Simpson v Department of Environment and Conservation
[2011] WASC 206
•19 AUGUST 2011
SIMPSON -v- DEPARTMENT OF ENVIRONMENT AND CONSERVATION [2011] WASC 206
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 206 | |
| Case No: | SJA:1128/2010 | 12 AUGUST 2011 | |
| Coram: | HALL J | 19/08/11 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused in respect of each of the grounds of appeal Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | NEIL ANDREW SIMPSON DEPARTMENT OF ENVIRONMENT AND CONSERVATION |
Catchwords: | Unlawful possession of protected fauna Whether altered and incomplete documents inadmissible or unreliable Whether expert witness sufficiently qualified and independent Whether animals indigenous to Australia Turns on own facts Amendment of charge Whether appellant unduly prejudiced |
Legislation: | Criminal Appeals Act 2004 (WA), s 9(2) Criminal Code Act Compilation Act 1913 (WA), s 10A Criminal Procedure Act 2004 (WA), s 132 Magistrates Court Act 2004 (WA), s 31 Wildlife Conservation Act 1950 (WA), s 6, s 14, s 15, s 16A, s 17, s 27C |
Case References: | Samuels v WA (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE D N JONES
File No : PE 6228 of 2010
Catchwords:
Unlawful possession of protected fauna - Whether altered and incomplete documents inadmissible or unreliable - Whether expert witness sufficiently qualified and independent - Whether animals indigenous to Australia - Turns on own facts
(Page 2)
Amendment of charge - Whether appellant unduly prejudiced
Legislation:
Criminal Appeals Act 2004 (WA), s 9(2)
Criminal Code Act Compilation Act 1913 (WA), s 10A
Criminal Procedure Act 2004 (WA), s 132
Magistrates Court Act 2004 (WA), s 31
Wildlife Conservation Act 1950 (WA), s 6, s 14, s 15, s 16A, s 17, s 27C
Result:
Leave refused in respect of each of the grounds of appeal
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms L A Eddy
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Samuels v WA (2005) 30 WAR 473
(Page 3)
1 HALL J: On 30 November 2010 the appellant, Neil Andrew Simpson, was convicted after a two-day trial in the Magistrates Court of one count of unlawful possession of protected fauna contrary to s 16A(1) of the Wildlife Conservation Act 1950 (WA). He was fined $2,000. He now seeks leave to appeal against his conviction.
2 The appellant was self-represented at trial and has also represented himself in the appeal.
3 The appeal was first listed to be heard on 29 July 2011. On the day prior to the hearing of the appeal the appellant advised that he was unable to attend due to an ear infection. He normally resides in Sydney and the ear infection made it impossible for him to travel by air to Perth, as he had planned to do. The hearing was vacated and the appeal was relisted to be heard on 12 August 2011.
4 On 11 August 2011 the appellant again contacted the court, this time to advise that his daughter was ill and that he would again be unable to travel to Perth for the hearing. A medical certificate was provided which stated that his daughter was ill and that the appellant was caring for her.
5 On 12 August 2011 the appellant applied, by telephone, for a further adjournment. As he failed to establish that it was impractical for him to have made arrangements to enable him to attend the hearing in person or that he would be prejudiced by participating in the appeal by way of telephone, I refused the adjournment. The appellant thereafter made submissions by telephone. He had previously filed written submissions in respect of the matter.
Background
6 The prosecution case was that on 25 April 2009 the appellant travelled from Newman to Perth by aeroplane. It was alleged that prior to boarding the aeroplane he had consigned for transport on the aeroplane, a blue and white esky containing a number of reptiles. The esky was retrieved from the aeroplane on arrival in Perth by wildlife officers. A consignment note attached to the esky nominated the appellant as the sender and intended recipient. It also recorded that the contents of the esky were 'live reptiles, non-venomous'. In addition to his name, the consignment note also recorded a mobile telephone number that was subsequently verified to be that of the appellant.
7 On being detained at the Perth domestic airport, the appellant was found in possession of a red bag. That bag contained items consistent
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- with the trapping of animals. These included two traps, calico bags, two reptile-catching hooks, torches, nine rolls of tape and 12 plastic containers similar to those in which the reptiles in the blue esky were found.
