Starling v Ostrowski
[2000] WASCA 173
•23 JUNE 2000
STARLING -v- OSTROWSKI [2000] WASCA 173
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 173 | |
| Case No: | SJA:1040/2000 | 24 MAY 2000 | |
| Coram: | TEMPLEMAN J | 23/06/00 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | PAUL THOMAS STARLING GEORGE PETER OSTROWSKI |
Catchwords: | Criminal law Appellant convicted of consigning undersized rock lobsters Whether Magistrate correct in holding that appellant's belief that lobsters were of legal size was reasonable Turns on own facts |
Legislation: | Fish Resources Management Act 1994 Justices Act 1902 |
Case References: | O'Brien v Ostrowski [1999] WASCA 184 Warren v Coombes (1979) 142 CLR 531 Chappel v Hart, unreported; SCt of NSW; 24 December 1996 Edwards v Noble (1971) 125 CLR 296 Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129 McKenzie v G J Coles & Co (1988) 32 A Crim R 377 Ostrowski v Zaza [1999] WASCA 156 Pearce v Stanton [1984] WAR 359 Whitely Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : STARLING -v- OSTROWSKI [2000] WASCA 173 CORAM : TEMPLEMAN J HEARD : 24 MAY 2000 DELIVERED : 23 JUNE 2000 FILE NO/S : SJA 1040 of 2000 BETWEEN : PAUL THOMAS STARLING
- Appellant
AND
GEORGE PETER OSTROWSKI
Respondent
Catchwords:
Criminal law - Appellant convicted of consigning undersized rock lobsters - Whether Magistrate correct in holding that appellant's belief that lobsters were of legal size was reasonable - Turns on own facts
Legislation:
Fish Resources Management Act 1994
Justices Act 1902
Result:
Appeal dismissed
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Representation:
Counsel:
Appellant : Mr M J Buss QC & Mr G I Macnish
Respondent : Ms K E McDonald
Solicitors:
Appellant : Cocks Macnish
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
O'Brien v Ostrowski [1999] WASCA 184
Warren v Coombes (1979) 142 CLR 531
Case(s) also cited:
Chappel v Hart, unreported; SCt of NSW; 24 December 1996
Edwards v Noble (1971) 125 CLR 296
Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129
McKenzie v G J Coles & Co (1988) 32 A Crim R 377
Ostrowski v Zaza [1999] WASCA 156
Pearce v Stanton [1984] WAR 359
Whitely Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505
Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227
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1 TEMPLEMAN J: The appellant, who is a professional fisherman, was charged with consigning totally protected fish, namely 55 western rock lobsters of a length less than 76 mm, contrary to s 46(d), s 52 and s 222 of the Fish Resources Management Act 1994. The offence was said to have been committed on 22 February 1999 at Kalbarri.
2 The charge was heard on 31 January and 1 February 2000 before a Stipendiary Magistrate in the Court of Petty Sessions at Geraldton.
3 On 14 February 2000 the learned Stipendiary Magistrate delivered written reasons in which he found that the charge was proven.
4 In reaching that conclusion, the learned Magistrate rejected the appellant's assertion that in consigning the lobsters he had acted under an honest and reasonable, but mistaken, belief as to their size. The learned Magistrate accepted that the appellant honestly believed that the lobsters were full sized: but he considered that the appellant's belief was not reasonable.
5 This appeal is concerned only with that finding. Although there are numerous grounds of appeal, there is only one real issue: was the learned Magistrate wrong in concluding that the appellant's honest belief was not a reasonable one?
6 The appeal, which is brought pursuant to s 187 of the Justices Act 1902, is in the nature of a rehearing on the original evidence: see "Seaman on Civil Procedure" par [65A.2.3]. No additional evidence has been adduced on the appeal.
7 I accept the submission of leading counsel for the appellant that I should apply the principle set out in Warren v Coombes (1979) 142 CLR 531 at 551, per Gibbs ACJ, Jacobs and Murphy JJ that:
"In general an appellate court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial Judge, but, once having reached its own conclusion, will not shrink from giving effect to it."
