under rocks; that Pressnell then undertook a dive and brought up the abalone later found in the pillow case; that the applicant had hidden the pillow case on the island; and that Pressnell had a conversation with the applicant on 11 January 2002 that was secretly recorded using a listening device. There was also evidence that police officers had paid Pressnell a total of $680, said to be for petrol and telephone expenses, in relation to his activities as a police informant. On the other hand, there was no suggestion that he expected a formal reward. Because he was both an accomplice and a paid police informant, it was dangerous to convict on his evidence without corroboration. He had not been charged with any offence, despite having brought ashore 116 abalone, 106 of them already shucked, when his licence allowed him to take only 10. The police had given him hundreds of dollars. It was in his interests to tailor his evidence to suit the wishes of those who had rewarded him by not charging him and by paying him money. It was also in his interests to try to shift blame for the poaching of abalone away from himself and onto the applicant, to the extent that he could. Furthermore, as the learned magistrate observed in a paragraph I have already quoted from her reasons, Pressnell had admitted to having lied to the police about the events of the day in question. However his evidence was corroborated in significant respects by evidence of the taped conversation, surveillance evidence, evidence from the three "civilians" in another boat, and answers given by the applicant under cross-examination.
The surveillance was carried out by Constable Stanley and Mr Binns from a hilltop overlooking the waters in question. They commenced their observations at about 3pm or 3.05pm. They did not see any vessel other than the applicant's dinghy. Both saw a person with long whitish hair in the boat and a second person, a diver, in the water. Both saw the diver surface, submerge again, surface a second time, and get into the dinghy. Both said they saw the dinghy then travel to a pebbly beach at the eastern end of the island. Stanley said that one person stayed at the dinghy while the other took an object, carried it ashore, and placed it between or behind some rocks. Binns said that both men walked to the end of the pebbly beach, that one of them carried a bag, and that he appeared to hide it. Constables Stanley and Hooker gave evidence that, following the arrival of the Van Diemen, Hooker searched on the island following directions given by radio by Stanley, and that Stanley's directions led him to the pillow case that contained abalone. Both Stanley and Binns said that they did not see any other vessels prior to the interception of the applicant and Pressnell. Their evidence is consistent with Pressnell's evidence as to his activities and those of the applicant, beginning at the stage when Pressnell was diving.
The three civilians each gave evidence of seeing the dinghy, a person in it, and a person in the water, as they sailed back to the boat ramp. Each gave evidence that the person in the boat was pulling on something. One of them suggested that it was a hose or a rope. Another suggested that it was "a rope or something". Two of them said that they then saw the vessel go to a beach on the island. According to a finding of the learned magistrate, the description given by the civilians of the person in the boat corresponded with the appearance of Pressnell, rather than the appearance of the applicant. The evidence that Stanley and Binns did not see the civilians' boat suggest that the journey to the island that they described was a different one from the journey to the island described by the civilians, undertaken at an earlier time. That is also suggested by the differences between the descriptions of the man the civilians saw alone in the boat and the descriptions of the man Stanley and Binns saw alone in the boat. In these respects, the civilians' evidence is consistent with the evidence given by Pressnell as to events occurring from a time during the applicant's second dive until a time when the dinghy was ashore on the island for the first time.
The conversation between Pressnell and the applicant in January 2002 was recorded pursuant to a warrant issued under the Listening Devices Act 1991. The recording contains evidence that strongly incriminates the applicant and strongly corroborates Pressnell. I will refer only to the parts of the conversation that I consider the most significant.
At one point in the conversation, the applicant discussed the possibility that the police had video equipment on the day in question. He said the following, apparently referring to future court proceedings:
"And sort of – but the thing is this, that I'm just going to say, 'Well if you had a video on me, as you say you did, what's it going to show? It's going to show you in the boat and it's going to show me coming to the surface on two occasions, and what came aboard, a brown hessian sack'."
