Ostrowskiv Palmer

[2003] HCATrans 705

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P25 of 2002

B e t w e e n -

GEORGE PETER OSTROWSKI

Applicant

and

JEFFREY RYDER PALMER

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 MAY 2003, AT 12.55 PM

Copyright in the High Court of Australia

MR G.T.W. TANNIN, SC:   May it please the Court, with MS K.E. McDONALD, I appear for the applicant.  (instructed by Crown Solicitor for the State of Western Australia) 

MR K.J. MONY de KERLOY:   May it please the Court, I appear with MS K.J. LEVY for the respondent.  (instructed by Freehills) 

McHUGH J:   Yes, Mr Tannin. 

MR TANNIN:   Your Honours, this is an application for special leave ‑ ‑ ‑

HEYDON J:   Mr Tannin, the prosecution’s posture in this case is not very satisfactory, is it?  Officers of the government misled the respondent into doing what he did and the State has now exacted a mandatory penalty from him.  Why should special leave be granted against that background? 

MR TANNIN:   Because, your Honour, the construction that you are placing upon this matter leaves in place a judgment which is not simply confined to the facts, but which applies to section 24, which is replicated in every State, either in a Code sense or a common law sense.  This decision ‑ ‑ ‑

HEYDON J:   Well, if the prosecution had not proceeded against this respondent, the erroneous judgment – if it is erroneous – would never have been delivered. 

MR TANNIN:   With respect, the question of whether the prosecution proceeds or not, the issue of justice and morality that arises in terms of the executive discretion, cannot be made to colour an erroneous interpretation of section 24.  What this decision does is, in effect, to say that where a person does not know the law, albeit in circumstances such as these, where the person’s conduct was honest and reasonable – and we do not cavil with that – even where it is caused by a government officer, that does not excuse conduct that is contrary to the criminal law. 

McHUGH J:   Well, that may be so, Mr Tannin, but we have a discretion.  Why should not the discretion be exercised against the Crown when it has misled a citizen into what the law is, and then, when the citizen acts on that version of the law, he is prosecuted for it and subjected to extraordinarily draconian penalties?  So why, as a matter of discretion, should we not refuse leave in this particular case, leaving it for you in some other case, if you want to, to challenge the decision of the Full Court? 

MR TANNIN:   This decision of the Full Court will be relied upon wherever a person acts upon wrong advice.  It can arise in the most innocent situations, where a person goes to a solicitor and gets the 1987 Act, when in fact the 1997 Act should apply.  The test becomes, in section 24, on the basis of this judgment, whether the person was honest and reasonable in not knowing the law.  The matter of principle is greater than the separate injustice that the imposition of this penalty applies.  That question is a matter for the executive.  Your Honour’s comments can be taken into account, but it cannot be said that a judgment of the majority of the Full Court which, in our submission, is patently wrong should be allowed to stand on a matter of principle as important as section 24. 

McHUGH J:   It is a large proposition to say a judgment of the Full Court of Western Australia is patently wrong.  There are plenty of cases that come before this Court where Justices think that the case is wrongly decided, but that is not a ground for special leave to appeal.  Otherwise, we would just be sitting here as a general court of appeal.  There has to be something special about the case, and we have a discretion. 

MR TANNIN:   What is special, with respect, is the fact there is a complete misconstruction of a core provision of the Criminal Code. 

McHUGH J:   Yes, I know it is an important point, but, speaking for myself, I think it is the question of discretion.  You have forfeited this man’s property in a very considerable sum as a result of your inducing him to believe he was acting within the law and the Full Court has said he was acting within the law because he made an honest and reasonable mistake induced by you.  The Full Court may be right or wrong, but why should we not refuse leave? 

MR TANNIN:   Because, with respect, it is putting it far too highly to say that the mistake that is relevant to the application of section 24 is what is induced by the conduct of the defendant.

McHUGH J:   No, but he is a citizen, goes along and asks for the regulations.  You give him the documents and it does not have the relevant regulation.  Then you prosecute him.  He is fined a mandatory $27,500 and his lobster pots are confiscated and his crew have lost their means of employment. 

