Sharman v Thomas

[2020] SASCFC 52

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

SHARMAN v THOMAS

[2020] SASCFC 52

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Hughes)

18 June 2020

ENVIRONMENT AND PLANNING - PARKS AND RESERVES - REGULATION OF ACTIVITIES WITHIN PARKS AND RESERVES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - WHEN NEW TRIAL GRANTED

The appellant was found guilty of one count of harming snapper and seven counts of removing snapper from a marine park in contravention of s 17(1) of the Marine Parks Act 2007 (SA) and the regulations made thereunder. He was a licensed commercial fisher. The offending was found to have occurred in a sanctuary zone known as the Clinton Wetlands Sanctuary Zone in the upper Gulf St Vincent marine park.

The appellant propounds ten grounds of appeal, which give rise to the following five issues:

1.  Whether the trial judge misused the concept of improbability reasoning to find the appellant guilty beyond reasonable doubt (appeal grounds (a)-(d), (f) and (h)-(k));

2. Whether the trial judge erred in admitting into evidence, pursuant to s 34P of the Evidence Act 1929 (SA), a particular conversation between the appellant and a marine parks officer concerning the appellant’s reference to two places within the sanctuary zone being his best fishing spots (appeal grounds (a)-(d));

3.  Whether the judge erred in failing to grant an application for a mistrial after he allowed the respondent to discredit its own witness, Mr Barker, during the defence case, having relied upon his evidence as part of the prosecution case (appeal ground (e));

4.  Whether the trial judge made errors of fact in respect of the evidence given by the prosecution witnesses and the use of the GPS data as evidence of fishing (appeal grounds (f), (h) and (i)); and

5.  Whether the trial judge erred in directing himself as to the onus and standard of proof together with the application of inferential reasoning (appeal grounds (j) and (k)).

The respondent submits that the trial judge properly applied improbability reasoning, that the ‘discreditable conduct’ was properly admitted into evidence, that there was no miscarriage of justice, and there was no error in respect of the burden and standard of proof. Finally, the respondent submits that any factual errors made by the trial judge were not material, and this Court can confirm the findings of guilt (pursuant to s 42(5)(a) of the Magistrates Court Act 1991 (SA) which governs the appeal) because the charges were so clearly proven that it is inevitable the trial judge would have found them proven irrespective of the error.

Held per Stanley J (Kourakis CJ and Hughes J agreeing):

1.  The trial judge’s reliance on improbability reasoning was not only permissible, but warranted. It was open to the judge to reject the appellant’s evidence that he was not fishing in the sanctuary zone on that basis.

2.  The trial judge’s consideration of whether he could reject the appellant’s evidence as a reasonable possibility was informed by a misunderstanding. The trial judge’s error, that Mr Spencer’s evidence in relation to zig-zagging was consistent with the evidence of experienced fishermen, was material.

3.  The other grounds of appeal need not be determined.

4.  It has not been established that, notwithstanding the error in the judge’s factual finding, the charges have been so clearly proved such that this Court can be satisfied that the verdicts of guilty were inevitable.

5.  The verdicts of guilty are quashed on each count and the matter is remitted for retrial on all counts before a different judge.

Marine Parks Act 2007 (SA) s 17(1); Marine Parks (Zoning) Regulations (SA); Environment, Resources and Development Court Act 1993 (SA) s 30, s 30(4); Magistrates Court Act 1991 (SA) s 42(5), referred to.
Le Cornu v Thomas [2019] SASCFC 154; Martin v Osborne (1936) 55 CLR 367, applied.
Thomas (DEWNR) v Sharman [2019] SAERDC 32, considered.

SHARMAN v THOMAS
[2020] SASCFC 52

Full Court:      Kourakis CJ, Stanley and Hughes JJ

1. KOURAKIS CJ:  I would allow the appeal and join in the orders proposed by Stanley J.  I agree with his Honour’s reasons.

   STANLEY J.

   Introduction

2. This is an appeal from the findings of a Judge of the Environment, Resources and Development Court that the appellant was guilty of one count of harming snapper and seven counts of removing snapper from a marine park in contravention of s 17(1) of the Marine Parks Act 2007 (SA) (the Act) and the Marine Parks (Zoning) Regulations 2012 (SA) (the Regulations) made thereunder.

