O'Brien v Ostrowski
[1999] WASCA 184
•24 SEPTEMBER 1999
O'BRIEN -v- OSTROWSKI [1999] WASCA 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 184 | |
| Case No: | SJA:1081/1999 | 23 AUGUST 1999 | |
| Coram: | McKECHNIE J | 24/09/99 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, conviction set aside, matter remitted for retrial | ||
| PDF Version |
| Parties: | KEVIN MICHAEL O'BRIEN GEORGE PETER OSTROWSKI |
Catchwords: | Evidence Presumption of accuracy of navigation equipment Global Positioning System GPS Whether evidence to the contrary Criminal law Honest and reasonable mistake Sentencing Technical offence No new principles |
Legislation: | Criminal Code (WA), s 24 Fish Resources Management Act 1994 (WA), s 215 Justices Act 1902 (WA), s 199(1) Sentencing Act 1995 (WA), s 46 |
Case References: | Casey v Glenn, unreported; SCt of WA; Library No 7642; 5 May 1989 Cato v Costello; Ex parte Costello (1938) St R Qd 318 Gabriel v Ah Mook (1924) 34 CLR 591 Geraldton Fishermen's Co-Op Ltd v Munro [1963] WAR 129 Pearce v Stanton [1984] WAR 359 Selby v Pennings (1998) 19 WAR 520 Teede v Wright [1999] WASCA 121 The Adelaide Steamship Co Ltd v His Majesty The King and The Attorney General of the Commonwealth (1912) 15 CLR 65 Wann v Mosel, unreported; SCt of WA (Anderson J); Library No 8839; 30 April 1991 Chiou Yaou Fa v Morris (1987) 46 NTR 1 Ealing v Breedon, unreported; SCt of WA (Owen J); Library No 940373; 11 April 1994 Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 Mehesz v Redman (No 2) (1980) 26 SASR 244 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
GEORGE PETER OSTROWSKI
Respondent
Catchwords:
Evidence - Presumption of accuracy of navigation equipment - Global Positioning System - GPS - Whether evidence to the contrary - Criminal law - Honest and reasonable mistake - Sentencing - Technical offence - No new principles
Legislation:
Criminal Code (WA), s 24
Fish Resources Management Act 1994 (WA), s 215
Justices Act1902 (WA), s 199(1)
Sentencing Act1995 (WA), s 46
Result:
Appeal allowed, conviction set aside, matter remitted for retrial
(Page 2)
Representation:
Counsel:
Appellant : Mr R W Richardson & Mr N J Rohr
Respondent : Mr R M Mitchell
Solicitors:
Appellant : Clayton Utz
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Casey v Glenn, unreported; SCt of WA; Library No 7642; 5 May 1989
Cato v Costello; Ex parte Costello (1938) St R Qd 318
Gabriel v Ah Mook (1924) 34 CLR 591
Geraldton Fishermen's Co-Op Ltd v Munro [1963] WAR 129
Pearce v Stanton [1984] WAR 359
Selby v Pennings (1998) 19 WAR 520
Teede v Wright [1999] WASCA 121
The Adelaide Steamship Co Ltd v His Majesty The King and The Attorney General of the Commonwealth (1912) 15 CLR 65
Wann v Mosel, unreported; SCt of WA (Anderson J); Library No 8839; 30 April 1991
Case(s) also cited:
Chiou Yaou Fa v Morris (1987) 46 NTR 1
Ealing v Breedon, unreported; SCt of WA (Owen J); Library No 940373; 11 April 1994
Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481
Mehesz v Redman (No 2) (1980) 26 SASR 244
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997
(Page 3)
- McKECHNIE J:
Introduction
1 On New Year's Day 1997 Mr O'Brien, Mr O'Brien, a commercial lobster fisherman, whilst skippering his ship LFB 288 ("Miss Horrocks") laid 16 lobster pots one after another in a line.
2 Four of the pots were laid in waters north of the line of latitude 30°S.
3 The Miss Horrocks was not authorised to lay pots above that line. It was outside zone C for which the Miss Horrocks had a licence.
4 In consequence Mr O'Brien was charged on complaint:
"That on the 1st January 1997 in the waters of the Indian Ocean Kevin Michael O'Brien contravened a major provision of a management plan, namely the West Coast Rock Lobster Management Plan, as amended, published in the Government Gazette (No 150) on the 2nd day of November 1993 by operating from a boat in the Fishery outside the zone endorsed on the licence for that boat; contrary to Sections 74, 75(1)(a) and 222 of the Fish Resources Management Act 1994."
