Timms v The Queen

[1988] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P23 of 1988

B e t w e e n -

RUSSELL ORMONDE TI:MMS

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ

WILSON J

BRENNAN J
DEANE J

Tirmns

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 27 OCTOBER 1988, AT 2.18 PM

Copyright in the High Court of Australia

PIT9/1/JM 1 27/10/88

MR G.P. MILLER, QC:  May it please the Court, I appear

with my learned friend MR A. CAMP for the

applicant. (instructed by Messrs Unmack & Unmack)

MR K.H. PARKER, QC, Solicitor-General for Western Australia:

If it please the Court, I appear with my learned
friend MISS C.A. WHEELER for the respondent.

(instructed by the Crown Solicitor for Western Australia)

MASON CJ:	Yes, Mr Miller?
MR MILLER:	If it please Your Eonour. Your Honours, may

if first seek leave to substitute a draft notice

of appeal for that which appears in the application

book at page 155.	A copy of the proposed substituted
draft has been handed to the Registry.	Your Honours,

may I mention that the outline of argument of the

applicant was delivered to the Registry earlier

this week and I take it that it has been put with

the papers. It seeks to - - -

MASON CJ:  I do not know that you need leave to amend a

document that is only a draft anyhow, Mr Miller.

MR MILLER:  No, quite so, Your Honour. Leave to substitute

for what is in there, perhaps, is all I need.

MASON CJ:  Yes.

MR MILLER:  Thank you, sir. The outline of argument is

in a rather unusual form. It seeks to perhaps

rectify the shortcomings that were in the affidavit

which may not, on the face of it, have complied

with the rules and hence, within the outline of

argument a good deal of fact has been set out

in detail which should not normally be in the

outline.	I ask the Court's indulgence in that
regard.

Your Honours, in addition to that there

are two or three items of additional material

which, I would respectfully submit, are important.

Exhibit D at trial has been made available,

as had exhibit E, because they were documents

which were central to the defence under section 24,

and I understand that they are with the Court.	The
regulations pursuant to the STOCK DISEASES
(REGULATIONS) ACT - - -

MASON CJ:  We do not have the additional documents,

Mr Miller.

MR MILLER:  I am sorry, sir. There are two sheets of

paper, Your Honour, exhibits D and E.

MASON CJ:  You have favoured Justice Deane with these

additional documents, but you have evidently

carefully arranged that the rest of us are without them.

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Timms
MR MILLER:	I see, Your Honour.	We had hoped that they

would have been inserted in the rear of the application

book, but apparently not so. If that is the case -

no doubt they are here, Your Honour, it is just a

question of locating them.

MASON CJ: Perhaps we do not need to take time over them

at the moment, but when they come to hand we can -

MR MILLER:  Yes. I think they may be in with the book

that contains the authorities.

The only other point I make, Your Honours,

is that the regulations under the STOCK DISEASES

(REGULATIONS) ACT have been made available by the

Crown, and a full copy of those has also been

made available through the Crown. I will not

pause on that, Your Honours.

May I go directly then to the special

leave point. What is it that is special about

this case? It can only be under the second

paragraph of 35(a), and it is that there has been

a miscarriage of justice because the court below

fell into error, that error in dealing with the

question of the fresh evidence, because that
fresh evidence, in our submission, went to confirm
the testimony of the applicant at trial on a vital

issue. That issue being the question of the

direction that he was given in relation to these

cattle, and on that evidence he was in direct

conflict with a witness called by the Crown -

the stock inspector named Morrell. It directly

raised section 22 of the CRIMINAL CODE. Section 22

was not put by the trial judge to the jury, nor was

section 22 adverted to in the court below. It was

not argued, but the fact remains, Your Honours,

that this is a classic section 22 case because,

on the face of it, what the applicant was saying

was, "I directed these cattle of my neighbour to

an abattoir in the south west of Western Australia

because I was directed to do so, and thereby I did

an intent to defraud. 11 Now, it seems to me, with	it with an honest claim of right to property without
the greatest of respect, that it is crystal clear
that that is what the case was, but it was never
put and was overlooked by everybody until this
point.

WILSON J: Is the word "directed" correct, Mr Miller?

Was he directed?

MR MILLER:  On his evidence he was directed. He said

that the stock inspector had said to him that they were to

go direct to slaughter.

WILSON J:  I see.

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Timms

MR MILLER:	And that was the testimony - - -
WILSON J:	So it was not merely the making out of
the permit?

MR MILLER~ No, in fact, that was a red herring really.

The permit, as can be seen from the argument below, it could never really be argued that

under section 31 of the CRIMINAL CODE a

permit was an order of an official.	I would
concede that.	But the testimony, as I have

identified it in the facts, of the applicant

was that at the property the stock inspector

had said, "They are to go direct to slaughter",

and so it is upon that that I would respectfully

submit that section 22 was clearly raised -

and hence the importance of the fresh evidence.

BRENNAN J:  How did 22 come to be overlooked at all

stages? It was not at the trial, I gather;

is that right, not referred to at the trial?

MR MILLER:  It was not put at trial, no - well, not in

words, it was not. It was never put by the

trial judge in her address to the jury in

specific terms, no.

BRENNAN J:	And she was never asked to direct - - -
MR MILLER:	She was not asked to.
BRENNAN J:	And what about before the Court of Criminal

Appeal?

MR MILLER:  Never raised, on the face of it. I did not

argue the matter before the Court of Criminal

Appeal but there does not appear to be any

evidence that it was ever raised. Now, -I realize

that that is the fact but, with the greatest

of respect, Your Honours, it is difficult to

understand how it could have been overlooked	because throughout the Court of Criminal Appeal
judgments many references are made to the
mistake being a mistake of law and that should
have alerted the court to section 22, which,
of course, is involved, is concerned with
mistakes of law, civil law.

So, Your Honours, that is the first point

and the submission we make on it is the

fresh evidence was so relevant to that point

because the fresh evidence, if a jury had it
before it, would have supported the applicant's

testimony as to the direction which he claimed

he received from the stock inspector, who denied

that he had given such a direction. The fresh

evidence illustrated that the stock inspector

PIT9/4/JM	4	27/10/88
Timms

had been untruthful, or at least in error, in

his sworn testimony in relation to the making

out of the permit.	But the permit itself is
not important.

Then, Your Honours, it also raised section 24

of the Code and we would submit that the court

below misapplied section 24 and did not appreciate

the relevance of the fresh evidence to section 24.

MASON CJ:	Now,what was the honest belief that was set
up as a defence? I have not been able to quite clearly follow from the papers what the subject
matter of that belief was alleged to be.

MR MILLER:  I appreciate that, Your Honour. The applicant

himself did not set it up. He did not say,

"I had a mistake". He said, "I received an

order", as to which he had no mistake, "to send

the cattle south a.nd, in addition; I received

a letter from the Agricultural Department

telling me" - that is exhibit D - "that the

cattle had to go south if they came from a

quarantined area." So, he was not setting up

a mistake. Your Honour the Chief Justice is

quite right. But how it was raised was this: it

left open the possibility for the jury to
consider that he may have been mistaken as to

the direction he received from the stock inspector,

and that would have been the mistake as to which

he had an honest and reasonable belief. So, it

is quite true that the applicant himself could not

set it up because his testimony was,

"I was directed to do it." He was not mistaken

about anything.

MASON CJ:  What about the other suggestion: that he may

have believed, or did believe, that Coppin had

consented to the transfer?

MR MILLER: That is an error, with the greatest of respect;

he never put that defence.	He never raised the
defence that his neighbour had consented.	Two

of the judges, or at least one of the judges,

Mr Justice Kennedy identified that - - -

MASON CJ: Yes.

MR MILLER:  - - - as the mistake, but it was not his defence

and it is an error.

MASON CJ:  So we can put that aside altogether?

MR MILLER: Put it aside, yes. So, Your Honours, if I

could just turn then back to section 22 as to

why it was relevant, I would simply rely upon the

recent decision of this court in WALDEN V HENSLER.

(1987) 163 CLR 561, which is in the folder ·

PIT9/5/JM	5	27/10/88
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of materials and, in particular, at the iud3~ent
of His Honour Mr Justice Dawson at page 592.

Indeed, beginning at 591, His Honour, who

incidentally was not in the majority on one

particular aspect of this case, but nevertheless

nothing turns on that because amongst the

judgments it was His Honour Mr Justice Dawson's

judgment which went, at some pains, to relate

22 and 24, as did Your Honour Justice Deane

to some extent, too. Starting at 591, His Honour

indicated that:

Both sections 22 and 24 of the Code

are concerned with the effect of mistaken

belief, but section 24 -

of course -

deals with mistake of fact only whereas the

defence of claim of right in section 22

embraces also mistake of law although only

in the limited manner to which I shall turn

shortly.

And turning to page 592 - I think I have actually

underlined these passages in the copies Your Honours

have - at the foot of 592 His Honour made the

point:

It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law -

and that is the case here:  there is no suggestion

there was an ignorance of criminal law -

because a claim of right is not a claim to

freedom to act in a particular manner - to

the absence of prohibition. It is-a claim
to an entitlement in or with respect to

property.

And that is what we submit was the claim of right
which the applicant here was exercising:	a claim

with respect to property; a claim to send these

cattle, quarantined cattle which he knew belonged

to his neighbour, direct to a slaughter yard because

he was told -he was directed - so to do and that,

in our respectful submission, would be a claim
to an entitlement with respect to property which

goes to establish the absence of mens rea.

BRENNAN J: That is a proposition with which I have some

difficult~ When it is applied to the Code, what

do you understand that to mean?

MR MILLER:  In the light of our Code?

PIT9/6/JM	6	27/10/88
Tinnns

BRENNAN J:	Yes.
MR MILLER:	Yes, well,  it is interesting that section 371

of the Code	differs from the corrnnon law in
this sense:	that it creates the offence of
taking or -

BRENNAN J:  No, my point is not about 371; it is about

the notion of mens rea at all in the Code.

MR MILLER:  Yes. Well, you get it from the - well, it

does not exist perhaps in our Code section because

there is a deemed fraud under 371(2). That is

to say, 371(1) creates the offence of'fraudulently

converting to your own use'; which is what this

case was said to be all about. And then

subsection (2) deems it to be fraudulent if

you have taken the property with an intent to

permanently deprive the owner, or taken it
in circumstances ',Jhere you cannot return it in

the form in which it originally was. There is

the intent within subsection (2).

BRENNAN J: If we leave out the qualifying phrase in

His Honour's judgment - - -

MR MILLER:	Probably not - - -
BRENNAN J:	and leave:

It is a claim to an entitlement in or with respect to property -

that is sufficient for your purposes?

MR MILLER:  That is sufficient for this case, yes. I appreciate

Your Honour's observation.

A claim of that s6rt is necessarily a

claim to a private right arising under

civil law -

says His Honour, and we would respectfully apply

that passage to this case.

Incidentally, Your Honours, on 371, could

I raise this also, another threshold point:

This man was charged with fraudulently converting

to his own use these cattle but, on all of the

evidence,he never converted them to his own use.

At all relevant times he knew and recognized them

to be, and documented them to be, the cattle of

his neighbour. So the only conversion could have

been putting them on the truck to send them to the

slaughter yard and it is difficult - although it is

PIT9/7/JM	7	27/10/88
Tirrnns

not a ground of appeal one might pose the

question:  how did he convert the cattle to

his own use when they were being sent to a

slaughter yard for the purpose of being

slaughtered, the proceeds of the money remitted

to the true owner? So, it is very difficult to

see how the case ever got off the ground,

quite frankly but, nevertheless, as I say it

is not one of our grounds of appeal but it

does pose a very central threshold question.

So, Your Honours, on section 22, if one

looks at the passage in WALDEN V HENSLER,

in my respectful submission, was just so

clearly relevant that it was a direct answer to

the charge that was brought by the Crown

against this applicant, and the fresh evidence

was so central to it because it went to the

credibility clash between the two prime witnesses.

Now, Your Honours, if I could then turn to

section 24. It is really secondary to 22 because

the applicant relied upon the same direction.

It left open, as I said earlier in answer to

Your Honour the Chief Justice, the possibility

that he may have had an honest and reasonable

but mistaken belief as to that direction. Now,

such a direction, in our submission, would be

a statement of fact underlying which there may

be a principle of law, so that it would become a compound event of mixed fact and law and

hence would raise section 24. Again, the

testimony was critical to it because it went

to the credibility of the two prime witnesses.