A little later, the conversation proceeded as follows, apparently still in relation to video equipment:
"munday: Because they're required to have it, right, on a big operation they're required to have it, because it just eliminates all the possibilities sort of, you know, yes it did, no it didn't, yes it did, look let's have a look at the pictures. Now if they didn't have it, what it means that they've got the pictures alright but the pictures don't show what they wanted - to show.
pressnell: Yep.
munday: The pictures show me coming to the surface on two occasions with a brown hessian bag.
pressnell: Yeah, right, so if they had hard evidence they would have done you by now sort of thing?
munday: Absolutely.
pressnell: Yeah, right.
munday: Absolutely. Plus the other thing is that if they had hard evidence it wouldn't have taken em forty minutes to fucking - they would have gone straight to the spot which they were in.
pressnell: Yeh.
munday: Number two, if they had hard evidence -
pressnell: Eh?
munday: If they had hard evidence do you think I would have been able to go back next day and get my fish?
pressnell: Yeah. Yeah.
munday: No. They didn't have it, obviously.
pressnell: Oh right, I see what you mean, yeah, right. Right, right, right. So yeah, right.
munday Also, if you were looking at me, right, and you said, 'Oh shit, there's one bag, two bags, three bags'.
pressnell: Yeah.
munday: 'We found one.'
pressnell: 'We're happy', because they were happy with the one.
munday: Excellent, yeah, they were happy with the one, weren't they?
pressnell: Yeah.
munday: They were.
pressnell: Yeah, yeah, yeah, yeah.
munday: They held it up and they went away.
pressnell: Yeah, right. So if they had the hard evidence they would have stopped and looked for the other two.
munday: Absolutely, they would have brought all the boys in from the boat and just combed her, you know, side by side.
pressnell: Yeah, yeah, yeah.
munday: And it's only the size of two houses, that island."
This portion of the conversation corroborates Pressnell's evidence that three bags of fish were hidden on the island, that only one bag of fish was found by the police, that the fish in the two bags that the police did not find were taken by the applicant, and that the applicant invited him to go with him to the island the next day to recover those two bags of fish.
The conversation continued. The two men discussed the possibility that Pressnell would tell the police that he had taken the abalone, that he would be fined, that the fine would be unenforceable because he did not own anything, and that he could tell the magistrate that he took the fish with a different person the previous day. The applicant suggested that Pressnell, when giving evidence, could claim privilege against self-incrimination and obtain a certificate. Those events later occurred. A little later the conversation turned to the subject of accessorial liability, with the following exchange:
"munday: But it's that if they could prove, right, that although they weren't my fish they were your fish, but I assisted you in taking them by being there with the boat etcetera, I'm as guilty as what you are.
pressnell: Oh right. Right, so if I was to take the fall I'd have to say that you knew nothing about our fish.
munday: Yep."
By saying "Yep" in response to the comment about "our fish", the applicant acknowledged that the abalone poaching on the day in question was a joint enterprise.
The police officers gave evidence that the pillow case, when it was found, was tied up with a piece of blue cord. Pressnell gave evidence that that blue cord had come from a roll of blue cord that he and the applicant had on the shore. The police officers did not seize the roll of blue cord on the day in question. The applicant spoke about the blue cord on the pillow case, and about the same blue cord being on a float found by the police. The conversation continued as follows:
"munday: Good one. Because the critical thing about that was the fact that they forgot – when I went back to the camp next day there it was, it was still there.
pressnell: Yeah, yeah.
munday: Didn't take it with 'em, mate.
pressnell: Yeah, yeah.
munday: And they're going to look very very sad – this is what we're, you know, we're basing our case on this and 'Well where is it?' 'Oh, er, so – well we forgot it, your Worship'. Yeah, you know, 'Here's your main bloody piece of evidence and you're telling the Court your [sic] forgot it? How long have you been in the Police Force for?'"
