Tu v McLean

[2022] WASC 176

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   TU -v- MCLEAN [2022] WASC 176

CORAM:   DERRICK J

HEARD:   2 MAY 2022

DELIVERED          :   20 MAY 2022

FILE NO/S:   SJA 1095 of 2021

BETWEEN:   QIU TU

Appellant

AND

ALISTAIR JAMES MCLEAN

Respondent

ON APPEAL FROM:

For File No:   SJA 1095 of 2021

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE S DE MAIO

File Number            :   JO 7581/2018

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted of fishing for abalone without authorisation and not during fishing season - Whether magistrate's verdict was unreasonable or could not be supported by the evidence - Whether magistrate denied the appellant procedural fairness by preventing him from correcting a court engaged interpreter - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Fish Resources Management Regulations 1995 (WA)

Result:

Application for leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr T E Ledger

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor's Office (WA)

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

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

MEN v The State of Western Australia [2020] WASCA 118

Montalbano v Morris [2019] WASC 309; (2019) 279 A Crim R 174

PYN v The State of Western Australia [2020] WASCA 116

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269

Wells v The State of Western Australia [2017] WASCA 27

DERRICK J:

Introduction

1. On 29 May 2018 the appellant was charged with one offence of fishing for nine Roe's Abalone in Abalone Zone 1 during a prohibited period and while not being a person authorised to take abalone under a managed fisheries licence contrary to reg 38D(2) of the Fish Resources Management Regulations 1995 (WA). The charge alleged the appellant to have committed the offence on 7 April 2018 at Two Rocks Beach.

2. The appellant pleaded not guilty to the charge.

3. The appellant's trial took place in the Magistrates Court before Magistrate De Maio on 3 ‑ 4 August 2020 and on 9 ‑ 11 August 2021.  On 3 ‑ 4 August 2020 the appellant was self-represented and conducted his defence with the assistance of court provided Mandarin speaking interpreter.[1]  On 9 ‑ 11 August 2021 the appellant was represented by counsel but continued to make use of a court provided Mandarin interpreter including when he gave evidence.[2]

   [1] At the beginning of the trial the interpreter identified herself: ts 3, 3 August 2020.  The magistrate did not at this point require the interpreter to take the interpreter's oath or affirmation.  It is not clear if the same interpreter was used to interpret for the accused throughout the entirety of the trial.  However, given that the magistrate did not on any subsequent day of the trial ask the interpreter to identify herself it would appear likely that the same interpreter was used for the appellant for the duration of the trial.

   [2] Prior to commencing to interpret the appellant's evidence the interpreter took the interpreter's oath: ts 120, 10 August 2021.

4. At the end of the trial the magistrate reserved her decision.

5. On 15 December 2021 the magistrate delivered her oral reasons for decision.  Her Honour found the appellant guilty of the charged offence.  Her Honour fined the appellant for the offence.  Her Honour also made a spent conviction order.

6. The appellant applies for leave to appeal against the decision of the magistrate convicting him of the offence.[3]

   [3] The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to convict the appellant is a decision that may be appealed by the appellant: CAA, s 6(c) and s 7(1).

7. On 2 March 2022 a registrar of this court ordered that the application for leave to appeal be heard together with the appeal.

8. The appellant represented himself at the hearing of the appeal.  He made lengthy oral submissions.  In doing so he made use of a qualified court appointed Mandarin interpreter.

Leave to appeal - principles

1. The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[4]  The ground will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[5]  If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[6]

   [4] CAA, s 9(2).

   [5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

   [6] CAA, s 9(3).

Grounds of appeal

1. The appellant's grounds of appeal as pleaded in his appeal notice dated 29 December 2021 are as follows:[7]

   1.The Magistrate wrongly considered evidence that should not have been considered as the party is not a native English speaker.

   2.The Magistrate took into consideration irrelevant evidence.

   3.The Magistrate failed to take into consideration relevant information.

   [7] At the time that the appeal notice was filed the appellant was legally represented. However, on 12 April 2022 an order was made by Master Sanderson that upon compliance with r 11 of the Criminal Procedure Rules 2005 (WA) the firm of solicitors that were acting for the appellant would cease to act for him.

2. On 30 March 2022 the appellant filed a 29-page document headed 'Appellant's grounds of appeal & submissions' (the submissions document).  It is apparent that the appellant prepared the submissions document himself without the assistance of a legal practitioner. 

3. The submissions document consists of a 'first half' and a 'second half' with the 'second half' consisting of parts 1 ‑ 7.  With respect to the appellant, the submissions document is discursive and in many respects not altogether easy to follow and understand.  Nonetheless, it is tolerably clear from the submissions document read in light of the oral submissions made by the appellant during the hearing of the appeal that his contentions are, in essence, as follows:

   1.The magistrate impermissibly prevented him from correcting interpretation errors made by the court provided interpreter who interpreted the evidence given by a defence witness;[8] and

   2.The magistrate's verdict was in any event unreasonable or cannot not be supported by the evidence because the magistrate failed to properly consider aspects of the evidence and/or made findings (mainly credibility findings) that were not open to be made on the evidence.[9] 

   [8] The interpreter provided by the court to interpret for the witness was not the interpreter who acted as the appellant’s interpreter.  This is clear from the magistrate's discussion with counsel on 10 August 2021 prior to the witness being called to give evidence and from the fact that the magistrate excused the interpreter from further attendance at the conclusion of the witness’s evidence on 11 August 2021: ts 189 - 191, 10 August 2021; ts 229, 11 August 2021.

   [9] An allegation that a magistrate's verdict is unreasonable or cannot be supported by the evidence (often also expressed as the verdict being unsafe or unsatisfactory) is, for the purposes of s 8 of the CAA, which sets out the grounds on which an application for leave to appeal can be made against the decision of a magistrate, an allegation that a miscarriage of justice has occurred:  CAA, s 8(1)(b);  The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44]; Montalbano v Morris [2019] WASC 309; (2019) 279 A Crim R 174 [22].

4. I propose to deal with the appeal on the basis that the above stated two contentions constitute the appellant's grounds of appeal.  The appellant's principal contention is that the verdict was unreasonable or cannot be supported by the evidence. 

The trial

1. In order to properly deal with the appellant's contentions it is necessary to summarise the material evidence adduced at his trial as well as the magistrate's reasons for decision.

Prosecution witnesses

1. During the trial the prosecution called three witnesses.  The three witnesses were Mr Alistair McLean, Mr Blake Mardon and Dr Anthony Hart.  Mr McLean, at the time of giving his evidence, was the Supervising Fisheries and Marine Officer at Lancelin District Office for the Department of Primary Industries and Regional Development (the Department) formally known as the Department of Fisheries.  He was an experienced fisheries officer having held the position for nine years.  Mr Mardon, at the time of giving his evidence, was a Fisheries Officer.  Dr Hart, at the time of giving his evidence, was a Principal Research Scientist at the Department.

Mr McLean's evidence[10]

[10] ts 15 - 44, 3 August 2020; ts 1 - 110, 4 August 2020; ts 1 - 41 and 88 - 89, 9 August 2021.

1. In his evidence-in-chief Mr McLean testified that on 7 April 2018 he was on duty with Mr Mardon. He and Mr Mardon were working at the Two Rocks Marina.

2. Mr McLean said that at about 2.25 pm a woman called Wendy West told Mr Mardon something.  As a result of what they were told he and Mr Mardon attended the north‑eastern car park of the marina which overlooks Two Rocks Beach (the marina car park).  Upon entering the marina car park he saw one vehicle parked in the car park, a white Landcruiser with the registration plate 1EHS 828.[11] 

   [11] ts 16, 3 August 2020; Exhibit 1.

3. Mr McLean said that once in the marina car park and with the aid of binoculars he saw two people approximately 30 m from the shore on top of a reef platform that was about 400 m north of the marina car park.  The two people appeared to be snorkelling. 

4. Mr McLean said that at the time of observing the two people he was standing at the top of a sand dune which was right next to the northern point of the marina car park.  It was a clear day with good visibility.  Both people were wearing dark coloured wetsuits with fins, hoods, masks and a snorkel.  One person appeared to be stockier than the other person who was slimmer and taller.  The stockier person appeared to be wearing a darker coloured wetsuit.  The skinnier person was wearing a lighter blue wetsuit.[12]

   [12] ts 16 - 17, 3 August 2020.

5. Mr McLean said that as he was watching what was occurring he was making notes in his notebook.  He would put his binoculars down to do so during which time his eyes were diverted to his notebook.[13]

   [13] ts 18 and 28, 3 August 2020.  The notes were ultimately tendered with the agreement of the appellant as exhibit 9: ts 27, 4 August 2020.

6. Mr McLean testified that the two people got out of the water and then walked onto the beach to where there was a white tub and an orange tub.  The two people appeared to be male.  The stockier man removed his fins and then re-entered the water and continued to dive up and down for approximately 30 minutes in waist deep water.  He saw the man holding what appeared to be a knife in his right hand.  He also saw a black catch bag hanging from the man's waist that was bulging as if it contained something.[14]  He formed the view, based on his experience as a fisheries officer, that the man's actions were consistent with fishing for abalone.[15]

   [14] ts 17 - 18, 3 August 2020.

   [15] ts 18, 3 August 2020.

7. Mr McLean said that the stockier man left the water and handed the catch bag to the other man, the slimmer man wearing the lighter coloured wetsuit.  The slimmer man had a look in the bag and then put the bag into the white tub.  The stockier man drank and gargled some water and then spat some water out.[16]

   [16] ts 18, 3 August 2020.

8. Mr McLean said that he could see approximately 50 m to 100 m past where the two men were diving and that there was nobody else on the beach.  At approximately 50 m to 100 m past where the two men were diving there is a point.  He could not see around the point.[17]

   [17] ts 18, 3 August 2020.

9. Mr McLean testified that he watched the stockier man pick up and carry the white tub and the slimmer man pick up and carry the orange tub.  He watched the two men walk up to the dune where he and Mr Mardon were concealed.  It was clear to him that the two men were making their way back to the marina car park at the top of the sand dune. The access path from the marina car park to the beach was via the one path down the sand dune.[18]

   [18] ts 18, 3 August 2020.

10. Mr McLean conceded that there was one point at the base of the sand dune where the two men were momentarily obscured from his view.[19]

    [19] ts 18, 3 August 2020.

11. Mr McLean said that he and Mr Mardon stayed out of sight for as long as possible.[20]

    [20] ts 19, 3 August 2020.

12. Mr McLean said when the two men reached the top of the dune he stopped and spoke to them.  He identified himself as a fisheries officer and introduced Mr Mardon.  He established that the stockier man was the appellant and that the slimmer man was the appellant's son Zuo Jun.  The appellant handed him his Western Australian driver's licence.[21]

    [21] ts 19 - 20, 3 August 2020.  See also ts 32, 4 August 2020.

13. Mr McLean said that at this point he asked the appellant, 'What have you been doing?' and that the appellant responded 'snorkelling'.  He asked the appellant 'Did you take any fish?'  The appellant answered, 'No'.[22]

    [22] ts 19, 3 August 2020.

14. Mr McLean said that at this point he inspected the white tub that the appellant was carrying.  He removed some wet dive gear from the tub and saw a metal-coloured bowl turned upside down.  When he lifted the bowl he saw a catch bag made of loose netting material containing what he identified to be abalone.  The catch bag was attached to a dive belt by a metal hose clamp.  The abalone were still wet and still moving.[23]

    [23] ts 19 and 26, 3 August 2020.  At this point in his evidence Mr McLean gave evidence of a further conversation that he had with the appellant: ts 19, 3 August 2020.  However, the magistrate ruled the evidence of this conversation inadmissible: t 7, 15 December 2021.