5 He was convicted after trial, fined $500 and ordered to pay costs.
6 From that conviction he appeals on grounds challenging the finding of accuracy of the GPS system and as to misdirections in relation to the defence of honest and reasonable mistake.
7 He also appeals against the sentence claiming that the Magistrate should have imposed no sentence pursuant to the Sentencing Act 1995 (WA) s 46.
Overview of the evidence
8 Much of the case at trial concerned the accuracy of the GPS navigation system.
9 It is necessary to recount some facts in order to put the grounds of appeal in context.
10 The principal prosecution witness was F O Lemon who at the time was in charge of the patrol vessel "McLaughlan" which was based in Geraldton and covered an area from Jurien Bay to Shark Bay.
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11 He proceeded in a patrol along latitude 30°S which is the point of division between zones B and C of the West Coast Rock Lobster Limited Entry Fishery. There he found four pots in about 43 metres of water. These were later shown to have been laid from the Miss Horrocks.
12 He fixed the position of the pots by use of the Magnavox MX300 GPS system.
13 The four lobster pots were located respectively 552, 417, 270 and 153 metres to the north of the boundary of the relevant zone at latitude 30°S.
14 The patrol vessel McLaughlan returned to Green Head. Fisheries officers located and spoke with Mr O'Brien.
15 He was taken on board the McLaughlan and his first comment was "Why have you got my pots?"
16 Mr O'Brien maintained that his GPS may have been set up wrongly and invited the officers to come and check out his GPS.
17 Specifically Mr O'Brien asked: "Was the head pot about .3 of a nautical mile north of the line", to which F O Lemon replied: "Yes".
18 In a record of interview taken from Mr O'Brien when asked for his explanation as to the position of the pots he said:
"There was no intention of setting any of F288s pots north of the line, basically what I have done is have the GPS set on the wrong time [sic] when I should have had it on Australian datum, I had it set on Japanese datum. When it was sent away last year to be fixed, it came back on Japanese time unknown to me. I set all last year's marks on Japanese times which are of course point 3 out, and this year, I've been trying to put them back in an Australian time. Well, I have been setting them on Japanese time and pulling Australian time so when I went back there to set those pots the other day I thought I had set those pots on the right line not north of the line. When I went there tomorrow morning I would have realised these pots were North of the line when I switched the GPS back to Australian time. The point I am making is I did not intentionally position those pots north of the line. I have never fished north of the line in eleven years."
(Page 5)
19 This explanation in the record of interview generally accords with Mr O'Brien's evidence at the trial.
20 On 31 December 1996 he had gone out with the intention of pulling up his line of 95 pots and rebaiting them.
21 He decided to go after some residential red lobsters and to that end decided that he would spread pots in all the depths on the way home to see what he could find. When he had 16 pots left he was in 25 fathoms and about 2 miles from the line of 30°S. He steered east north-east into more shallow water towards the 30°S line searching for red crayfish.
22 Mr O'Brien described how he went past the line of 30°S one boat length, turned around and came back on a south south-eastern direction. When he was .1 nautical mile south of the line, he dropped the first pot before continuing in a south easterly direction to drop the remaining pots. After he dropped the pots he went back to Green Head anchorage where the next day he was contacted by the Fisheries officers. In due course he realised that the problem had arisen because he had his GPS set on Japanese datum which created an error of about .3 of a nautical mile causing the pots to be laid below the line of 30°S and not to the south of that line as he honestly and reasonably believed.
23 Proof of the offence depended upon the accuracy of F O Lemon's testimony as to the position of the pots. His testimony as to the position is derived from the position of the pots as recorded by him following the fixing of his position by use of the Magnavox MX300 GPS System.
24 The basis of positioning by use of GPS and its accuracy therefore become central matters in respect of this prosecution. For the prosecution it was contended that the evidence it adduced would satisfy the Magistrate beyond reasonable doubt that when F O Lemon identified the position of Mr O'Brien's four lobster pots he was doing so accurately.
The Global Positioning System ("GPS")
25 The global positioning system ("GPS") is a space-based radionavigation system which is managed for the Government of the United States by the US Air Force, the system operator. GPS was originally developed as a military force enhancement system and continues to play this role. However GPS has also demonstrated a significant potential to benefit the civil community in an increasingly large variety of applications. In an effort to make this beneficial service
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- available to the greatest number of users, while ensuring that the national security interests of the United States are observed, two GPS services are provided. The Precise Positioning Service ("PPS") is available primarily to the military of the United States and its allies for users properly equipped with the PPS receivers. The Standard Positioning Service ("SPS") is designed to provide a less accurate positioning capability than PPS for all other users throughout the world. The GPS normally consists of a constellation of 24 satellites, being 21 satellites in the design of the system together with three spare satellites. There are three segments. The control segment is primarily the US Department of Defence, the satellite segment, and the user segment, which is any suitably equipped user.