3. The appellant is a licensed commercial fisher.  The offending was found to have occurred in a sanctuary zone known as the Clinton Wetlands Sanctuary Zone in the upper Gulf St Vincent marine park. 

   The Marine Parks Act 2007 (SA)

4. The Act and the Regulations prohibit or restrict activities within a sanctuary zone of a marine park. 

5. The object of the Act is, inter alia, to protect and conserve marine biological diversity and marine habitats by declaring and providing for the management of a comprehensive, adequate and representative system of marine parks.[1]  The establishment and management of marine parks is provided for in Part 3 of the Act.  Management of marine parks includes the regulation and restriction of activities within marine parks.

   [1]    Marine Parks Act 2007 (SA) s 8(1)(a).

6. The Act provides for the establishment of zones within the marine park.  The type of zone and its boundaries are defined by the management plan for the park.  Regulations under the Act make provision for, inter alia, a sanctuary zone being a zone primarily established so that an area may be managed to provide protection and conservation for habitats and biodiversity within a marine park, especially by prohibiting the removal or harm of plants, animals or marine products.[2] 

   [2]    Marine Parks Act 2007 (SA) s 4(2)(c).

7. The Act makes it an offence for a person to contravene a provision of the regulations prohibiting or restricting activities within a zone of a marine park.[3]  

   [3]    Marine Parks Act 2007 (SA) s 17(1).

   The charges

8. The appellant was charged with eight counts of contravening s 17(1) of the Act. He pleaded not guilty. He was found guilty on each charge. The charges, as amended, were as follows:

   Count 1

   Between 9 October 2017 and 10 October 2017, the defendant contravened regulation 8(3)(l)(ii) of the Marine Parks (Zoning) Regulations 2012 which prohibits or restricts activities within a zone of a marine park.

   Contrary to section 17(1) of the Marine Parks Act 2007.

   This is a summary offence.

   Particulars

   1.1 Between 9 October and 10 October 2017 the defendant contravened a sanctuary rule by harming approximately 153kg of snapper in SZ-1 zone known as the Clinton Wetlands Sanctuary Zone, which is an activity prohibited or restricted within the said Zone of the Upper Gulf St Vincent Marine Park.

   Count 2

   Between 6 October 2017 and 7 October 2017, the defendant contravened regulation 8(3)(l)(i) of the Marine Parks (Zoning) Regulations 2012 which prohibits or restricts activities within a zone of a marine park.

   Contrary to section 17(1) of the Marine Parks Act 2007.

   This is a summary offence.

   Particulars

   2.1 Between 6 October 2017 and 7 October 2017 the defendant contravened a sanctuary rule by removing approximately 193kg of snapper from SZ-1 zone known as the Clinton Wetlands Sanctuary Zone, which is an activity prohibited or restricted within the said Zone of the Upper Gulf St Vincent Marine Park.

   Count 3

   Between 4 October 2017 and 5 October 2017 the defendant contravened regulation 8(3)(l)(i) of the Marine Parks (Zoning) Regulations 2012 which prohibits or restricts activities within a zone of a marine park.

   Contrary to section 17(1) of the Marine Parks Act 2007.

   This is a summary offence.

   Particulars

   3.1 Between 4 October 2017 and 5 October 2017 the defendant contravened a sanctuary rule by removing approximately 305kg of snapper from SZ-1 zone known as the Clinton Wetlands Sanctuary Zone, which is an activity prohibited or restricted within the said Zone of the Upper Gulf St Vincent Marine Park.

   Count 4

   On or about 3 October 2017 the defendant contravened regulation 8(3)(l)(i) of the Marine Parks (Zoning) Regulations 2012 which prohibits or restricts activities within a zone of a marine park.

   Contrary to section 17(1) of the Marine Parks Act 2007.

   This is a summary offence.

   Particulars

   4.1 On or about 3 October 2017 the defendant contravened a sanctuary rule by removing approximately 125kg of snapper from SZ-1 zone known as the Clinton Wetlands Sanctuary Zone, which is an activity prohibited or restricted within the said Zone of the Upper Gulf St Vincent Marine Park.

   Count 5

   On or about 28 September 2017 the defendant contravened regulation 8(3)(l)(i) of the Marine Parks (Zoning) Regulations 2012 which prohibits or restricts activities within a zone of a marine park.

   Contrary to section 17(1) of the Marine Parks Act 2007.

