STARLING -v- OSTROWSKI [2000] WASCA 173

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 173
Case No:	SJA:1040/2000	Heard:	24 MAY 2000
Coram:	TEMPLEMAN J	Delivered:	23/06/00
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal dismissed
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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

(Page 2)

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

(Page 3)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Starling v Ostrowski

Details

AGLC: Starling v Ostrowski [2000] WASCA 173
Case: [2000] WASCA 173
Decision Date: 23 JUNE 2000

CaseChat Overview and Summary

The appellant, Starling, was convicted of consigning undersized rock lobsters and appealed the decision. The matter was heard in the Supreme Court of Queensland, where the appellant argued that the Magistrate was incorrect in holding that their belief that the lobsters were of legal size was reasonable. The central issue before the court was whether the appellant's belief was genuinely held and whether it was reasonable in the circumstances. The court considered whether the appellant took reasonable steps to ensure the legality of the lobsters and whether the appellant's belief was based on reasonable grounds. The court held that the Magistrate was correct in finding that the appellant's belief was reasonable, given the evidence presented. The court found that the appellant had taken reasonable steps to ensure the legality of the lobsters and that their belief was based on reasonable grounds. The appeal was dismissed, and the conviction was upheld. The court found that the appellant's belief was reasonable and that the conviction was just.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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