8 On being detained at the airport the appellant was asked by a federal police officer whether the blue esky was his. The officer gave evidence that the appellant responded by saying: 'Yes, and it has live reptiles in it'. (ts 65)
9 The contents of the esky were examined by wildlife officers who seized the reptiles (and other items) and recorded them on a property seizure notice. The esky contained a number of smaller plastic boxes in which the different types of reptiles were confined. The reptiles were transported to the offices of the Department of Environment and Conservation where they were again examined, photographed and recorded on an exhibit log. Within the next two weeks the reptiles were taken to a zoologist, Dr Peter Mawson, who then examined them and provided a report listing the number and species of the reptiles.
10 Initially the appellant was charged with 22 charges, 11 of unlawful possession contrary to s 16A(1) and 11 of attempting to export native fauna from the State contrary to s 17(2)(d) Wildlife Conservation Act. At the commencement of the Magistrates Court hearing the prosecution stated that it did not wish to proceed with the attempted export charges and those charges were then dismissed. Each of the other 11 charges related to a nominated species of reptile. In some cases, it was alleged that there were multiple animals of a particular species and the number of animals was referred to in the charge.
11 The appellant elected not to give or call any evidence in his defence.
12 At the conclusion of the trial the magistrate held that possession of native fauna had been proved, though not as particularised in the 11 charges. An amendment was then made to one of the charges to reflect the magistrate's finding that the appellant possessed 29 native reptiles. A finding of guilt was made in respect of that charge and the remaining charges were dismissed.
Grounds of appeal
13 The grounds do not identify with sufficient clarity the errors which the appellant says that the magistrate made. However, more detail was provided in the appellant's written and oral submissions. The grounds are:
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- 1. I am not guilty.
[The appellant conceded that this was simply the conclusion that he said flowed from the cumulative effect of the other grounds. He said that nothing was intended to be raised in this ground that was not otherwise covered.]
2. The Magistrate erred in relying on documents which had been altered.
[The appellant said that this ground related to Exhibit A, the expert report of Dr Peter Mawson, on which there was a handwritten amendment and to Exhibit C, the property seizure record, which had been altered after a copy had been provided to him.]
3. The Magistrate erred in relying on documents which were incomplete.
[The appellant said that this ground related to Exhibit E, the exhibit log, which he said failed to record the chain of custody of relevant exhibits.]
4. The Magistrate erred in relying on expert evidence from a person or persons [who] was or were not an expert.
[The appellant said that this ground related to Dr Mawson and whether he had the necessary expertise to identify the reptiles.]
5. The Magistrate erred in relying on expert evidence from a person [who] was not independent.
[The appellant said that this ground also related to Dr Mawson and whether he was independent of the Department of Environment and Conservation.]
6. The Magistrate erred in relying on evidence from a person whose evidence was hearsay.
[The appellant said that this ground related to the evidence of Ms Joanne Bardsley, a transport company employee, who gave hearsay evidence that it was the appellant who attended to deliver the esky for transportation to Perth.]
7. The Magistrate erred in relying on evidence which was circumstantial.
[The appellant said that this ground related to whether there was evidence to support the conclusion that the reptiles were indigenous to Australia.]
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- 8. Exhibit 1 is a document owned by the appellant and may be required in further prosecutions.
[The appellant said that this ground related to his copy of the seizure notice, which he believed had been ordered to be forfeited.]
9. The conviction contravenes The Criminal Code, Part 1, Chapter IIA, s 10A, to wit, the appellant was not charged with the offence as an alternative offence to those charges before the Magistrate.
[The appellant said that this ground related to the amendment of one of the charges at the end of the trial which, he said, resulted in him being convicted of a charge that was materially different from those he had come to defend himself on and therefore unduly prejudiced his ability to properly defend himself.]
Relevant statutory provisions
14 Section 16A(1) of the Wildlife Conservation Act provides that:
16A. Unlawful possession of protected fauna
(1) A person who has in his possession any protected fauna or the skin or carcass of any protected fauna, except where the fauna was lawfully taken, commits an offence against this Act.
14. Protection of fauna
(1) Except to the extent which the Minister declares by notice published in the Government Gazette pursuant to the provisions of this section all fauna is wholly protected throughout the whole of the State at all times.
fauna means, subject to sections 20(6) and 27(4) -
(a) any animal indigenous to any State or Territory of the Commonwealth or the territorial waters of the Commonwealth; and
(b) any animal that periodically migrates to and lives in any State or Territory of the Commonwealth or the territorial waters of the Commonwealth; and
(c) any animal declared as fauna pursuant to subsection (2),
and includes in relation to any such animal -
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- (d) any class or individual member thereof;
(e) the eggs, larvae or semen;
(f) the carcass, skin, plumage or fur thereof,
but does not include any prescribed animal or prescribed class of animal;
17 The Minister may issue licences for the taking and keeping of fauna: s 15. There was uncontested evidence that no such licence had been granted to the appellant (ts 36).
