Patterson v. White
[2009] QDC 63
•23 March 2009
[2009] QDC 63
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE ROBIN QC
Appeal No 184 of 2008
| COLIN ANDREW PATTERSON | Appellant |
| and | |
| ADRIAN GERARD WHITE | Respondent |
CAIRNS
..DATE 23/03/2009
JUDGMENT
Catchwords:
Criminal Code 1995(Cth) section 5.5, Great Barrier Reef
Marine Park Act 1975 38CA appeal under section 222 of the
Justices Act 1886 (Qld) against conviction for regularly fishing in a "green zone" upheld where, although offence may have been made out otherwise, appellant's conduct was not shown to satisfy the Criminal Code requirement of negligent conduct that it merit criminal punishment.
HIS HONOUR: It is with considerable regret that I have reached a conclusion that this appeal by Mr Patterson ought to be allowed. That represents the failure of a prosecution of him for using a marine national park zone negligently for the purpose of fishing in a zone called a green zone where fishing is not permitted. The difficulty for the prosecution in my view is that the legislative arrangements make the case difficult to establish and, I venture to suggest, inappropriately so.
Section 38CA of the Great Barrier Reef Marine Park Act makes guilty an offence a person who intentionally or negligently uses a zone. There's room for thinking that "intentionally or negligently" coovers the field. The legislation might have been differently drawn by criminalising the use with some clarification following that it's immaterial whether that use occurs intentionally, negligently or, if there are alternatives, perhaps otherwise.
It's incumbent on the prosecution under the legislative arrangements to establish the element of negligence here, that being the "fault element" relied on. It's accepted that the Criminal Code 1995 of the Commonwealth provides in section 5.5 the definition of "negligence" which is to be applied. It says this:
"A person is negligent with respect to a physical element of an offence if his or her conduct involves:
(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist that the conduct merits criminal punishment for the offence."
It's the last nine words of that provision which, in my view, cause the problem for the prosecution. The Magistrate appears not to have given any particular attention to whether or not he was satisfied beyond reasonable doubt of that aspect which, as I read the section, he has to be. The reasons do set out the section in full, although not in quotation marks, on the basis of which Ms Bentley submits that the Magistrate ought to have been taken as considering the issue. I find it a troubling thing that there's no reference to it in the reasons otherwise.
I took Ms Bentley to accept that criminal punishment refers to something more serious than what one would encounter in the State sphere as reports regulatory offences and traffic matters, a speeding fine and the like. Juries are often instructed to consider issues along these lines, for example, where a defendant is alleged to have failed in the duty that attaches to someone in charge of dangerous tings. The noted direction for section 289 of the Queensland Criminal Code includes this:
"The lack of care which suffices to establish liability in a civil case is not enough here. A very high degree of negligence is required before a defendant may be found guilty of criminal negligence. To convict, you must be satisfied beyond reasonable doubt that his conduct in (describe act or omission), if you find that act or omission proved, so far departed from the standard of care incumbent upon him to use reasonable care to avoid a danger to life, health and safety, as to amount to conduct deserving of punishment.
Since we are in a criminal Court, we are concerfned with whether there was a departure from those standards whichis serious enough for the State to intervene and punish the person on the basis that he behaved with so little regard for the safety of others that he deserves to be punished as a criminal, not merely made to pay compensation.
The notion of criminal negligence involves a large or serious departure from reasonable standards of conduct, by which is meant the standard of conduct that a reasonable member of the community would use in the same circumstances. It must go substantially beyond a case where payment of compensation is adequate punishment. It must be in a category of behaviour where the only adequate punishment is for his lack of care to be branded as criminal and for him to be punished by the State for it."
It is common ground that the defendant's vessel trolling lines was located 600 metres inside the eastern boundary of the green zone. At that point the zone, which for practical purposes represents open water without distinguishing features, was perhaps between 10 and 15 kilometres wide. At a narrower section to the north it's only five kilometres wide. As an experienced commercial fisherman, as the Magistrate held, the appellant ought to have done better. He had GPS equipment on board which wasn't functioning satisfactorily, perhaps because of flat batteries. Mr Patterson doesn't claim to have relied on that equipment.