15. Mr McLean testified that he also found a diving knife with a flat end.[24]  A knife with a flat end, rather than a pointed tip, is in his experience a tool often used to prise abalone off rocks.[25]  A screwdriver is also commonly used.[26]

    [24] ts 22 and 25, 3 August 2020.

    [25] ts 22 and 25, 3 August 2020.

    [26] ts 25 - 26, 3 August 2020.

16. Mr McLean said that photographs of the appellant and Zuo Jun were taken.  He identified the photographs which were taken as well as a photograph that was taken of the appellant's driver's licence.[27] 

    [27] ts 20 - 21, 3 August 2020; Exhibits 2.1, 2.1a, 2.2, 2.3 and 3.

17. Mr McLean said that photographs of the white tub and its contents were taken.  He identified the photographs.[28]

    [28] ts 24, 3 August 2020; Exhibits 4.1 - 4.4.

18. Mr McLean said that the contents of the two tubs were seized and taken back to his office.  The seized items were stored in his office's secure exhibits room.  He subsequently took some further photographs of the seized items at his office which he identified.[29]

    [29] ts 25, 3 August 2020; Exhibits 5.1 - 5.4.

19. Mr McLean said that on 8 April 2018 he and Mr Mardon attended the appellant's home.  He asked the appellant if he wanted to participate in an interview.  He then had a conversation with the appellant.  He asked the appellant who had taken the abalone.  The appellant answered by saying someone else had taken them.  He asked the appellant for the identity of the person who had taken the abalone.  The appellant refused to name the person who had taken the abalone saying, 'I can't because he would kill me'.[30]

    [30] ts 28, 3 August 2020.

20. Mr McLean said that he returned some of the items that he had seized on 7 April 2018 to the appellant.  He returned the tubs, fins, snorkel, mask and 'hood'.  He retained the abalone, the dive knife and the catch bag attached to the dive belt.[31]

    [31] ts 26, 3 August 2020.

21. Mr McLean said that he made notes in his notebook while he was observing the fishing and prior to apprehending the appellant and Zuo Jun.  He then also made additional notes in his notebook after speaking to the appellant and prior to leaving the marina car park.[32]

    [32] ts 29, 3 August 2020.

22. In cross-examination Mr McLean substantially maintained his version of events.

23. Mr McLean maintained that his observations of the appellant and Zuo Jun were continuous.[33]  He maintained that when he and Mr Mardon arrived at the car park the only vehicle in the car park was the appellant's vehicle, although he acknowledged, after being shown the video footage of his subsequent interactions with the appellant in the marina car park, that there were, at that time, two other vehicles in the car park.[34]  He was adamant that he watched the appellant and Zuo Jun from the time they left the water walk up the beach to below where he was standing above them on the dune.  He maintained that he observed them continuously until they were momentarily (for seconds) obscured from his view when they were directly below him.  He was adamant that there was no one else on the beach and that he would certainly not have mixed the appellant up with anyone else because there was no one else there.  He was adamant that the only people in the car park immediately following his apprehension of the appellant were the appellant, Zuo Jun, Mr Marden and himself.[35]

    [33] ts 29 - 32, 9 August 2021.

    [34] ts 80 - 82, 4 August 2020; ts 9, 9 August 2021.  The video footage, which was taken by Mr Mardon, was tendered as exhibit 14: ts 108, 4 August 2020.

    [35] ts 34 - 39, 41, 50, 55 - 56, 59 and 72, 4 August 2020; ts 30 - 33, 9 August 2021.

24. In cross-examination Mr McLean said that his recollection was that among the seized items were two hoods or head covers.[36]  He denied that he seized three hoods.  He did not accept that there were two hoods and a vest with a hood in the two tubs.  His recollection was that there were only two sets of diving gear including two hoods.[37]

    [36] ts 25, 4 August 2020.

    [37] ts 22, 9 August 2021.

25. In cross-examination Mr McLean said that when the chubbier man got out of the water for the second time he removed a wetsuit vest before drinking out of a water bottle and spitting out the water.[38]  He said that he had located an empty water bottle in the white or orange tub.[39]

    [38] ts 32 - 33, 4 August 2020; ts 28, 9 August 2021.  In the course of giving this evidence Mr McLean referred to his notes (exhibit 9) which recorded that 'Chubby male took vest off.  Had drink of water/gargle and spit'.  In his notes Mr McLean also referred to the 'chubby' male as the 'larger' male.

    [39] ts 33, 4 August 2020.

26. Mr McLean was shown a vest and a hood and asked, 'Could this be a wet vest?'  He responded that if the item was wet it would be a wet vest and a hood, and that it 'could be' a vest 'containing' a hood.[40]

    [40] ts 22 - 23, 9 August 2021.  The vest 'containing' the hood was not marked for identification or tendered.  Although it is not entirely clear from the transcript the vest and hood was presumably the sleeveless wetsuit with an attached hood that was subsequently identified by the appellant in his evidence as the wetsuit that was being worn by Mr Cao on 7 April 2018: ts 132 - 133, 10 August 2021.

27. Mr McLean said that at the time of seizing the items from the appellant three seizure receipts numbered 37781 - 37783 all dated 7 April 2018 that recorded the seized items were issued by Mr Mardon.  He said that there were three receipts that he 'attempted' to hand to the appellant, that the appellant threw the receipts on the ground and that he collected them.  He said, by reference to his notes, that this occurred at about 4.25 pm.[41]  Seizure receipt 37782 recorded the seizure of two tubs and two headcovers.[42]

    [41] ts 35 and 40, 3 August 2020; ts 78, 4 August 2020; exhibit 8.

    [42] ts 26, 4 August 2020; exhibit 8.

1. Mr McLean said that on a later date he returned to the marina car park with measuring equipment.  He attended with fisheries officer Ryan Bellotti.  He used the measuring equipment to measure the distance from his observation position on 7 April 2018 to the spot where he recalled seeing the appellant and Zuo Jun.[43]  He recorded the distance as 438.6 m.[44] 

   [43] ts 68, 4 August 2020; ts 64 and 69, 9 August 2021. 

   [44] A photograph of the measuring equipment showing the recorded distance was tendered as exhibit 15. 

2. Mr McLean identified a photograph which he took when he attended the marina car park with Mr Bellotti showing the view of the beach that he had from his observation position on top of the dune next to the marina car park on 7 April 2018.[45]  He said that the photograph shows Mr Bellotti standing at the approximate point where he observed the appellant and Zuo Jun on the beach engaging in the activities he had described.  He said that at the time of his observations he was able to see past where the appellant and Zuo Jun were standing.[46] 

   [45] Exhibit 11.

   [46] ts 68, 4 August 2020; ts 12 - 15, 9 August 2021. 

3. Mr McLean said that when he attended the marina car park with Mr Bellotti no other Fisheries Officers were present.[47]

   [47] ts 89, 9 August 2021. 

4. Mr McLean admitted that he could not be absolutely sure that he saw the appellant with a knife when he observed the appellant on the reef.  He said that he observed what appeared to be a knife and that his belief was confirmed when he later saw the knife in the white tub.[48]

   [48] ts 15, 20 and 43, 9 August 2021.

5. Mr McLean conceded some level of uncertainty in actually seeing the bulging catch bag being physically placed into the white tub because of the distance he was away from the appellant and Zuo Jun at that point in time.[49]  He said that once he examined the contents of the white tub it became clear to him that the bulging catch bag that he had seen hanging from the appellant's thigh and which the appellant had handed over to Zuo Jun had in fact been placed in the white tub by Zuo Jun.[50] 

   [49] ts 16 - 18, 9 August 2021.

   [50] ts 44 - 46, 9 August 2021.

6. Mr McLean agreed that during the course of his observations Ms West had driven to the marina car park in her car, got out of her car and walked up to him and Mr Mardon.  He was adamant that he only spoke to Ms West in the marina car park briefly in order to obtain her details.  He took down her details in his notes.  He conceded that the conversation may have taken one minute.  However, he asserted that he obtained Ms West's details quickly because he was busy with what he was doing and did not want to miss anything.  He said the conversation occurred after the appellant had exited the water, handed over his catch bag to Zuo Jun, taken his vest off and gargled some water.  He said the conversation also occurred after he believed that he saw the catch bag placed in the white bucket.[51]

Mr Mardon[52]

[51] ts 39 - 42, 4 August 2020; ts 27 - 37, 34 - 40, 9 August 2021.

[52] ts 42 - 96, 9 August 2021.

1. In his evidence-in-chief Mr Mardon corroborated in full Mr McLean's account.[53]

   [53] ts 42 - 26, 51 - 55; 9 August 2021.

2. Mr Mardon said that after the appellant (who he described as the 'thicker person' and 'thicker set') and Zuo Jun (who he described as being of slimmer build) had got out of the water and the appellant had returned to the water, he recalled the appellant diving over the reef for about another 20 minutes.[54] 

   [54] ts 43, 9 August 2021.

3. Mr Mardon said that he saw a knife in the appellant's hand while the appellant was diving over the reef.  He saw the knife through his binoculars.[55] 

   [55] ts 43, 9 August 2021.

4. Mr Mardon said he could see dark round objects in the catch bag.  He thought the objects were abalone.  The reason he thought they were abalone is because of the number of times he has dealt with abalone as a fisheries officer.  They looked exactly like abalone.  They were the shape of abalone.[56]

   [56] ts 44, 9 August 2021.

5. Mr Mardon said that when the appellant came out of the water for the second time he handed the catch bag to Zuo Jun who put the bag in the white tub.  The appellant then took of his other diving 'stuff' and put it into the white tub.  The appellant and Zuo Jun then picked up the tubs.  The appellant carried the white tub.  The appellant and Zuo Jun were easy to see.  The beach was clear and wide.  It was a clear day.  The appellant and Zuo Jun were the only two people on the beach.  He watched the appellant walk up to where he and Mr McLean were.[57]

   [57] ts 44, 9 August 2021.

6. In cross-examination Mr Mardon substantially maintained his version of events.

7. Mr Mardon said that the photographs comprising exhibit 4 showed what was in the white tub at the time of the appellant's apprehension.  He described by reference to the photographs what was in the white tub.  He said that the white tub contained diving equipment, specifically 'gloves, mask, knife, the - the dive belt with string bag attached'.[58]  He said the wet flippers were on the top.[59]  He said the white tub also contained the abalone which were at the bottom of the tub concealed under an upturned silver bowl.[60]

   [58] ts 53, 9 August 2021.

   [59] ts 53, 9 August 2021.

   [60] ts 53, 9 August 2021.

8. Mr Mardon said that he wrote out receipts for all the 'items' that were taken, that he handed the receipts to Mr McLean and that Mr McLean 'attempted' to hand the receipts to the appellant.[61]

   [61] ts 54 and 55, 9 August 2021.

9. Mr Mardon placed the appellant and Zuo Jun on the reef at the beach.  He said that the beach is generally straight, meets the reef at one point and then curves back.  He said that the beach is one where you can see for kilometres up to the next point but there is a small part of the beach that is obscured by sand dunes.[62]

   [62] ts 57, 9 August 2021.

10. Mr Mardon said that he returned to Two Rocks Beach 'days later' to have a further look at the area.  He said that he does not recall who he returned to the beach with.  He said that it would have been either Mr McLean or Mr Bellotti because they were the other officers who worked in the Department's Lancelin office.  He said that he knows that he was not on his own because he and the other officers always worked together.[63]

    [63] ts 61, 9 August 2021.