   This is a summary offence.

   Particulars

   5.1 On or about 28 September 2017 the defendant contravened a sanctuary rule by removing approximately 239kg of snapper from SZ-1 zone known as the Clinton Wetlands Sanctuary Zone, which is an activity prohibited or restricted within the said Zone of the Upper Gulf St Vincent Marine Park.

   Count 6

   On or about 29 September 2017 the defendant contravened regulation 8(3)(l)(i) of the Marine Parks (Zoning) Regulations 2012 which prohibits or restricts activities within a zone of a marine park.

   Contrary to section 17(1) of the Marine Parks Act 2007.

   This is a summary offence.

   Particulars

   6.1 On or about 29 September 2017 the defendant contravened a sanctuary rule by removing approximately 129kg of snapper from SZ-1 zone known as the Clinton Wetlands Sanctuary Zone, which is an activity prohibited or restricted within the said Zone of the Upper Gulf St Vincent Marine Park.

   Count 7

   Between 26 September 2017 and 27 September 2017 the defendant contravened regulation 8(3)(l)(i) of the Marine Parks (Zoning) Regulations 2012 which prohibits or restricts activities within a zone of a marine park.

   Contrary to section 17(1) of the Marine Parks Act 2007.

   This is a summary offence.

   Particulars

   7.1 Between 26 September 2017 and 27 September 2017 the defendant contravened a sanctuary rule by removing approximately 419kg of snapper from SZ-1 zone known as the Clinton Wetlands Sanctuary Zone, which is an activity prohibited or restricted within the said Zone of the Upper Gulf St Vincent Marine Park.

   Count 8

   On or about 25 September 2017 the defendant contravened regulation 8(3)(l)(i) of the Marine Parks (Zoning) Regulations 2012 which prohibits or restricts activities within a zone of a marine park.

   Contrary to section 17(1) of the Marine Parks Act 2007.

   This is a summary offence.

   Particulars

   8.1 On or about 25 September 2017 the defendant contravened a sanctuary rule by removing approximately 131kg of snapper from SZ-1 zone known as the Clinton Wetlands Sanctuary Zone, which is an activity prohibited or restricted within the said Zone of the Upper Gulf St Vincent Marine Park.

   The issues on appeal

9. The following issues arise on the appeal:

   1.Whether the trial judge misused the concept of improbability reasoning to find the appellant guilty beyond reasonable doubt (appeal grounds (a)-(d), (f) and (h)-(k));

   2.Whether the trial judge erred in admitting into evidence, pursuant to s 34P of the Evidence Act 1929 (SA), a particular conversation between the appellant and a marine parks officer concerning the appellant’s reference to two places within the sanctuary zone being his best fishing spots (appeal grounds (a)-(d));

   3.Whether the judge erred in failing to grant an application for a mistrial after he allowed the respondent to discredit its own witness, Mr Barker, during the defence case, having relied upon his evidence as part of the prosecution case (appeal ground (e));

   4.Whether the trial judge made errors of fact in respect of the evidence given by the prosecution witnesses and the use of the GPS data as evidence of fishing (appeal grounds (f), (h) and (i));

   5.Whether the trial judge erred in directing himself as to the onus and standard of proof together with the application of inferential reasoning (appeal grounds (j) and (k)).

   Approach on appeal

10. The right of appeal is provided by s 30 of the Environment, Resources and Development Court Act 1993 (SA) (ERD Court Act). This provides:

    (1) Subject to this section and to any provision in a relevant Act as to appeals against a decision or order of the Court in the exercise of a jurisdiction conferred by that Act, an appeal lies—

    (a)     in the case of an interlocutory order made by the Court—to the Supreme Court constituted of a single Judge;

    (b)     in the case of a decision or order given or made by one or more commissioners (not being a decision or order of a full bench)—to the Supreme Court constituted of a single Judge;

    (c)     in the case of a decision or order given or made by a magistrate—to the Supreme Court constituted of a single Judge;

    (d)     in the case of a decision or order given or made by a Master or a registrar—to the Supreme Court constituted of a single Judge;

    (e)     in any other case—to the Full Court of the Supreme Court.

    (2) An appeal lies as of right on a question of law and with permission on a question of fact (but this principle may be displaced or modified by the provisions of the relevant Act under which the jurisdiction is conferred).