So, Your Honours, they then are the

special leave points that I would respectfully

suggest can be drawn from the case and accordingly

there would, in my submission, if they are correctly

put, have been a miscarriage of justice in the

terms in which Sir Garfield Barwick put it in -
and may I hand up -	RATTEN V REG, which is not

on the list, nor in the book, but perhaps just
at this point it would, in my respectful submission,

fall within Sir Garfield's dictum in RATTEN V REG

(1974) 131 CLR 510 at 516, where His Honour,

at page 516, said:

Miscarriage is not defined in the

legislation but its significance is fairly

worked out in the decided cases. There is
a miscarriage if on the material before the

court of criminal appeal, which where no new

evidence is produced will consist of the
evidence given at the trial, the appellant is
shown to be innocent, of if the court is of

the opinion that there exists such a doubt as

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to his guilt that the verdict of guilty

should not be allowed to stand.

In my respectful submission, that is the sort

of miscarriage of justice that rears its head

in this application.

Now, Your Honours, I will not go to the facts

of the case because I assume that they are set
out sufficiently in the outline of argument - it

would take a long time, there is a lot of detail,

but they have been set out in some detail because

it is quite a complex story of fact which gets

to the ultimate charge which was preferred against

this applicant - perhaps only with the exception

of two paragraphs in the outline of argument,

if I could refer to them: ?aragraph 5, which

identifies what the applicant testified to at

trial.

Now, the first statement of fact which is

therein contained is that because these cattle

mustered by the applicant came from areas under

quarantine they could only be slaughtered if

they were sent to an abattoir, and that as

a matter of conrrnon sense seems clear enough

and certainly that is what the legal position

was. The applicant himself testified that

because he had found stranger cattle, as they

were called, in his yard which had come from

an area under quarantine, his understanding

was that they had to go direct to slaughter,

and the reference is there. This belief, he

said, was based upon an instruction which he

had received from the Department of Agriculture,

which is exhibit D at trial and which was, I

had hoped, a document that the Court would have.

I think it is now there and, Your Honours, if

I could just turn to it. It was not an -

instruction that he had received directed to

him, but it was an instruction from the Department

of Agriculture to the Deputy Conrrnissioner of

Taxation which referred to him, it being a

letter of 1 February 1985 in which the

regional veterinary officer had indicated to the

conrrnissioner that he had been requested by

this applicant of Warrawagine Station:

to briefly detail the T.B. Eradication

Programme.

The point is made that this station:

was placed under quarantine restrictions in

1973 -

and paragraph 2 is the relevant paragraph:

Under quarantine all cattle leaving the

property must travel under permit and can

PIT9/9/JM	9	27/10/88
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only be offered for sale for irrnnediate

slaughter.

And it is upon that statement of fact that the

applicant based his belief that he was obliged
to send these cattle direct to slaughter, combined
with the statement which he says the stock
inspector made at his property, that they were

to go direct to slaughter, and that was the

advice from Morrell to which I have referred.

Now, Her Honour the trial judge picked this

up and questioned the applicant about it, and one can see it from the passage reproduced in

Mr Justice Wallace's reasons at page 85 of

the application book - not there, I am sorry.

At page 85 of the application book is the

transcript. It is the very end of the questioning

of the applicant. Her Honour then was a bit

puzzled by this and so she took him to the

letter and said,at about line B:

this will go in to the jury and they will

read it ..... Now I understand what you are

saying. You are not saying that this is

a direction to you but what you are saying

is that you had a direction and that

is confirmation of what you are saying?

---That is correct.

Then she read the passage and she formulated

it this way:

Now, the way I read that is this:  "We have

a quarantine property. All cattle leaving

the property must have a permit." They

can't leave your property unless there's

a permit. Then, if they are going to be

offered for sale they must be slaughtered?

---That's right.

She went on: 

But it doesn't say, as I read it, that they

can only go to slaughter.	You see, now,
if you just -

and she asks him to corrnnent -

could you just have it in front of you

..... ?---I just read that and understand
that as going for sale for irrnnediate slaughter;

being sold and then slaughtered or slaughtered

and then sold, but the end result is that they

have to go for slaughter.

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A	•	.nd so that found the 24 fact as to which it
was open to the jury, in my respectful submission, to accept that he had an honest and reasonable but mistaken belief, combined with, as I say, the
direction from the stock inspector.

(Continued on page 12)

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MR MILLER (continuing):  Your Honours, if I could turn

then to paragraph 8 of the outline of argument to

contrast the two areas of testimony, the stock

inspector Morrell testified at trial that on each

of the two days which relate to the two counts in
the indictment in issue, 10 and 28 May, he had issued
permits for the movement of the stock from
Warrawagine, but he denied that he had either issued

a permit for the Yarrie cattle, or directed that they

go direct to slaughter. So there is the conflict

immediately in credibility and he stated that he had

advised the owner of Yarrie of each consignment;

only when he saw Yarrie cattle on the applicant's

truck at a nearby town of Nullagine had he noted on

the permit, which is reproduced in the application

book at page 87, details of the Yarrie cattle.

Now this is the fresh evidence point,

Your Honours. If one turns to page 87 the permit -

and this is the original of it which constitutes the

fresh evidence - shows a description of cattle in a box

in the middle of it and - I am just reminded that it is

wrongly indexed, just in case there is any confusion

about it at any later time. In the index to the

application book it is shown as the triplicate, but

it is not. As you can see from the top left corner

it is the original. This is the photocopy of the

original and in the box where one sees "description"

there are 'Z.00 mixed cattle", "brand, 010 4LC". Now,

010 was Warrawagine brand and 4LC was Yarrie brand,

and then the stock inspector has broken it up.	In
the left-hand box is "350-010" and "55-4LC".	So

that clearly identified on the original permit which

he made out on the evidence at Warrawagine Station

on 28 May that 55 Yarrie cattle were in that consignment

and yet he swore on oath - because the original of

this document was not available and could not

reasonably have been available because there was a

deposition, which is in the application book, which

was silent as to any of this, so it came as a

surprise at trial - but he swore in testimony that

he had notated on this permit the 4LC description

when he saw the cattle at Nullagine later on the night

of 28 May when they had left the station and were

on the way to Perth.

But the applicant had said at trail that he

had made out the permit for the consignment of Yarrie

cattle at Warrawagine Station and so this was a

central credibility issue and it bore upon the evidence

of the stock inspector generally as to whether he gave

a general direction that all cattle had to go to

slaughter; and that is the importance of the fresh

evidence, because if put before a jury it would now

be clear that the stock inspector was at least

mistaken, if not untruthful, in the testimony that he

gave as to the making out of this permit and it would

underline and underpin the applicant's evidence that

PlTl0/1/HS	12	27/10/88
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he understood and was directed that these cattle

were to go direct to slaughter.

WILSON J:  Was there a similar contest of testimony with

respect to the consignment on 10 May?

MR MILLER:  Yes, there was, exactly. Yes, the applicant

swore as to the 10 May consignment - and I have given

you the reference there. That is the first of the

references at line 6 in the outline, application

book page 32, lines A to B, is where it was put to him

that on 10 May he had likewise directed that they go

direct to slaughter. He denied it. Now, on the 10 May

permit he had not entered any details of Yarrie cattle,

that is true. They were only 010 brand, Warrawagine

brand, but the point is, Your Honours, that the fresh
evidence, if put before a jury, in our respectful

submission, would have gone centrally to this

credibility issue, generally on all aspects of the case,

and particularly that direction.

I forgot to round it off, to say that what his

testimony was was that at Nullagine, because he then only had the duplicate and triplicate copies, he had

notated 4LC brand on the duplicate and the triplicate,

but definitely not on the original, and it was the

original found later which is at page 87 of the book

which showed that to be so.

BRENNAN J:  Mr Miller, I am trying to put together the

implication of this evidence and the evidence that was
given by the accused at trial that he understood all

of this from, amongst other things, the letter that

you have now produced, exhibit D. Does he say that

his understanding of what his obligation was was

derived from what he had always understood, or only

expressly from the instruction given to him by the

stock inspector?

MR MILLER:  Two-pronged, Your Honour; first, what he

understood from the letter exhibit D, and confirmed

by the direction given to him by the stock inspector

at the property that day. If I could just turn to

those two passages for the directions, page 32, lines

A to B.	Page 32 deals with Morrell - I have to go back
to the applicant, I am sorry.	This is in paragraph 5
of the outline of argument.	At page SOC one can pick
it up - he was asked:

You came to know that there were a lot of

strangers?---Yes.

What was your intention to do with them?

---Well, until I had spoken with Morrell I

couldn't say because I have to ask Morrell

what to do with them.

Well, did you have anytheories?---As far as

I was concerned, they were - they would have

to go direct to slaughter.

PlTl0/2/HS	13	27/10/88
Timms

So you can see, Your Honour, he had a theory of a sc~t.

but he was waiting for Morrell to confirm it, and

then he was asked if Morrell came and he said, "Yes"

met him, and then over on page 51, after indicating

how Morrell came, by aircraft, and so on, at line C:

What did you have a conversation about?

---I pointed out to him that we had many

strangers in the yards. There were a large

number of Yarrie and quite a few -

unidentified. Then at line D:

We had a discussion about them -

the strangers -

He usually wants to know what area they come from. That's his first question. I told him what area, and he said as far as he was

concerned they should go direct to slaughter.

Did he write out a permit?---He did.

So, to answer Your Honour Justice Brennan's question,

it was a combination of the letter and a reliance upon

the stock inspector, and likewise the same for the 28 ~fay

incident when Morrell again attended in the same

circumstances.

WILSON J:  What relevance has - I am sorry. You have

probably told us this, Mr Miller - exhibit E, because

I notice it is a letter of 21 October 1987 which, of

course, is 18 months after the date of the offence?

MR MILLER:  Yes. Quite frankly, Your Honour, I cannot see

any real relevance of it. I think he relied upon that

as backing up or in some way substantiating what he had

been told in 1985 in exhibit D. There is a point that

comes out of it, and it is that you will see that -

this was the point, I think, that was made at trial -

from the first paragraph, that if under the CATTLE

INDUSTRY COMPENSATION ACT a direction is given that

cattle are to be sent to a destination at the direction of the chief inspector they all go. It does not matter whether they are anybody else's; anything on the

station goes and that is what was sought to be made

of it.

MASON CJ:  Is that the only evidence from the applicant as to the alleged direction given by the stock inspector?

MR MILLER:  No, Your Honour. He also referred to the

28 May direction which he received from the stock

inspector. That one I just referred to was 10 May

which is the subject of - - -

MASON CJ:  The one at page 51 almost looks like a throw-away

remark.

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Timms

MR MILLER: 

Yes. It is fairly casual, I would have to a~ree

with Your Honour, but he is more positive about-it
when it comes to the next occasion upon which Morrell

visited on 28 May.  If I could take you to page 55,

lines E to F, this is the second visit. Morrell again

arrived and he is asked:

Did you advise him - well, did he write

out a permit?---Yes, he did. He was more

concerned about that particular mob because

they came from the actual destocking area.

And what did he say had to happen to the

Yarrie strangers?---He said they had to go

direct to slaughter.

Did he write out a permit on that basis?

---Yes, he did.

Did you inform Coppin?---I told Morrell

to tell Coppin.

I have pointed out in the facts that Coppin, the

neighbouring owner, was not contactable by telephone

by this applicant. He could only get through by Royal

Flying Doctor service and so he left it to Morrell who

lived in Nullagine who had telephone access to ring

Coppin and Morrell gave evidence that in fact, he did

ring Coppin after the event. Now it is interesting,

when considering that, the learned Solicitor-General

has made available additional transcript. Perhaps

I could just turn to one passage in it in relation to Coppin's evidence. Coppin, in the transcript of the

original trial, at page 47 of that transcript, had this

to say about what he expected in relation to these

cattle. I do not know how that is numbered - the

Solicitor-General has handed up additional copies of

transcript and - it is page 47 at the foot of the page.

This is Coppin being examined, the neighbouring owner,

and this relates to the first consignment of 10 May,

and he was asked at page 47:

Did you get in touch with Timms?

I should go back. On the previous page he points out that he got a telephone call from Morrell telling him

what had happened, and then he ~as asked at the top

of page 47:

Did you get in touch with Timms?---No.

What did you do?---I didn't make any effort

to get in touch with Warrawagine or Mr Timms,

because I presumed that he would, seeing as

it was his yards -

He was asked to speak again -

PlTl0/4/HS	15	27/10/88
Timms

I made no effort to contact Mr Timms at that stage, because we'd had a pretty bad

personal clash and it would have been

pointless me going up there because I

wouldn't have been welcome. So, seeing

as the cattle were up in his yards, I just

presumed that he would contact us when he

was ready for us to do whatever with them. So far so good, but the next question was:

Do whatever with your cattle?---Yes. Well,

I just presumed that we'd get the cheque:

Now, that confirms the applicant's view that everybody

knew that stranger quarantine cattle went direct to

slaughter. So whereas the Crown case was that Coppin

had not consented to his cattle going to slaughter,

his very answer in that passage indicated that he knew quite well that the next thing that would happen would

be he would get a cheque, because they would have

been sent to slaughter.