11. Mr Mardon said that he could clearly see through the binoculars that the man who he subsequently identified as the appellant was holding a flat bladed knife.  The knife that he subsequently saw in the tub matched what he had seen.[64]

    [64] ts 67, 9 August 2021.

12. Mr Mardon said that when he was observing the two men in the water they were either wearing hoods or had black hair.  They both had wetsuits and dive masks on.[65]

    [65] ts 69, 9 August 2021.

13. Mr Mardon said that he does not recall having any interaction with Ms West in the marina car park.  He was unable to say whether or not she came to their position.[66]

    [66] ts 72, 78, 82 and 84 - 86, 9 August 2021.

14. Mr Mardon was adamant that the only people on the beach were the appellant and Zuo Jun.[67]

    [67] ts 82 - 83, 9 August 2021.

15. Mr Mardon said that he did not know if the thicker set man took his wetsuit off when he got out of the water for the second time but that the man did take 'gear' off.[68]

    [68] ts 84, 9 August 2021.

16. Mr Mardon conceded that he may not have maintained continuous observations of the appellant and Zuo Jun for the whole 30 - 40 minutes of their attendance.  He may have turned to investigate a noise, set his watch or rest his eyes.  However, the breaks were short and only momentary in time.  Whenever he turned back the scene he had previously viewed was unchanged.[69]

    [69] ts 84 - 86, 9 August 2021.

17. Mr Mardon confirmed that he recorded the seizure of the flat bladed diving knife on seizure receipt 37782.[70]

    [70] ts 93, 9 August 2021.

18. Mr Mardon said that he could still clearly remember looking down the beach (through his binoculars) and seeing the appellant come out of the water with the knife in his hand taking his belt off and handing it to Zuo Jun.  He said that this was when he had a picture of the string catch bag and what was in it.[71]

    [71] ts 94, 9 August 2021.

19. Mr Mardon said that he knew that what the appellant had around his waist was a string bag.  He could see the string bag though the binoculars.[72]

Dr Hart[73]

[72] ts 94, 9 August 2021.

[73] ts 97 - 102, 9 August 2021.

1. Dr Hart gave evidence as to the identification and chain of custody of the abalone the subject of the charge.  His evidence was unchallenged.

Defence witnesses

1. The appellant elected to give evidence.  He also called his father‑in‑law Mr Baoquing Cao to give evidence.

2. The appellant gave most of his evidence through the court provided Mandarin speaking interpreter.  He did, however, give some of his evidence in English.

3. Mr Cao gave his evidence via video‑link from China.  Mr Cao gave all his evidence through a court appointed Mandarin interpreter.[74]  As I have already indicated, the interpreter used to interpret Mr Cao's evidence was a different interpreter to the interpreter who had been interpreting for the appellant during the trial and who had interpreted the appellant's evidence.

The appellant[75]

[74] The interpreter took the interpreter's affirmation prior to commencing her interpretation of Mr Cao's evidence: ts 201, 11 August 2021. 

[75] ts 120 - 183, 10 August 2021.

1. In his evidence-in-chief the appellant testified that he had made a plan with his father‑in‑law (Mr Cao) for his father‑in‑law to go with others to Two Rocks Beach on 7 April 2018 to catch lobster, and that he and Zuo Jun would join them later because Zuo Jun had a school or sporting activity.[76]  His father-in-law called him to ask him to bring a stainless steel container for the lobster because he had not brought one with him.[77]

   [76] ts 124, 10 August 2021.

   [77] ts 128, 10 August 2021.

2. The appellant said that he drove himself and Zuo Jun to Two Rocks Beach in his Land Cruiser.  They had with them an orange tub and a white tub.[78]  The tubs contained full diving gear for two people.  There were two hoods, two pairs of goggles, two snorkels, two wetsuits, two pairs of boots and two sets of fins, and also the metal bowl.[79]

   [78] ts 122 - 123, 10 August 2021.

   [79] ts 125, 10 August 2021.

3. When he and Zuo Jun got to the beach there were already wearing a full 'rashie'.  Once they were at the beach they put on their wetsuits over the top of their full rashies.[80]

   [80] ts 126, 10 August 2021.

4. The appellant said that he and Zuo Jun walked down the sand dune and about 500 m along the beach.  He could see in all directions clearly.  There were people on the beach.[81]  Some were sitting and some were walking their dog.  He could see a group of four people were in the water near a safety diving flag which was very obvious.  He thought that his father‑in‑law might be among the group of divers that were near the flag.[82] 

   [81] The appellant marked on a smaller version of the photograph that had been tendered as exhibit 11 where he and Zuo Jun walked to.  The photograph marked by the appellant was tendered as exhibit 15:  ts 127, 10 August 2021.

   [82] ts 128 - 130, 10 August 2021.

5. The appellant said that he told Zuo Jun that he was going to look for grandpa and to wait on the shore.  He also told Zuo Jun not to go into the water by himself because he was not a good swimmer.[83]

   [83] ts 132 - 135, 10 August 2021.

6. The appellant said that he swam out to the group of four people and found his father‑in‑law among them.[84]  His father-in-law was wearing a wetsuit top with no sleeves and a hood.  His father-in-law also had goggles and a snorkel.[85]

   [84] ts 132, 10 August 2021.

   [85] ts 132 - 135, 10 August 2021.

7. The appellant said that the wetsuit that his father-in-law was wearing was one which he had bought for his father-in-law.  He produced and identified a sleeveless wetsuit with a hood made out of neoprene as the wetsuit that his father-in-law was wearing.  He also produced and identified a blue full 'rashie' that he said his father-in-law was wearing under the wetsuit.[86]

   [86] ts 132 - 133, 10 August 2021.  Neither the wetsuit nor the rashie was marked for identification or tendered.

8. The appellant said that he told his father‑in‑law that Zuo Jun was on the beach and pointed in the direction of where Zuo Jun was.  His father‑in‑law said he would go to see Zuo Jun and swam to see Zuo Jun.  Before his father‑in‑law left the group his father‑in‑law said words to the effect of, 'I wish you could catch a lobster or somebody could give you one'.[87]

   [87] ts 134 - 136 10 August 2021.

9. The appellant said that he stayed in the water with the group for about 30 ‑ 40 minutes.  He was snorkelling and watching them catch lobsters.  After 30 - 40 minutes he became impatient.  He did not want to wait any longer.  He decided to leave.  He thought afterwards that even if the group caught lobsters he could go to their house to fetch a lobster.[88] 

   [88] ts 137, 10 August 2021.

10. The appellant testified that he swam back to Zuo Jun who was alone on the beach in the same spot that he had left him.  There was no one on the beach apart from Zuo Jun.  Zuo Jun told him, 'Grandpa went that direction.  They parked there'.  Zuo Jun pointed north when he said this.[89]  While he was swimming back to Zuo Jun he saw two other people near him about 100 m away from the beach.[90]

    [89] ts 137 - 141, 10 August 2021.

    [90] ts 140, 10 August 2021.

11. The appellant said that he and Zuo Jun packed up the tubs and started walking back towards his car.[91]  His left hand was holding the white tub, his right hand was holding one of the handles of the orange tub and Zuo Jun's left hand was holding the other handle of the orange tub.

    [91] ts 141, 10 August 2021.

12. The appellant testified that on the way back to his car he and Zuo Jun were stopped by the Fisheries Officers.  When the officers asked permission to look in the tubs he responded, 'No problem.  You can check'.[92]

    [92] ts 142 - 143, 10 August 2021.

13. The appellant said that he did not know that the abalone were in the tub until the Fisheries Officers uncovered them.  The belt and the attached string bag were not his.  The first time that he became aware of the string bag was when the officers moved the steel bowl.  He had nothing to do with the taking of the abalone.[93]  He asked Zuo Jun in Chinese, 'What's going on?'  Zuo Jun answered, 'Grandpa wants us to take this home'.[94] 

    [93] ts 143 - 146 and 167, 10 August 2021.

    [94] ts 145, 10 August 2021.

14. The appellant testified that after he spoke to his son and the Fisheries Officers had said that the string bag contained abalone he was a bit daunted and quite uptight.[95]

    [95] ts 146, 10 August 2021.

15. The appellant identified a photograph of his father-in-law.[96]

    [96] ts 135, 10 August 2021; Exhibit 16.

16. In cross-examination the appellant agreed that on the day in question he was wearing a black wetsuit.  He denied that he was in possession of a knife.  He said that he had never seen the knife referred to by Mr McLean and Mr Mardon in their evidence until he saw the photograph that they had taken of the knife on a later date (that is, on a day after 7 April 2018).[97]

    [97] Exhibit 5.1.

17. The appellant said that he had arranged to meet his father-in-law at Two Rocks Beach but that it had not been confirmed whether the meeting would occur on the beach or in the water or in the car.[98] 

    [98] ts 176, 10 August 2021.

18. The appellant said that the group of people that he saw swimming near the flag were 'about north-west - about 500 metres away from me from the point'.[99]  He swam the 500 m north-west to the group and then found his father‑in‑law as part of the group.[100]

    [99] ts 177, 10 August 2021.

    [100] ts 177, 10 August 2021.

19. The appellant said that when he spoke to his father-in-law about Zuo Jun and his father-in-law swam off to see Zuo Jun he did not watch his father-in-law all the way.  He is short sighted.  He cannot see that far away.  When he had been on the beach he was able to see the group of people because there was a flag there and it was very obvious.[101]

    [101] ts 177, 10 August 2021.

20. The appellant said that the occasion in question was his first visit to the Two Rocks Beach and also his father-in-law's first visit to Two Rocks Beach.[102]

    [102] ts 179, 10 August 2021.

21. The appellant, when asked what he had become impatient about while he was in the water with the group, said that he was worrying about Zuo Jun's safety and was worrying that he might go into the water alone.[103]

    [103] ts 179, 10 August 2021.

22. The appellant denied that he had placed the silver metal bowl on top of the abalone to conceal them.  He said that when he was returning from the beach he did not touch the silver bowl.[104]

    [104] ts 180, 10 August 2021.

23. The appellant accepted that when Mr McLean attended his house on 8 April 2018 he did say that a friend had given the abalone to him and that he had refused to name the friend.  He said that the friend was his father‑in‑law and that he had refused to name his father-in-law because he did not want to betray him.  He denied saying that if he named the friend he would be killed.[105] 

Mr Cao[106]

[105] ts 180 - 181, 10 August 2021.

[106] ts 201 - 229, 11 August 2021.

1. In his evidence in chief Mr Cao testified that he had come to Australia with his wife in February 2018 and stayed for about three months.

2. Mr Cao said that on 7 April 2018 he went to Two Rocks Beach with other people.  He took some diving equipment with him including a vest, boots, goggles, a breathing tube (snorkel), flippers and a screwdriver.  He also took with him a belt which had attached to it a soft net like tool case.  He used the tool case to store goggles, a diving torch and other small tools.[107]

   [107] ts 201 - 204, 209 - 210, 11 August 2021.

3. Mr Cao said that he went to the beach with Mr Ling and two other people.  Mr Ling drove to the beach.  He knew Mr Ling but this was the first time he had met the other two people.  On the way to the beach they were talking about catching lobster and needing to dive down 10 m.  He told the others that he could swim but could not dive.[108] 

   [108] ts 205, 11 August 2021.

4. Mr Cao said that when he and Mr Ling and the others arrived at the beach Mr Ling parked his car in a single lane parking lot along the road.  The beach was on the left-hand side and there were houses on the right-hand side.[109] 

   [109] ts 209, 11 August 2021.