    (3) A right of appeal conferred by this section extends to a representative or witness against whom an order for costs is made.

    (4) A party to any criminal proceedings before the Court may appeal against any judgment given in those proceedings in the same way, and to the same extent, as an appeal may be instituted against a judgment given in a criminal action under the Magistrates Court Act 1991.

11. In Le Cornu v Thomas[4] Peek J, with whom Bampton and Lovell JJ agreed, held that by reason of s 30(4) of the ERD Court Act the appeal is governed by s 42(5) of the Magistrates Court Act 1991 (SA).

    [4] [2019] SASCFC 154.

12. Section 42(5) provides that on the hearing of an appeal the court may confirm, vary or quash the judgment subject to appeal[5] or may remit the case for hearing,[6] and may make any other order, including for costs, that may be necessary or desirable in the circumstances.[7] 

    [5]    Magistrates Court Act 1991 (SA) s 42(5)(a).

    [6]    Magistrates Court Act 1991 (SA) s 42(5)(b).

    [7]    Magistrates Court Act 1991 (SA) s 42(5)(c).

13. In Le Cornu v Thomas Peek J held that the relevant test posed by s 42(5)(a) is whether the Court should determine to confirm the judgment subject to appeal notwithstanding that the judgment below was demonstrated to have been infected by error on the basis that the charge was clearly proven irrespective of the error.[8] 

    [8]    Le Cornu v Thomas [2019] SASCFC 154 at [31].

14. For the reasons that follow it is convenient to start with consideration of the first issue, namely, whether the trial judge found the appellant guilty by the misuse of improbability reasoning, and the fourth issue, namely, whether the judge made factual errors in relation to the evidence and the use of the GPS data. 

    The parties’ case at trial

15. On count 1 the respondent’s case was that the appellant and his vessel were intercepted by fisheries officers within the sanctuary zone at 12:48 a.m. on 10 October 2017.  A deckhand, Jamie Barker, was on board.  The officers found a quantity of snapper on board.  On that basis the appellant was charged with harming fish in the zone.  In counts 2 to 8 the respondent alleges that the appellant removed fish from the zone for the purposes of sale. 

16. The respondent’s case was circumstantial.  In relation to count 1 the respondent relied upon the evidence of fisheries officers who saw the appellant go out into the Gulf of St Vincent in his vessel, and later intercepted him within the sanctuary zone with 153 kg snapper on board.  At trial the respondent relied on GPS evidence tracking the movement of the appellant’s vessel on 9 and 10 October 2017.  In addition the respondent relied on statements made by the appellant in records of interview.

17. In respect of counts 2 to 8 the respondent’s case relied upon the GPS evidence of the movement of the appellant’s vessel in the sanctuary zone over a period from 25 September 2017 to 7 October 2017 and commercial fishing records evidencing the sale of fish by the appellant on those dates as well as statements of the appellant contained in records of interview. 

    The use of the GPS data

18. Central to the respondent’s case at trial was evidence of GPS data obtained from the appellant’s GPS unit. 

19. The respondent’s case at trial was that on each of the occasions the subject of counts 1 to 8, the appellant was fishing within the sanctuary zone.  While the appellant admitted fishing on each occasion, he denied doing so within the sanctuary zone.  The GPS data on each occasion showed the appellant’s vessel tracking between particular waypoints within the sanctuary zone.  Those waypoints, sometimes called spots or drops, were places identified as somewhere fish frequently can be found.  The appellant’s case at trial and on appeal was that the GPS evidence was equally consistent with two competing hypotheses.  The hypothesis relied upon by the respondent was that the evidence was consistent with the appellant fishing with a long line between those waypoints.  The appellant’s case was that the evidence was equally consistent with him merely searching for fish at those waypoints. 

20. At trial the appellant gave evidence that his practice was to reconnoitre for fish within the sanctuary zone at particular waypoints which he had previously entered into his GPS.  If he found fish he would then travel south to a point just outside the sanctuary zone where he would wait for the fish to come on the tide and catch them. 

21. At trial the appellant contended that the respondent had failed to exclude this as a reasonable hypothesis consistent with innocence. 