(Continued on page 17)

PlTl0/5/HS	16	27/10/88
Timms

BRENNAN J:  Is that the cause of it or is the reason what

seems to have been the practice that is described

at page 45A of what happens if cattle are not

under quarantine? In other words, if you pick

up a few strangers in your mustering, will you

send them off?

MR C'1I LLER:  Yes.

BRENNAN J: Was this referring, perhaps, to just an odd

few strays?

MR MILLER:	I cannot answer that, Your Honour, but I had interpreted it to mean that he had been told -
well, he had been told by Morrell, the stock inspector, by telephone, of the existence of
this substantial number of cattle at Warrawagine.

BRENNAN J: Of the number. And is page 47 then an observation

which is made with knowledge of the number that

are involved?

MR MILLER:  I will just have to pick it up, Your Honour,

at page 46, if I can, and see what was said.

All that is said at page 46E:

Did you receive a message from somebody

else about Yarrie cattle in Warrawagine

cattle yards?---Yes.

Was that a telephone call?---Yes.

It was from Morrell; he did not know exactly

when it was and then he goes on. So it really

does not say precisely what he knew about numbers

so I cannot really take it much further than

that. I only referred to it because of that

statement he made about the expectation of a

che~ue which seemed, on the face of it, to be

somewhat confirmatory of what the applicant was

saying. Morrell, it is pointed out to me, did not

say what he had told Coppin, just that he had

made a telephone call to Coppin.

Your Honours, I think, really, they are

the key facts. Could I just turn to the judgments

now of each of Their Honours below. First of

all, His Honour Mr Justice Wallace. His Honour

Mr Justice Wallace - his judgment begins at page 104

but after reciting the facts and dealing with

section 31 of the Code, which I do not rely on

at all, we go to page 108 because there His Honour

dealt with section 24 and he accepted that the

provisions of section 24 of the Code were applicable

to the applicant's defence at trial, at paragraphs E

to F. His Honour said that, after dismissing section 31:

PITll/1/SDL	17	27/10/88
Timms

he may have had ..... an honest and reasonable

although mistaken belief that he had been

so ditected by Morrell and further, an

honest and reasonable though mistaken belief

that Coppin was consenting -

Now, Your Honour the Chief Justice raised this with me earlier but that was never put by the applicant

so I do not know where His Honour got that.

So far as I am aware it is not part of the applicant's case because the applicant did not suggest that

fact -

consenting to the despatch of his stock

to Harvey because Morrell had carried out

his request to -

well, that is how he puts it because he carried

out his request to inform Coppin. But that would have to be a consent after the event; that could not - perhaps I have not put that very well.

His Honour saw the mistake as being:

an honest and reasonable although mistaken

belief that he had been directed by Morrell

and -

also that Coppin was consenting. And the reason,

His Honour said, was -

because Morrell had carried out his request

to inform Coppin of the applicant's intention.

BRENNAN J:  As to one mistake you say you do not rely on

section 31 and as to the other you say that

His Honour misunderstood what the nature of the mistake was?

MR MILLER:  No, I am sorry. He dismissed section 31 and then, after

dismissing section 31, His Honour saw this as being

a legitimate area of mistake, just above E:	he may have had an honest and reasonable
although mistaken belief that he had been
so directed by Morrell -

that is directed to send the cattle.

BRENNAN J:  Now, if he had been directed by Morrell, what

then?

MR MILLER:  He said he had been.

BRENNAN J: If he had been directed by Morrell, would he - - -

MR MILLER:  That would raise section 22.

PITll/2/SDL	18	27/10/88
Timms
BREt-,;NAN J: Section 22?

MR ("1ILLER: Yes, that is how I am formulating it. That would

raise section 22 if, as a fact, he had been. But if he believed he had been - if the jury

accepted the possibility that he honestly and

reasonably believed he had been although, in

fact, he had not - that would be section 24.

That is the distinction we seek to draw. If

the applicant's testimony is accepted - he got

the direction - and if it was a mistake it was

a mistake of law which brings in section 22.
If he did not get the direction - because Morrell
said he did not give it - but if the jury gave

him the benefit of the doubt and thought that

possibly he believed he got it, then he would

have a section 24 defence. That is the only

way, as I answered His Honour the Chief Justice

earlier, that section 24 could really operate

in the context of this case because he was not

saying he had a mistake and, anyway,

Mr Justice Wallace identified that as being a

legitimate area of mistake.	But the second limb
about Coppin - - -

BRENNAN J:  Do you get to section 24 at all except through

section 22?

MR MILLER:  It is pretty difficult to get to section 24

in this case, I have to concede that. That is

why section 22 is, I am submitting really the

key to the case.

BRENNAN J:	In case we do have to deal with section 24, what is the mistake which, if it had accorded
with reality, would have denied criminal liability
in your client?
MR MILLER:	That mistake would be the mistake of the fact

that he was told they had to go direct to slaughter.

BRENNAN J: Let it be assumed that he had been told that

they had to go direct to slaughter. How would that

have meant that a verdict of not guilty should

have been returned.

MR MILLER:  That would be a mistake of fact.

BRENNAN J: Forget the mistake; let us assume it to be

the fact. He has got a direction.

MR MILLER: If the fact is proven that he got the direction,

section 24 cannot apply. You cannot find a mistake.

It could only be if he had made a mistake about

getting the direction.

PITll/3/SDL	19	27/10/88
Timms

BRENNAN J:  Let us assume that he did get the direction. How

is your client then to be acquitted? By reason

of what provision?

MR MILLER:	Section 22.
BRENNAN J: Section 22.	I think you are being tugged by

the left.

MR MILLER:  My junior does not agree. I am going to come

to s e c t i on 1 8 , too , i n a min u t e . Th a t i s an

additional line of defence which I am being prompted

about. Section 18 I have not come to yet.

DEANE J: But what has been put to you is that it is either

section 22 or a combination of sections 22 and 24.

Section 24 is just no good to you on its own.

MR MILLER:  No, it is not. I can see that; I can see the

difficulties that I have in trying to identify

a section 24 defence of its own.

DEANE J:	I do not know if it helps you but it seems the
learned trial judge, at page 109, did not distinguish
between fact and law but, in the last paragraph,
effectively put a section 22 defence to the jury.
MR MILLER:	Yes, although she described it in terms of "honest and reasonable but mistaken belief" which
DEANE J:	But if you put that to a jury without distinguishing
between fact and law, I would have thought it
is possibly a fair enough summary of the combined
operation.
MR MILLER:	Yes, I think I would have to concede that,

Your Honour, and hence the fresh evidence becomes

important.

DEANE J:  I would think it helps you rather than concedes.

MR MILLER:  Yes, it does and hence the fresh evidence becomes

so much more important.

BRENNAN J: If you concede that then you must be bound

by the qualification of "reasonableness" in

section 24 which is not to be found in section 22.

MR MILLER:  And that is why I was trying to keep them separate

because, being conscious of that fact.	But the
"honesty" here could not be questioned.	The

"reasonableness" certainly is not necessary to

found the section 22 defence. But primarily

it seems to me, with respect, that section 22
was the operative section from the beginning

and why it was missed - although, as Your Honour

Justice Deane points out, in effect, it was put

although not in so many words, by Her Honour

the trial judge. Hence the fresh evidence becomes

PITll/4/SDL	20	27/10/88
Timms

important and relevant because of that conflict Ln
te~timony to which I have referred a number of

times.

DEANE J: When you look at exhibit E, to the extent it

is relevant, the middle paragraph there might

indicate that it was not such an unreasonable

view of what the department's attitude was.

MR MILLER:  Yes, Your Honour. Your Honours, I was just

dealing with Mr Justice Wallace's judgment.

That was the way he identified the section 24 defence and then what His Honour did was just

refer to Her Honour the trial judge's charge,

at the following page, and then at the next page,

page 110, he referred to the test as formulated

in GALLAGHER although actually did not go quite

far enough in the passage cited from GALLAGHER,

and concluded with these words, at page llOF:

In my appreciation of the evidence

and the manner in which the trial was conducted
and not overlooking the learned trial Judge's

favourable charge to the jury it cannot

be said that the new piece of evidence

would probably have affected the verdict.

Well, that, of course, was the wrong test as

has been made clear in GALLAGHER, and I probably

do not need to go to the passages. It was a

question of the significant possibility that

the jury, properly instructed, may have acquitted.

Then, for some reason, His Honour referred to

the learned trial judge's sentencing remarks

which had nothing to do with the matter and then

made a throw-away comment, at page 111B to .C,

that the applicant had shown:

a wilful disregard for the property of

his neighbour -

nothing to do, with the greatest of respect,	and that is how the jury saw it but that has
with section 371 of the CRIMINAL CODE and, indeed,
would not be a criminal offence at all.

The complaint, then, about His Honour

Mr Justice Wallace's judgment, is that having identified a potential section 24 defence, he

applied the wrong test in relation to the fresh evidence

but never tested the fresh evidence against the

defence. It was just an absence of reasoning.

His Honour has not turned his mind to the importance

of the fresh evidence except to say, at pages 110

and 111, that it would not probably have affected

the verdict.

PITll/5/SDL	21	27/10/88
Timms

So, with the greatest of respect, that is

an inadequate judgment and an inadequate path

of reasoning which does not do justice to this

applicant's case.

Now, if I could turn to Mr Justice Brinsden's

judgment, His Honour, at pages 117 to 118, dealt

with section 24. Having dealt with the section 31

defence His Honour, at paragraph Eon page 117,

began in this way:

So far as the defence under s.31 is

based upon the permits as being orders

of a competent authority, I do not believe

it could be made out.

We agree with that, with respect.

The permit is permission only and not a
requirement or direction. It is not possible
to read into it a requirement or direction
that the applicant consign Yarrie stock .....

In so far as the applicant says that he had an honest and reasonable but mistaken belief that the permit so required him,

that would be a mistake of law and therefore

a s.24 defence would not be open to him -

and I agree with that, with respect, and the

two cases are referred to. Then, at page 118:

In so far as the mistake of fact defence

was based not only on the permits but also -

and here His Honour, with the greatest respect,

properly formulated the defence -

what the applicant was said to have been

told by the Agriculture Department, it

may be that it should be regarded as a

mistake as to the existence of a compound

event consisting of law and fact, which

in general is a mistake of fact and not

a mistake of law -

and reference is made to the well known passage

of His Honour Mr Justice Dixon, as he	then
was, in THOMAS V R.	His Honour went on to say:

I am not aware of any Australian case which

accepts a defence of "officially induced

error" -

and here he was touching on section 22 because

"officially induced error", prima facie, would

come within section 22 and the Canadian case

to which reference was made was not a case which

involved property and so a section 22 defence

of "honest claim of right" was inapplicable because

PITll/6/SDL	22	27/10/88
Timms

it was a case in which a man had been given an

erroneous indication that he had a driver's licence

when he did not - so it had nothing to do with

a claim of right defence.

But there His Honour has touched right on why section 22 would be applicable: "officially

induced error" would be an error of law in relation to

\,1hich an honest claim of right in dealing with the

caltle, as this man did, would, in my submission,

be a defence.

Then His Honour, having identified, then,

the section 24 defence and really the section 22 defence - although not saying so - does not apply the fresh evidence to it. There again is a dearth
of reasoning. His Honour then went off on a

tangent about section 18 of the Act, as you will

see from page 119. His Honour was impressed

by section 18 - and I might as well deal with

it now, of the STOCK DISEASES (REGULATIONS) ACT,

which Your Honours will find in the folder of

materials, section 18 of which - it was actually

set out in His Honour's judgment so there is

probably no need to turn to the Act - provides

that:

Subject to section 14 -

which is not relevant here -

civil or criminal proceedings shall not

lie against any person -

(a) for anything done in reliance of a

notice or order apparently given or made

in accordance with the provisions of this

Act -

which this permit was. It was a permit under

regulation 13 of the regulations made pursuant

to the Act.

WI LS ON j :  I t i s des c r i bed as a no r i c e 0 r or de r w i th in

the meaning of the Act, is it?

MR MILLER:  No, it is described as a permit but His Honour

goes on, at the foot of the page, to equate a pevmit with a notice or order. You will see His Honour's reasoning at the foot of the page.

WILSON J:	Yes.
MR MILLER:	It seems to me arguable that such a
permit is a notice or indeed an order (understanding the latter words as "a
written order giving permission to do
something, a warrant, a licence" -

PITll/7/SDL	23	MR-MILLER,	27 /10/88
Timms

he refers to the New English Dictionary definition -

within the meaning of s. 18 -

and here His Honour brings in the fresh evidence -

opening the way for a defence to the charge

under that section, and in which case the

alleged fresh evidence would have much more relevance and might even meet the

test set out in GALLAGHER V THE QUEEN.

