Starling v Ostrowski

[2001] WASCA 74

STARLING -v- OSTROWSKI [2001] WASCA 74

Reported Decision:	(2001) 24 WAR 61
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 74
Court:	THE FULL COURT (WA)
Case No:	SJA:1188/1999	Heard:	6 NOVEMBER 2000
Coram:	KENNEDY J IPP J OWEN J	Delivered:	15/03/01
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal allowed Leave to amend complaint refused
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Parties:	BRUCE GERALD STARLING GEORGE PETER OSTROWSKI
Catchwords:	Primary industry Fish and shellfish Conservation provisions Complaint of pulling rock lobster pots which were not attached to required surface floats marked in accordance with regulations Regulation prohibiting use of a rock lobster pot to fish for rock lobster unless attached to properly marked surface float Complaint not disclosing an offence according to law Whether Magistrate erred in refusing amendment
Legislation:	Fish Resources Management Act 1984, definition of "fishing" s 4(1), s 201 Interpretation Act 1984, s 9, s 44(1) Justices Act 1902, s 45, S 46 Fish Resources Management Regulations 1995, reg 32(1)
Case References:	Australasian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418 Broome v Chenoweth (1946) 73 CLR 583 Esther Investments Pty Ltd v Dawson (1985) 62 LGRA 53 Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328 Gilmour v Midways Springwood Pty Ltd (1980) 49 FLR 36 House v The King (1936) 55 CLR 499 Kalgoorlie Regional Traffic Council v Fostinelli [1974] WAR 3 Lineham v Australian Public Service Association (Fourth Division Officers) (1982) 66 FLR 90 Mitchell v Myers (1955) 57 WALR 49 Videon v Barry Burroughs Pty Ltd (1981) 53 FLR 425 Bateman v McCutcheon, unreported; SCt of WA (Smith J); Library No 6828; 13 August 1987 Beckwith v The Queen (1976) 135 CLR 569 Chew v The Queen (1992) 173 CLR 626 Cutter v The Queen (1997) 71 ALJR 638 He Kaw Teh v The Queen (1985) 157 CLR 523 Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 Higgon v O'Dea [1952] WAR 140 Lloyd v The Queen (1995) 15 WAR 130 Meiklejohn v Central Norseman Gold Corporation Ltd (1996) 89 A Crim R 311 Meiklejohn v Norseman Gold Corporation Ltd (1998) 19 WAR 298 R v Adams (1935) 53 CLR 563 Reedy v O'Sullivan [1953] SASR 114 Romeyko v Samuels (1972) 2 SASR 529 W Thomas & Co (WA) Ltd v Martin [1967] WAR 68 Waugh v Kippen (1986) 160 CLR 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : STARLING -v- OSTROWSKI [2001] WASCA 74 CORAM : KENNEDY J

IPP J
OWEN J

HEARD : 6 NOVEMBER 2000 DELIVERED : 15 MARCH 2001 FILE NO/S : SJA 1188 of 1999 BETWEEN : BRUCE GERALD STARLING

Appellant

AND

GEORGE PETER OSTROWSKI
Respondent

Catchwords:

Primary industry - Fish and shellfish - Conservation provisions - Complaint of pulling rock lobster pots which were not attached to required surface floats marked in accordance with regulations - Regulation prohibiting use of a rock lobster pot to fish for rock lobster unless attached to properly marked surface float - Complaint not disclosing an offence according to law - Whether Magistrate erred in refusing amendment

Legislation:

Fish Resources Management Act 1984, definition of "fishing" s 4(1), s 201

Interpretation Act 1984, s 9, s 44(1)
Justices Act 1902, s 45, S 46


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Fish Resources Management Regulations 1995, reg 32(1)

Result:

Appeal allowed

Leave to amend complaint refused

Representation:

Counsel:

Appellant : Mr G I Macnish
Respondent : Mr J A Thomson

Solicitors:

Appellant : Cocks Macnish
Respondent : State Crown Solicitor

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

Australasian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418
Broome v Chenoweth (1946) 73 CLR 583
Esther Investments Pty Ltd v Dawson (1985) 62 LGRA 53
Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328
Gilmour v Midways Springwood Pty Ltd (1980) 49 FLR 36
House v The King (1936) 55 CLR 499
Kalgoorlie Regional Traffic Council v Fostinelli [1974] WAR 3
Lineham v Australian Public Service Association (Fourth Division Officers) (1982) 66 FLR 90
Mitchell v Myers (1955) 57 WALR 49
Videon v Barry Burroughs Pty Ltd (1981) 53 FLR 425

Case(s) also cited:

Bateman v McCutcheon, unreported; SCt of WA (Smith J); Library No 6828; 13 August 1987
Beckwith v The Queen (1976) 135 CLR 569
Chew v The Queen (1992) 173 CLR 626


(Page 3)

Cutter v The Queen (1997) 71 ALJR 638
He Kaw Teh v The Queen (1985) 157 CLR 523
Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253
Higgon v O'Dea [1952] WAR 140
Lloyd v The Queen (1995) 15 WAR 130
Meiklejohn v Central Norseman Gold Corporation Ltd (1996) 89 A Crim R 311
Meiklejohn v Norseman Gold Corporation Ltd (1998) 19 WAR 298
R v Adams (1935) 53 CLR 563
Reedy v O'Sullivan [1953] SASR 114
Romeyko v Samuels (1972) 2 SASR 529
W Thomas & Co (WA) Ltd v Martin [1967] WAR 68
Waugh v Kippen (1986) 160 CLR 156

(Page 4)

1 KENNEDY J: The respondent was, at the relevant time, the holder of a commercial fishing licence issued under the Fish Resources Management Act 1994. By a complaint sworn on 18 June 1999 the respondent claimed that:

"… on the 23rd day of June 1997 in the waters of the Indian Ocean off the Abrolhos Islands ... [the appellant] … being the holder of a commercial fishing licence issued under the Fish Resources Management Act 1994, pulled 12 rock lobster pots which were not attached to surface floats that were marked with legible characters not less than 60mm high and not less than 10mm wide showing the licensed fishing boat number of the boat that was used to pull the pots; contrary to Regulation 32(1)(b)(i) of the Fish Resources Management Regulations 1995."

2 When the complaint came on for hearing in the Court of Petty Sessions at Geraldton on 6 October 1999, counsel for the respondent submitted that it did not allege an offence known to the law. That submission was upheld by the learned Magistrate. His Worship then declined to allow the respondent to amend the complaint, which was thereupon dismissed.

3 The respondent appealed, by leave, to a single Judge of this Court, who allowed the appeal, set aside the decision of the learned Magistrate and remitted the complaint to the Court of Petty Sessions at Geraldton for further hearing according to law, with a direction that the charge be construed as alleging use of the relevant pots for fishing for rock lobster, contrary to reg 32(1) of the Fish Resources Management Regulations 1995. The terms of the remission are unusual insofar as they require the Court of Petty Sessions to construe the complaint in a particular manner, without any amendment to the complaint.

4 The appellant has appealed, by leave, to this Court against the allowance of the appeal by the single Judge, on the following grounds:

(Page 5)

"(1) The learned Judge erred in law:

(a) in holding that:

(i) the complaint disclosed an offence according to law;

(ii) the description of the offence in the complaint was in the words of, or in words similar to, regulation 32(1) of the Fish Resources Management Regulations 1995;

(iii) 'in the context in which this charge is formulated, the allegation of pulling pots is synonymous with fishing';

(iv) from the context in which the word 'pull' is used in the charge it is clear that the offence with which the respondent is being charged is that of 'using the pots for fishing';

(v) the reference to regulation 32(1)(b)(i) made it plain that the offence charged is that of using the pot to fish for lobster;

(vi) the definition of 'fishing' or 'fishing activities' in section 4 of the Fish Resources Management Act 1994 was imported into regulation 32(1) which had the effect of importing an objective element into the regulation;

(vii) in effect that the definition of the word 'fishing' in section 4 of the Fish Resources Management Act 1994 should be applied in construing the word 'pull' as used in the complaint against the appellant and as that word is used in regulation 32 of the Fish Resources Management Regulations 1995;


(b) in remitting the matter to the Geraldton Court of Petty Sessions for further hearing according to law and in directing the learned Magistrate, in

(Page 6)

hearing the complaint, to construe the complaint as if the words 'pulled 12 rock lobster pots' were to be construed as meaning 'used 12 rock lobster pots to fish';

(c) in failing to uphold the decision of the learned Magistrate and dismiss the respondent's appeal."