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HIS HONOUR: What he did rely on was the chart indicating the green and other zones in the general locality and a parallel ruler which could be used for scaling distances, working out courses to navigate and the like. Mr Patterson swore, the Magistrate accepted, likewise Ms Bentley accepts that he took as his "landmarks" the southern tip of Tongue Reef and the northern tip of Batt Reef and plotted a course which he marked for the Magistrate in the witness box on the Marine Park Authority chart which had been tendered. That was going to clip, if it didn't actually cross, an obtuse angle corner of the green zone just to the west of the northern part of Batt Reef. Mr Patterson was, as the Magistrate suggested, reckless in cutting things so fine, but had he achieved his purpose he would have been able to engage lawfully in the fishing activity that he was pursuing. There's no basis for me to proceed on any basis other than that he was attempting to steer the course that he indicated to the Magistrate. He didn't achieve that. If he had, he wouldn't have been caught 600 metres inside the green zone. He would have been well to the east of it.
He says there was an inducement in the area of a shoal and bommie not marked on the Marine Park Zoning Plan 2003 MPZ6 in evidence. It is marked on another exhibit which has been marked up to show the trolling activity and activity by way of retrieving fishing lines attributed to Mr Patterson. In that location, as the prosecution accepted, Mr Patterson observed three largish recreational vessels, six metres or thereabouts in length, which he swore were fishing and I proceed on that basis. Their fishing activity had ceased by the time officers came on the scene. They did pay some attention to at least one of those other vessels. Mr Patterson has expressed some dissatisfaction that he was singled out by the officers, no doubt because he was a commercial fisherman. As the law stands, however, section 38CA records no distinction between the classes of fishermen. I agree with the Magistrate's general approach that what should be expected of a commercial fisherman would be a higher standard.
I agree with Ms Bentley's outline of the elements of an offence under section 38CA in her outline on page 4:
The defendant fished
Physical element - conduct
Fault element - intention (s.5.6 Criminal Code)In a Marine National Park Zone
Physical element - circumstance
Fault element - negligence (s.38CA GBRMP Act)Fishing was not permitted in that zone
Physical element - circumstance
Fault element - recklenssness (s.5.6 Criminal Code)
The insuperable difficulty I find is reaching a view which takes cognisance of the relevant standard of proof that the conduct proved against Mr Patterson merits criminal punishment. In my view, the significance of that is that the offender is someone who ought to be branded a criminal in the way in which offenders against the Traffic Code, for example, are not. This type of conduct I think is more akin to a regulatory offence.
Undesirable, one might say indefensible, as Mr Patterson's conduct might have been, I can't bring myself to the view that it's something for which he ought to be branded a criminal or which "merits criminal punishment". I would recommend to the Legislators that in contexts such as the present where the intention may well be to establish something like absolute liability for fishing in the green zone, the considerable task of establishing that "criminal punishment" is merited ought not to be inflicted on the prosecution.
I notice reference that Mr Sumner-Potts gave me in respect of criminal negligence and the like, which is of some general assistance; that's Lavender [2004] NSW CCA 120. the requirements of meriting "criminal punishment" was not really pursued before the Magistrate as in the appeal or any my opinion it is not satisfied merely because the elements otherwise are made out.
So the appeal is allowed and the conviction and other orders of the Magistrate set aside.
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HIS HONOUR: It might be observed, and I haven't said it so far, that the penalty the Magistrate imposed was a $6,000 fine against a maximum of $220,000. The ranges suggested to his Honour by both sides were well below that. I think you were suggesting a couple of thousand and Ms Bentley was suggesting 10. So, it's certainly not the most serious example of the offence, one can imagine.
MR SUMNER-POTTS: Question of costs?
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HIS HONOUR: The reason why I'm disinclined to order costs is that I'm concerned about establishing a precedent that's going to leave these green zones rather unprotected in practice.
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MR SUMNER-POTTS: But if your Honour would just give me the costs of today of the appeal?
HIS HONOUR: Well, I note your application but I think not only commercial fishermen like Mr Patterson, but all of us shouldn't be given any encouragement by this Court to do the wrong thing, nor should the authorities be discouraged from bringing such prosecutions. So it might be a bit hard for Mr Patterson, but he's saved $6,000 and his reputation too, I suppose.
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