What the applicant said about the blue cord amounts to an admission that it was evidence that would have incriminated him by linking him to the pillow case and the abalone in it.
Under cross-examination, the applicant admitted that he was the organiser of the trip on the day in question, and that Pressnell had no experience at all in diving for abalone. He also admitted that on a previous occasion he had said that Pressnell's role on the day was to be his deckie, or to go deckie for him. The learned magistrate, as she was entitled to do, regarded that evidence as corroborating in a material respect Pressnell's evidence of the applicant offering him hundreds of dollars to be his deckie and saying that he was going to poach abalone.
The applicant gave evidence, but the learned magistrate took the view that his evidence lacked credibility. She found the possession charge proven on the basis of the evidence of Pressnell and the corroborative evidence that I have referred to. The applicant made lengthy submissions relevant to the question whether the learned magistrate ought to have entertained a reasonable doubt in respect of count 1. Much of what he said was directed to the proposition that Pressnell was an unreliable and untrustworthy witness. I accept that to be the case, and therefore need not catalogue the pieces of evidence leading to that conclusion.
The applicant submitted to me that Constable Stanley was not a witness of the truth. He submitted that Stanley was present with excellent video equipment, and that he would have been videoed by Stanley if he had committed the offences with which he was charged. Stanley gave evidence that he made little use of his video camera because he did not have a tripod, and did not know whether the image that he saw would come out on the video film. Stanley used the video camera to film intermittently from the observation point. The filming commenced about 20 minutes before the applicant's vessel came ashore. Stanley used the video camera to record a series of contemporaneous comments as to developments up to and including the finding of the abalone in the pillow case. Much of the soundtrack is hearsay. According to Stanley's evidence and the audio commentary on the videotape, Stanley had seen the men in the dinghy take an object ashore before he started filming. In his evidence he said that one man stayed with the boat while the other took the object ashore, whereas his commentary referred to "a sack or an object being dragged ashore by the divers", obviously referring to both men. In my view the applicant's submissions as to the credibility of Constable Stanley have no real merit. Inconsistencies on minor points, such as whether an item was carried ashore by two men or one, are of no real significance. It is common ground that the abalone found in the pillow case were taken ashore shortly before the dinghy was sailed back to the boat ramp. Imprecision and minor inconsistencies as to matters of detail are of no real significance. On the prosecution case, the diving done by the applicant must have been completed prior to the arrival of Stanley and Binns at the observation point. There is no evidence that they were there any earlier than about 3pm. The absence of video footage of events occurring before 3pm therefore does not weaken the prosecution case in the slightest.
The applicant submitted that the tape of the conversation in January 2002 was consistent with his innocence. He submitted that, when he spoke of going back the next day and getting his fish, he could very well have been referring to other fish that were owned by him, had been obtained lawfully from another source, and were in the same area. I reject that suggestion. If he had been referring to a different catch or cache of fish, there would be no sense in what he said to Pressnell namely, "If they had hard evidence do you think I would have been able to go back next day and get my fish?" The passages that I have quoted from that conversation are simply not consistent with the applicant's innocence.
The applicant made submissions about the evidence of the three "civilians", whose names were Mountney, Goninon and Musicka. He submitted that they had given different descriptions of the man they first saw in the dinghy. Mr Mountney described that person as looking around 14 or 15, and probably about 5½ feet tall. Mr Goninon said this person was a little fellow, whom he thought would be about 13 or 14 years of age. He said the applicant's build was a bit bigger. Mr Musicka was not asked to describe the individual in question. The applicant emphasised that none of the three civilians gave evidence of seeing a bag being passed onto the boat by the diver whom they saw, nor of anyone going ashore when they saw the dinghy go to the island. However these three men had no reason to take any interest in the activities of the applicant and Pressnell. It follows that events that were important in relation to this case could have occurred without them noticing or recalling those events. There were inconsistencies between the three civilians as to the timing of their movements, but those inconsistencies are explained by the fact that Mr Musicka was not wearing a watch, and was estimating the time of day by reference to the position of the sun.