26 The system is designed to provide users with a minimum of four satellites visible above a 5° elevation 24 hours a day. This is the minimum requirement for a good position fix.
27 There were two expert witnesses called at the trial in relation to the GPS system.
Mr Alexander
28 Mr Kenneth Alexander is manager of systems and standards of the Department of Land Administration. He is a Fellow of the Institute of Surveyors and a Member of the Hydrographic Society. He holds a Bachelor of Applied Science in Surveying and has been involved with GPS surveys since 1985.
29 He has published papers on geodesy, surveying and GPS. He gave evidence that the GPS is normally broken down into three segments. The control segment which is primarily the US Department of Defence, the satellite segment which is the satellites themselves, and the user segment which is any suitably equipped user. The first two are controlled by the US Department of Defence. The user has control of the GPS receiver.
30 Most receivers provide an operational manual. The user needs to be familiar with the operations of the receiver itself. There are no special skills required in the use of a GPS receiver other than to read the manual carefully and to go through the procedures for familiarity.
31 Mr Alexander had been using GPS receivers from when the system came into operation in 1988 or 1989.
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32 Mr Alexander gave evidence that a GPS receiver will give a read-out of latitude, longitude and height. Typically, if the user is in some sort of moving vessel it would also give heading information and time.
33 For a position fix, the system is designed to provide users with a minimum of four satellites visible above the 5° elevation 24 hours a day. He explained that the Australian G addetik datum is the co-ordinate reference system used in Australia for all latitudes and longitudes of points known on the Australian system. Receivers will compute the position of the datum required such as the Australian G addetik datum. Different countries have implemented different datum over the history of their survey.
34 He explained that by policy and design, the US Department of Defence have indicated that the GPS system to civilian users would result in accuracy to within 100 metres horizontal positioning 95 per cent of the time, and to within 300 metres horizontal positioning 99.90 per cent of the time.
35 Although apparently the military system is capable of producing an accuracy of 1 to 3 metres, civilian users were not expected to derive that level of accuracy. A policy of selective availability has been introduced. The signal is deliberately degraded to bring the accuracy down to the level of accuracy to within 100 metres 95 per cent of the time.
36 The dilution of precision is a figure expressed in decimals to indicate to a user whether the satellite geometry is suitable or unsuitable for position fixing.
37 The lower the dilution of precision expressed as a number, the more precise will be the position fix. The dilution of precision is typically five or less and often below three in Western Australia.
38 A satisfactory dilution of precision is a number six or less.
39 Mr Alexander did an assessment on the co-ordinates taken from the Miss Horrocks and the McLaughlan.
40 On 1 January 1997 F O Gosden had taken a reading from the wheelhouse GPS on Miss Horrocks whilst it was at its moorings. The dilution of precision at the time was 1.6. The following day F O Lemon placed the McLaughlan on Miss Horrocks' moorings at the Green Head anchorage and took a reading from the GPS noting a dilution of precision of 1.4.
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41 Mr Alexander's assessment was:
"It certainly shows a very good consistency of the two GPS receivers in their operational state. There was a difference in positions of 30 metres primarily in longitude."
- His conclusion was that:
"Well given that the constellation was quite sufficient in terms of the system itself, with very low DOPS, given that there were between five and six satellites available to be observed, given the experience that GPS typically runs at round about 32 to 65 metres and given the analysis of the line about four - - about the four pots with 125 metres, I would say that the - - the system was operating within specifications and we could expect an accuracy of 200 metres or better."
43 Although the noise, bias and blunder errors were acknowledged Mr Alexander summarised those as being 20 to 30 metres difference on a fix.
Dr Featherstone
44 Dr Featherstone is Associate Professor of Geodecy in the School of Spatial Sciences. He is a Doctor of Philosophy whose thesis was "A GPS Controlled Gravimetric Determination of the Geoid of the British Isles". He has published widely and is an expert. He gave evidence it was possible for transmitting and receiving devices, particularly radio but possibly radar, to interfere with the receiving signal.
45 By virtue of the fact that evidence had been given that the pots were in a straight line, questions were raised in Professor Featherstone's mind as to whether there was something wrong with the GPS. The precise evidence of F O Lemon was that the lines were "pretty much straight". It
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- appeared that at least one pot was somewhat out of line, in excess of 100 metres.