MR TANNIN:   Your Honour, the documents that were given to the applicant were what is known as a Fish Management Plan, published under the Fish Resources Management Act.  The regulations were not provided ‑ the regulations are not part of that Fish Management Plan – nor was the Act provided.  But to omit those things cannot be a licence to a citizen to then go and breach those regulations. 

McHUGH J:   But on the evidence, he asked for a copy of the current regulations to cover the 1998/1999 fishing season for lobster.  He was told they were not available.  He returned to the office on 13 November when they were available and the office still did not have the regulations.  They then volunteered to photocopy the copy that the Fremantle office had and he was given a photocopy of the 1993 “West Coast” notice. 

MR TANNIN:   They are called – it is a bundle of notices ‑ ‑ ‑

McHUGH J:   Yes, a bundle of notices made under the Fisheries Act – or the Fish Resources Management Act. 

MR TANNIN:   That is right. 

McHUGH J:   Now, none of those documents contain any mention of regulation 34. 

MR TANNIN:   They are not the regulations.  They are a separate document. 

McHUGH J:   I understand that. 

MR TANNIN:   It was put before the Full Court that that was somehow an omission.  They are quite separate documents.  The fact is the Management Plan was provided, the regulations were not.  The breach was in respect of the regulations.  He was also provided with a pamphlet, I think, on the way out, dealing with recreational fishing, but that was all.  It is a very high thing to put it that he is induced to commit this act by that.  The error, if it be one, was the error that his Honour the Chief Justice articulates at application book page 134 at line 25, that is: 

the mistaken belief under which the appellant laboured at the material time was a mistake of fact, namely, that the materials with which he had been provided comprised a complete set of what was required to enable the appellant to determine where he could and where he could not set his pots to fish –

Now, that is not the mistake to which section 24 can apply.

McHUGH J:   Yes, but read the next sentence in the Chief Justice’s judgment: 

He was given what in fact was described as a complete set of the relevant regulations.  As a matter of fact it was incomplete. 

MR TANNIN:   There was no evidence of that documentation being described as a complete set of the regulations. 

McHUGH J:   Well, where does the Chief Justice get that from? 

MR TANNIN:   That comes from the assertions in the submissions of the respondent at appeal that having sought the regulations the respondent believed he had got them.  What we say is wrong is that it is wrong to even see the Fish Management Plan as something that has to contain the regulations.  They are separate things.  Now, we accept, as we should, that the applicant acted under an honest and reasonable mistake as to that.  We accept, as we should, that he, for the purposes of this case, was induced by the conduct of the officers.  But pertinently, the mistake he made is not one that comes within the excuse provided under section 24.  Section 24 in its terms deals with a: 

belief in the existence of any state of things –

to the extent that –

if the real state of things had been such as he believed to exist. 

Whether or not the applicant got the right information would not affect the key elements of the offence with which he was charged, that is, that he actually fished, that he knew where he was fishing and he knew precisely where he was fishing. 

McHUGH J:   That is the way you put it, but if one applies the dictum of Sir Owen Dixon in Thomas’ Case – the bigamy case – that a mistake as to the existence of a compound event consisting of fact and law is in general one of fact and not a mistake of law.  Now, why does not that statement apply to this case? 

MR TANNIN:   Because the event of fishing, the event of actually fishing in an area that was proscribed from fishing, is not compounded with the earlier factual error that we acknowledge.  It is wrong to say that where a statute provides an excuse in relation to an act – and it has to be the act which is the elements of the offence – that if there were earlier errors made by the same person, they are compounded.  That principle, with respect, distorts the proper application of section 24, bearing in mind the importance of construction. 

McHUGH J:   If you are to get leave, I think, as a minimum, you ought to pay the costs of the appeal in this Court, irrespective of the result, and also there should be no disturbance of the order below.  Are you prepared to give such an undertaking, Mr Tannin? 