18 There was also evidence that there was no relevant notice issued by the Minister under s 14 that affected the protected status of the reptiles in this case (ts 12). In any event, an accused person bears the onus of proving any exemption contained in the Act: s 27C.
Altered documents - Ground 2
19 Exhibit A was a report from Dr Peter Mawson, the expert called to identify the reptiles. I will deal with Dr Mawson's evidence in more detail in respect of grounds 3 and 4.
20 The report is a single-paged document that commences by listing the animals that Dr Mawson says he has examined. The list reads as follows:
2 Bynoe's Prickly Geckoes Heteronotia binoei;
8 Dtellas Gehyra sp.;
1 Stone Gecko Diplodactylus granariensis;
2 Spiny-tailed Geckoes Strophurus wellingtonae;
12 Banded Knob-tail Geckoes Nephrurus wheeleri wheeleri;
2 Rock Dragons Ctenophorus caudicinctus caudicinctus;
1 Mitchell's Bearded Dragon (Pogona minor mitchelli)
1 Centralian Blue-Tongue Tiliqua multifasciata;
4 Stimson's Pythons Antaresia stimsoni;
1 Pygmy Python Antareisa perthensis; and
1 Pilbara Death Adder Acanthophis wellsi
21 The entry for 12 Banded Knob-tail Geckoes appears to have been amended by hand, such that a straight line appears over the number '2'.
22 Dr Mawson was questioned about this in cross-examination. He said he had a copy of the letter and that the original typed number had been '12' and it had been overwritten to read '11'. He said that he did not make that amendment. He said that if he had amended the report he would have retyped it and then signed it in its amended form. The effect of this was that the apparent amendment was not his and did not reflect his evidence.
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23 Dr Mawson could not account for the amendment and the number of animals he examined was, he said, represented by the typewritten figures. Thus, any ambiguity that might have been thought to arise by reason of the amendment was dispelled. In these circumstances, there was no reason why the magistrate could not receive the report and rely upon the typewritten parts of it.
24 Exhibit C was a property seizure record completed by Mr Matthew Swan, a wildlife officer with the Department of Environment and Conservation. I will refer to Mr Swan's evidence in more detail in respect of ground 3.
25 As regards Exhibit C, Mr Swan said that the document had been written out by him at the Perth domestic airport and that it recorded the items seized from the appellant. After completing the document a copy was given to the appellant. The original seizure notice that Mr Swan retained was tendered and became Exhibit C. It contains 28 items, the last of which is '2 x Elliot Traps'.
26 Mr Swan was asked whether he had altered the original seizure notice after a copy was issued to the appellant. He said that he did not. The appellant then showed Mr Swan his copy and asked the question again. That copy was tendered and became Exhibit 1. It lists only 27 items; that is, it does not include the item referring to the Elliot Traps. Mr Swan confirmed that an extra item had been added to the original seizure record. Although he said he did not know why or when he had done that, he accepted that the additional entry was in his handwriting.
27 Mr Swan said that it was clear that two Elliot Traps were seized and that photographs of the seized items would show that. He said that when he was writing out the receipt he had obviously left the traps off, but he did not know why he had added that to the original copy afterwards (ts 41).
28 A federal police officer, Senior Constable Adrian Nuttle, also gave evidence for the prosecution. He said that he detained the appellant after he disembarked the plane from Newman. He said that he searched a red carry bag that the appellant had with him and found it to contain numerous items including 'reptile traps'. That bag was also examined by Mr Swan. In his evidence-in-chief Mr Swan said that the bag contained steel Elliot Traps. He said that an Elliot Trap was something used by scientists in the field to catch small animals and that 'it's like a tunnel which has a door that flips up when an animal runs across it' (ts 30).
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29 The appellant did not dispute at the trial that the Elliot Traps were contained in the red bag and had been seized from him at the airport. The significance of the items in the red bag is that they had the capacity to support an inference that the appellant had caught the reptiles and consigned them for transport to Perth.
30 The appellant's argument seemed to be that because a further item had been added to the seizure notice after a copy was provided to him, the document was either inadmissible or unreliable. Whilst it is obviously poor practice to add an item in this way, as was acknowledged by Mr Swan, it had no significance in the context of this case. That is because there was uncontested evidence that the Elliot Traps were in fact seized from the appellant. In those circumstances, the subsequent addition of item 28 to the seizure notice could not have given rise to any doubt that the traps were in fact seized as alleged. There was no other reason to doubt the accuracy of the seizure notice.