The applicant submitted that a number of pieces of evidence relevant to the timing of events tended to cast doubt on the prosecution case. However the evidence of the arrival of Stanley and Binns at their observation point at about 3pm, the evidence of the three civilians passing by earlier in the afternoon, and the evidence as to the divers' air tanks, taken collectively, is by no means inconsistent with the applicant having undertaken two dives, taken a large quantity of abalone on each occasion, landed them on the island, and then facilitated the undertaking of a dive by Pressnell and the landing of a further quantity of abalone on the island before the return to the boat ramp and the interception by the police officers.
There were many more points that the applicant made about the evidence. Some points were of minor significance. Others were of no significance. I do not think I need list and evaluate all of them. I will give some examples. There was evidence that the applicant expected to be under police surveillance, including video surveillance, and that he told Pressnell of this expectation. However, that is by no means inconsistent with the prosecution case. There is ample evidence that the applicant went to significant lengths to hide the abalone taken by him, and to thwart the police investigation by bringing ashore a quantity of seaweed or goose grass intending that the police would find it when hoping to find poached abalone. The applicant submitted that evidence given by Pressnell, to the effect that the two hessian bags containing shucked abalone were buried under rocks, was unbelievable because the abalone would have been rendered worthless if rocks had been piled on top of them. Similarly, he criticised as unbelievable evidence given by Pressnell that the abalone landed by him consisted in part of abalone found by him on the seabed already shucked and quite intact, but amongst the disintegrated remains of hessian bags that had apparently held them. The evidence about piling rocks on abalone, and about intact abalone amongst disintegrated bags, might very well be inherently unbelievable, but it does not follow that other evidence given by Pressnell is untrue, at least when it is not inherently unbelievable and has been corroborated in material respects.
Taking the applicant's submissions relevant to his conviction on count 1 as a whole, I think it can fairly be said that there were many small points weighing in his favour that were able to be made. However, taking those matters separately and in the aggregate, I think they fell far short of compelling a conclusion that the learned magistrate should have entertained a reasonable doubt as to his guilt on count 1. The evidence corroborative of Pressnell's evidence, to which I have referred, resulted in it being open to the learned magistrate to find the alternative possession charge proven. To the extent that any abalone were in the possession of Pressnell, the verdict was appropriate on the basis that the applicant aided and abetted Pressnell. In my view the verdict in relation to count 1 is unimpeachable.
Count 3
The learned magistrate received evidence that the meat of 7 of the greenlip abalone found in the pillow case each weighed less than 70 grams. The critical question in relation to count 3 was whether those abalone were in the possession of the applicant. The learned magistrate was satisfied beyond reasonable doubt that they were. As I have said, she found that the applicant had possession of the abalone found in the pillow case. Grounds 1 and 2 must therefore fail in relation to count 3 for the reasons that I have given in relation to count 1.
Count 4
This was the charge of failing to bring abalone ashore above the high-water mark before detaching them from their shell. The learned magistrate found this charge proven in relation to the 106 shucked abalone meats found in the pillow case and in relation to the abalone in the hessian bags. She accepted Pressnell's evidence that the 106 abalone were shucked before they were taken ashore and that the contents of the hessian bags were shucked abalone.
Pressnell said in his evidence that he shucked some of the 106 abalone, but that he found the rest of them already shucked. Constable Stanley gave evidence that about half of them looked to be fresh, but that the others looked to be old. Constable Crawford said he noticed a difference in colour, but was not prepared to express any opinion as to their ages. The applicant submitted that it was unbelievable that shucked abalone would have been found intact underwater by Pressnell. I think there are two possibilities as to who shucked the older looking abalone meats found in the pillow case. One is that Pressnell shucked them. The other is that the applicant, or someone whom he aided and abetted, shucked them on an earlier occasion, and that he directed Pressnell to them. Whichever is the case, the applicant must be criminally responsible for not bringing them all ashore before they were shucked.