22. The judge rejected that contention. 

23. At trial the respondent relied on evidence of the GPS data which showed the appellant’s vessel making two separate trips into the sanctuary zone on the night of 9 October 2017.  The GPS data evidenced the appellant’s vessel slowly manoeuvring through a zig-zag pattern within the sanctuary zone on the first trip.  The GPS data further evidenced the appellant’s vessel retracing the earlier zig-zag route during the second trip that night. 

24. At trial the appellant gave evidence that on the second trip he used his GPS to call up a waypoint and use the direction finder to retrace his steps in order to search for fish.  His evidence was that on the second trip he had left Port Wakefield and travelled to a waypoint known as Clive’s Old Boat which lies outside the sanctuary zone.  At Clive’s Old Boat he laid out and retrieved his lines and caught the snapper found in his possession when he was intercepted later that night.  He gave evidence that it was apparent that some of the snapper had been attacked by a shark.  He travelled into the sanctuary zone looking for more fish. 

1. In relation to counts 2 to 8 the evidence of the GPS data again showed that on each charged occasion the appellant’s vessel travelled into the sanctuary zone twice each night.  On each occasion the vessel travelled to the same area of the zone.[9]  The GPS data established that on a number of these subsequent trips the appellant’s vessel retraced at slow speed the route undertaken on each of the vessel’s earlier trips. 

   [9]    Around waypoint 039.

   The judge’s reasons

2. In arriving at the verdicts of guilty the trial judge said he had significant regard to the GPS data which had been used to prepare maps that evidenced the route followed by the appellant’s vessel on each of the charged occasions.[10]  The judge found this evidence to constitute verifiable and reliable evidence of the location of the vessel and the speed at which it was travelling inside the sanctuary zone when the GPS was on.  However, the judge accepted that while that evidence did not prove what the appellant was doing at those times, i.e. fishing or scouting for fish, it was a strong thread in the respondent’s case.  The judge said:[11]

   …[T]he slow pace and retracing of the route in Maps 1, 2, 5, 6 and 7 is consistent with the method of long line fishing and the evidence of Mr Sharman is unconvincing and rejected in respect to his denial of doing so. The margin of error of the GPS was negligible and immaterial. I consider the GPS evidence to be objective and compelling evidence against which other evidence can be reviewed and considered.

   Mr Sharman was in his vessel at 7:13pm on 9 October 2018 [sic] and he was within [sanctuary zone 1]. Map 1 shows that he slowly manoeuvred his vessel in a zig-zag pattern at high tide and travelling between 1-4 km per hour. Mr Spencer said long lines could be laid as a zig-zag and Mr Sharman said in his record of interview that when he brought his lines in they were in a zig-zag pattern as they had been disturbed by a shark. Mr Sharman said, in chief, he only ever put lines out north-south, however, in his record of interview, he told Fisheries he laid his lines out east and west. He said it took him 40-45 minutes to retrieve his lines because they had been disturbed in a zig-zag pattern by a shark. The GPS evidence, at 11.00pm, showed Mr Sharman slowly, between 1-5 km per hour and at low tide, retracing the earlier zig-zag route he had followed at slow speed at 7pm.

   That activity, on 9 and 10 October 2017, was consistent with the method of fishing Mr Sharman had described. Maps 1, 2, 4, 6 and 7 proved behaviour by Mr Sharman, as master of his vessel, consistent with fishing.

   [10] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [111].

   [11] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [111]-[113].

3. On this basis the judge found beyond reasonable doubt that on 9 and 10 October 2017, 6 and 7 October 2017, 28 and 29 October 2017, 26 and 27 October 2017 and 25 September 2017, the appellant was fishing within the sanctuary zone.[12]

   [12] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [114]. The trial judge misidentified the dates of 28 and 29 October 2017 and 26 and 27 October 2017 which should have been 28 and 29 September 2017 and 26 and 27 September 2017.

4. The judge found that the appellant had a mistaken understanding of the location of the boundary of the sanctuary zone.  Accordingly, the judge said that the appellant’s evidence that he sat on the boundary waiting for fish had to be assessed on the basis of that misunderstanding.  The judge said:[13]

   … The defendant asked the Court to accept his practice was to park his boat just outside the boundary and wait for fish. The defendant was not required to prove his defence but his evidence of his practice strains credibility against his admission that he did not know where the boundary was and against the GPS evidence.

   [13] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [115].