(Continued on page 25)

PITll/8/SDL	24	27 /10/88
Timms

MR MILLER (continuing):  Now, we would argue that - and it LS

one of our grounds of appeal - that the court - a~d

His Honour is speaking for the court because he saLd

at line E:

After the Court had heard argument

it decided -

not himself personally -

to recall -

the applicant's counsel, whic.½ it did. So the court has identified
a potential defence to which the fresh evidence would

have relevance and, in my respectful submission, was

incumbent upon the court really to send it back for

retrail, having so identified. I appreciate the problem that the applicant's counsel did not pick

it up and run with it, _but nevertheless - - -

DEANE J:  But it reads as if he disowned it.

MR MILLER:  It does. It reads that way, yes; was not

concerned, in any event, to pursue it.

DEANE J:  It would be a bit odd to say the court should have

sent it back because there was new evidence on the

defence that it was told would not be raised.

MR MILLER: 

I am in a difficult position in answering that

proposition, Your Honour, but in combination with the
other matters I would submit that it is a factor which
might weigh in a decision to order a retrail.

Incidentally, section 18 can be itself combined

with section 24, if one looks at subsection (b).

BRENNAN J:  What was the act done in reliance on the notice

here?

MR MILLER:  I am sorry, Your Honour, could you just

reformulate that?

BRENNAN J:  What was the act which you say was done in

reliance on a notice or order? The sending of the

cattle off for slaughter, I presume?

MR MILLER:  Yes, it has to be, in combination with the

direction. You see, the way the applicant put it

was he got the direction and the permit was then

written, so he really merged the direction and the

permit together. The permit, he said - that is in the passage I read earlier - was in consequence of the direction and, incidentally, to have returned

the cattle to Yarrie station the evidence established

he would not have needed a permit. He could have

simply driven them across the fence back to Yarrie

station. A permit was not required for that purpose,

but only for consignment to slaughter.

PlT12/l/HS	25	27/10/88
Timms

So there it is, but Mr Justice Brinsden

in his judgment, as I say, did not really deal with
the fresh evidence, did not apply it to the section 2~
defence he identified, and then Mr Justice Kennedy

took the view that any mistake here was a mistake

of law so, therefore, he did not look at the fresh

evidence. His decision was no need to look at it

because there was never a mistake of fact. It was

only a mistake of law, and we respectfully join issue

with that. He identified at page 123E the mistake

in these terms:

Equally, as it appears to me, a defence under s.24 of the Code was not available

to the applicant, insofar as it depended

upon the applicant's suggested belief that

he could lawfully do that which he was

permitted to do, namely, to consign Yarrie slaughter.

Now, His Honour does refer to section 22 here:

By s.22 of the Code, ignorance of the law

does not afford any excuse -

unfortunately His Honour did not look at the second

paragraph to section 22 -

It is not so declared in relation to

the present offence.

At the top of page 124:

Section 24 is concerned with mistakes of fact -

and then at line B:

As it was left to the jury, the applicant's

contention was that he consigned the cattle in obedience to an order given to him by Mr Morrell. Inevitably, involved in that

contention, if his evidence were to be

accepted, was his own mistake of law, his

belief that Mr Morrell was lawfully entitled

to make the order and that he was required

by law to comply with it.

We would submit that that was a section 22 defence,

not a section 24 defence, if it was properly recognized.

The section 24 defence was the way I have tried to

formulate it - not terribly well, I do not think - earlier, that the section 24 defence arose in this

way, that the jury may have concluded that he was

mistaken as to Morrell's direction to him, and that

it was that mistake which grounded section 24.

So His Honour then said that as far as he was

26

PlT12/2/HS	27/10/88
Timms

concerned they were mistakes of law, not fact,
full stop, and did not apply or refer to the fresh

evidence.

WILSON J:  What is the section of the Act that sets out

Morrell's powers? Was he lawfully entitled to make

the order, to pick up Mr Justice Kennedy's words?

MR MILLER:  l think the regulation under which he acted

gives that power - regulation 13:

A person shall not remove any stock

or any animal product from any land

that at the time of the removal

is declared to be in quarantine,

unless he is the holder of a permit

in the form of form number 3
issued by an inspector in relation
to that stock or animal product,

the permit issued pursuant to

regulation 1. Subregulation (1) may

at any time be cancelled or suspended.

WILSON J:  That is a statutory power to give a permit, but

what about the power to give a direction?

MR MILLER:  The power to direct - I see Your Honour's point.

That I cannot answer. I know of no direct provision

which says that he has that specific power.

MASON CJ:  I thought that it was more or less common ground

in the courts below that there was not any such

power in Morrell.

MR MILLER:  No, I cannot point to any. That seems to be the

position, but it was acknowledged - the whole format

of the Act, of course, is to provide a statutory code

whereby cattle which get onto quarantine land

infected cattle on quarantine land have to be

directed in certain ways. That is as far as can

be put, so his powers, the stock inspector, and his

duties, indeed, were to ensure that TB infected cattle

from quarantined areas did not go anywhere other than

to particular sources with permits, et cetera, so

that the public is protected. There is an amusing

passage in the transcript where Her Honour asked if

TB infected meat got to the public ~nd she was assured there was absolutely nothing wrong with it

and it did. So it appears that the protection is

not for the protection of the consumer, but for
the protection of other cattle in the area to

ensure that the infection does not run amok amongst

neighbouring cattle. Your Honours, they are the

three judgments about which complaint is made and

the questions then which are raised on this special

leave application are those, the application of

section 22 and section 24 of the Code, and to a lesser

extent section 18 of the STOCK DISEASES (REGULATIONS)

ACT and the application of that fresh evidence to

P1Tl2/3/HS	27	27/10/88
Timms

those defences which, we respectfully submit, was

critical to the jury's determination of them.

That, I think, is as far as I can take it, if

Your Honours please.

MASON CJ:  Yes, thank you, Mr Mill er. Yes, Mr Solicitor.

MR PARKER:	If it please Your Honour, I would pass up not only the outline of submissions, but copies of two
additional cases that Your Honours may find relevant.
DEANE J:	You and Mr Kennedy - you seem to be like ships 1n

the night. You simply pass by Mr Miller without

MASON CJ:  Except by saying that special leave should not be

granted on the defences that he now raises.You direct

your main efforts to defences that he is not really

relying on.

MR PARKER:  If it please Your Honours you will realize that

it is only in the last couple of days that section 22

has emerged.

MASON CJ:	Yes, I follow.
MR PARKER:	My learned friend was gracious enough to tell me

the moment he seized the point, but it is a new event

and I have been able to tack on on page 3, if it

pleases Your Honours, some submissions that we would

put in the alternative about those, if Your Honours

were minded to consider them. But Your Honours will

appreciate that until now at trial Her Honour was most

specific in asking of counsel for the defence before
she charged what it was that was the basis for the

defence and the specific bases put were section 31

and section 24. Her Honour had some discussion with

counsel as to how section 24 would assist the

accused but in the end - perhaps persuaded, perhaps out

of caution - left sect ion 24 in the manner that has

already been briefly adverted to in argument.

DEANE J:  Have we got in the papers Her Honour's direction as to fraudulently?

MR PARKER:  I do not believe so, no~ Because of the way

this has developed I have taken the liberty of
supplementing the papers to quite an extent and,

although I will not ask Your Honours to turn to it

now, Your Honours will see that included at the last

few pages of the extra extracts from the trial

transcript this passage where Her Honour specifically

sought to determine the basis upon which the defence

was relying at the trial. It was for that reason, of

course, that section 22 was not placed before the jury

as such. The matter came on appeal and section 22

was not placed before the Court of Criminal Appeal and

so, until this moment, section 22 has not featured as

such in the proceedings, nor for that matter ha

section 18. A hand was offered to the applicant

P1Tl2/4/HS	28	27/10/88
Timms

whether section 18 should feature in his

submissions, from the Court of Criminal Appeal,

it not having been raised at all at trial, and it

was declined before the Court of Criminal Appeal.

BRENNAN J:  Mr Solicitor, it on the facts as aooeared on

the evidence at the trial, section 22 was
in truth raised, and the section and its contents
have not thus far received judicial consideration,

but there is, in the view of this Court, some reason

to think that section 22 has or may well have an

application to this case, what should this Court do?

MR PARKER:  I am in the Court's hands, if it please

Your Honour. I fully accept what you are saying.

I believe probably the answer at the end comes whether,

when Your Honours have heard all that I have to sav

about the merits of the case, section 22 left or not

left in specific terms, the question is whether

Your Honours feel that there is here such a reason

for concern about the propriety of the verdict,

that it ought not be allowed to remain.

Your Honours may or may not be of that position when submit that Your Honours would be perhaps more cautious

than usual before granting special leave on the basis

of defences that were specifically not adopted at

trial and on appeal, and that is the position in which

we are.

Of course, if there is a patent injustice done

as a result I would expect that Your Honours would

feel it should be corrected. I think it might be

better if I give Your Honours firstly a little more

glimpse of the facts and then later on I will spend

a little more time on them, but just so that

Your Honours perhaps appreciate a little. m::>re full the context

it is by any standard a strange case of cattle duffing

because the situation is that the applicant took the

cattle very publicly by getting in a government

official to see that he had them, by transporting

legislation that recorded them to an abattoir where	them on public roads with weigh bills under other
their different brand identification was recorded
and with a direction to the abattoir to pay to the
true owner the proceeds of the sale of the stock.

(Continued on page 30)

P1Tl2/5/HS	29	27/10/88
Timms

MR PARKER (continuing):  There was no secretiveness about

what was being done and it was not done for

personal gain to the applicant, that is and it ,·Jas

never the Crown's case. The Crown's case, in

the shortest simple terms, is that it was done

out of ill feeling and spite because of an

extremely serious rift that had occurred between

the two owners of the neighbouring stations- the

applicant on Warrawagine and Coppin on Yarrie -

that had occurred after the 1985 muster and a

little before this muster, the 1986 muster.	As
both the evidence of the applicant and the evidence of Coppin which is in the additional
transcript Your Honours have now reveals this

was a fight, a dispute~ it descended to a physical

fight between; there were civil proceedings. It

concerned money and financial matters between them

and it reached the point that they simply did not

talk to each other any more about it.

It is the case that in 1986 when came the

first muster after this very bitter dispute between

them, instead of following the procedure that

had followed in the years before then between

the two stations and which was in accordance with

the ordinary procedure in the district where

stations are substantially unfenced and it is

quite corrnnon for stock to wander across borders,

the previous procedure being either joint mustering

in which the teams from each station are working
in loose liaison mustering the areas and then
the stock from each station are sorted and the

stock from Yarrie station that is on Warrawagine

goes over the border and vice versa. That is

what had happened in previous years with the

small exception adverted to already, in which

Your Honour Justice Brennan, I think, raised

with the my learned friend, that if it happened
that in some form of mustering a few head of

cattle turned up on the other station - bearing

in mind these are very long distances apart -	it is sometimes the case, and on the evidence
after a corrnnunication with the owner of the
other station that the few head of stranger cattle are, simply shipped in with the home station stock
to slaughter.

In addition to the references that my learned

friend showed Your Honour in that matter, at page

84 of the additional trial transcript, the

neighbouring owner, Coppin, when asked why after

this first event in 1986 when he was told that

stock had gone on 10 May, why he did nothing

about it.	The fourth paragraph, I think it is,
on page 84:

P1Tl3/l/MB	30	27/10/88
Tirrnns

Because the first time you just

accepted the fact, I suppose -

he is speaking in a strange tense but it is him

speaking -

that they're gone, but when it happened a

second time I suppose you then did something

about it.

And specifically his answer to the next question:

It wasn't the common practice to send that

amount of cattle off -

which is the point Your Honour Justice Brennan

made earlier. At pages 43 and 44 his evidence

as to the usual practice, which I have outlined

already, appears. Now, the position as a matter

of law was that the station, Warrawagine, was under quarantine. The effect of the Act and

the regulations, in our respectful submission -

and I understand my learned friend agrees with

this - go no further than to require that before

cattle can leave the quarantine station there must

be a permit for their movement and it is a matter

then for the inspector whether or not a permit

will be granted.

In the case of movement from Warrawagine to Yarrie station there had been established,

as the evidence revealed, a small quarantine

area on Yarrie which was otherwise not in

quarantine, so that cattle from Warrawagine could

be moved directly to Yarrie. Put in this small

fenced area they would then be tested and over

two tests of 60 days, as provided in the

regulations, if they were clear they could then

be let free to roam again generally on Yarrie

station.

It was the evidence that the catt~e in the

previous years had moved from Warrawagine to

Yarrie on that basis. In particular, if I could

advert to a comment made by Your Honour Justice Deane

concerning exhibit D and that letter of 1 February 1985 -

and this, of course, is the basis that is put by

the applicant at trial as the evidence of the

department's position. It is dealing with - the

second paragraph, number 2	- the cattle that
are going for sale :

all cattle lPaving the property must travel

under permit and can only be offered for

sale for immediate slaughter.