The evidence that Pressnell knew nothing about abalone diving before the day in question, together with the evidence that he shucked at least some of the 106 abalone whose meats were found in the pillow case, in my view corroborates his evidence that the applicant shucked the abalone in the hessian bags before they were brought ashore. The applicant expected to be under police surveillance. By shucking abalone underwater, hiding them on the island, and bringing ashore a lawful quantity of unshucked abalone, he might very well have outwitted anyone observing his actions from a distance. The fact that such a strategy became known to Pressnell, a novice abalone diver, tends to confirm Pressnell's evidence that this strategy was one adopted by the applicant. I think it follows that it was reasonable for the learned magistrate to accept Pressnell's evidence as to the abalone in the hessian bags having been shucked underwater and that, despite Pressnell's inherent untrustworthiness, it cannot be said that she should have had a reasonable doubt in relation to the applicant's guilt on this charge. Grounds 1 and 2 must fail in relation to count 4.
Count 7
The prosecution bore the onus of proving beyond a reasonable doubt that the applicant assaulted a police officer "in the execution of his duty". It is therefore necessary to consider the evidence as to what Constable Crawford was doing when the applicant pushed him in the chest. According to the Constable's evidence, the assault occurred after the applicant's dinghy and vehicle had been searched, and after he had informed the applicant that he required him to remain at the boat ramp because the police intended to search the island once the police vessel Van Diemen arrived. When he said that, he told the applicant that the vessel was approximately 45 minutes away. The applicant did what he was told, and waited in the vicinity of the boat ramp for the Van Diemen to arrive. He asked Constable Crawford to be permitted to go to the toilet, but the constable said that he would have to accompany him, and the applicant declined to go. He made a second request to be permitted to go to the toilet. Constable Crawford again agreed, but said again that he would have to accompany him. They set out on foot, walking away from the boat ramp, but, after about 10 metres, the applicant turned around, said words to the effect that he was not going to go to the toilet, and began walking back towards the boat ramp. Before reaching the boat ramp, the applicant said words to the effect of "Come on have a go" and pushed the constable with both hands to the chest, twice.
Mr Neasey submitted that Constable Crawford was then acting in the course of his duty because he was lawfully detaining the applicant pursuant to a requirement imposed under the Living Marine Resources Management Act, s188(1)(b). That provision reads as follows:
"188 ¾ (1) For the purpose of this Act, a fisheries officer may ¾
(a)…
(b)direct a person who has possession of any apparatus or equipment to wait for a reasonable period at a specified place for an inspection of the apparatus or equipment".
The applicant had possession of a dinghy and a vehicle, but they had already been inspected when Constable Crawford's direction was given. The applicant also had possession of a pillow case full of abalone on the island, but Constable Crawford's direction could not have related to that pillow case because he did not then know of its existence. He could not have been aware of any particular apparatus or equipment on the island. The anticipated inspection was an inspection of the island, not of any apparatus or equipment in the possession of the applicant. It follows that Constable Crawford had no right to give the direction that he did. It was no part of the constable's duty to supervise the movements of the applicant for the purpose of ensuring that he complied with a direction that he had had no legal right to give. He was therefore not acting in the execution of his duty. I think the wording of ground 1 is wide enough for it to succeed, in relation to count 7, on the basis that there was no evidence that Constable Crawford was acting in the execution of his duty in supervising the applicant, for the purpose of ensuring that he did not leave the area of the boat ramp, at the relevant time. The conviction and other orders relating to count 7 must be quashed.
Ground 3 ¾ Penalty
This ground relates only to count 1. It reads as follows:
"3The imposition of a gaol term of 4 months coupled with a special penalty of $14,700 was wholly disproportionate to the offences of which the applicant was convicted."
