Ostrowski v Palmer

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.