5 The respondent has filed a notice of contention, asserting that, in the alternative to holding that the charge was sufficient in law because the allegation that the appellant pulled rock lobster pots was synonymous with an allegation that the appellant used rock lobster pots to fish, the learned Judge should have held that:

"(i) the description of the offence contained in the charge was in similar words to the words contained in regulation 32(1) of the Fish Resources Management Regulations 1995 and consequently the charge was sufficient in law by virtue of s 45 of the Justices Act 1902.

(ii) alternatively, the learned Magistrate had jurisdiction to amend the charge in order to allege an offence in terms of regulation 32(1) of the Fish Resources Management Regulations 1995 by virtue of s 46 of the Justices Act 1902, and the charge should have been so amended because the proposed amendment was to correct a charge aimed at an identifiable offence but which failed to disclose an offence due to careless drafting."

6 Regulation 32(1) of the Fish Resources Management Regulations relevantly provides as follows:

"(1) A person must not use a rock lobster pot to fish for rock lobster unless the rock lobster pot is attached to a surface float that -

(a) has a diameter of not less than 150 millimetres if the float is spherical and, in any other case, has a length of not less than 200 millimetres and a width of not less than 100 millimetres; and

(Page 7)

(b) is marked by branding or stamping with legible characters not less than 60 millimetres high and not less than 10 millimetres wide showing -

(i) in the case of a pot used by a person who is the holder of a commercial fishing licence, the licensed fishing boat number of the boat that is used to set or pull the pot; or

(ii) …

and


(c) is marked with only one of the numbers referred to in paragraph (b)."

7 The penalty for a breach of the regulation is a fine of $5,000.

8 The expression "fishing" or "fishing activity" is defined in s 4(1) of the Fish Resources Management Act 1994 to mean

"(a) searching for fish;

(b) attempting to take fish;

(c) taking fish; or

(d) engaging in or any other activity that can reasonably be expected to result in the taking of fish."

9 It is the expression "to fish", and not "fishing" or "fishing activity", which is used in reg 32(1). However, by s 9 of the Interpretation Act 1984, it is provided that where a word or phrase is defined in a written law, other parts of speech and grammatical forms of that word or phrase have corresponding meanings. Furthermore, by s 44(1) of the Interpretation Act, words and expressions used in subsidiary legislation are to have the same respective meanings as in the written law under which the subsidiary legislation is made.

10 Lobsters come within the definition of "fish" in s 4(1) of the Fish Resources Management Act.

11 The expression "pull" is not defined in the Act, but it is defined in reg 3 of the Fish Resources Management Regulations as follows:

(Page 8)

"in relation to a rock lobster pot, means to bring the pot from the seabed to the surface of the sea."

That definition contains no reference to "fishing" as such.

12 It is quite apparent that one of the essential elements in the offence created by reg 32(1) is that the rock lobster pot be used "to fish for rock lobster". The difficulty which the respondent faces is that, merely to pull a pot, that is, merely to bring the pot from the seabed to the surface of the sea, does not necessarily amount to fishing, although, no doubt, the pulling of baited pots is normally undertaken in attempting to take lobsters or in taking lobsters or the pulling of pots can reasonably be expected to result in the taking of lobsters. The respondent is not assisted by the reference in the complaint to the stated conduct of the appellant being contrary to reg 32(1)(b)(i). It is reg 32(1) which creates the offence. Even had it been said to be contrary to reg 32(1), the position of the respondent would not have been improved because the complaint did not set out the essential elements of an offence under that subregulation.