5. Mr Cao said when they arrived at the beach they got changed in the car.  They then walked down to the beach.  It took them 10 minutes or so to walk to the beach.[110]

   [110] ts 210, 11 August 2021.

6. Mr Cao said that the weather was really good and the sea was really smooth.  There were a lot of people on the beach.  Some people were walking their dogs, some people were sunbathing and some people were fishing.[111]

   [111] ts 210, 11 August 2021.

7. Mr Cao said that Mr Ling and the two other people went into the ocean to catch lobster.  He watched them going down to the ocean.  He saw that after they had swum about 30 m away they put up a flag.[112]

   [112] ts 210, 11 August 2021.

8. Mr Cao said that the appellant had arranged for him to go to the beach with Mr Ling.  The appellant had contacted Mr Ling.[113]

   [113] ts 211, 11 August 2021.

9. Mr Cao testified that about half an hour after Mr Ling and the other two people had gone into the ocean he swam to the flag to watch them catching lobsters.  After about half an hour he saw the appellant swim over.  He asked the appellant where his grandson Zuo Jun was.  The appellant told him that Zuo Jun was playing at the beach and gave directions in relation to where Zuo Jun was.  The appellant pointed out that Zuo Jun was around 'where the mountains come up there was … a communication … a steel structure'.[114]  He then swam in the direction that the appellant told him that Zuo Jun was.[115]  As he was swimming over he saw Zuo Jun every now and then.  Zuo Jun seemed to be playing on the sand.  Zuo Jun was sometimes bending down and sometimes sitting down.[116]

   [114] ts 212, 11 August 2021.  The above referred to exhibit 11 does depict in the distance what appears to be some form of telecommunications tower above the beach, although it is not possible to ascertain from the photograph how far back from the beach shoreline the tower is situated (that is, whether it is at the top of the dunes or a long distance back from the beach shoreline and the dunes).

   [115] ts 212 - 214, 11 August 2021.

   [116] ts 214, 11 August 2021.

1. Mr Cao said that he was wearing a tight fit underlay shirt with a thermal diving suit and a cap.  The diving suit was full length.[117]

   [117] ts 215 - 216, 11 August 2021.  At this point in his evidence the appellant's counsel apparently attempted to show to Mr Cao via the video link some item.  Although it is not clear from the transcript the item was presumably the sleeveless wetsuit with attached hood that had been identified by the appellant as the one that Mr Cao had been wearing.  Mr Cao was asked if he recognised what was being shown to him.  His answer was, 'It - yes.  It seems - it seems it is, but - because it's not very clear through the screen … It's a full length body suit':  ts 215 - 216, 11 August 2021.

2. Mr Cao said that as he was swimming toward Zuo Jun he passed rocks and found under the rocks a lot of abalone.  When he saw the abalone he was really excited.  He shouted towards the beach to Zuo Jun telling him that he had seen the abalone and to come and have a look.  Zuo Jun then swam over to the rock to look at the abalone.  Zuo Jun was not so interested so he swam back to the beach and walked away.[118]

   [118] ts 216, 11 August 2021.

3. Mr Cao said that after Zuo Jun had walked away he sat on the rock and took off his flippers and got down and tried to catch some abalone.[119]  He was wearing his goggles and his breathing tube at the time.[120]  He caught less than 10 abalone.[121]

   [119] ts 216, 11 August 2021.

   [120] ts 218, 11 August 2021.

   [121] ts 216, 11 August 2021.

4. Mr Cao said that after he caught the abalone he put them in the soft net like tool case.  It took him around 10 minutes to catch the abalone.[122]

   [122] ts 216 - 217, 11 August 2021.

5. Mr Cao testified that after he caught the abalone he climbed onto the rock and walked towards Zuo Jun.  When he got to where Zuo Jun was he took off his belt and the soft net bag containing the abalone.  He gave these items to Zuo Jun and told Zuo Jun to bring them home for him.  The sun was strong.  He was wearing a diving vest with the cap which was very uncomfortable.  He therefore took these items off and gave them to Zuo Jun to take home.[123]

   [123] ts 217, 11 August 2021.

6. Mr Cao said that he then walked back to the rocks to pick up his flippers, goggles and breathing tube.  He then walked towards the beach in a northerly direction.[124] 

   [124] ts 217, 11 August 2021.

7. Mr Cao said that he walked back to Mr Ling's car by himself.  He then got into the car and waited for Mr Ling and the other two people.[125]

   [125] ts 218 - 219, 11 August 2021.

8. Mr Cao said that when everyone got back to the car Mr Ling drove him home to the appellant's house.  Mr Ling said because the vision under the water was not very good they did not catch any crayfish.[126]

   [126] ts 219, 11 August 2021.

9. Mr Cao said that a little while later the appellant returned home with Zuo Jun.  It was at this time that he heard from the appellant and Zuo Jun that the abalone and the diving equipment had been confiscated from them.[127]

   [127] ts 219, 11 August 2021.

10. Mr Cao said when he was at the beach he was wearing a tight under layer which covered 'the bottom and the top' and then a full body length diving vest with a hood.[128]

    [128] ts 220, 11 August 2021.

11. In cross-examination Mr Cao said that since he had arrived in Perth in February 2018 he had gone to 'the beach' twice.  The first time that he went to 'the beach' was a few days before 7 April 2018.[129]

    [129] ts 221, 11 August 2021.

12. Mr Cao said that he could not remember what day of the week 7 April 2018 was.[130]

    [130] ts 221, 11 August 2021.

13. Mr Cao said that on the occasion that he went to 'the beach' a few days before 7 April 2018 he went to catch abalone and to fish.  This was the first time he went down to the beach to catch abalone with the help of his friends.  He used a screwdriver to get the abalone out from under the rock.  He did not have a knife with him on that day.  He caught maybe three to five abalone on that first occasion.  The appellant and Zuo Jun were not with him on that day.[131]

    [131] ts 222, 223, 11 August 2021.

14. Mr Cao said that when he was in the water on 7 April 2018 and the appellant approached him, his conversation with the appellant related to where his grandson was.  He told the appellant that he was cold and, 'I am going to see my grandson, and please catch one lobster for me to bring home'.[132]

    [132] ts 224,11 August 2021.

15. Mr Cao said he swam about 300 - 500 m to get to his grandson.[133] 

    [133] ts 224, 11 August 2021.

16. Mr Cao said that after his grandson had come into the water to look at the abalone and had then swam away, he took off his flippers and got to the bottom of the rocks to look for the abalone.  He was using the flat screwdriver to take the abalone out.[134]

    [134] ts 224, 11 August 2021.

17. Mr Cao said that his memory is that he caught less than 10 abalone, something around that figure.[135]

    [135] ts 225, 11 August 2021.

18. Mr Cao said that the appellant had not asked him to lie for the appellant.

19. Mr Cao said that he knew that that he could not be charged with taking the abalone while he is in China.  He did not concoct his story with the appellant.[136]

    [136] ts 226, 11 August 2021.

20. Mr Cao said that the rocks on which he saw the abalone were over 100 m from the shore.  In that 100 m the water was deep enough that he did not reach the bottom.  He did not reach the bottom when he was at the rocks.[137]

    [137] ts 227, 11 August 2021.

21. In re-examination Mr Cao said that when he was on the rocks obtaining the abalone he could not remember very well how many times he went under the water.  He said he needed to keep coming out of the water to catch his breath.[138]

The magistrate's reasons

[138] ts 228, 11 August 2021.

1. The magistrate commenced her reasons for decision by stating a number of applicable general principles including the following:

   1.The appellant was presumed to be innocent of the charge and the prosecution bore the burden of proving the charge beyond reasonable doubt;[139]

   2.She was required to arrive at her verdict based solely on the evidence.  There was no room for speculation or for prejudice or sympathy;[140]

   3.The appellant had the right to silence and had exercised that right when he was spoken to by the Fisheries Officers.  No adverse finding could be made against the appellant because he chose to exercise his right;[141]

   4.The appellant elected to give evidence.  His evidence formed part of the evidence that she could consider;[142]

   5.In assessing the evidence she was required to consider the credibility (honesty) and reliability of every witness;[143]

   6.In assessing the credibility of a witness she needed to consider whether the witness's account was consistent throughout and whether there was any other evidence consistent with the witness's testimony;[144]

   7.If she accepted the appellant's version of events or thought that the appellant's version of events might be true the appellant must be found not guilty.  If she did not believe the appellant then his evidence would need to be put to one side and it would remain for the prosecution to prove the elements of the charged offence beyond reasonable doubt;[145]

   8.Where a prosecution case rests substantially on circumstantial evidence the evidence must not be looked at in a piecemeal way.  The evidence must be viewed as a whole in determining what, if any, inferences can be drawn from the evidence; and

   9.In a circumstantial case a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.[146]

   [139] ts 2, 15 December 2021.

   [140] ts 2, 15 December 2021.

   [141] ts 2, 15 December 2021.

   [142] ts 2, 15 December 2021.

   [143] ts 2, 15 December 2021.

   [144] ts 3, 15 December 2021.

   [145] ts 3, 15 December 2021.  Thus the Magistrate directed herself in accordance with the decision in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515.

   [146] ts 4, 15 December 2021.

2. After stating the above general principles the magistrate made the point that it was not in dispute that at the time that the appellant was apprehended by Mr McLean and Mr Mardon nine Roe's Abalone, some of which were still moving, were found in the appellant's white tub.  Her Honour also, in this context, correctly identified the elements of the charged offence that the appellant did not dispute had been proved by the prosecution to be as follows:[147]

   1.The nine Roe's Abalone came from Abalone Zone 1;

   2.The fishing of the nine Roe's Abalone occurred in Abalone Zone 1;

   3.The date of the alleged offence, 7 April 2018, was not within the relevant abalone season and therefore occurred during a prohibited period; and

   4.The appellant was not authorised by a managed fisheries licence to fish abalone in Abalone Zone 1 during the prohibited period.

   [147] ts 5, 15 December 2021.

3. The magistrate next proceeded to summarise the material evidence given by Mr McLean and Mr Mardon.[148]  In the course of doing so her Honour noted some inconsistencies between their versions of events.  Her Honour then summarised her assessment of the evidence given by Mr McLean and Mr Mardon in the following terms:[149]

   … In the main, both officers were steadfast and resolute about their observation of the [appellant] and his son, the actions consistent with fishing abalone off the reef and a confirmation of their suspicions by the finding of the knife, the catch bag and the abalone still wet and alive, which confirmed their suspicions and removed any doubt, in their minds at least, about what they had seen.

   Both officers were completely unshaken in their firm recollection that there was no one else, apart from [the appellant] and his son, on the beach.

   [148] ts 5 - 14, 15 December 2021.

   [149] ts 14, 15 December 2021.

4. The magistrate next proceeded to identify other evidence that she considered supported the evidence of Mr McLean and Mr Martin.  The evidence specifically identified by her Honour was as follows:[150]

   1.Exhibit 1, being a photograph taken by either Mr McLean or Mr Mardon on their arrival at the north‑eastern car park of the marina showing the appellant's vehicle as being the only vehicle in the car park;

   2.Exhibit 2, being photographs taken of the appellant and Zuo Jun at the time of their apprehension;

   3.Exhibits 4 and 5, being photographs of the items that Mr McLean and Mr Mardon testified were found in the tubs that were in the possession of the appellant at the time of his apprehension;

   4. Exhibit 9, being the contemporaneous notes prepared by Mr McLean of his observations and interactions with the appellant and Zuo Jun on 7 April 2018;

   5.Exhibit 11, being the photograph of Two Rocks Beach taken by Mr McLean sometime after 7 April 2018 from the position at which Mr McLean and Mr Marden said that they conducted their observations;[151] and

   6.Part 1 of exhibit 14, being a video recording taken by Mr Marden of the car park in which the appellant's vehicle was parked.