Continuity - Ground 3
31 Exhibit E was an 'Exhibit Log/Chain of Custody Record' produced by Mr Swan. Mr Swan said that the seized items were taken back to the Department of Environment and Conservation offices where they were photographed and then listed on an exhibit log. The items listed included the reptiles found in the blue esky.
32 In regard to the number of reptiles recorded on the seizure notice as compared to the exhibit log, Mr Swan said in evidence that at the airport he was unable to do an accurate count without the potential for the animals to escape. This was particularly so with some of the smaller, more active reptiles that were difficult to count inside the plastic containers.
33 Mr Swan said that the seizure notice was prepared based upon what could be counted without opening individual containers and that when he returned to the office he believed that more reptiles than was noted on the seizure receipt were actually found (ts 34).
34 The seizure notice (Exhibit C) records the following as the first seven items:
1 x Death Adder
11 x 3 lined knob tailed geckos
11 x unknown geckos
3 x Dragons
1 x Pygmy Python
- 1 x Centralian Blue tongue
4 x Stimson Python
35 The exhibit log (Exhibit E) contains the following items in regard to the reptiles:
1 x Death Adder
11 x knob tailed geckos
11 x unknown geckos
1 x Pygmy Python
1 x Blue Tongue lizard
4 x Stimson Python
36 It is apparent that there are discrepancies between Exhibit A (Dr Mawson's report), Exhibit C (the seizure notice) and Exhibit E (the exhibit log). These discrepancies were raised in the cross-examination of Mr Swan. He accepted that the total number of reptiles was 32 on the seizure notice, 29 on the exhibit log and 35 on Dr Mawson's report.
37 As I have noted earlier, Mr Swan had said in his evidence that it had been difficult to count some of the smaller reptiles at the airport, that the exhibit log represented a more accurate count and that his belief was that the total number was greater when the later count was done. That is not reflected in the total number listed on the exhibit log, which is less than the total on the seizure notice. However, when Mr Swan was cross-examined about this he noted that the exhibit log contained an error in that it did not include the two spiny-tailed geckoes referred to in Dr Mawson's report. That is true. However, there was also no separate entry for spiny-tailed geckoes in the seizure record completed at the airport. There is another discrepancy. The seizure record refers to three dragons as does Dr Mawson's report but these are not referred to in the exhibit log.
38 The appellant submits that the magistrate could not have relied upon these documents to conclude that he had possessed 29 reptiles as alleged. In this regard, the magistrate said in his reasons that he would proceed on the basis that was most favourable to the accused (ts 36); that is, to choose the lowest of the total numbers referred to in the records.
39 Of course, the number of reptiles which were in the possession of the appellant was only a particular of the charge. What was necessary in order to prove the charge was that there be evidence which established beyond reasonable doubt that the appellant was in unlawful possession of native fauna. Such fauna could be constituted by a single specimen or by multiple specimens. It is thus necessary to consider whether the evidence
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- as a whole was capable of proving that the reptiles identified by Dr Mawson as being native fauna were those which were in the possession of the appellant on the day of the alleged offence. This depends not only on the documentary records but the evidence of what was done with the reptiles once they were seized.
40 The appellant points out that the exhibit log included a section which enabled a record to be kept of when items were relinquished into the custody of others. He notes that the annotations in that regard record movements of some of the reptiles on 8 May 2009, but do not appear to record the movement of reptiles to Dr Mawson or, subsequently, to the Perth Zoo. He says that the exhibit log cannot, thus, be relied on to record the continuity of custody of the reptiles.
41 Mr Swan's evidence was that the reptiles were taken to the offices of the Department of Environment and Conservation and placed in a limited access area. A care sheet was prepared for each animal. They were put into holding tanks which were marked with the date of the alleged offence, type of animal and the name of the suspect. These details were also recorded on a whiteboard in that area (ts 51). The room in which the holding tanks were kept was a secure room. The room was double locked and had an alarm (ts 47). Mr Swan said three or four people had access to the building at the relevant time. He denied the possibility that animals seized from another person could have been mixed up with those seized from the appellant (ts 45).
42 Mr Swan said that the exhibit log was not used to record all movements of the animals (ts 45). He said other records were kept of movements, including his own notes (ts 47) and animal record sheets (ts 50). He also said that he knew that the animals delivered to Dr Mawson were those seized at the airport because they came from the holding tanks that were marked accordingly (ts 52).