13 In order to meet the difficulty which he faced, counsel for the respondent suggested that, if a fisherman is engaged in the activity of pulling pots for some purpose other than fishing, as defined, he may be afforded a defence under the Criminal Code if he can prove that he had an intention other than an intention to fish. That defence, of course, would amount to the reversal of the onus of proof. The onus in respect of a complaint, properly drawn, charging an offence under reg 32(1) is upon the complainant to prove beyond reasonable doubt that the pots were being used to fish. It was also suggested that a fisherman could have a defence under s 24 of the Criminal Code, which relates to mistakes of fact. What that mistake might be was not revealed.

14 Section 45 of the Justices Act was also invoked by the respondent, the argument being that the description of the offence in the complaint is in similar words to the description of the offence in the words of the regulation. If the description of the offence is in similar words to the words of the regulation, that will be deemed by s 45 to be sufficient in law. In the present case, however, it is an essential ingredient of the offence that the rock lobster pot be used "to fish", words which have been omitted from the complaint. The complaint therefore does not use similar words to those of the regulation. In these circumstances, s 45 has no application.

15 In my opinion, the learned Magistrate was correct in holding that the complaint, as drawn, did not disclose an offence known to law, by reason

(Page 9)

of its having failed to allege the essential element that the pots were being used to fish for rock lobster. This being so, the next question which arises is whether the learned Magistrate should have allowed the respondent to amend the terms of the complaint.

16 The power to amend a complaint is to be found in s 46 of the Justices Act, which provides as follows:

"No objection shall be taken or allowed to any complaint, or to any summons or warrant to apprehend a defendant issued upon any complaint, for any alleged defect therein, in substance or in form, or for any variance between it and the evidence in support thereof, and any such variance shall be amended by order of the justices at the hearing".

17 Although, on its face, s 46 appears to impose an obligation upon the Justices to amend a defective complaint, it has not been so construed. In Mitchell v Myers (1955) 57 WALR 49, at 52 - 53, Dwyer CJ considered s 46, which is still in its original form. Of the words "any such variance shall be amended by order of the justices", his Honour said:

"I do not think that that means that it is the obligation of the Justices to make an amendment of the sort of their own volition … It is not desirable that the Justices should adopt the rule of prosecutors; that is something I think properly to be regarded as outside their judicial functions as Justices; but where the evidence has established to their satisfaction that there has been commission of an offence, and a commission of an offence of the type I have already mentioned, then it is properly within their power and within their discretion to intimate that they have come to such a conclusion, and leave it to the prosecutor to apply for such amendment as is desired."

The view that the use of the power is discretionary has, since Mitchell v Myers, been adopted in this State.

18 In Broome v Chenoweth (1946) 73 CLR 583, Dixon J considered whether an information disclosing no offence is capable of being amended. As his Honour pointed out, this had been the subject of some difference of judicial opinion. At 601, he said:

"Some Victorian cases will be found discussed by Cussen J in Knox v Bible [(1907) VLR 485 at 498-500] and the matter is very fully examined by Clark J in Davies v Andrews [(1930) 25

(Page 10)

Tas LR 84 at 91-110], where cases from other jurisdictions are collected. Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment."

19 No issue as to any limitation period arose in that case.

20 Hale J in Kalgoorlie Regional Traffic Council v Fostinelli [1974] WAR 3, indicated that the view expressed by Dixon J in Broome v Chenoweth had for long been accepted in this Court. At 6, his Honour said:

"In my opinion the proper rule to be applied, put in colloquial language is that amendment is permissible and proper where it can be seen that the complaint is aimed at an identifiable offence but misses its mark as a result of carelessness or incompetent drafting. It has more than once been stated by this Court that it is more consonant with the due administration of justice that technical errors should be corrected if this can be done without prejudicing a defence on the merits than that a defendant should wholly escape on the technicality …"

This view was endorsed by Brinsden J in Esther Investments Pty Ltd v Dawson (1985) 62 LGRA 53.