46 Professor Featherstone dealt with transformation error. GPS uses its own datum and for positions coming from a GPS receiver to be related to a local datum is a mathematical process requiring transformation. Transformation error varies from place to place but can be as large as 20 to 40 metres. Professor Featherstone gave evidence about the time F O Lemon took in respect of the four GPS readings. These were over approximately 1-1/2 hours. In Professor Featherstone's opinion if there had been some error affecting the GPS system at that time then it would have affected the positions determined because they had been observed over such a short time span. If there had been an error occurring then it would have affected all the measurements, whereas if they had been made over a long period of time or a number of measurements had been made at those points they would have been more reliable.
47 In cross-examination he agreed that the documents published by the United States set out the parameters of the system specifications. He agreed also that at least four satellites are in view and needed to provide a three dimensional position fix, although only three satellites are required to provide a two dimensional position fix.
48 He acknowledged that a low dilution of precision value meant a good geometry, namely a high level of accuracy, and that to come within the design specifications stated in the reports a dilution of precision value of less than six is required. In relation to other signals potentially interfering with the receipt of the GPS signal he acknowledged that there was a potential for interference. He had not actually measured any interference. In cross-examination he said that if using Australian geodetic datum off the West Australian coast, there was no obvious reason why there could be a large transformation error.
The Magnavox GPS Receiver
49 F O Lemon gave evidence that he used a GPS system known as the Magnavox MX300 GPS System. His description of it was as follows:
"It's a Magnavox - MX300 is the model of it. That transmits data into an electronic plotting device called Oceanvision which - - Oceanvision actually brings a copy of the coloured paper charts like this one here up onto a television monitor, or a video monitor. And overlayed on that is a small symbol shaped like a
(Page 10)
- boat and that flashes on and off and that is actually my position displayed on the chart … including all the symbols and writing that is on that chart. And I can visually see whether - - where I am in relation to that line. Also there is a - - a couple of little data boxes that are on the screen which give me my position in degrees of minutes of latitude and longitude. So I can see both visually and I can also see from the figures displayed in - - in - - in the latitude section as to whether I'm north or south of the 30th parallel."
50 The Mangavox MX300 could track eight satellites. F O Lemon had been using them on Fisheries' patrol vessels since the system came into operation. The prosecution led no evidence as to the specifications and operation of the Magnavox receiver, and in consequence no evidence that the receiver was operated in accordance with those specifications.
51 As F O Lemon pulled each pot which was allegedly below the 30°S line he entered the way points into the Magnavox.
Testing of Magnavox GPS
52 Before leaving port on patrol F O Lemon did checks. Originally there was a survey mark on a jetty alongside the Fisheries' pen in the Geraldton Fishing Boat Harbour. Recordings were taken from GPS positions over a period of approximately 15 minutes to half an hour. That mark had been destroyed three months prior to the offence.
53 Instead he checked the GPS using points from the chart of the Geraldton Fishing Boat Harbour. They were usually checked prior to patrol and at the end of patrol, that is every eight to 10 days. He did not scale off the latitude and longitude directly on the chart because he knew exactly where he was tied up on the wharf and the jetty.
54 Around about 1 January 1997 he recorded some tests by putting way points onto the Oceanvision plotter containing a chart of the Geraldton Fishing Boat Harbour. There was virtually no error at all in many instances. The most error was in the region of 30 to 35 metres from actual physical position.
55 Professor Featherstone was unable to comment about the Magnavox receiver because he had no technical information on it.
56 As to the testing adopted by F O Lemon following the destruction of the survey peg Professor Featherstone said:
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- "It certainly not as reliable as using a known survey peg. In order to use this kind of testing, you make a number of assumptions about the accuracy of the map and inferences from that were as if you have a survey marker peg there is an exact comparison."
The issues on appeal:
57 The appeal raises several grounds.
Whether the Magistrate could have been satisfied beyond reasonable doubt that the GPS system fitted to the patrol boat produced readings as to the location of the applicant's pots.
Ground of appeal
"3.1 The learned magistrate erred in law in finding that he was satisfied beyond reasonable doubt that the GPS system fitted to the patrol boat produced readings as to the location of the Applicant's four pots which should be accepted (reasons 6.5).