PIT13/2/MB	3 1	27/10/88
Timms

The regulations make it clear that to leave a quarantine station there must be a

permit, but there is absolutely no provision'

and no provision enabling the inspector to require,

direct or order that cattle leave the station and,

when they leave the station, where they can go is

a matter for permit and that it was the established

practice over the years that had preceded that

the Yarrie cattle went back to Yarrie station as

the cattle went back to the other neighbouring stationsunder conditions supervised by the ·

department.

DEANE J:  What I was referring to,Mr Solicitor, was the

subsequent letter of 21 October when an order

was in contemplation. That seems to have created

a position very much similar to that which the

applicant says he believed earlier existed, that

is, that he had to remove the cattle for slaughter?

MR PARKER:  That order, if it please Your Honour, was one,

of course, that was given notice of one and a half

years after this event -

DEANE J:	Yes, I appreciate that.
MR PARKER:	- - - and it was a point when it was decided that the whole of Warrawagine had to be destocked
of cattle. The other point about this letter of
1 February 1985 is that it preceded the 1985 muster.
We are dealing in these offences with the 1986
muster. This is the letter preceding the 1985 muster -it is 1 February 1985. It was a letter
sent at the request of the applicant to the obvious affairs, but it was a letter before the
1985 muster and in the 1985 muster all the stock
were returned to Yarrie that were mustered on
Warrawagine and found to be Yarrie cattle.

There was a full permit covering that movement

as revealed in the evidence of Morrell. I could

only add these things: that the only evidence

about the basis for this belief at all is that

of the applicant in the case. It was put in

some form to Morrell, the stock inspector, and

denied. It was not put to the senior officer

of the department, Duda, called at the trial-
the man from the Geraldton regional office- that
there had been any of these, as it were, higher

orders, directions or compulsions of any type.

The evidence of Duda, which is short, is in

the additional papers. I do not think I need

delay Your Honours by going through to show that

it is not there.

PlT13/3/MB	32	27/10/88
Timms

The matter was first raised in a passage of

evidence that I should refer Your Honours to, and

that is in the additional papers at pages

commencing 148 through to about 170. The

passages I will ask Your Honours to turn to

commence at page 167. This is the evidence

of Detective Sergeant Foster of the stock squad

when he first spoke to the applicant about the

matter.	I will take it up at page 167 if
Your Honours have all found that.	You will

see that at the commencement of the second

paragraph he said:

"Where would all the others come from?"

"Stock neighbouring stations bought in I

presume, as I haven't bought any in."

"So you are saying you sent all stranger

cattle for slaughter because the Ag.

Department instructed you to?" "Yes."

"With regards to the cattle consigned to

Harvey on 28/5/86 -

well, I do not need to delay Your Honours with

that. At the foot of the next paragraph:

"Have you ever returned Yarrie cattle in

the past?" "Yes, but I have never got any

from them -

a question that is not answered -

"On both these loads, were you aware a

large number of the stranger cattle were

wet cows?" He replied, "Yes." "What

steps did you take to mother up the calves
to the cows -

bearing in mind this is a journey of a couple of days in pretty trying conditions to get to

the abattoir at Harvey.which is south of

Perth~from out to the desert from Port Hedland;

it is a very arduous journey.

He replied, "None." "This appears to be

fairly reckless when dealing with your

neighbour's cattle?" "There is a dispute

between us over money."

"Why didn't you get permission from Coppin

to sell the cattle?" "I sent a telegram

to him. He didn't reply."

At trial the evidence of the applicant was that

he himself did not approach Coppin, he asked

Morrell to do it. But to the police he said that

he had sent a telegram.

PlT13/4/MB	33	27/10/88
Timms

"It was obvious that these were breeding

cattle and should not have been sold." "The Ag. Department said I had to send

all cattle I mustered for slaughter."

"This will have to be checked out -

was the reply of the detective -

but it appears you have returned Yarrie cattle in the past." "That's the whole

point. I have returned theirs, and they

have never returned any of mine."

"Can you offer any explanation about no

Yarrie calves being sent with the wet

cows on 30/5/68."	"You will have to
see Bill Maher -

one of the applicant's staff -

about that." "To cover your explanations

in summary - why did you send Yarrie cattle

for slaughter?" "The Ag. Department said

I had to." "You have correspondence to

that effect?" "I have a telegram."

At trial that telegram was adduced and it is

in the additional papers available now to

Your Honours. There are two telegrams, dated

4 and 5 June 1986, and the first thing to note

about that, as they are after both of the offences

that were charged, follow the circumstance

that the police intercepted the shipment of cattle

on 28 May; the stock were incepted before reaching

the abattoir. News reached the applicant. He

sent the first telegram to the department at

Geraldton.

(Continued on page 35 )

P1Tl3/5/MB	34	27/10/88
Timms
MR PARKER (continuing):

Please advise if all cattle leaving property

must go direct to slaughter.

Answer:

Cattle for sale moved off infected properties

with r·ed tail tags rnus t be sent for slaughter

only. Cattle moved off infected property

with red tailtags other than for sale will
move under department controlled conditions.

Cattle may move off infected properties with

white tailtags after two clean tuberlin tests .....

Warragine is an infected property.

A telegram that accurately reflects the legal

position, that is, that it is only if cattle are

being sold from the property and are being sent for

sale, then the only circumstances in which a permit

will be granted if they are for sale for slaughter.

In other words, you cannot sell infected cattle to

other people for any purpose other than their

immediate slaughter but cattle can mov~ with permi½

to other areas. Of course, there is no obligation

there expressed, either in the question or in the

anser, that there was a direction that they had to

go. Your Honours will notice the question in the

first telegram:

Please advice if all cattle leaving property

must go direct to slaughter.

So the telegram that was advanced to the detective
sergeant was a telegram in response to the applicant,
sent after the offences and the police intervention

in the circumstances. The telegrams do not set up,

"Wasn't I directed to send these cattle?" The

telegrams ask if any cattle leaving the property

have to go to slaughter.	The first step is why they
left the property and, of course the answer reflects
the true position.	So that, when asked by the

detective sergeant, "Why is it, or on what basis did

you move the cattle and send them for slaughter?"

the answer was:,

"The Ag. Department said I had."

And when asked in what circumstances that had been

said, the answer was:

"I have a telegram."

And that was the telegram.	Then the evidence continues
at 168.

WILSON J:	So he did not rely on the permit as a direction to consign those cattle for slaughter?
Timms

PlT14/l/VH 35 27/10/88

MR PARKER:  The telegrams suggest not and suggest the oppos:Lte,

in our respectful submission.

WILSON J:	And in court.
MR PARKER:	In court the evidence took a different shape from

this and that is part of the point on wha~ -r- am now puttinq	0
to Your Honours.	Continuing at page 168:

"You have correspondence to that effect?"

"I have a telegram." "Did you inform
Lang Coppin, the owner of the cattle, that

you were going to sell them?" "Yes." "How?"

"By phone and telegram."

Earlier it had been by telegram that was not answered; then it was:

"By phone and telegram."

And as Your Honours are aware, at trial he denied that

he had ever made any attempt to contact the owner.

He said he had left that to Morrell, the departmental

inspector.

BRENNAN J:	Was phone contact available?
MR PARKER:	Telephone, not direct from Warrawagine to Coppin. Coppin was on the telephone, but not this one. If
the applicant had been away from his station at all
he could have telephoned Coppin but he cruld not do
it from his station.  He could contact through the
neighbouring station.  The stations were all in radio
contact through the flying doctor network, but not by telephone. There was, as well, a telegram service.

BRENNAN J: There was?

MR PARKER:  Yes. At the last large paragraph on_that page,

a matter that I will mention just to make it clear

in case if confuses Your Honour, heis asked:

"You have returned Yarrie cattle in the past?"

"Yes." "But you say the Ag Department have

bought in new rules and you weren't allowed to

return them this year?" "The Ag Department

said they all had to go for slaughter."

That is explained to Her Honour, who questioned that

evidence at page 170, toward the foot. What raised

Her Honour's question was where had there been any

evidence or answer by the applicant there had been

new rules brought in, and the explanation was, well,

that was an assumption; that is what the

detective sergeant understood from what was being

said to him and the detective sergeant made it clear

that that was what he understood as being said; they

were not the words of the applicant himself.	So it
is not the applicant's words.

PlT14/2/VH	27/10/88
Timms	36

A number of features emerge from that, if it

please Your Honours: firstly, that the basis for

the agricultural department direction, when asked

in the matter, was said to be the telegrams. No

reference was made to the letter in February 1985

to the Taxation Department as the basis for the

direction. No reference was made to the destocking

order; it had not happened at that moment; it happened

some time later; it had not happened at the time of

the interview. No reference was made to it being a

direction by Morrell, the stock inspector, that had

caused the applicant to act as he did and that he

insisted on both occasione that he was specifically

asked that he had directly sought the authority of

the owner for the movement of the Yarrie cattle to

slaughter.

If I could continue: I think it is most useful

if I deal now with the force and effect of this fresh

evidence whilst we are on the facts and perhaps that

will put an end to that. Your Honours will appreciate

that it directly affects only the third charge; that

of 28 May, because the permit in respect of 10 May,

which is exhibit A in the additional papers now

before Your Honours - it is both A and G, and

Your Honours might see both copies as wedeal with them.

I do not know whether Your Honours have yet received,

in the additional papers that your tipstaves have - - -

MASON CJ:	We have exhibit A.
MR PARKER:	The 10th May is a permit; it is for "450 mixed

cattle, brands 010, tailtag EP015." The copies

that Your Honours have - may be difficult to pick up

all of the pencilling marks because it is of a carbon

triplicate, but the first figuring is "450" and

the tailtag is "EP015."

MASON CJ: Yes, well, I think we have all the details.

MR PARKER:  Thank you . Can I just mention that, · on the

evidence, "mixed cattle" means not mixed brands but

mixed types: bulls, heifers, calves, what have you.

Your Honours will realize that that contains no

reference whatever to Yarrie cattle, so that the

posit:i.on taken by the applicant that the permit of

28 May in which, on his version, Yarrie cattle

were specifically designated as included in the cattle

that were to be taken to slaughter, simply does not

obtain with the first movement because, although
the inspector was at the station and inspected the
stock and saw there were Yarrie cattle, there is

absolutely no reference to Yarrie cattle on the

first permit.

MASON CJ:  There is a reference to "Yarrie, WT Edgar, Limestone."

P1Tl4/3/VH	37	27/10/88
Timms

MR PARKER:  I see what Your Honours have. Your Honours have

exhibit G .

MASON CJ: Well, we have got two; we have got them both.

WILSON J:  We have got them both. This one has got "G" on it,

. 46102.

MR PARKER:  Yes, well, can I make it clear that A is the permit

in the form in which it was filled out by Morrell.

That is the triplicate but the original was in the

same form. The additional markings were put on when

the cattle and the permit reached the abattoir at

Harvey, and all those additional markings on Gare from the stock inspector at Harvey, Muirson, and

the abattoir staff.

MASON CJ: The only problem with our copy of A is that the number

450 is not clear and the tailtag number emerges as

"EPO", the last two letters do not come through.

MR PARKER:  Thank you, yes. Well, in its original form

it was simply, "450 mixed cattle, brand 010," and

the tailtag number. Just so Your Honours are not misled,

all the original markings are after the cattle have

arrived at the abattoir.

MASON CJ: Arrived at Harvey, yes.

WILSON J: Well now, the question of payment for the cattle slaughtered would not be determined by the initial

permit,A?

MR PARKER:  Nothing to do with the permit .. The permit; is

simply to enable the stock to be moved from a

quarantine area to another part of the State, and
before they can be moved to another part of the State

there must be a permit; there are conditions applied

and, at times, permitswill be refused, depending

on the reason for the movement and where they are

being on the evidence in the regulations, a matter	going, and so on. For them to move to slaughter, it	for the decision of the applicant whether he wanted
to sell his stock for slaughter. It is a matter for
the applicant to deal with the abattoir as to how payment will be effected. That is nothing to do with
the stock inspector.
Now, the significant thing there is that if the applicant says, in support of his contention, that,
"I was specifically authorized," in this new, fresh,
evidence, as you can see, "to move Yarrie cattle on
28 May," he immediately faces the problem that there
was no such authorization for his movement of Yarrie cattle on 10 May. The next issue is, turning to the
fresh evidence - - -

BRENNAN J:	How many Yarrie cattle were there on 10 May?
PlT14/4/VH	27/10/88

38

Timms

MASON CJ: 5 5 .

