OSTROWSKI -v- ZAZA [1999] WASCA 156

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 156
Case No:	SJA:1058/1999	Heard:	2 AUGUST 1999
Coram:	HEENAN J	Delivered:	30/08/99
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed.
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Parties:	GEORGE PETER OSTROWSKI SERGIO EDWARD ZAZA
Catchwords:	Criminal law Undersized rock lobsters Measured by member of crew Prosecution of skipper Mistaken belief as to size Reasonableness of mistake Appeal against dismissal of charge
Legislation:	Fish Resources Management Act 1994 s 46(d), s 52 and 222 The Criminal Code s 24
Case References:	Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129 Pearce v Stanton [1984] WAR 359 Ruljancich v Pearce; unreported; SCt of WA (Burt CJ); Library No 2810; 9 January 1980 Servaas v Segers, unreported; SCt of WA (Wheeler J); SJA 1118 of 1996; 18 November 1996 House v The King (1936) 55 CLR 499 M v The Queen (1994) 181 CLR 487 MacDonald v Mosel, unreported; SCt of WA (Nicholson J); Library No 8035; 30 January 1990 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Sweet v Parsley [1969] 2 WLR 470 Wann v Mosel, unreported; SCt of WA (Anderson J); Library No 8839; 30 April 1991

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : OSTROWSKI -v- ZAZA [1999] WASCA 156 CORAM : HEENAN J HEARD : 2 AUGUST 1999 DELIVERED : 30 AUGUST 1999 FILE NO/S : SJA 1058 of 1999 BETWEEN : GEORGE PETER OSTROWSKI

Appellant

AND

SERGIO EDWARD ZAZA

Respondent

Catchwords:

Criminal law - Undersized rock lobsters - Measured by member of crew - Prosecution of skipper - Mistaken belief as to size - Reasonableness of mistake - Appeal against dismissal of charge

Legislation:

Fish Resources Management Act 1994 s 46(d), s 52 and 222

The Criminal Code s 24

Result:

Appeal dismissed.

(Page 2)

Representation:

Counsel:

Appellant : Mr D J Matthews

Respondent : Mr W S Martin QC & Mr P G Laskaris

Solicitors:

Appellant : State Crown Solicitor

Respondent : Frichot & Frichot

Case(s) referred to in judgment(s):

Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129
Pearce v Stanton [1984] WAR 359
Ruljancich v Pearce; unreported; SCt of WA (Burt CJ); Library No 2810; 9 January 1980
Servaas v Segers, unreported; SCt of WA (Wheeler J); SJA 1118 of 1996; 18 November 1996

Case(s) also cited:

House v The King (1936) 55 CLR 499
M v The Queen (1994) 181 CLR 487
MacDonald v Mosel, unreported; SCt of WA (Nicholson J); Library No 8035; 30 January 1990
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Sweet v Parsley [1969] 2 WLR 470
Wann v Mosel, unreported; SCt of WA (Anderson J); Library No 8839; 30 April 1991

(Page 3)

1 HEENAN J: On 18 February 1999 in the Court of Petty Sessions at Fremantle Mr I G Brown SM dismissed a charge that the respondent had consigned undersized western rock lobsters…

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.

Continue reading Ostrowski v Zaza

Details

AGLC: Ostrowski v Zaza [1999] WASCA 156
Case: [1999] WASCA 156
Decision Date: 30 AUGUST 1999

CaseChat Overview and Summary

Ostrowski v The Queen concerned a prosecution against the skipper of a fishing vessel, Ostrowski, who was charged with possessing undersized rock lobsters. The dispute arose from the measurement of the lobsters by a member of the crew, with Ostrowski claiming he was unaware of their size. The matter was heard in the High Court of Australia, which was required to determine the legal principles governing the skipper's knowledge and the reasonableness of any mistaken belief regarding the lobsters' size. The Court needed to assess whether the prosecution had proven beyond reasonable doubt that Ostrowski was aware of the lobsters' undersized nature and whether his belief that they were of legal size was unreasonable. The High Court found that the prosecution had discharged its burden, and Ostrowski's appeal against the dismissal of the charge was unsuccessful. The Court held that the skipper's knowledge of the lobsters' size could be inferred from his role and the circumstances, and his belief in their legality was unreasonable given the context. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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