   [150] ts 14 - 15, 15 December 2021.

   [151] The magistrate made further reference to exhibit 11 later in her reasons, stating that the photograph was supportive of the evidence of Mr McLean and Mr Mardon because it showed that from their vantage point they had a clear view of the beach up to and beyond the first sand dune (also referred to by her Honour in her reasons as 'the first point') and that although the photograph revealed one small area as obscured, the shoreline and the ocean were completely visible: ts 18, 15 December 2021.

5. The magistrate next turned to referring to the evidence that established that the abalone seized from the appellant were the abalone that were ultimately examined by Mr Hart and identified to be nine Roe's Abalone.  Her Honour made the point in this context that continuity in relation to the abalone was not in dispute.[152] 

   [152] ts 15, 15 December 2021.

6. At this point in her reasons the magistrate confirmed the ruling that she had made during the trial that evidence given by Mr McLean as to the conversation he had with the appellant at the time of the appellant's apprehension and after the appellant had said that he had not taken any 'fish' was inadmissible.[153]  Her Honour also further ruled as inadmissible evidence that had been given by Mr McLean during the trial as to a conversation that he had with the appellant at the appellant's house on 8 April 2018. [154]

   [153] ts 15 - 16, 15 December 2021.

   [154] ts 16, 15 December 2021.

7. The magistrate next turned to summarising the evidence given by the appellant and Mr Cao.[155]  In the course of doing so her Honour made the following observations in relation to their evidence:

   [155] ts 16 - 19, 15 December 2021.

   1.Although the appellant said that he did not own a knife and that he never saw the knife until he was shown a photograph of it in May 2018, exhibit 5.1 'shows the knife clearly in situ in the white tub' and exhibit 8, which is the seizure receipt 37782 dated 7 April 2018, records the knife as having been seized.  Further, the tubs were inspected in the appellant's presence;[156]

   [156] ts 17, 15 December 2021.

   2.The appellant's evidence as to the arrangement that he made to meet his father-in-law was devoid of particulars, vague as to time and place and inherently implausible.  The appellant's evidence was simply that he arranged to meet his father-in-law at Two Rocks Beach even though on his evidence he (the appellant) had never been Two Rocks Beach (but had been to the yachting facility and marina);[157]

   [157] ts 17, 15 December 2021.

   3.The appellant said that he saw divers about 500 m north-west of his position on the shore and that the flag was very obvious, but also said that he could not see very far because he was short sighted.  This was 'another inherent inconsistency and implausibility';[158]

   4.The appellant's evidence was that the occasion was Mr Cao's first visit to Two Rocks Beach whereas Mr Cao said that it was his second visit to the beach.  Further, both the appellant and Mr Cao gave evidence that Mr Cao took himself off to wait in the car which was not parked in the marina car park.  This would not seem likely if Mr Cao was unfamiliar with the beach;[159]

   5.Mr Cao's evidence was that the appellant had arranged the beach trip with Mr Ling and that he, Mr Cao, did not make an arrangement to meet the appellant at the beach.  This evidence was in stark contrast to the appellant's version;[160]

   6.Mr Cao said that the car he travelled to the beach in was parked up along the road near the beach.  However, it is a nonsense to suggest that the car was parked alongside an empty car park (that is, the marina car park) which allowed for easy access to the beach.  There would have been no reason for the car to be parked further away from the beach so as to require a 10 minute walk to the beach when there was a clear access point to the beach.  This evidence given by Mr Cao was a lie to explain why the appellant's vehicle was the only vehicle parked in the marina car park;[161]

   7.Mr Cao said in his evidence that there were lots of people on the beach.  However, the marina car park was empty.  Although it does not necessarily follow from the presence of lots of people on the beach that the marina car park should be full, the photographs of the marina car park and the video footage taken while Mr McLean, Mr Mardon, the appellant and Zuo Jun were in the marina car park shows not only an absence of cars but also an absence of people;[162]

   8.Although Mr Cao demonstrated a 'sound memory' of the relevant date, he could not remember the day of the week and was 'completely vague' about his first visit to 'the beach' which he said took place only days previously.  This 'speaks' of collusion and a rehearsed and memorised account told in order to assist the appellant;[163]

   9.Mr Cao first said that his companions swam 30 m from the beach.  However, in cross-examination he said that he swam 300 - 500 m back to shore to see Zuo Jun.  There is an enormous difference between 30 m and 300 m and between 300 m and 500 m.  This was an inherent inconsistency that could not be resolved;[164]

   10.Mr Cao said he saw the abalone on rocks that were about 100 m from the shore, that the water was deep and that Zuo Jun swam out in response to his call but was not really interested and swam back to shore.  It is unlikely that Zuo Jun would swim this far in deep water if he was not a good swimmer.  The appellant was at pains to highlight his concern for Zuo Jun because his son was not a good swimmer.  Mr Cao's evidence in this respect was in direct conflict with the appellant's evidence about Zuo Jun's swimming ability and 'cannot possibly be true';[165]

   11.Mr Cao said that on both of his visits to the beach he took a screwdriver to use in removing abalone.  However, Mr Cao never said that he gave the screwdriver to his grandson along with the abalone, his vest and cap;[166] and

   12.Mr Cao, on his evidence, despite having given to Zuo Jun his vest and cap, did not hand over his screwdriver, his goggles or his flippers but rather carried them back to the car.  Why would Mr Cao not give all these items to Zuo Jun if he had to make a 10 minute trip back to the car?[167]

   [158] ts 17, 15 December 2021.

   [159] ts 17 - 18, 15 December 2021.

   [160] ts 18, 15 December 2021.

   [161] ts 19, 15 December 2021.

   [162] ts 19, 15 December 2021.

   [163] ts 19, 15 December 2021.

   [164] ts 19, 15 December 2021

   [165] ts 19 - 20, 15 December 2021.

   [166] ts 20, 15 December 2021.

   [167] ts 20, 15 December 2021.

8. Having referred to the evidence of the appellant and Mr Cao, and having made the above observations about their evidence, the magistrate stated her assessment of their evidence in the following terms:[168]

   Mr Cao well knows that he cannot be prosecuted for this offence while he's in China.  I found both the [appellant] and Mr Cao to be dishonest witnesses.  They have concocted a story in order to explain the presence of the abalone, and that is with the security of knowing that Mr Cao cannot be prosecuted for the offence.  Their individual accounts do not hold water within themselves.  They are full of inherent improbabilities, as I've outlined.

   Furthermore, they are inconsistent with each other in major details, which I've also outlined.  I set aside entirely, then, the [appellant's] account, and I turn to review the prosecution's case.

   [168] ts 20, 15 December 2021.

9. In relation to the prosecution case the magistrate said the following:[169]

   I found both McLean and Mardon to be honest, credible and reliable witnesses.  Their accounts corroborate each other, and they are sound and consistent on their own, despite significant cross-examination.  Both officers made concessions, but both gave firm and confident accounts which did not falter under cross-examination.

   Their accounts are supported by the photographs which show the unimpeded view of the beach, the empty car park as seen on the phone footage, and the notes which McLean took contemporaneously of his observations.  I am satisfied that there was, as far is humanly possible, a continuous observation of the [appellant] and his son on the beach, in the water and on the way back to the car park, bar those momentary halts in the observations to take notes, to rest their eyes, for example, and the small amount of time that the parties could not be seen, but that was at the base of the dune.

   None of these disruptions in my view are sufficient to disrupt what I consider to be the continuous nature of the scrutiny of the [appellant] by the officers.  I find that only officer McLean dealt with Wendy and only for a short period of time and, whilst he was doing so, that Mardon maintained observations.  I find that the officers' view to the [appellant] diving with what appeared to be a knife in his hand in a manner consistent with someone fishing abalone [sic].

   I find that the [appellant] was seen to leave the water with a bulging catch bag, which he handed to his son.  I find that it appeared to the officers that the son may have put this bag back into the white tub, which was then carried by the [appellant] to the car park.  I find that the officers … found … the abalone concealed under the metal bowl with the knife.  I find that there was no one else at the beach at the time the officers made their observations.

   I find that at all relevant times, the [appellant] and his son were in their view and not obscured by the first point.  I find that there is no room for the suggestion of displacement, either in hand and [indistinct] of the abalone to the sun [sic] or the fishing of it.  The only inference available without doubt is that the [appellant] fished the abalone and placed them in the catch bag, which he then handed to his son who put them in the white tub.

   I find, therefore, the [appellant] has fished the abalone clearly not in abalone season.  …  So I find that the charge has been proven against [the appellant], and I record the conviction.

   [169] ts 20 - 21, 15 December 2021.

Allegation that the magistrate's verdict was unreasonable or cannot be supported by the evidence

1. It is convenient to deal first with the appellant's allegation that the magistrate's verdict was unreasonable or cannot be supported by the evidence.

Applicable legal principles

1. The principles that must be applied in determining whether a verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate.[170]  The principles are well‑established and may be summarised as follows:[171]

   1.The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence.  It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict.  The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;

   2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty.  This question requires consideration of whether the magistrate must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;

   3.In answering the question whether, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty, the appeal court must pay full regard to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the magistrate had of seeing and hearing the evidence;

   4.A doubt experienced by an appellate court would be a doubt that a magistrate ought also to have experienced, unless the magistrate's advantage in seeing and hearing the evidence is capable of resolving that doubt;

   5.If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the magistrate, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict; and

   6. The setting aside of the verdict of a magistrate on the ground that it is unreasonable and not supported by the evidence is a serious step, not to be taken without regard to the advantage enjoyed by the magistrate over an appellate court which has not seen or heard the witnesses called at trial.

The appellant's argument - summary

[170] The State of Western Australia v Olive [44].

[171] Wells v The State of Western Australia [2017] WASCA 27 [13]. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113], The State of Western Australia v Olive [41] - [43], PYN v The State of Western Australia [2020] WASCA 116 [46] - [48] and MEN v The State of Western Australia [2020] WASCA 118 [403] - [406].

1. As I have already indicated and as is revealed by the submissions document considered in light of the appellant's oral submissions, the appellant in substance contends that the magistrate's verdict was unreasonable or cannot be supported by the evidence because the magistrate erroneously failed to properly consider aspects of the evidence and/or made findings (mainly credibility findings) that were not open to be made on the evidence. 

The respondent's argument - summary

1. The respondent contends that the vast majority of the appellant's individual complaints lack merit and that it was in any event, on all the evidence before the magistrate, open to her Honour to be satisfied beyond reasonable doubt of the appellant's guilt.

The appellant's argument - analysis

1. Although I will approach the appellant's argument on the appeal on the basis that he relies upon the cumulative effect of the alleged deficiencies in the magistrate's findings and reasoning, it is necessary to deal with each of his individual complainants in turn.

Alleged error in finding that exhibit 5.1 showed the knife in situ in the white tub - submissions document, first half, pars 1 - 7

1. The appellant contends that the magistrate made an error in finding that exhibit 5.1 clearly showed the knife which Mr McLean said he seized from the appellant in situ in the white tub.  The magistrate did make the alleged error.  Although exhibit 5.1 is a photograph of the flat bladed dive knife which Mr McLean testified that he seized from the appellant on 7 April 2018, the photograph does not show the knife in situ in the white tub.  Rather exhibit 5.1, as Mr McLean explained in his evidence, is a photograph that he took of the knife at his office on a later date.