WILSON J:  No, 100-plus.

i:-'fR PARKER:  100-?lus, yes. I think it was specifically 87

positively identified as Yarrie and then some others

that may have been attributable to other neighbouring stations - 87 specifically identified as Yarrie in that

100- plus.

DEANE J:  But when one looks at the permit of 28th May, does

it not immediately raise the question, what is the
inspector doing specifically giving a permit in

relation to other people's cattle involving

breeding cows being sent to slaughter in circumstances

where he is the person in contact with the owner of those cattle and he is the person who has contacted the owner on 10 May?

MR PARKER:  I would start by saying that those last

observations were nothing to do with his duty. He

did that of his own initiative after he had seen

the large number - this is his evidence - after he

had seen the large number of Yarrie cattle there,

just to tell the other owner that they were there

and yarded.

(Continued on page 40)

PlT14/5/VH	39	27/10/88
Timms

MR PARKER (continuing): Your question assumes something that I

am now to deal with but his evidence in answer

to your question - - -

DEANE J: Well, do not let me take you out of course.

MR PARKER:  Yes. I think I can best give you his evidence

in answer to it. His responsibility was to ensure that,

if cattle were being moved from that station to

a place for slaughter, that they were authorized to

move and there was a permit covering it so that (a),

the inspector at the other end, at the abattoir,

could ensure that the cattle had moved and had

arrived and (b), that there could be no dispute

about what could happen to those cattle once they left the property. So, you will see they are "To

Harvey for slaughter only", is the permit. That

is the condition of the permit.

Now, his evidence is that he filled out the

permit of 28 May in exactly the same form as

Your Honours have seen the permit of 10 May, that

is, '~00 mixed cattle 010; tail tag EP015". In

his evidence, the two permits were identical

because, on each occasion, he believed the cattle

that were actually to be moved were only the

Warrawagine cattle that he saw and not the Yarrie.

He further added that, in fact, that night he,

having returned to Nullagine, the transports came

through the town on their way on the journey to

Harvey and he, then, inspected them again and there

he saw that there were, in fact, this additional

55 Yarrie cattle with the brand "4LC". So that

he then, altered,his direct evidence is,the copy

that he had that was tendered in exhibit.

Your Honours will see at page 36E- he says

this toward E and F:

I would've put the 4LC on there when I

saw those cattle.

At Nullagine?---Yes.

Well, then you might have put it on at Warrawagine?

---I did not anticipate them being loaded. This is page 36 of the appeal books, if it please

Your Honours - the evidence of Morrell - and the

last question:

Did you put the 4LC brand on the permit at

Warrawagine?---To my knowledge I put 4LC on

the second time I looked at those cattle at

Nullagine when were on a transport.

And over the rage:

PlTlS/1/VH	40	27/10/88
Timms

The permits are issued in triplicate,

aren't they?

The triplicate copy is pink and I believe the

original exhibits are in the Court, if it of use

to Your Honours. The duplicate is white.

MASON CJ:	Now, what is the importance of this, Mr Solicitor?
MR PARKER:	I am turning now to the significance of what is said to be the fresh evidence, if it please
Your Honours.  There were three copies; the original
authority for the stock to move and it moves with the stock. That is, of course, what happened on 10 May. The duplicate goes to the department office in
was passed to the applicant; that original is the of the inspector. He had the bound book with him
at Nullagine, on his evidence, when he saw the cattle
and saw that they were Yarrie cattle there, and so he
then altered, by adding 4LC, the Yarrie brand, because
he had seen them on the vehicles on the road. He was
asked at 37C:

You wrote on the triplicate copy - the first

copy is given to Mr Timms?---Yes.

The second copy is given to who?---They go

with the cattle.

And Your Honours will see there is confusion here

for a while as to which copy is which:

With driver?---For instance it's the same - the

first original copy goes with the driver.

And that is the position:

And the second copy?---Goes to the ..... Regional

Office.

And the third copy?---Is in the book.

And the marking on th~ third copy is in duplicate
is in carbon? Couldn't we expect it to have

been in biro?

Your Honours will see the obvious point of that

question and that is,"Here you say you have got your

book with your triplicate copy still in it and you

altered it, you would have written in biro, whereas

what is there is in carbon." So it must have been

there when there some means of producing a carbon

result. His answer is:

Could have been on the duplicate and the -

it could have been on the duplicate and it would

come through onto the triplicate.

PlT15/2/VH	41	27/10/88
Timms

Or it could have been put on at Nullagine

or it could have been put on at Warrawagine?

---Not to my knowledge.

So the question is ventilated with him at that point,

whether he had - or he could not really, it was put
to him, have altered it at Nullagine, as he said,

or there would have been a biro alteration, and

he pointed to the fact that he could have written

on another copy.	He) in his answer, nominated the
duplicate.	The other departmental copy which he

might have sent, or he later would have had to have

sent to Geraldton. He is asked at page 42A about

this again. What was the point of him adding it,

at the top if the page:

Nothing. They would have gone down as the

previous consignment.

Why do you need to add the brand? Why do

you need to do that ..... ?---I don't think

there is any law on doing it.	I just
thought it was a precautionary thing.	I had

seen the cattle, so I will add the brand to

it.

And at page 102A:

On the property. The permit that you issue,

does that have anything to say about the

ownership of cattle?---No. We do indicate -

there is a section on that form that indicates

brands but we are primarily interested in

where those cattle originated.	So that's the
only indication of brands.

MASON CJ:  What page is,this, Mr Solicitor?

MR PARKER:  I beg your pardon, it is 10. I looked at the foot

instead of the top. It is page l0A:

Numbers and individual brands are no great

interest. It is purely an indication as to

where those cattle have come from so that

we can monitor to their destination.

Do you physically count the cattle?---No.

Do you segregate them into sexes and types

of cattle?---No.

And so on. Now,the fresh evidence which, in our

respectful submission, lacks freshness, but that is

another issue, is that the original of this three-part

form, also contains those writings, 4LC, 350 010

and 55 4LC. But what is starkly obvious, if it

pleases Your Honours, is that the original was with

the cattle, with the driver, with the truck, in

Nullagine, or at least, that is where it normally

PlT15/3/VH	42	27/10/88
Timms

would be. It was the permit authorizing the movement

of these stock; it is there and then. The inspector

w2s never asked, of course, and no attention was paid to this

at trial, whether or not he had seen the original

and altered it at Nullagine. But it is, in our

respectful submission, a most obvious answer to the

situation. He is dealing with a permit to move the

stock; he sees that there are Yarrie stock whereas

he has only authorized the movement of Warrawagine

stock; he is there in the town with the driver,

the permit and the cattle. His purpose in changing,

as precautionary measure,was his evidence, would

obviously have been affected by him taking the

original from the driver; putting it in his book

and making the additions.

BRENNAN J:  Did you say we have the triplicate here?

MR PARKER: If it please Your Honour, yes.

BRENNAN J:  And is the triplicate a carbon copy of the

original?

MR PARKER: It is.

BRENNAN J:  And was there any suggestion that he had his book

with him when he changed the original?

MR PARKER:  Yes, that was his evidence, that he had the book and he changed it. What he said is, he changed the

permit. He said, or was asked then, "Well, look

at your triplicate, it is not in biro." And he

said, "Well, I might have written on the duplicate,"

or, "I wrote on the duplicate." Now, he was not

asked, of course, about the original because it did

not feature. The point we make, if it please Your

Honours, is that the original was there at the

scene at the same time.

DEANE J: But was not it dealt with on the basis that there

was evidence that it was all written at the same time?

I thought I read someth:'_P..g to that effect.

MR PARKER:  It is the evidence of the applicant that it was

all written at Warrawagine. It is the evidence of

Morrell, the inspector, that that is not correct; that he wrote the permit at Warrawagine in the same

form as 10 May.

DEANE J:  You would be able to tell, would you not, by

comparing the position on original and duplicate and

triplicate, whether it had all been written before

the original was detached.

MR PARKER:	You would have some chance.
DEANE J:	I thought that it was dealt with in the Court of

Criminal Appeal, on the basis that evidence would be

PlTlS/4/VH	27/10/88
Timms

led showing that the original was all written at che

same time. I may have dreamt it, because 1 cannot

see agreement corning from Mr Miller to that effect.

MR PARKER: 

I am sorry, Your Honour, it may be my deficiency

of knowledge of the papers, but I am not aware of
that at the moment, but it may be there.

DEANE J: It sounds more like my imagination, Mr Parker.

MR PARKER: Now, confirmation that the certificate - the

original - was there with the truck at the time

is provided, apart from the fact that that is the

normal and that is what happened on the previous

shipment, comes from the location from which the

original was found by the applicant after trial,

and it was found with the employer of the truck

driver. The applicant went - it was his cartage

contractor that he has engaged - and he went to that

person who employed the truck driver and from him

obtained the original. In the ordinary course,

when the stock had reached the abattoir the original

would have been handed over to the abattoir

officials, but on this occasion there was an

interception by police, the stock were unloaded

and the truck driver left the scene fairly quickly.

with his empty truck.

DEANE J:  What I had in mind, Mr Solicitor, is

at page 145 of the appeal book. Now, I may have

misunderstood the meaning, but at B, His Honour

says:

The particulars then go on to refer to the

evidence that would be called at a re-trial

to establish that all that had been written

on the original permit had been written in

at the same time.

Well now, I had understood that as inconsistent with

what you are saying. (Continued on page 45)

PlTlS/5/VH	44	27/10/88
Timms

MR PARKER:  Yes, well before the court it was argued,

Your Honour, on that basis. The point I make

now, if it please Your Honours, and I cannot take

that any further, I am not aware of any evidence

about that, the point I make about it is that there

is within the document some confirmation of it

being added to, because as Your Honours will see

that it is for 400 mixed cattle, the permit, but

then what is noted below that, is a total of

405 cattle when the two brands are separated out

and designated.

B~Pl-~AN J: Well in all events, the only addition was in relation

to the brand and the numbers of the cattle that

came from the neighbouring property. The permit

right from the start gave a permit to move the

stock in a number which was to be accounted for only

by reference to the incorporation of the neighbour's

cattle?

:MR PARKER:  Yes, it was a permit to move them, in terms, there

was certainly no direction to move them, in terms

and it related to, on the evidence of Morrell,

originally Warrawagine cattle only.	Now, of
course, I am - - -

BRENNAN J: Can that be right, that it related to Warrawagine

cattle only? What is the hypothesis then, that

55 Warrawagine cattle were cut out and 55 Yarrie

cattle were substituted or 50?

MR PARKER:  The evidence of Morrell.-it was at one of the

pages I gave you a moment ago - Your Honour, was

that when he went to complete a permit he did not

count stock at all. What essentially he did was

count the carrying capacity of the stock transports

that were there and fill in the permit to accord

with the carrying capacity of the transports because

he did not have either the time nor the means to

counts hundreds of head of cattle on his own.	So
he got there, saw a herd of cattle, saw the transports

ready to go and his evidence was that unless the

transports were there he would not issue the permit

because he wanted to be sure that the cattle were

going to move - see the capacity of the transports,

fill out the permit and then those transports loaded

would have to arrive at the other end or there would

be inquiries made. And on 10 May, for example,

his evidence was, at page 13, point D, that there

were, as he saw it, roughly in the order of 500 or 600 cattle herded at the yard. The permit was, of

course, only for 450 cattle.

Pulling it back, if it please Your Honours - I am taking too long, I am conscious of that this

directly affected only the movement of 28 May. It

was only on a permit authorizing the movement of cattle,

not a direction or authority. It goes only to the

P1Tl6/l/SR	27/10/88
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credit of Morrell, as against the credit of the

applicant, on one part of a very large area of disputed

factual evidence.	Even if Morrell had completed
the form entirely at Warra..mgine	it makes, in our

submission, no difference to the result. As it was

left to the jury, Your Honours will appreciate that

this change and this dispute was left to the jury

as one of the issues of the trial, they were
conscious that the triplicate copy was not completed
in carbon, they were conscious of that, they were

conscious that Morrell said it was completed at

Nullagine, whereas the applicant said it was

completed at the station. Whicbever view they took

of that, in our submission, it made or need make no
difference to their conclusion about the ultimate

issues in the trial.

BRENNAN J:	What were the ultimate issues in the trial?
MR PARKER:	Are you asking me now, Your Honour, or then?
BRENNAN J:	Then.  In other words, what did the learned

trial judge put to the jury as the issues which

determine guilt or innocence?

MR PARKER:  The elements of the offence, whether they were

satisfied there was a fraudulent taking of the

cattle - - -

BRENNAN J:	By reference, I take it, to the specific subsections?
MR PARKER:	Yes.

BRENNAN J: What was said about whatever was then relied on

under section 24?

MR PARKER:  The passage is referred to, probably adequately

enough, at page 137, to which Your Honours have

already turned.