PARTICULARS
(a) The learned Magistrate erred in finding that the four GPS readings obtained by Fisheries Officer Lemon were within the degree of accuracy claimed for civilian use of the GPS system, when the unchallenged evidence was that this degree of accuracy only applied to GPS systems that had been designed and operated in accordance with the United States Department of Defence Specifications, and there was no evidence that the patrol boat's GPS system had been designed or operated in accordance with these specifications.
(b) The learned Magistrate erred in having regard to the evidence that readings for the same position on the patrol boat GPS system and that fitted to the applicant's boat on consecutive days were within 30 metres of each other when the learned Magistrate needed to be satisfied beyond
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- reasonable doubt of the accuracy of the patrol boat's GPS system on the day of the offence (1 January 1997) and there was no evidence that the patrol boat's GPS system was tested for its accuracy on 1 January 1997.
- (c) The learned Magistrate erred in having regard to the evidence that Fisheries Officer Lemon regularly checked the patrol boat's GPS system by checking readings against know points on a chart of the Geraldton Fishing Boat Harbour when there was no evidence that the patrol boat's GPS system was tested in this way on 1 January 1997 and no evidence as to the accuracy of the chart."
58 The first particular was not pressed in argument.
59 The offence pleaded was the contravention of a major provision of the management plan. The particulars were pleaded as operating a boat in the fishery outside the zone endorsed on the licence. The factual circumstances of the operation were the laying of a number of pots below the line of 30°S. Proof of the offence would be sustained upon satisfaction that one or more of the pots was laid below the line thereby leading to a conclusion that the boat was operated in contravention of the management plan.
60 Mr O'Brien's submissions were to the effect that there had been no sufficient evidence led as to the accuracy of the GPS system or receiver such as to enable a Magistrate to be satisfied beyond reasonable doubt.
61 In partial response to this attack the respondent sought leave to support the decision on a ground not relied upon by that court.
62 This ground related to the Fish Resources Management Act 1994 s 215 which states:
"In any proceedings for an offence against this Act, proof is not required of the accuracy of any scales, callipers, rule compass or other navigational equipment or measuring equipment used by fisheries officer unless evidence is given to the contrary."
63 In amplification of this argument it was asserted that evidence to the contrary had not been given because Mr Featherstone was unable to comment on the operation or nature of Magnavox receiver.
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64 Counsel for Mr O'Brien submitted that as the prosecution had not relied upon the presumption at trial, it should not be granted leave to argue the point. In support of his argument, counsel for Mr O'Brien cited The Adelaide Steamship Co Ltd v His Majesty The King and The Attorney General of the Commonwealth (1912) 15 CLR 65 where what was under consideration was an averment as to facts. At the conclusion of his judgment Griffith CJ said the averment section "has no application when the prosecutor elects to put the actual facts of the case before the court."
65 This decision was explained in Gabriel v Ah Mook (1924) 34 CLR 591 at 595 as follows:
"… where the prosecution elects to place before the court what it represents to be or what appear to be, all the facts relating to an averment, then it is bound by the proper conclusion to be drawn from those facts. If the proper conclusion is adverse to the averment it is because the proof is to the contrary."
66 The Fish Resources Management Act 1994 s 215 is not an averment provision but an example of a statutory presumption, rebuttable by evidence.
67 The presumption under consideration is a presumption of fact, not law. It is a presumption that navigation equipment is accurate. Counsel also relied on Cato v Costello; Ex parte Costello (1938) St R Qd 318. In Cato, Blair CJ and Macrossan J held at 322:
"There is no better settled rule of practice than that parties are bound by the way they conduct themselves and their cases at the original hearing."
68 The reason in the particular case was that the defendant was at no time called upon to discharge of burden of proof and may have been lulled into a false sense of security.
69 Philp J did not deal with the point because he assumed that the presumptive section under consideration did apply but took the view that the complainant's own evidence offered proof to the contrary.
70 I am unable to accept the submission.
71 The Fish Resources Management Act s 215 operates as a substantive principle of law which has effect whether or not a prosecutor expressly
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- relies upon it. A prosecutor cannot waive reliance upon the provision of the statute any more than a court can ignore it. It must be given effect in all the circumstances whether or not a prosecutor adverts to it in the course of submissions. I consider the true principle is that a presumptive section in an Act is always speaking and is incapable of waiver.
72 If circumstances arise where the prosecution do not expressly rely on a presumptive section in the lower court, an appellate court can consider whether the failure to do so lulled the defendant into a false sense of security and thereby a miscarriage of justice has been caused. That is a different issue.