5. In relation to count 1 the judge found:[14]

   I am satisfied, beyond reasonable doubt, that the activity of fishing described by Mr Sharman as zig-zagging and by Mr Barker as “up and down” was the activity detailed at very slow pace in a zig-zag pattern in Map 1 within SZ-1, retracing, on 10 October 2017, the 9 October 2017 route.

   [14] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [117].

6. In relation to counts 2 to 8 the judge found:[15]

   In respect of Counts 2 to 8, Mr Sharman said that on each of those occasions he scouted for fish inside SZ-1 and fished outside SZ-1. He said that his practice was to scout inside the zone at high tide and then lay out and take up later the line at low tide outside SZ-1. The GPS evidence showed that on each of the days the subject of Counts 2-8, Mr Sharman was within SZ-1 at high tide and low tide. In considering each of Counts 2 to 8 separately, I have again had regard to Mr Sharman’s evidence concerning his knowledge of the boundaries of the sanctuary zone. I have also had regard to his evidence about the method of laying out and retrieving lines.

   The GPS evidence, in respect of Counts 2 to 8, is consistent with fishing as Mr Sharman described it. Mr Sharman admits fishing on each of the charged days. Combined with the evidence as to tide times and Mr Sharman’s lack of understanding of the boundaries of the sanctuary zones, I find there is an irresistible inference that Mr Sharman was fishing as alleged and that he removed fish from the sanctuary zone on each of the occasions pleaded.

   [15] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [118]-[119].

   The judge’s reliance on improbability reasoning

7. The appellant submits that the trial judge erred in finding him guilty on all eight counts in reliance upon improbability reasoning, as applied in Martin v Osborne.[16]The judge found that on the charged occasions the appellant retraced his tracks on each of the second trips, at a slow speed consistent with laying out or retrieving a line, and was within the sanctuary zone at both high tide and low tide.[17]  The judge held that you could exclude as a reasonable possibility that on each occasion the appellant was reconnoitring for fish rather than fishing.[18]  The judge expressly rejected the appellant’s evidence to the contrary.[19]  The judge found that in these circumstances the appellant’s denial that he was fishing in the sanctuary zone was so improbable that not only could his evidence be rejected but that there was an irresistible inference that he was fishing in the zone.[20] 

   [16] [1936] HCA 23, (1936) 55 CLR 367.

   [17] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [117]-[118].

   [18] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [110]-[114].

   [19] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [111].

   [20] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [119].

8. The appellant submits that it was not open to the trial judge, in reliance upon the principle in Martin v Osborne, to have excluded as a reasonable possibility that he was not fishing in the sanctuary zone but merely scouting for fish on each of the charged occasions.  The appellant submits that the trial judge’s reasoning relying on Martin v Osborne is impermissible.

9. In Martin v Osborne the respondent was charged with driving a commercial passenger vehicle which was unlicensed.  In order to prove that the passengers on the day in question were being carried for reward between Melbourne and Ballarat, the informant tendered evidence of the conduct of the respondent carrying passengers between those two cities on two preceding days.  There was no direct evidence on any occasion of the payment of any money by the passengers.  On appeal the High Court held that the Supreme Court erred in concluding that the evidence of the respondent’s conduct on the days before the charged occasion should have been excluded given the Supreme Court’s conclusion that the evidence did not authorise the inference that the respondent carried passengers for reward. 

10. Dixon J (as he then was), with whom Latham CJ agreed, said that if an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference.  To find an accused person guilty the circumstantial evidence must not leave open a reasonable inference consistent with innocence.  This means that the degree of probability that the occurrence of facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.  The class of acts and occurrences that may be considered include circumstances whose relation to the fact in issue consists in the probability, or increased probability, that they would not be found unless the fact to be proved also existed.[21]  The acts of an accused are admissible against him or her whenever they form a component in a combination of circumstances which is unlikely to occur without the fact in issue also occurring.  The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact.  The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other hypothesis than the truth of the fact to be proved.[22]

    [21] [1936] HCA 23, (1936) 55 CLR 367 at 375.

    [22] [1936] HCA 23, (1936) 55 CLR 367 at 376.