21 In this appeal, the respondent seeks, in the alternative, to remedy the defect in the complaint by substituting the words "used to fish" for the word "pulled", and by substituting reg 32(1) for reg 32(1)(b)(i). The situation is, however, complicated by the fact that proceedings for a breach of reg 32(1) must be commenced within two years after the offence was committed - see s 201(2) of the Fish Resources Management Act. By the time the application to amend the complaint had been made in the Court of Petty Sessions, the limitation period had expired some months previously. It may also be noted that the complaint had been sworn only five days before the expiration of two years from the date of

(Page 11)

the offence. If the amendment sought were now to be allowed, the complaint would be likely to be heard some four years after the alleged offence. The question which then arises is whether an amendment may be made by adding to the complaint an essential allegation after the expiration of the limitation period. Clearly, an amendment to particulars, without altering the offence charged, may take place after the limitation period has expired - see Videon v Barry Burroughs Pty Ltd (1981) 53 FLR 425, at 443 - 444. An amendment after the limitation period has expired will not, however, be granted if it involves the charging of a separate offence from that originally charged - see Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328 and Gilmour v Midways Springwood Pty Ltd (1980) 49 FLR 36, at 39.

22 In Lineham v Australian Public Service Association (Fourth Division Officers) (1982) 66 FLR 90, Fitzgerald J, at 112 - 113, adverted to this issue, without, however, deciding it. In that case, s 21(1) of the Crimes Act 1914 (Cth), in its then form, provided, in relation to the offence in question, that a prosecution might be commenced at any time within one year after the commission of the offence. It was claimed that the summonses, but not the information, were uncertain. His Honour said, at 112 - 113:

"The view that duplicity or uncertainty can be remedied by election or amendment or the formulation of particulars, which was accepted by the High Court in Johnson v Miller [(1939) 59 CLR 467 at 490-492], and is supported by Johnson v Needham [[1909] 1 KB 626], and the other English authorities earlier referred to, is, in my opinion, quite incompatible with the notion that, merely because an originating process is duplex or uncertain, and therefore "bad" as it is termed, the prosecution has not been commenced. Cases in which essential allegations are omitted, such as Traveland Pty Ltd v Doherty (1982) 63 FLR 41 and Gilmour v Bannister Nominees Pty Ltd (1982) 60 FLR 309 are clearly different. Generally at least, whether or not such cases may be properly characterized as nullities, and/or seen as equivalent to cases in which there is no essential process at all (cf Ex parte Farmer (1907) 7 SR (NSW) 544, at 549; Connor v Sankey (1976) 28 FLR 267) it is readily comprehensible that, in the context of sections 21 and 21A of the Crimes Act, it should be seen as impermissible for the prosecutor to add essential allegations for the first time after the time for a prosecution has expired. Even in those cases, it may be that the omission of an allegation could sometimes be cured

(Page 12)

by amendment (see Broome v Chenoweth (1946) 73 CLR 583, at 601), although different considerations may well arise after a time limitation has expired."

23 Subsequently, in Australasian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418, Gray J, following the decision of Fitzgerald J in the last-mentioned case, held that an amendment proposed after the expiration of the limitation period which involved a completely separate offence from that charged should not be allowed and that to allow it to be made would amount to "injustice" to the defendants within s 21A(3) of the Crimes Act.

24 In the present case, the complaint describes no offence known to the law. To amend such a complaint, in which an essential element of the offence has been omitted, may properly be regarded as amounting to the commencement of fresh proceedings for the purpose of the limitation period, and therefore as being out of time. But even if this were not so, the learned Magistrate, having, it appears, initially held, following the decision in Australian Meat Industry Employees Union v Sunland Enterprises Pty Ltd, that leave to amend should be refused, then went on to exercise his discretion not to grant the respondent leave to amend. I am not persuaded that he was in error in so doing - see House v The King(1936) 55 CLR 499, per Dixon, Evatt and McTiernan JJ at 504 - 505. As I have indicated, some four years, amounting to twice the limitation period, will have elapsed before this matter can now be heard. In the circumstances, I would allow the appeal, quash the decision of the learned Judge below, and reinstate the orders made by the learned Magistrate.

25 IPP J: I have read the reasons of the Hon Justice Kennedy. I am in agreement with those reasons and have nothing further to add.

26 OWEN J: I have had the benefit of reading the reasons of the Hon Justice Kennedy. I agree with them and his Honour's conclusions and have nothing further to add.