73 In this case, the Magistrate heard argument concerning the section.
74 Rejection of the submission however does not determine the matter.
75 The Magistrate expressly considered the point and rejected the proposition that there was a statutory presumption of accuracy in respect of the GPS equipment used to determine the location of the four pots. He did this in light of a concession made by the prosecution and repeated on the appeal as to the GPS as a system. Counsel for the prosecution in her closing, referred to Fish Resources Management Act s 215 and then said:
"Evidence has clearly been given to the contrary in relation to GPS as a system and its inaccuracy. There has been no evidence given to the contrary that this particular receiver, this particular unit, is proved to be inaccurate."
76 I have some difficulty in understanding the concessions.It seems to me impossible to separate the GPS from the receiver in the definition of "navigation equipment".
77 By itself the receiver is nothing. It only has application as navigation equipment when it receives signals from satellites which it then converts into a read-out display of latitude and longitude. Put another way, unless it is receiving signals from the GPS, it is not a piece of navigation equipment because it delivers no information which can be used for the purpose of navigation.
78 If I were deciding this matter at the first instance I would hold that the presumption under the Fish Resources Management Act s 215 applied to the Magnavox GPS receiver when in operation and receiving signals. All the evidence in the trial both as to the GPS and the Magnavox receiver would need to be examined to see whether there was evidence of
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- inaccuracy on any part of the navigational equipment, and if the evidence of inaccuracy amounts to "evidence to the contrary". Once there is evidence to the contrary, proof beyond reasonable doubt is required as to the accuracy of the impugned navigational equipment: Selby v Pennings (1998) 19 WAR 520 per Ipp J at 530.
79 However in light of the partial concession by the prosecution it is unsurprising that the Magistrate held as he did that there was no statutory presumption of accuracy in respect of the GPS equipment.
80 The Magistrate examined the evidence including the evidence of Mr Alexander and Professor Featherstone before concluding:
"In light of Professor Featherstone's evidence on this issue I am not satisfied that Mr Alexander's linear regression analysis of the GPS readings obtained by Fisheries Officer Lemon as to the location of the four pots is alone sufficient to establish the accuracy of those readings."
- He went on to hold:
"Professor Featherstone also said that it was possible for transmitting and receiving devices in proximity to a GPS system to interfere with it and to distort the position displayed by the receiver, however he was not familiar with the equipment on the patrol boat and was unable to comment on whether or not it would interfere with the GPS system."
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82 It was therefore necessary, as the Magistrate correctly apprehended, to be satisfied beyond reasonable doubt that the positions plotted by F O Lemon in respect of the four pots were accurate.
83 He was so satisfied. He did this by a process of reasoning which first noted that Professor Featherstone was not able to say whether or not the full readings were accurate or reasonably reliable. Readings for the same position on the McLaughlan's GPS and the GPS fitted to the Miss Horrocks on consecutive days produced readings which were within 30 metres of each other. F O Lemon regularly checked the GPS on McLaughlan by checking readings against known points on a chart in the fishing boat harbour using his knowledge of the harbour to say there was no measurable error, the greatest being within 30 to 35 metres.
84 Evidence was also led, as I have outlined, as to the claimed accuracy of the GPS to within a 100 metres.
85 Way points were established in respect of the four pots over a period of about 45 minutes.
86 In my opinion it was open for the Magistrate to be satisfied beyond reasonable doubt that the GPS receiver on the McLaughlan was accurate on 1 January 1997.
87 True it is that the specification and manual for the receiver were not produced in evidence. However evidence given by F O Lemon was that he was well experienced in the use of the Magnavox. He had checked it constantly against known positions and found it to be accurate.
88 His reading on Mr O'Brien's Green Head mooring the following day corresponded to within 30 metres to that of Mr O'Brien's own GPS.
89 When Mr O'Brien's GPS was switched from the Japanese datum to the Australian datum, there was a difference of about 600 metres, broadly equivalent to the distance of the furthest pot below the line of 30°S. The pots had been laid on 31 December 1996 and so the coincidence cannot be explained by a random degrading of the GPS system by the US Defence Department.
90 Although I would have held that the presumption under s 215 applied, I have reviewed the evidence, without recourse to any presumption either statutory or at common law, and reached the conclusion that the Magistrate's finding was open and indeed, having regard to all the evidence, inevitable.
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Honest and reasonable mistake
91 These grounds are:
"3.2 Having found there to be evidence of honest and reasonable mistake, the learned Magistrate erred in law by failing to consider that, in determining the issue of whether the mistake was reasonable, the onus of proof remained on the prosecution to negate that evidence and prove guilty beyond reasonable doubt.