11. In Martin v Osborne the High Court held that the evidence to which objection was taken, when combined with the evidence of the journey the subject of the charge, showed that for three consecutive days the respondent’s vehicle behaved exactly as commercial passenger vehicles do and that the greater part of that time it was under the control of the respondent.  Different passengers were carried on each journey and they possessed no common characteristic.  Dixon J held that the impugned evidence tended to show that the respondent was operating the vehicle regularly for the carriage of passengers between the two cities thereby making it improbable that the passengers were not carried for reward.[23] 

    [23] [1936] HCA 23, (1936) 55 CLR 367 at 377.

12. In my view there was no error on the part of the trial judge in adopting improbability reasoning for the reasons that follow. 

13. First, the evidence that on 9 October 2017 the appellant’s vessel was seen to leave the Port Wakefield boat ramp at about 11:00 p.m.  At 11:15 p.m. his vessel was within the sanctuary zone and at least five kilometres from the boat ramp.  It was open to the judge to exclude as a reasonable hypothesis that in the intervening period the appellant had caught fish at Clive’s Old Boat.  Second, the evidence that for about 90 minutes thereafter the appellant’s vessel remained within the sanctuary zone.  The vessel travelled at a slow speed retracing the zig-zag pattern from the trip that had commenced at around 7:00 p.m. that night.  Third, the evidence that upon interception by Fisheries officers at 12:48 a.m. inside the sanctuary zone there was 17 snapper on board.  Fourth, the evidence that the appellant’s GPS unit was only switched on when his vessel was located within the sanctuary zone, and that on each occasion when the unit was operating, namely, 6 – 7 October, 4 October, 3 October, 28 – 29 September, 26 – 27 September and 25 September 2017, repeat trips, usually hours apart, were made to the same area of the sanctuary zone, being around waypoint 039 and on a number of occasions exact paths were retraced by the appellant’s vessel. Fifth, the evidence that on these occasions the appellant’s vessel would slow consistent with laying out or retrieving a line.  Sixth, the evidence that on those occasions the appellant’s vessel was within the sanctuary zone at both high and low tide consistent with fishing. 

14. In the circumstances the evidence was capable of excluding any reasonable possibility consistent with innocence on count 1 that explains the presence of the 17 snapper on board the appellant’s vessel within the sanctuary zone on 10 October 2017.  The irresistible  inference is that he had caught the fish in the zone.  Further, the striking similarities in the GPS data between the other charged occasions and 9 – 10 October 2017 is capable of excluding as unreasonable any other hypothesis than the truth of the fact that the appellant was fishing inside the sanctuary zone on each of the charged occasions on counts 2 to 8. 

15. The judge’s reliance on improbability reasoning was not only permissible but warranted.   It was open to the judge to reject the appellant’s evidence that he was not fishing in the sanctuary zone on this basis.  It was open to the judge to find on a consideration of the whole of the evidence that the appellant had been fishing in the sanctuary zone as charged.

16. However, for the reasons that follow, the judge erred in rejecting the appellant’s evidence relying on an erroneous understanding of the testimony of other witnesses.  That error is the subject of the fourth issue identified in paragraph [9] above.  Nonetheless, the ground of appeal based on improbability reasoning must be dismissed. 

    The judge’s factual error

17. The judge excluded as a reasonable hypothesis consistent with innocence that the appellant was searching for fish within the sanctuary zone when he was retracing his tracks in a zig-zag fashion.

18. In reaching that conclusion the judge relied upon the evidence of a Fisheries officer, Mark Spencer.   Mr Spencer gave evidence that in the course of his duties he had observed the setting of a long line with multiple weights which caused the long line to change direction at the weighted point.  He was challenged under cross-examination that his evidence about setting a line in one direction and changing it to go in another direction was incorrect.  He accepted that setting a straight line was most common but he did not resile from his evidence of the use of a weight to change direction.  The judge considered this evidence as follows:[24]

    In respect of the evidence of Fisheries Officer Spencer, the defendant contended that his evidence in relation to the zig-zag patterning of long lines should be rejected as he was not a commercial fishing expert. I accept the evidence of Mr Spencer in that respect based on his professional observations and its consistency with the records of interview and the evidence of the experienced fisherman.

    [24] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [104].

19. As I have noted, the judge in his reasons for verdict relied upon Mr Spencer’s evidence that long lines could be laid as a zig-zag.[25]

    [25] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [112].

20. The appellant contends, and the respondent accepts, that the judge erred in finding that Mr Spencer’s evidence in relation to zig-zagging was consistent with the evidence of experienced fishermen.