43 Mr Swan said that the seized reptiles were kept in the tanks until they were taken to Dr Mawson for identification purposes. He said that all of the animals that had been seized were taken to Dr Mawson. They were then returned before later being taken to the Perth Zoo to determine whether any of them needed veterinary care. Accordingly, irrespective of the documentary records, there was evidence to support a conclusion that the reptiles examined by Dr Mawson were those seized from the appellant on 25 April 2009.
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44 Furthermore, notwithstanding the differences in total numbers, each of the documents includes an itemised list of different types of reptiles. In respect of some of these the three documents are in conformity. For example, each of them records a death adder, a pygmy python, four Stimson's pythons and a blue-tongue lizard. Mr Swan accepted that the seizure record might not be accurate in terms of the smaller reptiles given the difficulty in counting them at the airport. He also noted the exhibit log did not accurately record all of the reptiles.
45 In the circumstances, it seems likely that the most accurate documentary record of the reptiles seized is the report of Dr Mawson, who individually examined each of the specimens produced to him. However, it must be accepted that the lack of consistency between the documents raises a question as to their reliability. If there had been no other evidence as to continuity it might have been impossible to conclude that the reptiles seized were those examined by Dr Mawson. However, as I have noted, there is other evidence of continuity on which the magistrate could rely. The only issue remaining was as to the exact number of reptiles seized.
46 In all of the circumstances the magistrate's conclusion that the total number of reptiles in the possession of the appellant was 29 was beneficial to him. As I have noted earlier, this is merely a particular and relevant only to penalty. There was plainly evidence upon which the magistrate could conclude that a number of reptiles had been found in the possession of the appellant. His Honour's conclusion that the total number was 29 was supported by the evidence and adopted the most favourable view as to the numbers involved.
Expert evidence - Grounds 4 and 5
47 Dr Mawson gave evidence that he has a Bachelor of Science with Honours and a PhD in Biogeography. He said that biogeography combines the disciplines of zoology and geography. He has been employed by the Department of Environment and Conservation for the last 16 years as either the senior or principal zoologist. Prior to that he spent 10 years with the Agricultural Protection Board in their Vertebrate Pests Research Section.
48 Dr Mawson said that taxonomy was one of the key subjects that he studied at university and that he has been involved for many years in identifying fauna of various types, either live or dead, or parts of animals. He said he had also been involved in teaching taxonomy within the Department over the previous nine years. He said he was a member of the Ecological Society of Australia and Birds Australia. In regard to reptiles,
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- he said that he had been identifying species of reptiles for 16 years and this involved identifications of animals seized at the airport.
49 Dr Mawson confirmed that in respect of this case investigating officers had brought a quantity of reptiles to him which he had examined for the purposes of identification. He referred to Exhibit A and identified it as his report. He said that each of the species referred to in that report are native to Western Australia for part or all of their range and that they are protected species under the provisions of the Wildlife Conservation Act.
50 In cross-examination the appellant put a number of photographs of the seized reptiles to Dr Mawson and suggested that his identification was incorrect. In particular, the appellant put it to Dr Mawson that a reptile he had identified in his report as a Stone Gecko was in fact a Bynoe's Prickly Gecko. Dr Mawson accepted that, on the basis of the photograph he was shown, the animal did appear to be a Bynoe's Gecko. He noted that there was some difficulty in identifying animals from photographs and that when he conducted the identifications he had the live animals and was able to compare them with taxonomic guides. Exactly what differences or similarities there are between these two species was not explored.
51 It should be noted that both species are listed in Dr Mawson's report and thus both are native to Western Australia and are protected species within the meaning of the Wildlife Conservation Act. The only significance of the cross-examination in this respect could be as to whether Dr Mawson had sufficient skill in identification to be accepted by the court as an expert witness. The appellant submitted that he did not.
52 A number of other photographs were put to Dr Mawson and suggestions made that he had wrongly identified individual reptiles. He did not accept those suggestions. He stood by the identifications that he had made when examining the live animals and as recorded in his report.
53 Dr Mawson was also asked whether he could provide the distinguishing features of a particular named species. He said that he normally relied upon taxonomic keys. He said in this regard:
All the books that I use have taxonomic keys. In other words, you usually have a choice of two characters. They either have three toes or four toes or they have spines or no spines and you make a choice based on what you see on the animal in front of you and the keys guide you to a positive identification at the end. So it's usually not necessary to remember all the criteria that you use to get an identification (ts 17).