8 The appellant does not take issue with the findings of fact made by the learned Magistrate on which he based his conclusion that the
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- appellant's belief was not a reasonable one. That being so, it will be convenient to set out the reasons from the point at which his Worship reviewed the evidence relating to the defence of honest and reasonable mistake. He did so after noting, correctly, that where such a defence is raised: "The prosecution is required to negative that defence beyond reasonable doubt". His Worship continued (the references to the defendant are, of course, to the appellant):
"The consignment on 22 February 1999 was the product of a voyage to what is known as 'Big Bank' off Kalbarri and relates to a short period each season of intense fishing activity. The defendant normally employed two regular crewmen during the fishing season one of whom had been with him for five and a half years and the other for four years. In order to manage the extra work at Big Bank the defendant employed an additional deckhand Mr Craig Thorne and Mr Thorne was assigned to carry out most of the work in sorting and gauging the lobsters brought on board. The defendant gave instructions to all crew members that all undersize and setose lobsters were to be returned immediately to the sea and that doubtful ones were to be referred to him for a final decision. The defendant kept a vernier caliper on his boat and he would measure any lobster referred to him for checking as to size. In the case of doubtful size lobsters Mr Thorne was also instructed to refer them to the other regular crew members who in turn would refer them to the defendant if in any doubt. Where a crew member was not in any doubt that a lobster was of legal size it would be placed in a slide which carried the animal into holding crates below deck.
The defendant said he had every confidence in his two regular crew members who had never done the wrong thing. Mr Thorne had not previously worked for him but he had known of him for fifteen years and believed he had a reputation as a good hard worker. Mr Thorne's evidence was that he had worked in the fishing industry for twenty years although he had only worked as a crayfisherman during the previous four years during the Big Bank season. He had not worked the previous season and therefore it was somewhere between 18 months and 2 years since he last worked on a crayboat. The defendant said he kept a close watch on activities on the deck and in particular the gauging of lobsters. He said he regularly noticed his crew conferring in relation to the size of lobsters and on occasions they brought them to him for checking when in doubt. The
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- defendant said he would also on occasions assist in the gauging process when needed. In general the practice involved the defendant navigating his boat to the next pot while crew members carried out the inspection and gauging of lobster and that by the time the next pot arrived on board the lobsters which had been retrieved from the previous pots had usually been gauged and sorted.
During this voyage it is clear that a very large number of undersize lobsters were being retrieved from the defendant's pots. The defendant estimated it was somewhere between 6:1 and 10:1 undersize to size lobsters. This was confirmed by one of the regular crew members Mr Armstrong who put the figure at 8.1. this meant that with the defendant's estimate of approximately 3200 lobsters contained in the subject consignment the estimated number of lobsters returned to the sea was somewhere between 22000 and 28000 over 4 days of fishing.
The defendant said he had absolutely no doubt that all lobsters consigned by him were of legal size. He said the system he employed had always worked, namely that if his crew had any doubt about the size of a lobster it was to be referred to him. His crew were also aware that he kept a close watch on them and that he and his crew were aware that consignments were subject to regular and frequent checks by Fisheries officers. In relation to his regular crew members he had the utmost confidence and there had never been any problem in relation to undersize lobsters. Mr Thorne had also worked in the industry for many years, he had a good reputation, and had assured him he had never been involved in taking undersize lobsters. There was however an important matter which Mr Thorne failed to bring to the defendant's attention. Mr Thorne testified that while working on the defendant's boat he developed shingles, a very painful medical condition of which he had no knowledge at the time, believing that the pain he was suffering was a result of muscle strain. He said that he was in his words in absolute agony and that he had been taking Panadeine Forte and when they ran out one of the crew members gave him Mersyndol. In retrospect although he believed he was fully concentrating at the time he now thought the pain he was suffering and the pain killers he was taking could have affected his concentration. The defendant testified that he was totally unaware of Mr Thorne's
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- condition and had no knowledge of him taking medication. Mr Thorne confirmed that he kept this information from the defendant.
