2. Set aside orders 1, 2 and 3 made by the Full Court of the Supreme Court of Western Australia on 7 March 2002 and, in lieu thereof, order that the appeal to that Court be dismissed.
3. Appellant to pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.
On appeal from Supreme Court of Western Australia
Representation:
G T W Tannin SC with K E McDonald for the appellant (instructed by Crown Solicitor for the State of Western Australia)
K J M de Kerloy with K J Levy for the respondent (instructed by Freehills)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Ostrowski v Palmer
Criminal law – Defences – Respondent charged with fishing for rock lobsters in a prohibited area while holding a commercial fishing licence, contrary to a regulation made under statute – Respondent made inquiries at an office of a State Government department and was provided with incomplete information relating to prohibited areas – Respondent believed he had been provided with complete set of relevant regulations and was therefore unaware that fishing in relevant area was prohibited by law – Whether respondent could rely on defence of "mistake of fact" under s 24, Criminal Code (WA) – Whether respondent's honest and reasonable, but mistaken, belief was one of fact or law – Effect of officially induced error of law – Relevance of rules concerning pleading and proof of regulations.
Words and phrases – "mistake of fact", "mistake of law", "state of things".
GLEESON CJ AND KIRBY J. Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence[1]. This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence.
[1]Williams, Textbook of Criminal Law, 2nd ed (1983) at 451.
The reason for the rule that ignorance of the law is no excuse
For present purposes, we use the expression "elements of the offence" to embrace matters of exculpation, and without regard to any special consideration as to onus of proof that might exist in relation to particular offences. Ignorance of the legal consequences that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ostrowski v Palmer [2004] HCA 30
Case
[2004] HCA 30
Decision Date
CaseChat Overview and Summary
The appeal concerned a charge against Mr Jeffrey Ryder Palmer for fishing for rock lobsters in a prohibited area, contrary to a regulation made under the *Fish Resources Management Act 1994* (WA). Mr Palmer, a commercial fishing licence holder, had made inquiries at a Fisheries Western Australia office regarding prohibited fishing areas. He was provided with incomplete information by an employee, leading him to believe that the area where he intended to fish was not prohibited. The prosecution alleged that Mr Palmer fished in the area described in the Table to regulation 34 of the *Fish Resources Management Regulations 1995* (WA), which prohibited such activity.
The central legal issue before the High Court of Australia was whether Mr Palmer could rely on the defence of "mistake of fact" under section 24 of the *Criminal Code* (WA). This defence applies when a person acts under an honest and reasonable, but mistaken, belief in the existence of a "state of things". The court was required to determine whether Mr Palmer's mistaken belief was one of fact or law, and the relevance of his belief being induced by the conduct of a government official. The court also considered the rules concerning the pleading and proof of regulations.
A majority of the High Court held that Mr Palmer could not rely on the defence of mistake of fact. The court reasoned that Mr Palmer's mistake was one of law, as he was ignorant of the existence of the prohibition contained in regulation 34. The court distinguished this situation from cases involving difficulties in distinguishing between mistakes of fact and law, or the application of statutory provisions to mixed questions of fact and law. It was determined that Mr Palmer's mistake, however characterised, was not relevant to any element of the offence itself, but rather to his knowledge of the law. The fact that his mistaken belief was induced by the conduct of a Fisheries WA employee was considered irrelevant to the availability of the defence.
The High Court allowed the appeal, setting aside the orders of the Full Court of the Supreme Court of Western Australia. The court ordered that the appeal to the Full Court be dismissed and directed that the appellant pay the respondent's costs of the application for special leave to appeal and of the appeal to the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 1, 2 and 3 made by the Full Court of the Supreme Court of Western Australia on 7 March 2002 and, in lieu thereof, order that the appeal to that Court be dismissed.