21. Evidence was adduced from two experienced fishermen, Ashley Perkins and Robert Butson.  Neither of these witnesses gave evidence as to whether a long line might be deployed in a zig-zag pattern. 

22. This evidence was important because the appellant had given evidence that he did not set his lines in a zig-zag pattern.  He said that on the night of 9 October 2017 his lines were in a zig-zag pattern because they had been disturbed by a shark. 

23. The respondent submits that the judge’s error is immaterial as he was entitled to accept the evidence of Mr Spencer as it was only contradicted by the appellant’s evidence and the judge found the appellant was not credible including in respect of his practice as to the direction of deploying lines.[26] 

    [26] Chris Thomas (DEWNR) v Sharman [2019] SAERDC 32 at [61], [112] and [115].

24. I do not accept this submission.

25. In my view, the error is material.  The issue for the judge was whether he could exclude as a reasonable hypothesis consistent with innocence the appellant’s evidence that he was travelling within the sanctuary zone in a zig-zag pattern, not because he was fishing, but because he was searching for fish.  He denied he ever set his lines in a zig-zag pattern.  Whether or not there was evidence of a practice of setting lines in a zig-zag pattern was plainly material to the critical finding the judge was required to make on this issue.  The judge’s consideration of whether he could reject the appellant’s evidence as a reasonable possibility was informed by a misunderstanding that the experts, Mr Perkins and Mr Butson, gave evidence that there was a practice in the industry of setting long lines in a zig-zag pattern, contrary to the evidence of the appellant as to his practice.

26. I would uphold this ground of appeal.   

    Disposition of the appeal

27. Notwithstanding this error the respondent submits that the verdicts of guilty should nonetheless be confirmed on the basis that the strength of the circumstantial case against the appellant is overwhelming.  Irrespective of the judge’s error the charges were so clearly proven it is inevitable that the appellant would have been found guilty.  Central to the judge’s verdict on the circumstantial case was his rejection of the appellant as a witness of truth and his acceptance of the improbability of his evidence that on each charged occasion he was in the sanctuary zone for the purpose of reconnoitring for fish rather than fishing.  The judge’s reasoning relied upon his acceptance of the evidence of Mr Spencer, based as it was on the erroneous understanding that it was supported by the evidence of Mr Perkins and Mr Butson, as an important strand in the circumstantial case. 

28. In my view, notwithstanding the error, the guilty verdicts cannot be upheld on the basis that the judge took an adverse view of the appellant’s credit.  First, this Court cannot exclude the possibility that the judge’s adverse view as to the appellant’s credit was partly informed by this factual error.  Second, given that the error was made, it is not open to this Court to uphold the guilty verdicts entered by the judge on the basis of satisfaction that although the judge made an error of fact in arriving at the verdicts of guilty, those verdicts should nonetheless be confirmed when this Court is in no position to form an assessment of the appellant’s credit.  If this Court was to now make its own finding on the evidence it would in effect be the Full Court conducting its own trial of the appellant.  It would be a trial from which no appeal would lie (other than by special leave to the High Court).[27]  

    [27] Le Cornu v Thomas [2019] SASCFC 154 at [33] and [41].

29. While it was open to the judge to reject the appellant’s evidence and find the charges proved in reliance on improbability reasoning, it does not follow that the Court should confirm the verdicts of guilty.  It has not been established that, notwithstanding the error in the judge’s factual finding, the charges have been so clearly proved this Court can be satisfied that the verdicts of guilty were inevitable. 

30. Accordingly, the appeal must be allowed and the verdicts quashed.  In the circumstances the question arises as to whether the Court should enter verdicts of not guilty.  That necessitates consideration of whether any of the other grounds of appeal, if successful, would require the Court to find the charges not proved beyond reasonable doubt. 

    The other grounds of appeal

31. It is unnecessary to decide the remaining grounds of appeal.  Even if those other grounds were made out, they would not justify this Court entering verdicts of not guilty.  If those grounds were upheld the Court could do no more than quash the guilty verdicts and order a new trial. 

    Conclusion

32. I would allow the appeal.  I would quash the verdicts of guilty in relation to each count.  I would remit the matter for a retrial on all counts before a different judge.

33. HUGHES J:         I would allow the appeal for the reasons given by Stanley J. I adopt the orders his Honour proposes.