The question is whether the honest mistake made by the defendant was the sort of mistake that a reasonable person in the position of the defendant might make. That question needs also to be seen in the context of the legislation and the policy which it reflects. That policy is highly protective and is designed to ensure the long term sustainability of the fishery through sound management practices and official supervision, including regular random inspection of fishermen's' consignments. That policy and the fineness of the measurements in question involving fractions of a millimetre must be borne in mind in determining what system is adequate to found a reasonable belief.
In relation to systems used in the industry the defendant said some skippers place doubtful lobsters in a basket for subsequent checking but he did not agree with that practice because it can lead to lobsters being left for some time before they are finally checked. His practice was for doubtful lobsters to be checked immediately and returned to the sea if undersize. Regulation 12 of the Fish Resources Management Regulations 1995 requires that undersize rock lobster be returned to the sea within five minutes of being taken and when taken by means of a rock lobster pot before any other rock lobster pot is pulled. This undoubtedly creates pressure on fishermen to act quickly in returning undersize lobsters to the sea. However in the very busy working environment which prevailed on this occasion the practice of referring doubtful lobsters on an individual basis for a second opinion may itself have created pressure for the person gauging rock lobsters to make a decision. Compliance with regulation 12 did not require the defendant to adopt this practice and, as stated by the defendant, he was aware that some skippers adopted a practice of placing doubtful lobsters in a separate basket for subsequent checking. The regulation was however a factor which needed to be taken into account in determining the crew resources which were needed, how they should be deployed, and how other aspects of the fishing process should be managed. The defendant said he was also aware that some skippers do spot checks of lobsters in baskets intended for consignment but that he had not adopted that
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- practice at the time of this consignment, although he had done some spot checks after being alerted to the undersize lobsters discovered at Batavia Fisheries.
The voyage involved a very high percentage of undersize lobsters being brought on board his boat and very busy operations requiring an additional crew member. While the defendant had reason for confidence in his regular crew members the employment of Mr Thorne introduced a new factor. He had not previously worked for the defendant and in recent years he had only worked as a crayfisherman for very short periods. Further, the system he adopted of relying on crew members' judgments as to whether to refer doubtful size lobsters to him did not make allowance for possible errors of judgment on their part. The risk of consigning an undersize lobster lies not in the animal which has been identified for further inspection because of uncertainty as to whether it is of legal size but in the animal which has been passed as legal when it is not, and it is a risk which in my view a reasonable person in the position of the defendant would have recognised. That is risk which is ever present and was required to be addressed even in normal circumstances with experienced crew but especially in the circumstances which prevailed at the time in question. That risk should have been addressed by a system which included spot checks on lobsters which had been passed by his crew for consignment. It was not and I find that the defendant's belief that the rock lobster consigned by him on 22 February 1999 were of legal size was not a reasonable belief and I find the charge is proven."
9 The appellant accepts that the learned Magistrate correctly directed himself on the law in posing the question:
"… whether the honest mistake made by the [appellant] was the sort of mistake that a reasonable person in the position of the [appellant] might make."
- That was the way the test was formulated by McKechnie J in O'Brien v Ostrowski [1999] WASCA 184 at [104].
10 Furthermore, the learned Magistrate was correct in saying that the question needed to be answered in the context of the highly protective policy which the legislation reflects. That is a factor to which
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- McKechnie J referred in O'Brien v Ostrowski at [105] in which his Honour referred to a number of authorities to that effect.
11 As I have noted, the appellant does not take issue with any of the findings made by the learned Magistrate. However, there is one piece of evidence which was not mentioned by the learned Magistrate, but on which the appellant places considerable reliance.