3.3 The learned Magistrate erred in law and/or fact in finding that the Applicant's mistake was that he simply failed to ensure his GPS system was operating on Australian datum when he set the pots, when the learned Magistrate should have found that the Applicant's mistake was that he failed to ensure that he was dropping the pots within the zone of the relevant fishery.
3.4 The learned Magistrate erred in law in having regard to the policy of the Act in interpreting whether or not the mistake was reasonable.
3.5 The learned Magistrate erred in fact in finding that the Applicant's mistake was not reasonable (reasons 7.5).
PARTICULARS
(a) The applicant repeats grounds 3.2, 3.3 and 3.4 above.
(b) The learned Magistrate erred by failing to have regard to the Applicant's unchallenged evidence to the effect that on the day of the offence:
(i) his plotter screen showed that he was dropping the pots within the zone of the fishery (transcript 12.2-12.5, 50.2);
(ii) his GPS did not show what datum the system was on (transcript 50.2);
(iii) the Applicant had not altered his GPS system since November 1996 (transcript 29.2); and
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- (iv) it was the Applicant's understanding that his GPS system was on Australian datum (transcript 51.4).
- (c) In determining the standard of care applicable to the question of reasonableness, the learned Magistrate placed too much weight on the need to protect the industry, particularly in circumstances where the evidence revealed that no crayfish were found in the pots and the pots (if found to be outside the authorised area) had been dropped in another zone of the Fishery, albeit a zone in which the Applicant was not licensed to fish."
The evidence of the Appellant Mr O'Brien
92 Mr O'Brien gave evidence that he used the GPS as a navigational aid. 30°S is marked on the GPS screen.
93 Mr O'Brien gave evidence that earlier he had found a problem with his system which he discussed with the service operator at Inshore Electronics. The problem was that he could not find his pots. He was advised that the machine may have defaulted onto Japanese datum. When the Fisheries officers came on board Miss Horrocks and F O Lemon operated the controls and noted: "It's on Japanese datum", Mr O'Brien was advised by the service agent Mr Bombora how to turn the machine back onto Australian datum and further advised: "The ones you've marked in when it's been on Japanese datum will be .3 out to the North".
94 He tried thereafter to use Australian datum but in order to find certain points which he had previously plotted it was necessary to turn the machine back to Japanese datum. He did this in November 1996 maybe half a dozen times.
95 His explanation as to why he was on Japanese datum on 31 December 1996 was: "The last time I used it back in the shallow and late November I must not have turned it back to Australian datum". The Magistrate accepted that the error made was an honest mistake. He described it as "inadvertent".
96 The test to be applied is set out in the well known case of Geraldton Fishermen's Co-Op Ltd v Munro [1963] WAR 129 at 134 per Hale J:
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- "Section 24 does not merely provide a matter of defence: it involves an exoneration from criminal responsibility: there must of course, in the first place, be some evidence of honest and reasonable mistake, but once such evidence is adduced the onus remains on the prosecution to prove guilt beyond reasonable doubt: and it follows that even if the explanation is not affirmatively established, nevertheless if the tribunal fact thinks it might reasonably be true the defendant must be acquitted. …"
97 The Magistrate appears, by some of his wording, to have cast more than an evidential onus upon Mr O'Brien.
98 He said, among other things:
"The defendant also relied on the defence of honest but reasonable mistake … I therefore would not accept that the mistake made by the defendant although inadvertent was reasonable when one has regard to the standard of care demanded by the law."
99 These remarks are troubling in that they appear to indicate to some degree a reversal of the onus of proof casting upon Mr O'Brien the burden of showing that the mistake he made was reasonable rather than the burden of disproof of that fact upon the prosecution.
100 This Court has the power to dismiss the appeal notwithstanding that any point might be decided in favour of Mr O'Brien if it considers that no substantial miscarriage of justice has occurred.
101 If, on consideration of the whole of the evidence, the only conclusion is that Mr O'Brien was guilty of the offence because then and only then could the Justices Act 1902 (WA) s 199(1)(b) apply.
102 The Magistrate said that Mr O'Brien was fully aware of the problem prior to the date of the alleged offence and simply failed to ensure his GPS system was operating on Australian datum when he set the pots. So much may be accepted. He then referred to the highest standard of care and vigilance necessary by those who participate in a valuable and highly protected industry.
103 Attention must focus on the particulars in the complaint. Mr O'Brien was operating his boat outside the zone endorsed on the licence for the boat. Because the GPS receiver was set on an incorrect datum, he
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- believed that he was operating within his licence and specifically above latitude 30°S.