MR TANNIN:   We have given already an undertaking to the respondents that we will pay their reasonable costs of this application, including the application for special leave and, if leave is granted, the appeal.  In any event, we give that undertaking.  In relation to the question of penalty, I can properly concede that whether or not your Honours having disturbed the judgment or corrected it in the way we say it should be corrected then go on to make the further order as to the reinstitution of the fine would be entirely a matter of discretion and for the reasons ‑ ‑ ‑

McHUGH J:   No, I was asking you about not disturbing the costs order in the court below. 

MR TANNIN:   There was not one, your Honour. 

HEYDON J:   I see. 

MR TANNIN:   My learned friends commendably acted pro bono in that matter.  So as to costs, there will be no issue. 

McHUGH J:   Yes, well, I think we may hear from your opponent at this stage.  Yes, Mr de Kerloy. 

MR MONY de KERLOY:   Your Honour, we say there was no demonstrable error in anything that the Full Court did, and, quite apart from the discretionary issues, which we entirely agree with, there is no error that this Court should focus on.  The primary fact which their Honours in the majority found in the Full Court – and, indeed, the primary factual inquiry which any citizen would make to determine whether he is conducting himself lawfully – is whether or not, as a fact, there was a regulation which governed the proposed conduct.  Indeed, courts may not take judicial notice of regulations in order to sustain a charge such as the one under regulation 34, the existence of ‑ ‑ ‑

McHUGH J:   Is there no provision in the Evidence Act of Western Australia that a court can take judicial notice of regulations? 

MR MONY de KERLOY:   No, the provision is that whilst there are facilitative provisions, nevertheless one must produce either a copy of the gazette or an official government printed version of the regulation.  So it is ‑ ‑ ‑

McHUGH J:   So in every prosecution in Western Australia, or, indeed, in any civil case, you have to formally prove the regulation, do you? 

MR MONY de KERLOY:   That is correct, or any notice.  What may be taken judicial notice of are Acts, but not regulations or notices made under Acts. 

McHUGH J:   The common law position is still the case. 

MR MONY de KERLOY:   So in recognition of this primary factual inquiry, government bodies charged with the administration and enforcement of regulations provide information about the regulations to the public.  It is part of their function or, in today’s parlance, “mission statement” to provide accurate information as to whether fishing activity in particular areas is regulated.  This is not a case, for example, where he was simply ignorant of the law or that he misunderstood the effect of the law on known factual situations.  He made an error of fact and that error led to the erroneous conclusion of law, as their Honours found. 

That was entirely consistent with the principles that your Honour has referred to in Thomas v The King and also, of course, in a number of other cases.  My learned friend has relied on, and, indeed, there was a reference in the decision of the minority judge, Justice Steytler, to Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745. It seems to cast doubt on the question of whether a compound error can ever be regarded as an error of fact.

McHUGH J:   Well, that is because Chief Justice Gleeson, as he then was in New South Wales, said that where there are matters of opinion and degree, then it would ordinarily constitute a mistake of law – or, at all events, it is not a mistake of fact. 

MR MONY de KERLOY:   That is entirely correct.  They are interpretative errors, which have traditionally been held to be mistakes of law.  But if I can take your Honours to page 750 of the decision, it is quite apparent that his Honour was contemplating that an erroneous assumption of fact, reasonably and honestly held, which led to an erroneous conclusion of law would give rise to the defence.  The passage is between E and G in the ultimate paragraph of page 750, and he gives an example of where section 24 or its common law equivalents could operate.  He says: 

For example, a member of a council may be a shareholder in a company which owns land that will be affected by a particular council resolution.  Suppose that the member is unaware of the fact that the company owns the land in question.  Suppose, for example, that he has a positive and reasonable, but mistaken, belief, that the company does not own the land.  I am unable to see that the public interest requires that a person in that position should be exposed to the consequences provided by s 46G. 