BRENNAN J:	Now, assuming section 22 to be the relevant section upon which the direction ought to have been
given, would you support or seek to support that
direction as putting the issue to the jury in a
manner which was not prejudicial to the accused?
MR PARKER:	There is one respect in which I believe it

would disadvantage the accused,if section 22 were the

relevant provision and that is the reference at

E or just below E to an "honest and a reasonable

but mistaken belief". I think that is the distinction.

In every other respect it would meet both section 22

and section 24. And to complete the answer to

Your Honour, section 31 was put to the jury as well

by the trial judge.

P1Tl6/2/SR 46 27/10/88

Timms

DEANE J:  Mr Solicitor, while you are looking at that, is it

not the problem, if there be one here, this, that

if that was the essence of the fight and if it was

arguable that he did have a defence to that effect,

about that, but on those 11 ifs 11 this document would and obviously there is great force in what you say

have played an important part in the trial on that

issue? I am not saying it, it sounded as if I

was asserting, I meant it as a question.

MR PARKER: In our respectful submission, it is really a

relatively subsidiary issue when one looks at the

whole of the real live issues in the case. It goes

to credit clearly and credit affecting a part of

the defence being advanced.

DEANE J:  But a bit more because it goes to Morrell saying,

"but I didn't even know the stranger cattle were

property" and his case is, 11 1 thought Morrell was	going until I saw them after they had left the
directing me to send the stranger cattle" and then you find that contrary to what Morrell says, the
document he made out on the property included the
stranger cattle. You can see it would have had
something to do with the presentation of the defence?

MR PARKER:  I do not question that, Your Honour, but at

least two things detract from it being put with

the care and the isolation that Your Honour is

putting it. Firstly, if that is a good point,

the other side of the sword is cutting away with

respect to the earlier shipment on 10 May when

that was not what Morrell did when he filled out

a permit to move cattle then that included even

more Yarrie cattle then on the second occasion.

DEANE J:  But he included the Yarrie numbers, as

Mr Justice Brennan pointed out?

MR PARKER:  In our respectful submission, no he did not,

that was my answer, may be I did not put it
specifically to His Honour.	The evidence of

Morrell was, he did not count numbers of heads of

cattle, and in fact when he was there on the first

occasion there were many more cattle than he gave a

permit for, he merely gave a permit to cover the

stock carriers that were there - taeir capacity for

stock movement.

DEANE J:	I understand, yes.
MR PARKER:	But the second thing that tends against that,

of course, is that there was the substantial body

of evidence of "t•:orrell, entirely confirmed by the

Act and the regulations, that he had no interest as

a stock inspector in who owned those stock. His

interest was only to ensure that no stock left that

property without a permit. So that their movement

P1Tl6/3/SR	47	27/10/88
Timms

and control could be monitored. And it was for the

owner dealing with other owners to work out arrangements
about whose stock were to be moved where and when.

His only concern was to be told whose stock are

going to move, when and he would fill out a permit.

And it did not trouble him, as an inspector, who

told him that Yarrie cattle were going to be moved,

he just had to know that Yarrie cattle were going

to be moved and he would make out a permit.	And
that takes away a very great deal from the
significance of the point.

Your Honours will already have appreciated that

what I am saying about this fresh evidence, that it
was, of course, not the way the applicant put it

when he was first asked about the matter, and he

was not able to point to any direction from the

department at all in his evidence, that to move

cattle, applicable at this time, his only evidence

that he could have in support of his evidence was

the destocking order in October 1987 and that that

officer who was called and Duda 1 s evidence at	issue was not tested with the senior departmental
pages 148 to 164 of the trial transcript is directly
to the contrary. The applicant 1 s version about all
of this, which this fresh evidence can only go to support, it is only relevant to credit on that issue
it is based on the proposition that the department
and Morrell were acting entirely beyond the authority
of the Acts and the regulations in their dealing with
him over a time. And, of course, in so far as
the permit is relied on as evidence of an order of no more than a permission to move stock.

Now, in our submission, the effect of that

is that it is not clear that that evidence, if it was weighed in the context of the whole trial and

the factual issues that were in dispute at the trial

when it was simply a case of Morrell's word

unsupported against every other witness and evidence

upon these matters, that the test in GALLAGHER is

not satisfied about the effect this evidence might

have had on the verdict.

(Continued on page 49)

P1Tl6/4/SR	48	27/10/88
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BRENNAN J:  Are we able to come to a usefule view on that

subject in the absence of the summing up?

MR PARKER:  Well, I will certainly have the summing up

added to the already voluminous papers

Your Honours have, if that will help.

BRENNAN J: It just seems to me that it depends on the

way in which the matter was put by the learned

trial judge, does it not?

MR PARKER:  May I turn now to our submission 5 to point

out this has no relevance to the defence

under section 31, and our submission 6 that

there was really no defence under section 24.

On the applicant's account reading into it

all that can be, because,as my learned friend

indicates, he did not himself advance a positive

mistake, there are only two possible mistaken

beliefs that are relevant: either that all

the stock had to be sent to slaughter; or that

he had to obey the directions of Morrell. They,

at the final analysis, are the only two mistakes

that bring him to the point that he has got to

move Yarrie cattle from his property. It is not

enough that he simply wanted to sell cattl1~.

He had to be compelled to move Yarrie cattle

from his property to succeed. And there,· those

two beliefs, in our respectful submission,

are the only two, on analysis, that achieve what

he needs; either that all the stock had to be

sent to slaughter, or that he had to obey the

directions of Morrell. In our respectful

submission, they are both obviously mistakes of

law.

There is a subsidiary mistake of fact that

would also exist on some interpretations of his evidence, that is that Morrell in fact·ordered

him to send the stock. In our respectful

submission,such a mistake does not produce any

defence at all. It is only if there is a further

and distinct mistake that Morrell's directions

had to be obeyed that the applicant reaches

the point of having a defence that would assist him
and, in our respectful submission, they are

mistakes of law.

BRENNAN J:  But if they are mistakes of law, do you then

question whether they are capable of giving

rise to a defence under 22?

MR PARKER:  Yes, Your Honour, that is our submission to which

I now turn and put very briefly.

WILSON J:	The triplicate of 28 May does not appear to
be here.  The original is.

M,\SON CJ: That is amongst the exhibits.

PIT17/l/JM	49	27/10/88
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WILSON J: These would have been trial exhibits. I guess

the original was produced for the first time

at the Court of Criminal Appeal.

MR PARKER: It was.

WILSON J:	Was it verified by affidavit, or how was it
produced?

MR PARKER: It was handed in an envelope, I am told, Your Honour.

I was not at the appeal.

WILSON J:	It may never have caught up with the trial
exhibits. It may be held independently.
MR PARKER:	Did Your Honour say the original was there,

or the triplicate?

WILSON J: The original of 28 May is here.

MR PARKER:  Colour?

WILSON J: Yellow.

MR PARKER:	It is the pink triplicate that is missing.
WILSON J:	But not the triplicate, and, of course, the original would be the one produced at the
trial, would it not?
MR PARKER:	No, no, the triplicate.
WILSON J:	No, I mean the Court of Criminal Appeal.

MR PARKER:  Yes. The pink triplicate was that produced

at trial.

WILSON J: Well, we only have the 10 May triplicate

MR PARKER:  It has certainly been in existence in the

last few days, because I have seen it,
Your Honours.	I will have to try and find where it is.

WILSON J: Perhaps you ought to look in your papers.

DEANE J:	Or it might solve everything if we have managed
to lose the fresh evidence.
MR PARKER:	No. that is the fresh evidence, that is there
Your Honour. It is the faulty evidence that is

still missing.

The question of whether section 22 is

available as a defence is one that I think

does require some breaking of new ground in

this situation because, in our respectful

submission, what is being advanced here is not

a private right of the applicant to deal with

these cattle against the interests of the owner

PIT17/2/JM	50	27/10/88
Tirmns

a right of his. What the applicant is

adducing, or putting forward, is that he had

a legal obligation. He was obliged by law

to deal with the cattle as he did. In our

respectful submission,it is certainly not

the position on tl-e cases, as we have seen

them in the last couple of days, that there

has been any case decided to date where

an accused has had a defence, whether it

be at common law or under the Queensland or

Western Australian Codes, section 22, where

what the accused advances is, "The law required

me" - and everybody else, for that matter,

nthat these stock be dealt with in this way."

BRENNAN J: If that be right, what defence does a

police officer seizing property under a

mistaken understanding of the law have to

a charge of unlawful conversion?

MR PARKER:	There are specific immunity provisions, if it please - well, in this State anyway.
BRENNAN J:	What, in the POLICE ACT?
MR PARKER:	Yes.

BRENNAN J: Against criminal liability?

MR PARKER:  Yes, and I would have thought our Act is probably in

pretty common form in those respects, but it is

a provision that is certainly well and truly here -

that is if he is mistaken in that matter - as long

as he is mistaken. There are usually tail-ends:

he must not act with malice; he must act honestly

and on reasonable grounds, and so on, and malice

disentitles him to the inununity afforded by the

POLICE ACT.

There is no case that we have found, and

I confess inunediately that it has been some

fairly hurried preparations since section 22 was

raised and we have been guided principally by

the decision of the Court in WALDEN V HENSLER
and the cases there referred to, but we have
not found a decision that would support the
proposition that a person could found an

honest claim of right on the basis of a statutory

compulsion. In our respectful submission that

is one that falls within in section 31, if it

be the position and in some circumstances there

may be a capacity to combine section 31 with

section 24, but that is not this case.

In our submission, section 22, in its

reference to an honest- - -

BRENNAN J:  Excuse me, Mr Solicitor, what do you say about

a mistake about a statutory to deal with property?

PIT17/3/JM	51	27/10/88
Timms

Not a statutory obligation to deal with

property, but a statutory power to deal with

property and a mistake about the extent of it?

Not within 22?

MR PARKER: It does not appear, Your Honour, and that is

probably the effect of the decision of the

Supreme Court of Queensland in OLSEN that that

is not protected by section 22. That was the

case of the SORGHUM MARKETING BOARD. The

defendants in that case - statutory prosecution

of dealing contrary to the Act in sorghum

taken advice that the Act did not apply to

them, that the Act prohibited them dealing as

they did. They took the advice that by virtue

of section 92 of the CONSTITUTION its operation
was not valid to them in their activities, and on the

basis of that, in the belief that the law did not

operate to prevent what they were doing, they - - -

BRENNAN J:	Was that an offence relating to property?
MR PARKER:	Yes, it was dealing in the sorghum, and, Your

Honours, that case is OLSEN V THE GRAIN SORGHUM

MARKETEBOARD, (1962) Qd R, 580. The Court held

in that case that section 22 was not available
to the defendants. At page 589 of the report,

in the decision of Mr Justice Hangar, is the

passage:

On t~e facts, it is to be taken that the

appellants believed that in buying grain,

they were doing nothing unlawful. It being

conceded that this belief was wrong, I should

have thought that all that the appellants

raised before the magistrate was that they

had made a mistake as to the law, which in

itself is no defence to any criminal

prosecution. Section 22, after stating that

ignorance of the law is no excuse, does

not proceed to say that ignorance of the

law is an excuse in the case of an offence

relating to property for an act done with

respect to property. It refers to an act

done in the exercise of an honest claim of

right and without intention to defraud.

In COOPER V PHIBBS ..... Lord Westbury

has somre remarks which I think are relevant.

"It is said 'Ignorantia juris non excusat';

but in that maxim the word 'j us' is used in

the sense of denoting general law, the

ordinary law of the country. But when the

word 'jus' is used in the sense of denoting

a private right, that maxim has no

application."

PIT17/4/JM	52	27/10/88
Timms

It is this distinction that must be kept

in mind in construing and applying s.22 of

the Code.

A further reference is in the decision of

the Mr Justice Mansfield at page 585 of the report -

it was the Chief Justice, I am sorry:

The claim asserted by the appellants

was not a claim that they were entitled to buy the particular property the subject of

the claim by reason of any right in or

to that property peculiar to themselves,

but was in effect a claim that they could

buy any sorghum from any person because

they honestly but wrongly believed that

the provisions of THE PRIMARY PRODUCERS'

ORGANISATION AND MARKETING ACTS, 1926 to 1957,

did not apply to the transaction. This amounts
to a claim that becuase they were ignorant of

the law they were not criminally responsible.

BRENNAN J: Perhaps the answer to the question which I

asked you before, Mr Solicitor - perhaps I

should put it to you again - might turn upon

the view that I expressed in WALDEN V HENSLER

as to what is meant by an offence relating to

property, which you will find at the bottom of

574 and the top of 575. If that view be right -

and there is no majority support for it at the

moment - but if that view be right, OLSEN V THE

GRAIN SORGHUM MARKETING BOARD was not an offence

related to property.