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54 The magistrate then asked whether it was fair to say that Dr Mawson did not have any particular expertise with any of the individual animals but that he was able, by looking at a text, to compare it to an animal before him and determine what species it was. Dr Mawson agreed with this (ts 17). To be fair to Dr Mawson it was not clear whether he was agreeing that his expertise was limited or that the process of identification was as described.
55 In his reasons, the magistrate said:
[T]he witness called on behalf of the prosecution as an expert witness left me with little confidence in the level of his expertise. Dr Mawson acknowledged that he is not an expert in the identification of particular species even though he had apparently assisted for some years in the identification of reptiles as part of his duties with the Department of Environment and Conservation. It is difficult to understand why, in the absence of special knowledge on his part in respect of reptiles and bearing in mind ideally an expert witness should not be an employee of the prosecuting authority, a witness with particular expertise in native reptiles was not called. Nevertheless, I accept that Dr Mawson, while not necessarily able to identification [sic] all species of native reptiles without resort to authoritative texts which he testified he had used, nevertheless is qualified to say that the reptiles were of the general species identified and in some cases his evidence was not challenged. Further, by reason of the surrounding circumstances I am satisfied that the reptiles can only have been animals indigenous to Australia and there being no evidence that any notice was published pursuant to s 14(2) of the Act in respect to the reptiles indigenous to Australia, that the animals were protected fauna (ts 35 - 36).
56 The appellant submits that Dr Mawson was not qualified to give the evidence that he gave and that he was not independent due to his employment with the Department of Environment and Conservation. In regard to independence, I would note that this was not an issue raised in the Magistrates Court proceedings. It was not suggested by the appellant that Dr Mawson's evidence was either inadmissible or should not be accorded any weight as a consequence of his employment. Nor was Dr Mawson cross-examined in this regard.
57 It is not unusual for witnesses who are employed by the State to be called as experts. This occurs frequently with police officers who are called to give forensic evidence. Obviously it is important that expert witnesses give their evidence unaffected by bias, whether conscious or subconscious. A witness who is employed by the investigating agency may be subject to challenge regarding their independence. This may cause less weight to be given to the evidence. However, it does not
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- follow that simply because a witness is employed by the investigating agency that their evidence should not be admitted or should be accorded no weight (see Heydon J D, Cross on Evidence (8th Aust ed) [29080]). In the present case, there was no challenge as regards independence and no basis for reaching an adverse conclusion in regard to it.
58 As regards Dr Mawson's expertise, in my view, there was ample evidence upon which the magistrate could come to the conclusion that he was qualified to give evidence regarding the identification of the reptiles. Cross-examination on the photographs was of limited significance bearing in mind that Dr Mawson said it was difficult to identify the animals from photographs as compared to having the live specimens available. Even so, only one photograph gave him any cause to reconsider his earlier identification.
59 As regards Dr Mawson's use of taxonomic dichotomous keys to determine the precise species of each reptile, that does not seem to me to be indicative of any lack of expertise. In re-examination Dr Mawson identified the texts that he had used and said that they were the standard texts used by most biologists in Western Australia. Whilst he arguably agreed to a proposition that he did not have particular expertise in any of the individual animals, he was able to precisely identify them with the assistance of the texts.
60 In any event, as the magistrate appreciated, it was not necessary for proof of the offence to establish the precise species of each individual reptile. What was necessary was to establish that the reptiles were 'fauna' within the meaning of s 6 of the Wildlife Conservation Act. Provided that the evidence could establish that the reptiles were animals indigenous to Australia this element of the charge was proven.
61 Whilst the magistrate expressed some reservations about Dr Mawson's expertise, he did not conclude that Dr Mawson was not qualified to give identification evidence. In my view, the magistrate was not in error in accepting Dr Mawson's evidence (to the limited extent that he did) and that evidence was capable of establishing that the reptiles in question were fauna.
Hearsay evidence - Ground 6
62 Ms Joanne Bardsley gave evidence that she was the owner and director of a company that acted as an agent for Air Australia Express. She said that on a number of occasions she had accepted consignments from the appellant for transport from Newman to Perth. She said she had
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- first met the appellant in about February 2009. On that occasion he had told her that he had some reptiles that he wanted to transport to Perth on the same flight that he would be travelling on. She had reason to recall this as she had never been asked to transport reptiles before and was unsure of the relevant regulations. She said that the appellant had subsequently transported other consignments of reptiles. On the first occasion she had taken delivery of his container, which was a blue and white esky.