What his Honour was there saying was that where a factual error, that is, being unaware in fact that the company owned the land, led to a conclusion of law, that is, there was no pecuniary interest, nevertheless it was properly to be regarded as an error of fact.  We say, in this particular case, your Honours, that is exactly what happened.  The primary factual investigation that the citizen undertook was to determine whether in the first place a regulation existed which governed the conduct; the representations made by the Fisheries Department was that there was no such existence and in those ‑ ‑ ‑

McHUGH J:   I know, but the case does undoubtedly raise an important question, does it not, which is applicable throughout Australia?  There is no decision on the point and, as you have a dissenting judgment in the Full Court, it is a question upon which minds may well differ and, prima facie, seems to be a case calling for this Court to have a look at. 

MR MONY de KERLOY:   Every case which involves a characterisation of an error will turn on its own individual facts.  It is not appropriate that a court such as this makes a detailed investigation in every case whether the matters that have occurred in this particular case are a question of law or fact.  That is appropriately a decision to be made by the judge at first instance or perhaps on appeal, but to adopt and say that this is a case which calls for investigation would suggest that there was a misapplication of orthodox principle.  We would say that there was an application of orthodox principle.  None of the judges attempted to, in any way ‑ ‑ ‑

McHUGH J:   Let me put to you a question which has been exercising my mind since you answered a question earlier and that is whether or not failure to understand a regulation which has to be proved in evidence is ever other than a mistake of fact.  Supposing it was a question of foreign law which has to be proved as a fact.  Now, it would be difficult to say – at least, it seems to me at the moment – to say an error as to foreign law is an error as to law.  It may be that in jurisdictions where regulations have to be tendered in evidence and proved that the case is always concerned with a question of fact.  Now, if that is so, that is an important question by itself, is it not? 

MR MONY de KERLOY:   It may be, your Honour, but it has nothing to do with this particular case ‑ ‑ ‑

McHUGH J:   Except that it may well be in your favour.  It may make it easy for you to succeed. 

MR MONY de KERLOY:   It may do, but what we say is that there was no error of interpretation.  There was simply an error as to the existence of the regulation or not.  As Justice Windeyer said in Iannella v French,

whether there be a law on a topic, whether an Act has been passed or repealed, is a question of fact.  That is the essential factual point that we argue and have argued in this case and which was accepted by the Full Court, that the fundamental error, factual error, was whether or not the relevant regulation existed. 

The final point I wish to make is on this question of discretion, your Honour.  This is not, in my respectful submission, an appropriate vehicle for this Court to exercise its jurisdiction.  Could it be imagined that a citizen who does everything right to comply with the law finds himself prosecuted, let alone facing an appeal before the highest court?  In my respectful submission, the Court should decline jurisdiction and should decline to hear the appeal. 

McHUGH J:   Yes, thank you, Mr de Kerloy.  Yes, Mr Tannin. 

MR TANNIN:   Your Honour, only briefly, this case is not confined precisely to its facts.  This is a case where, for whatever reason, this respondent did not know the law.  It is a case ‑ ‑ ‑

McHUGH J:   Well, that may be a question as to whether or not, when you have to prove a regulation, it is a question of law.  I mean, supposing it was a question of foreign law.  Would that be a mistake as to foreign law applicable in a case?  Would that be a question of law or a question of fact? 

MR TANNIN:   Foreign law is always proved as a matter of fact ‑ ‑ ‑

McHUGH J:   Yes. 

MR TANNIN:   ‑ ‑ ‑ because it does not apply here. 

McHUGH J:   But if you cannot take judicial notice of the regulations, and they have to proved and tendered in evidence, why is it not simply a question of fact? 

MR TANNIN:   With respect, that is only an evidentiary difficulty, at best.  The fact that you have to prove a regulation does not make the regulation anything other than law.  This case raises not only section 24, but the interrelationship it has with section 22, that is, what is the effect of ignorance of it?  It cannot be the law that a person ignorant of it may then breach it. 

McHUGH J:   Yes, thank you.  There will be a grant of special leave in this matter, upon the condition that the applicant pays the costs of the respondent in any event.  Do you give an undertaking to that effect, Mr Tannin? 

MR TANNIN:   I do. 

McHUGH J:   Yes, thank you.  There will be a grant of special leave in this matter. 

AT 1.21 PM THE MATTER WAS CONCLUDED