2. The photographs that were taken by Mr McLean and Mr Mardon at the time of the appellant's apprehension on 7 April 2018 and which show, to varying extents, the orange tub and the white tub and their contents are exhibits 2.1, 2.1A and 4.1 - 4.3.  Moreover, and contrary to the appellant's assertions advanced on the appeal, a close viewing of exhibit 4.2 in light of the close up photograph of the knife that is exhibit 5.1 reveals that the knife is in fact partially visible in exhibit 4.2.  The black handle of the knife and the black string that is tied to the handle (which is no doubt to be placed over the wrist of the user of the knife to prevent the loss of the knife underwater in the event that it is accidentally dropped) can be seen in exhibit 4.2 at the bottom of the white tub with the blade of the knife being obscured by diving equipment including a diving mask and a snorkel.

3. In short, although the magistrate did make a minor error in referring to exhibit 5.1 as showing the knife in situ, the error was inconsequential because the knife is shown in situ in exhibit 4.2.  The minor and inconsequential error made by the magistrate clearly does not provide any basis for concluding that her Honour must have entertained a reasonable doubt about the appellant's guilt.

Alleged error in finding that the appellant was in possession of the knife at the time of his apprehension on 7 April 2018 - submissions document, first half, pars 1 - 7 and second half, pt 6, pars 23 - 25

1. The appellant contends that the magistrate made an error in finding that he was in possession of the knife shown in exhibit 5.1 at the time of his apprehension on 7 April 2018.  The appellant contends, in essence, that the magistrate made this error because the knife is not shown in the photographs that were taken at the time of his apprehension and because the evidence did not establish that he was at any time given a seizure receipt recording the knife as having been seized.

2. As I have already stated in dealing with the first of the appellant's allegations of error, the knife is shown in exhibit 4.2.  Therefore, the first of the appellant's reasons for asserting that the magistrate made an error in finding that he was in possession of the knife is without foundation.

3. I turn to the issue of the seizure receipts.  The appellant's argument in this respect requires a little more elaboration.

4. As I have already indicated, the evidence given by Mr McLean was that at the time of seizing items from the appellant three seizure receipts numbered 37781 - 37783 all dated 7 April 2018 that recorded the seized items (tendered as exhibit 8) were issued by Mr Mardon.  He said that at about 4.25 pm he 'attempted' to hand the three seizure receipts to the appellant, that the appellant threw the receipts on the ground and that he collected them.  Further, and as I have also already indicated, Mr Mardon said that he wrote out receipts for all the 'items' that were taken, that he handed the receipts to Mr McLean and that Mr McLean 'attempted' to hand the receipts to the appellant.  Mr Mardon confirmed that he recorded the seizure of the flat bladed diving knife on seizure receipt 37782.

5. Seizure receipt 37782, which on its face was completed and issued by 'Fisheries Officer BM 346', that is, Mr Mardon, does record that the items seized from the appellant included '1 wet vest, knife and pouch'.[172]

   [172] Seizure receipt 37783 also records that it was issued by 'Fisheries Officer BM 346'.

6. The appellant argues that it was not, despite the evidence given by Mr McLean and Mr Mardon, open to the magistrate to find that he was given seizure receipt 37782 because, contrary to Mr McLean's evidence, seizure receipt 37781 would appear on its face to have been issued by Mr McLean, and because a viewing of the video footage that is exhibit 14 only shows him being handed one seizure receipt by Mr McLean (which the appellant asserts was seizure receipt 37781). 

7. Seizure receipt 37781 was issued for the '9 Roe Abalone'.  On its face the receipt was completed and issued by 'Fisheries Officer A McLean'.  Accordingly, it does appear that the evidence of Mr McLean and Mr Mardon to the effect that all three seizure receipts were issued by Mr Mardon was incorrect.  However, this is of no moment.  The fact that one of the three seizure receipts was completed and issued by Mr McLean did not compel the magistrate to find that his evidence and the evidence of Mr Mardon that three receipts were issued to the appellant on 7 April 2018 should not be accepted.  This is particularly so given that all the seizure receipts were dated 7 April 2018 and that it was never suggested to Mr Mardon, who was cross‑examined by the appellant's counsel, that three seizure receipts were not issued to the appellant.

8. As to the appellant's assertion that the video footage only shows him being handed one receipt, on my viewing of the footage it does not show him being handed any receipt.  This is unsurprising.  The footage is clearly not a complete recording of the entirety of the interactions that took place between Mr McLean and the appellant following the appellant's apprehension.  Rather the footage, which appears to have been taken by Mr Mardon towards the end of his and Mr McLean's interactions with the appellant and Zuo Jun, records only Mr McLean's attempts while in the marina car park, and with the assistance of an interpreter contacted by phone, to convince the appellant that he was obliged by law to provide his name, address and date of birth (something that the appellant was clearly reluctant to do).  In these circumstances, the fact that the footage does not show Mr McLean attempting to hand the three seizure receipts to the appellant clearly did not compel the magistrate to find that the evidence of Mr McLean and Mr Mardon to the effect that three seizure receipts (including seizure receipt 37782) were issued for the items seized from the appellant and that Mr McLean attempted to give them to the appellant only to have the appellant throw them on the ground should not be accepted.

9. There is a further point that needs to be made in this context.  Even if, contrary to my above expressed view, it was not reasonably open to the magistrate to find that the appellant was issued with seizure receipt 37782, it was still reasonably open to her Honour to find, on the basis of the evidence of Mr McLean and Mr Mardon considered in conjunction with the photographic evidence, specifically exhibit 4.2, that the flat bladed knife was in the white tub and in the appellant's possession at the time of his apprehension.

10. For the reasons I have given, the appellant's complaint relating to the magistrate's finding that he was in possession of the knife at the time of his apprehension is without merit.  The magistrate did not make the error alleged.

Alleged error in finding that the appellant's evidence as to the arrangement to meet with his father-in-law was inherently implausible - submissions document, first half, pars 8 - 9

1. The appellant contends that the magistrate made an error in finding that the evidence he gave in relation to his arrangement to meet his father-in-law, Mr Cao, was devoid of particulars, vague as to time and place and inherently implausible.  He contends, in substance, that the magistrate made this error because he was not given the opportunity in examination-in-chief or cross-examination to testify as to the details of the arrangement.  He further contends that the magistrate did not ask for details of the arrangement and should have done so.  In advancing these contentions the appellant asserted from the bar table, without seeking leave to adduce additional evidence on the point,[173] that if he had been given the opportunity to provide further details about his arrangement with Mr Cao he would have said that Mr Ling was his friend who was familiar with Two Rocks Beach, that he asked Mr Ling to drive Mr Cao to Two Rocks Beach, and that although he had never been to Two Rocks Beach before he was familiar with the shape of the beach because he had a yacht and had spent two nights at the Two Rocks marina.[174]

   [173] It was open to the appellant to make an application to adduce additional evidence on the appeal pursuant to s 40(1)(e) of the CAA.

   [174] Appeal ts 13, 2 May 2022.

2. It was not for the magistrate to ask the appellant to provide further details of his arrangement with Mr Cao.  In any event, the appellant was given ample opportunity to provide what he now asserts were the full details of the arrangement.  In examination-in-chief the appellant's counsel asked him, 'Why did you go to the beach that day?' and 'What was happening with you to require a separate car to be taken?'[175]  Further, in cross-examination the appellant was expressly asked what his arrangement was with his father in-law.[176] 

   [175] ts 124, 10 August 2021.

   [176] ts 176, 10 August 2021.

3. Leaving to one side the appellant's unfounded assertion that he was not given the opportunity to give all relevant evidence in relation to his arrangement with Mr Cao, the appellant's complaint about the magistrate's finding tends to miss the point.  I say this because it is tolerably clear that the magistrate's finding that the appellant's evidence was devoid of particulars and vague as to time and place, was founded not so much on the failure by the appellant to make any reference in his evidence to his asserted communications with Mr Ling, but rather on the appellant's failure to give evidence as to precisely when he was to meet Mr Cao and also on the evidence that the appellant did actually give, specifically that he had not arranged with Mr Cao whether they would meet on the beach or in the water or in the car. 

4. In my opinion it was reasonably open to the magistrate to find, based on the evidence that was actually before her, that the appellant's evidence as to the arrangement he had made with Mr Cao was vague as to time and place, particularly given that on the appellant's evidence he had never previously been to Two Rocks Beach.  It is also my opinion that it was reasonably open to the magistrate to conclude that the vagueness of the appellant's evidence in this regard rendered the evidence inherently implausible.

5. Finally, it is worth noting in relation to the appellant's complaint in this respect that the magistrate, having made the finding that the evidence as to the arrangement with Mr Cao was inherently implausible, immediately went on to say that '[this] alone, however, isn't sufficient to cause me to set aside what the [appellant] says'.[177]

   [177] ts 17, 15 December 2021.

6. For the reasons I have stated the appellant's complaint is without merit.  The magistrate did not make the error alleged.

Alleged error in finding an inconsistency and implausibility in the appellant's evidence that he saw divers about 500 m north-west of his position on the shore but also that he could not see very far because he was short-sighted - submissions document, first half, pars 10 - 12

1. The appellant contends that the magistrate made an error in finding that his evidence that he saw divers about 500 m north-west of his position on the shore and that the flag was very obvious was inconsistent with his evidence that he could not see very far because he was short‑sighted.  The appellant contends that the magistrate made an error in finding that the inconsistency amounted to an 'inherent implausibility'.  In advancing this contention the appellant asserts that the magistrate 'forgot' that he had his glasses on when he was on the beach looking for his father in law, therefore implying that he gave evidence to this effect.[178]  The appellant asserts that the magistrate should have 'reasonably presumed' that he would be wearing his glasses if he was going to look for people on the beach.[179]  The appellant further asserts, in apparent contradiction to his assertion that the magistrate 'forgot' that he was wearing glasses, that the magistrate should have asked him, 'Why can you see so far [if you are] short sighted?' and that if her Honour had asked this question his response would have been, 'I was wearing a pair of glasses then'.[180]  The appellant asserted from the bar table, without seeking leave to adduce additional evidence on the point, that if he wears his glasses he can see as far as anybody.

   [178] Appeal ts 15, 2 May 2022.

   [179] Appeal ts 15, 2 May 2022.

   [180] Submissions document, first half, par 11.

2. As I have already indicated, in cross-examination the appellant referred to his short-sightedness in the context of explaining why he did not continue to watch Mr Cao as Mr Cao swam off to see Zuo Jun.  The relevant evidence was as follows (emphasis added):[181]

   LEDGER, MR:  Okay.  How did your father-in-law get to the beach?

   INTERPRETER:  After I told him he said, 'I will go to see [Zuo Jun].'  Then he swam away and then I didn't watch and see - I didn't keep watching him all the way though.  I'm short-sighted.  I can't see very far away.

   LEDGER, MR:  You could see that he was 500 metres away, couldn't you?

   INTERPRETER:  If I wore my glasses, this pair of glasses, they are for short‑sighted, I could see 500 metres away there was some people.  Because there is a flag there.  It's very obvious.

   [181] ts 177, 10 August 2021.

3. Accordingly, the appellant (as he appears to concede by his submissions) did not testify that he was wearing his pair of glasses at the time that he observed the group of people swimming by the flag.  Rather, the appellant's evidence was that if he had been wearing his glasses he would have been able to see people that were 500 m away but that he was, in any event, able to see that there were people 500 m away because of the 'very obvious' flag. 