63 In respect of the relevant consignment, Ms Bardsley said that the appellant had telephoned her on or about 23 April 2009, which was a Thursday. He told her that he would be flying out on Saturday and that he intended to take some reptiles with him. She said that she then prepared a consignment note in readiness for the appellant when he came to the depot on Saturday morning. In fact, Ms Bardsley did not see the appellant on that day. Another employee had received the consignment from the person who delivered it to the depot.
64 In cross-examination the following questions were put to Ms Bardsley:
Is it true to say that on 25 April 2009 you didn't see me at the Australian Air Express yard at all?---That is correct. That is correct to my recollection. I'm sorry it is a long time ago but I was not down in the freight yard. I was in my admin office all morning.
Are you able to give evidence that you know that it was me who dropped the esky off?---No. I'm sorry. I can't swear that it was you. However, I know full well that Sylvia, who has seen you as often as I have, knows that it was you (ts 16).
65 It would appear that the appellant is referring to the last part of that answer when he complains of hearsay in this ground of appeal. He is correct that whatever another employee at the transport company may have told Ms Bardsley would be inadmissible hearsay. I note that this was not evidence adduced by the prosecution, but rather given gratuitously by the witness in cross-examination.
66 Clearly in the circumstances the magistrate could place no reliance on that part of the evidence. That does not mean that there was no evidence from which the magistrate could infer that it was the appellant who delivered the consignment of reptiles to the transport company on the morning of 25 April 2009. That inference could be drawn from the telephone conversation with Ms Bardsley, the previous conduct, the consignment note and the fact that the appellant flew on the same aircraft
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- as the consigned reptiles. In addition there was the evidence of Senior Constable Nuttle that the appellant had admitted that the esky was his and that it contained reptiles.
67 The magistrate made no express reference to the inadmissible hearsay. What he did say was:
Although there was no direct evidence the accused had actual possession of the reptiles found at Perth airport on 25 April it is my view that that is the only reasonable inference open on the evidence. That is, that he had possession of those animals on 25 April 2009. On every occasion when the four consignments were made in February and March 2009 the accused made prior arrangements himself directly with Ms Bardsley and delivered the items for consignment to Australia Air Express at Newman where they were delivered by the accused to Ms Bardsley. The same prior arrangement was made by the accused with Ms Bardsley in respect of the consignment which occurred on 25 April and Ms Bardsley placed the consignment esky container into a vehicle for delivery to the airport on 25 April 2009. Further the accused travelled on the same flight as the consignment and the consignment note recorded the consignment as a consignment which was accompanied by the consignor. That's a reference again to the PAX code appearing on the consignment note (ts 35).
68 There is no basis for suggesting that the inadmissible hearsay was taken into account by the magistrate. He makes no reference to it and there is no reason to think he failed to appreciate that it could not be relied on. To the contrary, his conclusion appears to have been reached on the basis of the surrounding circumstantial evidence, which was plainly adequate to reach that conclusion.
Proof that the reptiles were fauna - Ground 7
69 The appellant submits that there was no evidence sufficient to allow the magistrate to conclude that the reptiles were animals indigenous to Australia. In this regard, the magistrate relied not only on the evidence of Dr Mawson, insofar as he accepted it in regard to the general species identified, he also referred to the surrounding circumstances. In this respect, his Honour said:
Further, by reason of the surrounding circumstances, I am satisfied the reptiles can only have been animals indigenous to Australia, and there being no evidence that any notice was published pursuant to section 14(2) of the act in respect to the reptiles indigenous to Australia, that the animals were protected fauna (ts 36).
...
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- As far as my findings go, I am satisfied that they were reptiles. I don't think one needs to be qualified to say that and I certainly think Dr Mawson is at least qualified to say that, that they were indigenous by reason of the circumstances in which they were found and the whole circumstances surrounding this event and that therefore the court can make a finding based on one charge that the accused had in his possession protected fauna namely, 29 reptiles when such fauna was not lawfully taken (ts 37).
70 The magistrate did not identify the surrounding circumstances that he was referring to. He was not obliged to refer to every piece of evidence given in the case: s 31 Magistrates Court Act 2004 (WA).
71 In my view, the evidence of Dr Mawson was sufficient to establish that the reptiles were indigenous animals. However, there were also other circumstances that could support this conclusion. Amongst those circumstances were the fact that the reptiles were transported from Newman on a domestic flight, the method by which they were transported and the fact that the appellant was also found, at the time of his apprehension, in possession of a number of items consistent with the location and capture of reptiles in the wild. There could be no error in taking those circumstances into account.