12 The evidence arose from the final part of the appellant's cross-examination by the prosecutor. It was as follows (AB 91):
"And if you had done a spot check of any baskets on the first day, you would have obviously taken some action if you'd found undersized crays?---Most definitely.
But that wasn't done at any point?---No.
And all of that suggests, doesn't it, that your system was defective in relation to the quality of the measurements being carried out by your crew?---Well, I've never had a problem before. I'm very well aware of all the checks that happen in the factory and my boys have been with me for a long time, so I trusted their judgment.
Except that [sic] Craig Thorne who hadn't been with you for a long time?---Yes, but he was go through them before the crays were - - were - - if he had any doubt at all, they were to go through Anthony and Chris.
And you took no particular new step in relation to Craig Thorne coming aboard the boat?---Well, I was well aware of him gauging crays for the first - - you know, I - - I obviously watched him for quite a while and I was very - - I was happy with what he was doing and apparently, the Fisheries went through our previous catch and there was nothing wrong, so apparently, he was doing the job up till the trip in question."
13 It is submitted that the appellant was entitled to rely on the fact that "the Fisheries" had found no undersized lobsters in the previous consignment as grounding a reasonable belief in the size of the lobster in the subsequent catch which was the subject of the charge.
14 I do not accept that submission. The appellant's assertion that "apparently" his previous catch had been inspected is not evidence of that
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- fact. It reflects a belief that the fact existed. It was submitted by leading counsel for the appellant that if there had not been any such inspection, it would have been open to the prosecutor to adduce the relevant evidence. However, in my view, there was no evidence to controvert.
15 If I am wrong in that view, the more substantial point, I think, is that the appellant did not say that during the period in question he relied on Mr Thorne's expertise because he knew Mr Thorne was performing satisfactorily as a result of the inspection of the previous catch.
16 If that had been the appellant's contention, one would have expected it to be led in his evidence-in-chief. It is not clear from the answer which the appellant gave in cross-examination, when he came to believe that his previous catch had been inspected and found to be satisfactory. In saying that: "apparently" Mr Thorne "was doing the job" until the trip in question, the appellant appears to me to have been rationalising. Clearly, a reasonable belief cannot be founded on facts which do not become known until after the relevant event.
17 Furthermore, there was no evidence about "the job" which Mr Thorne was doing on the previous trip.
18 The appellant's evidence about the previous inspection must be compared with his evidence-in-chief. The appellant was then asked whether he had been aware "whether your pots had been inspected" on previous occasions. The appellant replied:
"Our baskets, yes. I was very aware and I think they had been there seven times during the season." (AB 77)
19 There was then an objection by the prosecutor to the effect that the evidence was hearsay. However, his Worship allowed the evidence to stand on the basis that it was relevant to the appellant's state of mind and belief. It was not received as evidence of inspections.
20 However, the evidence seems to me to be so vague as to be of very little weight. I repeat that it is not clear when the appellant came to believe that his catches had been inspected.
21 In all these circumstances, I am not persuaded that the learned Magistrate erred in failing to refer to the appellant's evidence about previous inspections.
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22 In his reasons, the learned Magistrate referred to the magnitude of the risk which a reasonable person in the position of the appellant should have recognised. Leading counsel for the appellant submits that in concluding that the risk should have been addressed by a system which included spot checks, the learned Magistrate misapplied the test which he had correctly stated: that he had focused on the system rather than on the reasonableness of the honest belief. Rather, it is submitted, it is necessary to examine all the facts relied on by the appellant in support of his contention that his belief was reasonable. These are:
• The appellant issued strict and proper instructions to his crew about the retention of undersize lobster.
• The appellant repeatedly impressed upon the crew the need for strict compliance with the Act.
• The appellant and the crew were experienced fishermen who were familiar with the process of gauging size and understood the need for compliance with the Act.
• The appellant and the crew were regularly informed and aware of the inspections carried out by Fisheries Officers at the local processing factory.