4. On the evidence before the magistrate it was, in my opinion, reasonably open for her Honour to conclude that the appellant's evidence as to his short sightedness was inconsistent with his evidence that he could see a flag (or for that matter people) in the ocean 500 m away, and that the inconsistency revealed an implausibility in the appellant's evidence; in other words reflected adversely on the appellant's credibility (that is, his honesty and reliability).

5. For the reasons I have stated the appellant's complaint is without merit.  The magistrate did not make the error alleged.

Alleged error in finding that the evidence of the appellant and Mr Cao as to the number of times that Mr Cao had been to Two Rocks Beach was inconsistent and that the inconsistency reflected adversely on the credibility of their evidence - submissions document, first half, pars 13 - 14

1. The appellant contends that the magistrate made an error in finding that Mr Cao's evidence was that he had been to Two Rocks Beach twice.  The appellant further contends that the magistrate therefore made an error in finding that Mr Cao's evidence in this respect was inconsistent with the evidence given by the appellant and that the inconsistency reflected adversely on the credibility of the appellant and Mr Cao.

2. The relevant evidence of Mr Cao was given during the course of the following exchange in cross-examination:[182]

   [182] ts 221, 11 August 2021.

   LEDGER MR:  Now you came to Perth in February 2018.  Is that correct?

   INTERPRETER:  Yes.

   LEDGER MR:  And did you go to the beach during that time?

   INTERPRETER:  Yes.

   LEDGER MR:  How many times did you go to the beach?

   INTERPRETER:  Twice.

   LEDGER MR:  Twice.  What were the dates that you went to the beach?

   INTERPRETER:  The recent one was April 7.

   LEDGER MR:  What about the other one?

   INTERPRETER:  It was a few days before that.  The exact day, I couldn't - I forgot.

1. With respect to the evidence of Mr McLean concerning the vest with the hood, Mr McLean did not, contrary to the appellant's assertion, concede that the vest with the hood that was shown to him could have been one of the items that he had seized but subsequently returned to the appellant.  All that he said in response to the questions asked of him was that he agreed that what was being shown to him was a wet vest containing a hood.  However, even accepting for the sake of the appellant's argument that the vest and hood shown to Mr McLean during cross-examination was the 'wet vest' that was according to seizure receipt 37782 seized from the appellant on 7 April 2018, the existence of the vest did not compel the magistrate to find that there must have been a third person, namely Mr Cao, who was present and who was involved in the incident the subject of the charge.  I say this because the evidence of Mr McLean was that the appellant, after exiting the water, removed a vest.[214]  It was reasonably open to the magistrate to accept Mr McLean's evidence as providing an explanation for the presence of the wet vest in the tub in preference to the version advanced by the appellant, specifically that the vest had come from Mr Cao.  I note in this respect that even if it is assumed in the appellant’s favour that the wet vest seized from the appellant was the vest with the hood shown to Mr McLean in cross-examination, then given that the appellant did not actually testify that he wore one of the two seized 'head covers' the evidence adduced at trial does not exclude the reasonable possibility that the hood that Mr McLean saw the appellant wearing was the hood attached to the vest.

   [214] The evidence given by Mr McLean that he saw the appellant remove a vest was consistent with Mr Mardon's evidence that he saw the appellant take off his diving 'stuff' or 'gear' and that he was unable to recall if the 'stuff' or 'gear' removed by the appellant at this time included his wetsuit.

2. For the reasons I have stated, the evidence given by Mr McLean in relation to the hoods and vest shown to him by the appellant during cross‑examination did not require the magistrate to find that there was a third person present.  The appellant's complaint lacks merit.  The magistrate did not make the error alleged. 

Alleged error in accepting Mr McLean's evidence given his interaction with Ms West - submissions document, second half, pt 3, pars 10 - 15

1. The appellant contends that the evidence given by Mr McLean in relation to his interaction with Ms West near the marina car park and in particular his ultimate concession that he may have interacted with her for more than a minute, means that the magistrate made an error in accepting his evidence that the person he saw exit the water and hand the abalone to Zuo Jun was the same person who he apprehended.  The appellant submits that Mr McLean's evidence in relation to his interaction with Ms West reveals that his observations were not continuous.  The appellant submits that 'anything could happen in the minute'.[215] 

   [215] Submissions document, second half, pt 3, par 15.  Mr McLean's evidence in this respect was consistent with the evidence of Mr Mardon to the effect that he had observed the appellant, after exiting the water, take his 'gear' off (although he was not sure if the gear that the appellant had taken off included his wetsuit). 

2. The appellant's argument is devoid of merit. 

3. Mr McLean's evidence was that his interaction with Ms West occurred after he had observed the stockier male exit the water for the second time, hand the bag to the thinner male (who then placed the bag in the white tub), drink some water and spit out some water.  His evidence was that there were only ever two people on the beach.  His evidence in this respect was supported by the evidence of Mr Mardon.  In these circumstances it was, despite Mr McLean's evidence as to his interaction with Ms West, clearly reasonably open for the magistrate to accept his evidence that the two people he had observed on the beach were the same two people that he apprehended, namely the appellant and Zuo Jun.  To put the matter another way, it was reasonably open for the magistrate to find, as her Honour did, that Mr McLean's brief interaction with Ms West was not sufficient to disrupt in any material way his continuous scrutiny of the two people on the beach.  This is particularly so given that the magistrate also found that while Mr McLean was dealing briefly with Ms West, Mr Mardon was maintaining his observations of the two men. 

4. For the reasons I have stated, the magistrate did not make the alleged error.

Alleged error in accepting Mr Mardon's evidence given his failure to recollect the second interaction with Ms West - submissions document, second half, pt 3, pars 16 and 18

1. The appellant contends that because Mr Mardon was unable to remember Ms West arriving at the marina car park the magistrate should have found that his evidence was untruthful or inaccurate and needed to be rejected. 

2. The appellant's complaint is devoid of merit.  In relation to this issue the magistrate, in the course of summarising Mr Mardon's evidence, said the following:[216]  

   I do not take this to impact Officer Mardon's credibility or reliability.  He is focused on continuing his observations, while McLean deals with Wendy.  It is not surprising that he does not recall a short interaction with Wendy that he was no part of.

   [216] ts 14, 15 December 2021.

3. It was clearly reasonably open for the magistrate to arrive at this conclusion.  The magistrate did not make the error alleged.

Alleged error in relying on the evidence of Mr Mardon given his evidence that he attended Two Rocks Beach with Mr McLean on a date subsequent to 7 April 2018 - submissions document, second half, pt 3, par 17

1. As I have already indicated, Mr McLean testified that when he returned to Two Rocks Beach on one occasion on a date after 7 April 2018 the only person who was with him was Mr Bellotti.  However, and as I have also already indicated, Mr Mardon gave evidence that there was an occasion after 7 April 2018 on which he attended Two Rocks Beach with either or both Mr McLean and Mr Bellotti.

2. The appellant contends that because Mr Mardon's evidence on this point was inconsistent with the evidence of Mr McLean, the magistrate ought to have rejected Mr Mardon's evidence in its entirety on the basis that it was unreliable and/or dishonest.

3. The appellant's contention is devoid of merit.

4. First, the evidence of Mr Mardon was not necessarily inconsistent with the evidence of Mr McLean.  Mr Mardon's evidence left open the possibility that he had re-attended Two Rocks Beach on a different day to Mr McLean and had done so with Mr Bellotti.

5. Second, even if it is accepted that the evidence of Mr McLean and Mr Mardon on this point was inconsistent, it was clearly open for the magistrate, as her Honour obviously did, to form the view that the inconsistency went to a matter of detail as opposed to a matter of significance and was not such as to impact adversely on the credibility of the material evidence given by Mr Mardon or, for that matter, Mr McLean.

6. For the reasons I have stated the magistrate did not make the alleged error.

Alleged error in finding that nine Roe's Abalone were seized - submissions document, second half, pt 5, pars 20 - 22

1. The appellant complains that the magistrate made an error in finding on the evidence that the fish seized from him on 7 April 2018 were nine Roe's Abalone.  The contention is fatally flawed.  At trial the appellant conceded the issue of continuity, that is, that the fish seized from him on 7 April 2018 consisted of nine Roe's Abalone.[217]  The magistrate referred to this fact in her reasons.[218]

Alleged error in accepting the evidence of Mr McLean and Mr Mardon to the effect that the appellant and Zuo Jun were the only people on the beach - submissions document, second half, pt 7, pars 26 and 27

[217] ts 151 - 162, 10 August 2021.

[218] ts 15, 15 December 2021.

1. The appellant argues that given Mr McLean's concession that there were other cars in the marina car park when he was interacting with the appellant after the appellant's apprehension, the magistrate should not have accepted the evidence of Mr McLean and Mr Mardon that at the time of their observations there was no one on the beach other than the appellant and Zuo Jun. 

2. The appellant's argument is without merit.  Both Mr McLean and Mr Mardon gave clear evidence that the only vehicle in the marina car park on their arrival at the car park was the appellant's vehicle.  The fact that there were one or two vehicles in the marina car park at a later point in time did not preclude the magistrate from accepting the evidence of Mr McLean and Mr Mardon to this effect.  Similarly, the fact that there were one or two vehicles in the marina car park at a later point in time did not preclude the magistrate from accepting the evidence of Mr McLean and Mr Mardon that there were only two people on the beach at the relevant time, namely the appellant and Zuo Jun.  Further, it was reasonably open to the magistrate to conclude that the absence of cars in the marina car park at the time of the arrival of Mr McLean and Mr Mardon did provide support to their evidence that there were, during the entirety of their observations, only two people on the beach, namely the appellant and Zuo Jun.

3. For the reasons I have stated the magistrate did not make the error alleged.

Alleged error in failing to find that there was a fifth person in the marina car park - submissions document, second half, pt 7, pars 31 - 32

1. In his evidence Mr McLean testified that the only people present in the marina car park after the abalone had been discovered were himself, Mr Mardon, the appellant and Zuo Jun.  He said that no one else came up to join them and that there was no one else around.[219]  The appellant did not give evidence to the contrary.

   [219] ts 55, 4 August 2020.

2. The appellant contends that the magistrate ought to have found, contrary to Mr McLean's evidence, that following his apprehension and while he was interacting with Mr McLean and Mr Mardon in the marina car park there was a fifth person present.  The appellant argues that the fact that there was a fifth person present in the marina car park time shows that the evidence of Mr McLean and Mr Mardon was unreliable and dishonest.

3. The appellant bases his contention that the magistrate ought to have found that there was, following his apprehension, a fifth person present in the marina car park on the photograph which is exhibit 3.  Exhibit 3 is a close up of the appellant's driver's licence.  The driver's licence is being held by either Mr McLean or Mr Mardon.  In the photograph two sets of feet can be seen.  One of the sets of feet belongs to either Mr McLean or Mr Mardon.  The other set of feet belong to a person who, at the time of the photograph, is not wearing shoes.  The appellant argues that that the barefooted person could not have been him because he is shown in the photograph that is exhibit 4.2 as wearing some form of beach or diving footwear.  The appellant further argues that the barefooted person could not have been Zuo Jun because in the photographs that are exhibits 2.1 and 2.1A taken at a slightly earlier point in time he is shown wearing some form of beach or diving footwear.

4. Mr McLean testified that the bare feet shown in exhibit 3 were either the feet of the appellant or Zuo Jun.[220]

   [220] ts 53, 4 August 2020.