104 It was accepted that that was an honest mistake. Therefore, the correct question was whether it was a mistake of the sort that a reasonable man or woman in the position of Mr O'Brien might make. That is a different test to whether Mr O'Brien reasonably failed to meet a high standard of care in the operation of his licence.
105 The policy behind the Fish Resources Management Act is relevant: Pearce v Stanton [1984] WAR 359 per Rowland J at 363-4; Casey v Glenn, unreported; SCt of WA; Library No 7642; 5 May 1989 per Walsh J; Wann v Mosel, unreported; SCt of WA (Anderson J); Library No 8839; 30 April 1991. The policy of the Fish Resources Management Act is inherent in its name. Clearly there must be strict controls over fishing within zones in order to preserve a vital State resource.
106 Under the Criminal Code s 24 there must be some evidence of two matters of fact before the burden of disproof falls upon the prosecution. The first matter relates to the subjective belief of the defendant.
107 There must be an affirmative belief. Non-belief is insufficient. The belief must be honestly held.
108 The second matter is an objective factor. The belief must be reasonably held. That means that a reasonable man or woman in the position of the defendant carrying out the same actions in the same circumstances may make the same mistake. If there is some evidence the burden of disproof falls on the prosecution. The policy of the Act is relevant but not, of itself decisive.
109 In considering the question in this case, the following evidence would seem to be relevant. Mr O'Brien was aware that, on a Japanese datum, his position was about .3 of a nautical mile out from the true position as shown on the Australian datum. About one month before 1 January 1997 he had been switching from Australian datum to Japanese datum on a fairly regular basis while at sea in order to locate particular spots where he had laid pots.
110 He had not turned his mind to the actual datum on the screen one month later when he laid the pots.
111 While it may have been open for the Magistrate on this approach to be satisfied beyond reasonable doubt that the mistake, although honest,
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- was not reasonable, that is not an inevitable finding. In my opinion the Magistrate fell into error, firstly, in the manner in which he approached the burden of proof and, secondly, in the manner in which he stated the question of reasonableness by reference to the standard of care. This distracted his intention from the true issue which focuses on the reasonableness of the mistake not simply by reference to the reasonableness of the general conduct.
112 As it cannot be said that a conviction was inevitable, it follows Justices Act 1902 s 199(1)(b) has no application. In consequence the appeal must be allowed and the conviction set aside.
113 As a result the matter should be remitted to the Court of Petty Sessions for retrial.
114 In consequence I should say something about the question of penalty.
Was the offence a technical offence
115 Ground 3.6 states:
"Having found the charge proven, the learned Magistrate erred in law in failing to exercise his discretion to impose no sentence pursuant to s 46 of the Sentencing Act.
PARTICULARS
(a) The learned Magistrate failed to have regard to the technical circumstances of the offence.
(b) The learned Magistrate failed to place enough weight on the Applicant's character, antecedents and the significant impact that a conviction was to have on the Applicant's employment."
116 It was urged that the Magistrate ought to have imposed no sentence pursuant to the Sentencing Act 1995 s 46.
117 Before the Court can reach the conclusion that it is not just to impose any other sentencing option but release without sentence, the Court must be of the view that the circumstances of the offence are trivial or technical. It is not argued here that the offence was trivial. Rather it is argued that it is a technical offence.
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118 In Teede v Wright [1999] WASCA 121, I expressed the view that in determining whether an offence is technical, a Magistrate may take a wide view of the circumstances not simply limited to the circumstances of the particular offence.
119 The fact that the offence was inadvertent is one of the circumstances which may be taken into consideration. It is necessary to consider the actual offence. The offence charged was the breach of a management provision under the Fish Resources Management Act, an Act relating to the management of fish resources. The contravention of a major provision of a management plan carries a penalty of a fine of not exceeding $25,000 and imprisonment for one year. Where the offence is of a regulatory nature and is designed to protect a valuable State resource, namely the rock lobster fisheries, even an inadvertent breach of a major provision cannot be regarded as a "technical" breach.
120 Mr O'Brien's character and antecedents, which are admittedly excellent, do not in this case assist in a conclusion that the offence was a "technical offence" against the clear purpose of the Fish Resources Management Act 1994.
121 Consequently the Magistrate did not err in declining to record no conviction.
Conclusion
122 For the reasons I have expressed, the appeal is allowed. The conviction on charge No GN 2639 of 1998 recorded on 12 April 1999 is set aside. The matter is remitted to the Geraldton Court of Petty Sessions for retrial according to law.
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