3. Appellant to pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.
Background
Background to the litigation
Subsequently, this Court granted Mr Ostrowski leave to appeal against the orders of the Full Court.The material facts At all material times Mr Palmer was the holder of a commercial fishing licence under the Act. He leased a boat, the subject of a fishing boat licence and a managed fishery licence. These licences, in particular the managed fishery licence, authorised Mr Palmer to fish for western rock lobster by means of a temporary pot entitlement of 87 pots in Zone B of the western rock lobster fishery, an area located off the central coast of Western Australia near Carnarvon. On or about 11 November 1998, Mr Palmer went to the Fremantle office of Fisheries WA and asked for a copy of the current regulations to cover the 1998/1999 fishing season for rock lobster in Zone B. He was told that a copy of the regulations was not available, but that, if he returned on 13 November, a copy would be available. He returned on that day. According to Mr Palmer's evidence, an "office lady" working at the public counter told him that the office still did not have copies of the regulations available for collection by members of the public. She offered to photocopy the copy of the regulations held by the Fremantle office, an offer that Mr Palmer accepted. After photocopying the regulations, the woman gave Mr Palmer a copy of the West Coast Rock Lobster Limited Entry Fishery Notice 1993 and a bundle of notices made variously under the FisheriesAct 1905 (WA) and the Act. None of these documents mentioned reg 34 of the Regulations, which provides:"Fishing for rock lobster in the waters surrounding Quobba PointA person who is the holder of a commercial fishing licence must not fish for rock lobsters at any time in the area described in the Table to this regulation.Penalty:$5000 and the penalty provided in section 222 of the Act.TableAll that portion of the Indian Ocean bounded by a line starting from a point on the high water mark situate at the southwestern-most extremity of Quobba Point and extending south to south latitude 24˚34'; thence east to a point on the high water mark; and thence generally northwesterly along the high water mark aforesaid to the starting point." The woman also told Mr Palmer that, if he wanted more information, to take one of the pamphlets in the public reception area. He took a pamphlet entitled "Fishing for Rock Lobsters" for the 1998/1999 season issued by Fisheries WA, which in fact related largely to recreational rather than commercial fishing. Mr Palmer did not inform any Fisheries WA officer or employee that he held a commercial fishing licence. In his evidence, he said that he assumed that any Fisheries WA officer or employee would deduce this from the fact that he ordered a commercial research log book at the same time as he collected the material from the Fremantle office. Between approximately 7 and 9 February 1999, Mr Palmer placed a number of rock lobster pots near Quobba Point and within the waters described in the Table to reg 34 of the Regulations. He knew the true geographical position of the pots and intended to fish for rock lobster in that area. On about 8 February 1999, he was made aware that officers from Fisheries WA were inspecting his lobster pots. However, Mr Palmer contended that he did not know that fishing for rock lobster was prohibited in this area until, on 10 February, he spoke with officers from Fisheries WA, who had entered the harbour at Carnarvon on a boat carrying his lobster pots. The Criminal Code
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
KIRBY J
(dissent)
HUGH J
(dissent)
CALLINAN AND HEYDON JJ
(dissent)
This is not a case that gives rise to the difficulties that are sometimes involved in distinguishing between mistakes of law and mistakes of fact, or in applying the common law, or ss 22 and 24, to what are sometimes described as mixed questions of fact and law[10]. Here the mistake that was made, however it is characterised, was not relevant to any element of the offence charged. Rather, it was a mistake that resulted in ignorance of the existence of the prohibition contained in reg 34, that is to say, ignorance of the law.[10]Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751; Von Lieven v Stewart (1990) 21 NSWLR 52 at 66-67.Conclusion The appeal should be allowed. We agree with the consequential orders proposed by Callinan and Heydon JJ. Mc The issue in this appeal is whether the respondent, Mr Jeffrey Ryder Palmer, was entitled to rely on a defence of mistake of fact under s 24 of the Criminal Code (WA) to a charge of fishing for rock lobster in a prohibited area. Mr Palmer believed that the area was not so prohibited. His belief was induced by the conduct of an employee of Fisheries Western Australia ("Fisheries WA"), a State Government department. When he requested a copy of the relevant regulations which identified the areas where fishing for rock lobster was prohibited, the Fisheries WA employee gave Mr Palmer documents that did not identify the area proposed to be fished as one where fishing for rock lobster was prohibited. Section 24 declares that a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any "state of things" is not criminally responsible for the act to any greater extent than if the real "state of things" had existed. In my opinion, Mr Palmer could not rely on the defence of mistake of fact under s 24. His mistake was one of law: he erroneously believed that no law prohibited him from fishing for rock lobster in that area. It is irrelevant that his belief was induced by the conduct of a Fisheries WA employee.Statement of the case On 1 March 2000, in the Court of Petty Sessions of Western Australia at Carnarvon, George Peter Ostrowski, an officer of Fisheries WA, charged Jeffrey Ryder Palmer with an offence under reg 34 of the Fish Resources Management Regulations 1995 (WA) ("the Regulations") and s 222 of the Fish ResourcesManagement Act 1994 (WA) ("the Act"). The material parts of the charge alleged that Mr Palmer:"being the holder of a commercial fishing licence, fished for rock lobster within that portion of the Indian Ocean bounded by a line starting from a point on the high water mark situated at the southwestern-most extremity of Quobba Point and extending south ... and thence generally northwesterly along the high water mark aforesaid to the starting point; contrary to Regulation 34 of the Fish Resources Management Regulations 1995 and Section 222 of the Fish Resources Management Act 1994."The area referred to in the charge was the area described in the Table to reg 34 of the Regulations, being the area where fishing for rock lobster was prohibited. The offence was a strict liability offence.