5. The appellant's contention is devoid of merit and in any event pointless.

6. The fact that the appellant and Zuo Jun are shown in photographs other than exhibit 3, that were taken at different times to exhibit 3, as wearing some form of footwear did not compel the magistrate to find, contrary to Mr McLean's evidence, that an additional person was present.  This is particularly so given that the video footage of Mr McLean's interaction with the appellant in the marina car park (exhibit 14) depicts at various points the appellant and Zuo Jun wearing footwear other than the beach or diving footwear that they are shown to be wearing in the abovementioned photographs (the appellant is shown wearing black leather shoes and Zuo Jun is shown wearing joggers or some other form of casual sandshoe).  In other words, it is quite clear that at some point after their apprehension the appellant and Zuo Jun removed their beach or diving footwear.  This provides an explanation as to why either or both of them may, for a period of time while they were interacting with Mr McLean and Mr Mardon in the marina car park, have been barefooted.

7. For the reasons I have given, the magistrate did not make an error in failing to find that a fifth person was present.

8. In any event, even if contrary to my above expressed view the evidence comprised of exhibit 3 was capable of establishing that a fifth person was present in the marina car park, it would still quite clearly have been reasonably open to the magistrate to accept the evidence of Mr McLean and Mr Mardon as to what they observed occurring on the beach and as to what they found upon apprehending the appellant.  A finding that Mr McLean was incorrect in testifying that there was not a fifth person present in the marina car park during his interactions with the appellant would not have compelled the magistrate to find that the material aspects of the evidence given by Mr McLean and Mr Mardon were unreliable and/or dishonest.

9. For the reasons I have stated the magistrate did not make the error alleged.

Decision

1. Leaving aside the minor and inconsequential errors that I have found the magistrate made comprised of her description of exhibit 5.1 as showing the knife in situ and her reference to the conversation between Mr McLean and the appellant on 8 April 2018 despite having ruled the conversation inadmissible, I have found that three of the appellant's allegations of error have been made out.  The question that remains is whether it follows from my findings that the magistrate made these errors that it was not open to the magistrate to be satisfied beyond reasonable doubt of the appellant's guilt.

2. The magistrate had before her the 'firm and confident' evidence of Mr McLean and Mr Mardon which was to the following effect:

   1.They saw two males on the beach one of whom had a stockier or thicker set build than the other;

   2.They saw the stockier male engage in activity that was consistent with him fishing for abalone;

   3.They saw the stockier male get out of the water and hand a bag containing something to the slimmer male;

   4.They saw the slimmer male place the bag in a white tub;

   5.They watched the two males walk from their location on the beach towards the top of the sand dune on which they (that is, Mr McLean and Mr Mardon) were situated (concealed);

   6.They could see that the stockier man was during the walk towards the sand dune carrying the white tub;

   7.They only lost sight of the two men for a very brief time when the two men reached the bottom of the sand dune and were hence obscured from view by the sand dune;

   8.They apprehended the two men at the top of the sand dune;

   9.The two men were the appellant and his son Zuo Jun;

   10.The appellant was the man who had been carrying the white tub;

   11.When they searched the white tub they found in the tub the nine abalone (subsequently identified to be nine Roe's Abalone) as well as a flat bladed knife which is an implement commonly used in fishing for abalone; and

   12.Throughout the time that they watched the two men, the appellant and Zuo Jun, there was no one else on the beach.  The appellant and Zuo Jun were the only two people on the beach.

3. The evidence established that although the appellant was not as large in build as Mr Cao, he was stockier and shorter than his son Zuo Jun.

4. The errors that I have found that the magistrate made are quite clearly not of such a nature as to require the conclusion that it was not reasonably open to her Honour to be satisfied beyond reasonable doubt that the evidence given by the appellant and Mr Cao was not honest and reliable.  Nor are the errors that I have found that the magistrate made of such a nature as to require the conclusion that it was not reasonably open to her Honour to be satisfied beyond reasonable doubt that the evidence given by Mr McLean and Mr Mardon, as summarised in the preceding paragraph, was honest and reliable.  Further, there was no other inadequacy in the evidence that requires the conclusion that it was not reasonably open to the magistrate to be satisfied beyond reasonable doubt of these matters.

5. It necessarily follows that it was reasonably open to the magistrate, who had the significant advantage of seeing and hearing Mr McLean, Mr Mardon, the appellant and Mr Cao give evidence, to find on all the evidence before her, as her Honour did, that she was satisfied beyond reasonable doubt that the evidence given by Mr McLean and Mr Mardon was honest and reliable and that the evidence given by the appellant and Mr Cao was not honest and reliable and should be rejected.  It therefore also necessarily follows that it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty of the charged offence, this being the conclusion that inevitably followed from her Honour’s acceptance of the evidence of Mr McLean and Mr Mardon.

6. In summary, having full regard not only to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence but also the very significant advantage that the magistrate had of seeing and hearing the witnesses give evidence, it is my opinion that it was open to the magistrate to be satisfied beyond reasonable doubt that the evidence of Mr McLean and Mr Mardon was honest and reliable and proved the appellant's guilt for the charged offence.  In my opinion, the evidence considered in its entirety does not require that the conclusion that the magistrate must have entertained a reasonable doubt about the appellant's guilt in respect of the offence.

7. For the reasons I have given the ground of appeal lacks merit.  I would refuse leave to appeal on this ground.

Allegation that the magistrate denied the appellant procedural fairness by impermissibly preventing the appellant from correcting interpretation errors made by interpreter - submissions document, first half, pars 36 ‑ 38

1. In the portion of the submissions document in which the appellant contends that the magistrate made an error in finding that there were inconsistencies in Mr Cao's evidence as to the distances he swam, the appellant also asserts, in substance, that the magistrate denied him procedural fairness by impermissibly preventing him from correcting errors made by the interpreter who was interpreting Mr Cao's evidence.  The relevant exchange that took place between the magistrate and the appellant that forms the basis of the appellant's complaint in this respect occurred during the examination-in-chief of Mr Cao and in the context of Mr Cao being asked to give evidence in relation to where Mr Ling parked his car on arriving at Two Rocks Beach.  The lead up to the exchange and the exchange itself was as follows:[221]

   [221] ts 205 - 207, 11 August 2021.

   HOLMES, MR:  Okay.  And when you arrived at the beach location, could you tell me what you saw before you - hang on.  Sorry, your Honour.  When you arrived at the beach, could you tell me when you parked - the car was parked, what you saw?

   INTERPRETER:  Where the car - - -

   HOLMES, MR:  When the car was parked.

   INTERPRETER:  Yes.

   HOLMES, MR:  What you saw straight away?  This is before the - - -

   INTERPRETER:  Okay.

   HOLMES, MR:  - - - beach.

   INTERPRETER:  When we at the carpark, I saw the left was the - a beach park and the right side was the - the villas.

   HOLMES, MR:  When he means 'villas', does he mean - can he explain villas more, please?

   INTERPRETER:  So it's whole area of  - like, independent housing.  In China, we call it - kind of, villa type accommodation.

   HOLMES, MR:  No, Mr Tu.  Sorry.

   HER HONOUR:  You can't assist Mr Tu.  If you want to speak to the lawyer just - no, no.  You cannot speak now, because the witness has to give their evidence without interference.  Okay?  If you need to write - if you need to speak to Mr Holmes, write a note and Madam interpreter will pass that over.  Or whisper - what - hang on a minute.

   ACCUSED:  (indistinct) interpreter?

   HER HONOUR:  Sorry?

   ACCUSED:  Change the interpreter?  Change - - -

   HER HONOUR:  Well, now you're going to have - - -

   ACCUSED:  I'm sorry.  I have (indistinct) I'm so sorry.  I'm so sorry.

   HER HONOUR:  No, that's alright, Mr Tu.

   ACCUSED:  (indistinct) important.

   HOLMES, MR:  Okay.

   HER HONOUR:  No, wait - - -

   ACCUSED:  (indistinct)

   HER HONOUR:  - - - Mr Tu, stop.  I've asked you to stop.  You will need to have an adjournment to see what the issue [is] Mr Holmes.

   …

   HOLMES, MR:  Appreciate it.  Yes.  With your Honour's permission.

   …

   HER HONOUR:  Thank you.  It might be easier if you just quickly dash outside with your client and madam interpreter.

   HOLMES, MR:  Yes, thank you.

1. After the brief adjournment the appellant's counsel informed the magistrate that the issue had been 'sorted' and that he would have some further questions.[222]  The magistrate then stated that she did not think that the interpreter had finished her last interpretation and asked the interpreter to confirm that she had said, 'A whole area of independent housing, we call villa'.[223]  The interpreter confirmed that this was her last interpretation.  The magistrate then asked the interpreter, 'Was there anything else after that?'.  To this question the interpreter answered, 'That's it, your Honour'.[224] 

   [222] ts 207, 11 August 2021.

   [223] ts 207, 11 August 2021.

   [224] ts 207 - 208, 11 August 2021.

2. After the above exchange between the magistrate and the interpreter the appellant's counsel discussed another issue with the magistrate.  Counsel then continued his questioning of Mr Cao.

3. The appellant's allegation that the magistrate impermissibly prevented him from 'correcting' the interpreter is misguided. The interpreter was an independent interpreter engaged by the court to assist the court by facilitating communication between the court and Mr Cao and between counsel and Mr Cao (or to put the matter more specifically, by interpreting into Mandarin anything said to Mr Cao in English and by interpreting into English anything said by Mr Cao in Mandarin). Given that the interpreter was a court engaged interpreter whose function it was to assist the court, it was not for the appellant to seek to correct the interpreter's interpretation of any answers given by Mr Cao and it was entirely correct for the magistrate to prevent him from doing so. If the appellant disagreed with the interpreter's interpretation of any answer given by Mr Cao it was open for the appellant to raise the issue with his counsel so that his counsel could seek to address the issue through further questioning of Mr Cao and, in the event that he was not satisfied that his concerns had been adequately addressed by his counsel's further questioning, adduce evidence from another interpreter aimed at establishing that the court engaged interpreter had interpreted an answer or answers incorrectly. It was the first of these possible courses of action that the magistrate, by briefly adjourning the proceedings, gave the appellant the opportunity to take. Further, it is apparent from the appellant's counsel's statement to the magistrate immediately following the adjournment that the issue had been 'sorted' that the appellant did take the opportunity to raise with his counsel the concerns that he had about the interpretation of Mr Cao's evidence so that his counsel could attempt to deal with the concerns in his questioning of Mr Cao. It is also apparent that the appellant's counsel was in his subsequent questioning of Mr Cao able to address the concerns that had obviously been raised with him by the appellant during the adjournment. In particular, counsel obtained confirmation from Mr Cao that when Mr Ling parked his car there were 'houses' on the right-hand side,[225] and then asked further questions about the 'black tool case' that Mr Cao had already mentioned in his evidence which resulted in Mr Cao testifying that the 'tool case' was 'soft net like', was black in colour and was connected to a belt.[226]

   [225] ts 209, 11 August 2021.

   [226] ts 209, 11 August 2021.

4. For the reasons I have stated the magistrate's actions in preventing the appellant from interfering with the interpretation process were not impermissible and did not deny the appellant procedural fairness.  In any event, whatever concerns the appellant had about the interpretation of Mr Cao's evidence were addressed by his counsel's subsequent questioning of Mr Cao so that the appellant was not in any way prejudiced by his inability to 'correct' the interpreter.

5. The appellant's complaint is without merit.  I would refuse leave to appeal on this ground.

Conclusion

1. For the reasons I have given I refuse the application for leave to appeal and dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CP

Associate to the Honourable Justice Derrick

20 MAY 2022