MR PARKER: Well, that may follow, Your Honour. The point

is it was not considered by the court on that basis. It was taken to be an offence

relating to property specifically in th~

reasons and Your Honour may now perceive an

alternative basis for the decision, but that,

in our respectful submission, leaves also

the basis which Their Honours perceived

for the decision. That is, in our submission,

that there must be an assertion and an exercise

of a private right of the applicant in respect
of this property to deal with it as he is

dealing with it.

(Continued on page54)

PIT17/5/JM	53	27/10/88
Timms

MR PARKER (continuing):  That right, we would submit,

must be one arising under civil law and there

appears to be some considerable difficulty and

certainly difficulty that has not yet been

taken in any - the step that has not been taken

in any of the cases- of translating that to

the situation where the applicant says, "Well,

I acted as I did because the law of the country

compelled this activity." In our respectful submission that is more correctly seen as an attempt to set up a mistake of law in the sense

of the first part of section 22 and is not the

applicant coming along saying, in effect, "This

was my property" or "I had a special right, I

had a claim to this property to deal with it

in the way that I did and I honestly thought

that and, therefore, I dealt with it."

The notion that it is a private right arising

under civil law was discussed a little by

His Honour Justice Dawson at pages 592 to 593

of WALDREN V HENSLER. - at the foot of page 592:

It is not ignorance of the criminal law

which founds a claim of right, but ignorance

of the civil law, because a claim of right
is not a claim to freedom to act in a

particular manner - to the absence of

prohibition. It is a claim to an

entitlement in or with respect to property

which goes to establish the absence of mens

rea.

Now, we do, with respect, accept the view

Your Honour Justice Brennan has put about the

different operation of section 22 because of the

difference between the Code, section 23 and mens

rea. But that does not take away from the

significance, perhaps, of what His Honour is

here saying:

A claim of that sort is necessarily a claim	to a private right arising under civil law:
see COOPER V PHIBBS, per Lord Westbury -

and the reference is then made to Mr Justice Hanger

in OLSEN.

BRENNAN J:  Well, precisely. In other words, at common

law the way in which the honest claim of right
operated was to negate the existence of mens rea,
but under section 22 of the Code its operation

extends to any offence which relates to property.

It is no longer - - -

MR PARKER:  If it is in the exercise of an honest claim

of right, yes.

P1Tl8/l/MB	54	27/10/88
Timms

BRENNAN J:  Claim of right, yes. But the limitation is

no longer to those offences which contain as

an element a mens rea which would be negatived

by the existence of a claim of right, and it is

precisely for that reason that it seems to me

that the argument which you are now advancing

encounters some of the most fundamental problems

about section 22. One must therefore analyse what

is meant by an offence relating to property which,

of course, presents no difficulty in this case,

it is obviously an offence relating to property, but once

one gets to that one then has to decide then

what is meant by an honest claim of right for

the purposes of section 22 because to apply the

common law limitation to the breadth of a section

such as 22 gives rise to the most awful sorts

of consequences.

MR PARKER:  We would put this to Your Honour. We do not

disagree at all, with respect, to Your Honour's perception of the difference of operation under the two but there are these specific limitations

on the operation of section 22, it must be in

the exercise of an honest claim of right and it must be without intent to defraud. I will deal

with each of those. But the concept of an honest

claim of right is a concept that is, of course,
undefined in the Code and, in our submission,

patently draws, as so much of the Code does,

on the common law, to provide the meaning of
an honest claim of right. This is not talking
with how an honest claim of right then operates

but what is an honest claim of right?

In our respectful submission, the words

of His Honour Justice Dawson there, that it is

a private right arising under civil law and the

distinction that Lord Westbury made into which

Mr Justice Hanger referred is the most useful

indication we have been able to find of what is

an honest claim of right and, in our respectful	submission, that is not what this applicant
was advancing on any view of his evidence. He
was saying the law compelled me to deal with
my neighbour's property no matter what I wanted and what he wanted. That is what the law compelled.
We respectfully submit that is not a private right of the applicant arising under the civil
law.

May I venture to say that we had even thought

that Your Honour Justice Brennan may have had

something of this in mind at page 570 where,

in the middle of the page, Your Honour says:

P1Tl8/2/MB	55	27/10/88
Timms

Section 22 applies only to "an offence

relating to property". Prosecutions

for offences relating to property often

raise difficult questions of private law

to which members of the community without

special knowledge and special skills cannot

be expected to know the answer. To render

a person liable to punishment for an offence

relating to property when, under a mistake

of law, he acts honestly claiming a right

to do what he does and when he has no intention
to defraud would make the criminal law

unjustly oppressive: it would expose him

to the peril of conviction for an offence

because of a legal mistake about his private

rights.

The matter, as I ~ave indicated, is without substantial authority but we believe that there

is an issue which arises in this case and which

has not previously been faced - whether it is

such a right. In our submission, it is not.

It is straining that concept and straining the

purpose that, in our submission, section 22 is

seeking to achieve, reflected in the words of

Your Honour Justice Brennan I have just cited.

To say that it enables a person to advance that
he acted under compulsion of the law when that

is based entirely on a mistake as to the ordinary

general public law of the country.

The next difficulty with section 22 as a

defence is that it must, the applicant must have

acted without an intent to defraud. In this case

it is in the context of stealing - they are the

concluding words of section 22, of course, it is

the last limitation on its operation. -In this

case the Code,at section 371(2), specifically

deems that, in respect of stealing,certain things

of them, (a), is an intent to deprive the owner	constitute the fraudulent taking and the first
of the thing or property -the primary basis for the case here.

In our respectful submission the difficulty

facing the applicant at the moment, in seeking

special leave in respect of section 22, is that

the jury's verdict reveals that they have

necessarily concluded he acted with an intent to

defraud in the context of this offence. That

being so he has no prospect of a successful

defence under section 22. That, of course, is a

"no substantial miscarriage of justice"point that

we would advance. The jury must have concluded

in this case that there was an intent to defraud.

P1Tl8/3/MB	56	27/10/88
Timms
GAUDRON J:	I do not follow that, Mr Solicitor.	The jury

may have concluded that there were facts

established, the result of which was to place

the accused in the situation in which he was
then deemed to have had an intention to defraud,

But unless the deeming, referred to in

section 371(2) ,extends back to section 22

I do not see why one must assume they have

found an intention to defraud depriving the

accused of the operation of section 22.

MR PARKER:	We have difficulty, with respect, in the submission that deeming, which is a form of the
drafting, does not apply to section 22 in its operation to section 371. Section 22 is not operating in this case in respect of any other offence, it is operating specifically with the offence constituted by section 371. For that offence an offender is deemed as a matter of
law to have an intention to defraud in those
circumstances.

BRENNAN J:	What operation is left for section 22?
MR PARKER:	If that is established,no operation of 22

because there is an intention to defraud.

BRENNAN J: That is in the classical case of"honest and

reasonable mistake"in stealing, what room would

you give to section 22? The man who picks up

the wrong umbrella, has he got no defence?

MR PARKER:	That is 24, is it not, Your Honour?
BRENNAN J:	Well, if he picks up an umbrella believing

it to be his - yes, that would be 24, I am

sorry, you are quite right.

MR PARKER:  Section 18 of the STOCK DISEASES(REGULATIONS)ACT,

as Your Honours will have perceived,is something
of a masterpiece of drafting.	The significant

thing is that it operates in respect of "notices

or orders given or made" in accordance with the

Act or regulation or under (b) in respect of

things done for the"purposes of the Act". In

our respectful submission, it firstly should

be understood as providing an indemnity for those

various people, officials and non-officials,

who under various circumstances under the Act

and the regulations are obliged to take certain

steps, give certain notices, make certain orders

and carry out certain activities against the

interests of other people.

Under the regulations Your Honours have only

some of the regulations referred to by my friend, the ENZOOTIC DISEASES REGULATIONS. There are, in addition, the EXOTIC DISEASES REGULATIONS and the

EXOTIC DISEASES EMERGENCY REGULATIONS. Under these

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regulations Your Honours will find that there

are dozens and dozens of regulations and I will

not frighten Your Honours with turning to them

specifically. The Act, of course, is a shell

Act. It is designed, as its long title says, to provide a vehicle under which the control

of diseases can be dealt with by regulations,

so the main substance is in the regulations.

But there are literally dozens of regulations

which provide for notices to be given by various

people as to destruction of stock, the prohibiting

of movement of stock, the quarantine and so on.
Orders are provided for in many more regulations;
orders for vaccination, orders declaring a

health emergency, orders dealing with tbe bringing

of infected stock into the State, orders requiring

withdrawal of stock from sale and so on.

There are many sections and regulations that

place specific duties on individual people.
Sections 10(2)(1), 10(2)(k), 13(3)(b), 13(5)(aa),

for example, impose specific duties on people

under which they must act against the stock

and against the private interests of individual

people in the community to their financial

difficulty.

MASON CJ:	How does that help us, Mr Solicitor?
MR PARKER:	Well, all of this, if it please Your Honours,

is to indicate, in our submission, what is the

proper construction and operation to be given

to section 18.

MASON CJ:  But this is under regulations, is it not?

You are drawing our attention to what is done

in regulations. How can that bear on what the

statutory power means?

MR PARKER:  I am sorry, I am turning to the submission

that section 18 provides an immunity for this

offence because it was:

done in reliance of a notice or order ... . . given or made in accordance with the provisions of this Act.

I think that is the submission I am meeting .

DEANE J:  This is the point that was steadfastly rejected

when the applicant was called back to the Court

of Criminal Appeal?

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MR PARKER:	Until now. Yes, it has been taken

up by my learned friend.

Yes, and our short answer to that is that when one

looks at the Act - and by the INTERPRETATION ACT that

includes the regulations - there are specific notices

and orders all having in various circumstances

substantial effect on the interests of members of

the community which are provided for and which various

officers must give and that, in our submission,

this immunity must be construed as applicable to

those and that subsection (b) must be construed as

referrable to the acts which a variety of people are

required by the Act to undertake in implementing it.

I have mentioned sections 10 and 13 of the Act

alone; plus there are many, many regulations which

place such specific responsibilities on individual
people.

In our respectful submission section 18 should be seen as intended to and confined to those matters

and that what has been done here is not undertaken by

the applicant under the authority of any notice or

order made under the Act because the orders referred

to are those specifically contemplated by the Act
and the regulations, and the applicant's imagination

of an order as a matter of law. I do not mean that

in any sense but there is no provision for an order

to compel him to send these cattle to slaughter in

the circumstances that occurred here. That is just

not one of the matters that arises under the Act and

Regulations, that there is just no scope then for

the immunity to operate with respect to the conduct

here in question.

BRENNAN J:  Mr Solicitor, if the Court were to come to the view

contrary to your submissions on section 18 of the

STOCK DISEASES REGULATIONS, or on the application

of section 22, and were to form the opinion that

the summing up was not adequate to address those

questions, what order, in your submission, ought

the Court then to make?

MR PARKER:  In our submission, an order for retrial would

be appropriate.

BRENNAN J:  W o u 1 d you s eek a re t r ia.l ?

MR PARKER:  Yes. The case, in our respectful submission, was

a very significantly strong one on the facts.

DEANE J:  Mr Solicitor, on that am I right that the evidence

indicates that the animals would have come from both

sides of the boundary?

MR PARKER:  I do not believe that can be said from the

evidence, sir.

DEANE J:  It indicates that the mustering was in the area of

the boundary.

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~R PARKER:	Yes.	I assume that is ambivalent and I would

not be able to assert that was on the other side of

the boundary, although it was the practice in the

past generally to muster in the boundary area,

gather the stock and then to separate them. I believe

I would not be able to say from this evidence that

these stock were positively rounded up from the Yarrie

side of the boundary.

DEANE J:  The other thing I wanted to ask you: the evidence

seems to indicate that a destocking order was

operative at this time in relation to part of the

property. Is there anything to define these cattle

with that part of the property, or are we just left

up in the air about that?

MR PARKER:  There is nothing whatever. That evidence is -

it is in the evidence of the applicant himself and not

otherwise supported in the case.

DEANE J:	It is rather vague as to time.
MR PARKER:	Yes.
DEANE J:	As I read it, he was implying that there was not

a stocking order in relation to part of the property

going back to before this time.

MR PARKER:  Indeed, and I think in respect of the second

mustering, 28 May, he may have gone as far as to say

the cattle came from a destocking area.

DEANE J:	Thank you.
MR PARKER:	May it please Your Honours.

MASON CJ:  Yes, thank you, Mr Solicitor. Mr Miller, do you

wish to reply?

MR MILLER:	No, if it please the Court.
MASON CJ:	The Court will adjourn this matter until

9.30 am tomorrow and in the meantime the Court will

consider what action it will take about the matter.

AT 5.00 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 28 OCTOBER 1988

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