• The appellant constantly supervised the gauging of lobster by the crew.
• The appellant's system of work was reliable and had been used successfully in the past.
• The system of work was in accordance with accepted practice in the industry.
• By reg 12 of the Fish Resources Management Regulations 1995, undersized lobster must be returned to the sea within 5 minutes of being taken and, when taken by means of a rock lobster pot, before any other pot is pulled.
• Mr Thorne had 15 years experience as both crew and master of fishing vessels and held a Master Class 5 certificate.
• Mr Thorne was familiar with the process of gauging size and understood the need for compliance with the Act.
• Mr Thorne had assured the appellant that he had never been involved in taking undersize lobster.
• On the four day voyage in question:
(a) the appellant consigned about 3200 lobster;
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- (b) between about 22,000 and 28,000 lobster were returned to the sea, the principal reason being they were undersize;
(c) of the 55 undersize lobster the subject of the complaint, all except one measured more than 75 mm;
(d) the appellant kept a close watch on activities on the deck and in particular the gauging of lobster;
(e) the appellant regularly noticed his crew conferring in relation to the size of a lobster;
(f) in accordance with the system of work, the crew referred lobster (between 2 to 3 and 12 per day) to the appellant for checking;
• In carrying out their inspection, the Fisheries Officers took about 2-1/2 hours to measure 37 crates of lobster in very stable conditions.
By contrast, in order to comply with reg 12 of the Fish Resources Management Regulations, it was necessary for the appellant and his crew to ascertain the existence of any undersize lobster and return them to the sea within 5 minutes of their being taken, and such determination had to be made on the back of a moving vessel at sea.
• When on the appellant's vessel Mr Thorne developed shingles, a very painful medical condition, for which he took pain-killing drugs.
• Although Mr Thorne believed he was fully concentrating at the time, he realised afterwards that the pain he was suffering and the pain-killing drugs he was taking could have affected his concentration.
• The medical condition affecting the judgment of Mr Thorne was not brought to the attention of the appellant at any time and was not apparent to the appellant.
23 It is submitted that in all the circumstances the appellant's system of work was appropriate and those who did the measuring were properly instructed and supervised.
24 It is submitted further that there was no evidence that the "possibility of errors of judgment" on the part of the crew (see the learned Magistrate's reasons at AB 18E) could have been eradicated by "a system which included spot checks of lobsters which had been passed by the [appellant's] crew for consignment".
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25 Thus, it is submitted, a reasonable person in the position of the appellant might have made the mistake which the appellant made, with the result that there must have been at least a reasonable doubt as to the appellant's guilt.
26 With respect, it seems to me that it is the appellant who is focusing on the reasonableness of his system. However, as leading counsel for the appellant correctly stated during the course of submissions, the only relevant belief which the appellant could have held was that every one of the lobsters consigned on the material date was of a legal size.
27 All of the facts on which the appellant relies were found in his favour by the learned Magistrate. Despite that, his Worship came to the conclusion that a reasonable person in the defendant's position could not reasonably have believed that every lobster was of a legal size, unless he had at least carried out some spot checks. That was a procedure which could have been carried out. And it was carried out by the appellant subsequently.
28 The learned Magistrate did not say that the appellant should have implemented a more stringent system. His conclusion was that, given the magnitude of the risks, a reasonable person in the appellant's position would not have relied solely on the skill and judgment of his crew (particularly when one member was relatively untried) but would have checked their work for himself.
29 Applying Warren v Coombes (supra), I am to give "respect and weight" to the conclusion of the learned Magistrate but not to shrink from drawing my own inferences from the facts as he found them. My conclusion is, however, the same as that reached by his Worship. In my view, a reasonable person in the appellant's position who did not at least carry out spot checks could not reasonably have believed that every one of the lobsters was of a legal size.
30 I therefore conclude that the learned Magistrate's decision was correct and that the appeal should be dismissed.
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