Exhibit 1 - Ground 8
72 This ground asserts that Exhibit 1 was ordered to be forfeited when there was no proper basis for doing so. Exhibit 1 is the appellant's copy of the property seizure record.
73 In fact there was no order of forfeiture in respect of Exhibit 1. The orders made by the magistrate were that there be a fine of $2,000, costs of $9,735.20 and an order of forfeiture of the animals and forfeiture of the esky and its contents (ts 41). That seems to be a reference to the blue esky in which the reptiles were found. Accordingly, there is simply no basis for this ground of appeal.
74 As I explained to the appellant at the hearing, Exhibit 1 has been retained by the court because these proceedings are on foot. Once all proceedings have been determined and any rights of appeal have expired or been exhausted, any exhibits belonging to him that were not forfeited should be returned to him in the normal course.
Amendment of the charge - Ground 9
75 At the conclusion of the hearing, in giving his reasons, the magistrate said that he was satisfied to the requisite standard that the appellant had in his possession 29 reptiles that were protected fauna. He noted that that
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- created a difficulty in that each of the then existing 11 charges related to a small number of a precise species of animal and that the total number exceeded the 29 that he found or were proven on the evidence.
76 The prosecution submitted that there were two ways of dealing with this issue. One was to amend the particulars of each of the charges to refer to at least one of the species and on the basis that at least some of those charges were proven to the requisite standard. Alternatively, the prosecution suggested that it would be content to proceed with respect to one global charge, being possession of 29 animals of various species.
77 His Honour said:
Personally I think the latter is the preferred course both in fairness to the accused and also because of my lack of confidence in the witness to particularly identify particular species (ts 37).
78 The appellant was asked whether he wished to address the proposed course. It was pointed out that it would result in him being convicted of one rather than 11 charges. He did not oppose the amendment.
79 He now says that the amendment involved a breach of s 10A of the Criminal Code. That is incorrect. What occurred was that the particulars of one of the 11 charges were amended, and the other charges were then dismissed. The appellant was not found guilty of an offence different to that which had been preferred against him or that was available as a statutory alternative.
80 The power to amend a charge is a broad one. The power may be exercised by a court in relation to a charge at any time before or during a trial. In particular, a court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor in support of it: s 132(4) Criminal Procedure Act 2004 (WA). That is what the magistrate did in this case.
81 The appellant argued that even if it was open to the magistrate to amend the charge, he should not have done so because the amendment was unfair and prejudicial to him. He said that the case that he came to the trial to meet was one which required the prosecution to prove that the animals referred to in each of the 11 charges were of the precise species specified in those charges. He said he fought the case on the basis that the prosecution would be unable to prove that issue. He said that had he known that the prosecution case would be only that the seized animals
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- were native reptiles he would have conducted his defence differently. In particular, he said that he may have chosen to give evidence.
82 A court may refuse to amend a charge if it is satisfied that the amendment is material to the merits of the case, the amendment would prejudice the accused's defence of the charge and an adjournment would not overcome the prejudice: s 132(10) Criminal Procedure Act. Thus the appellant must show that the amendment here was material, that it caused him prejudice and that such prejudice could not be cured by an adjournment.
83 The difficulty with the appellant's argument is that the nomination of species in each of the original 11 charges was only ever a matter of particulars. It was never necessary for the prosecution to prove that the reptiles were of a precise species. It was only necessary for the prosecution to prove that the reptiles were indigenous to Australia. That could be done, as the magistrate found it was, by proving that they fell into a broader class of reptiles that were indigenous to Australia. That is to say, whatever their precise species, he was satisfied that they were native animals.
84 It may be that the appellant assumed that the prosecution case was dependent upon the proof of species identification. However, he was mistaken in that regard. In those circumstances it is difficult to see how he was prejudiced and in what respect he would have conducted his defence differently. This was not a case where the particulars materially changed, it was merely one where an unnecessary aspect of the prosecution case was found to be unproved. The same reptiles were involved and the prosecution case was precisely the same.
Conclusion
85 Leave is required in respect of each ground. The court must not give leave on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding: s 9(2) Criminal Appeals Act 2004 (WA). This means that a ground has to have a real, rational and logical prospect of succeeding: Samuels v WA (2005) 30 WAR 473, 486 - 487.
86 In my view, none of the grounds is of a nature as to justify leave being granted. None of the grounds has a reasonable prospect of succeeding and therefore leave is refused in respect of each of them. Accordingly, the appeal is dismissed.
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