As I have explained, the prison sentence was imposed in respect of a contravention of the Fisheries (Abalone) Rules, r17(1)(c). At the foot of r17(1), a penalty is specified in the following words:
"Penalty: Fine not exceeding the applicable Grade 3 penalty."
As at the date of the offence, 16 December 2001, the following definitions appeared in r3(1) of those Rules:
"'Grade 3 penalty' means the penalty specified in regulation 7 of the Penalty Regulations;
…
'Penalty Regulations' means the Fisheries (Penalty) Regulations 1996".
The Fisheries (Penalty) Regulations 1996 were rescinded by the Fisheries Penalties Regulations 2001, reg8, with effect from 7 March 2001. By virtue of the Acts Interpretation Act 1931, ss17 and 5(1), the reference to repealed regulations was required to be construed as a reference to the Fisheries Penalties Regulations 2001, reg7, which provided as follows:
"7 ¾ (1) The penalty for an offence against any rule or regulation specified as a Grade 3 penalty is as follows: ¾
(a)for a level 1 offence ¾
(i) a fine not less than one penalty unit and not more than 5 penalty units, for a first offence; or
(ii) a fine not less than 2 penalty units and not more than 100 penalty units, for a second offence; or
(iii) a fine not less than 5 penalty units and not more than 200 penalty units or a term of imprisonment not exceeding 6 months, or both, for a third or subsequent offence;
(b)for a level 2 offence ¾
(i) a fine not less than 2 penalty units and not more than 5 000 penalty units or a term of imprisonment not exceeding 6 months, or both, for a first offence; or
(ii) a fine not less than 5 penalty units and not more than 5 000 penalty units or a term of imprisonment not exceeding 12 months, or both, for a second offence; or
(iii) a fine not less than 10 penalty units and not more than 5 000 penalty units or a term of imprisonment not exceeding 2 years, or both, for a third or subsequent offence;
(c)for any other case ¾
(i) a fine not less than one penalty unit and not more than 5 000 penalty units or a term of imprisonment not exceeding 6 months, or both, for a first offence; or
(ii) a fine not less than 2 penalty units and not more than 5 000 penalty units or a term of imprisonment not exceeding 12 months, or both, for a second offence; or
(iii) a fine not less than 5 penalty units and not more than 5 000 penalty units or a term of imprisonment not exceeding 2 years, or both, for a third or subsequent offence.
(2) A reference in any rule or regulation to a fine not exceeding the applicable Grade 3 penalty includes a reference to a term of imprisonment as specified in that penalty."
Counsel for the respondent submitted that, by virtue of reg7(2), the word "Fine" in r17(1) was required to be interpreted as including a reference to a term of imprisonment as specified in the applicable Grade 3 penalty. However the applicant referred me to the Living Marine Resources Management Act, s41, which provides as follows:
"41 Any provision of rules made under this Division which is inconsistent with a provision of any regulations prevails over the latter provision to the extent of that inconsistency."
The relevant rules are within the scope of s42. They make no provision for imprisonment. Rule 17(1) provides for a fine not exceeding the applicable "Grade 3 penalty". That must be taken to mean a fine not exceeding the applicable penalty specified in reg7(1). Without recourse to the regulations, that can only be construed as a reference to a fine, and not as a reference to imprisonment. Insofar as reg7(2) purports to alter the meaning of r17, it is inconsistent with that rule. It follows that that rule must prevail by virtue of s41. It follows that the learned magistrate had no power to sentence the applicant to imprisonment on count 1, and that ground 4 must succeed.
Conclusion
My orders are therefore as follows:
1 That the appeal be allowed.
2That the sentence of imprisonment imposed in respect of count 1 on complaint 1154/02 be quashed.
3 That the conviction and fine imposed in respect of count 7 on the said complaint be quashed.
4 That the order that the applicant pay a victims of crime compensation levy of $20 be quashed.
5 That the said count 7 be dismissed.
I will invite submissions as to the question of penalty in respect of count 1.
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