Hindrum v Lane [2014] TASFC 5

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523; CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440, applied.

Primary Industry - Fish - Offences - Taking or possessing under prescribed weight or size - Taking or possessing - Defence of honest and reasonable but mistaken belief in size - System of measurement - Measurement by visual assessment and application of measure when thought necessary - Whether belief that all fish of size was a reasonable mistake in the circumstances.

Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 251 ALR 135; Pearce v Stanton [1984] WAR 359, considered.

Judgment Number: [2014] TASFC 5

MARCUS JOHN HINDRUM v SERGEANT RICHARD ADAM LANE

2 Counsel will be heard further on consequential orders to be made.

MARCUS JOHN HINDRUM v SERGEANT RICHARD ADAM LANE

1. The appellant, Marcus Hindrum, is a commercial fisherman. This appeal concerns whether a magistrate was in error in dismissing charges brought against him for taking and possessing one undersize rock lobster on the ground of honest and reasonable mistake.
2. On 17 August 2012, the appellant's fishing boat was inspected by marine police officers at the Triabunna wharf. At the time of the inspection there were five or six male rock lobsters on board the boat. The fish were measured. One had a carapace length of 108 millimetres. By the Fisheries (Rock Lobster) Rules 2011 ("the Rules"), rl7, a person who takes or is in possession of a male rock lobster that has a carapace shorter than 110 millimetres commits an offence.
3. The appellant was charged with one count of taking an undersize male rock lobster and one count of possessing an undersize male rock lobster. The hearing of the complaint was conducted before a magistrate on 13 May 2013. At the hearing, the appellant did not dispute that he had taken, or was in possession of, the particular fish. There was no dispute that the fish was undersize. The learned magistrate found that the fish was undersize, but that the appellant had an honest belief, on reasonable grounds, that the fish had a carapace that was not less than the minimum required length. The learned magistrate as a consequence dismissed the complaint.
4. The magistrate's decision was subject to a notice to review which was determined by Estcourt J in Lane v Hindrum [2013] TASSC 50. His Honour upheld the motion, and set aside the dismissal. The appellant now appeals to this Court.

1. The appellant's right to appeal to the Full Court is provided for in the Justices Act 1959, s123. For the purpose of the present case, that restricts such a right to an assertion that the appellant is dissatisfied with an order of a single judge "in point of law". The Full Court may, on the hearing of such an appeal, draw any inference of fact, order any judgment be entered that ought to have been given, and make such orders as it thinks just and proper to ensure determination on the merits of the real question in controversy between the parties. However, to succeed an appellant must show that an error in point of law has occurred. In Australian Securities and Investments Commission v Hosken [No 2] [2000] TASSC 12 at [33] to [35] Wright J discussed the nature of the appellate process pursuant to s123. In particular, he highlighted the often difficult distinction to be drawn between errors of law and errors of fact.
2. The starting point is ground 1 of the notice of appeal. It asserts:

"The Learned Judge erred in law in finding, at paragraphs [29]-[33], that the Appellant's evidence was insufficient to discharge his evidential burden of raising the defence of honest and reasonable mistake of fact:.."

The argument advanced on the hearing of the appeal was to the effect that Estcourt J had applied the wrong test when considering whether the evidence before the learned magistrate was sufficient to discharge the evidential burden referred to. It was submitted that his Honour had required a much higher threshold to be met than was necessary. There can be little doubt that, if this Court is satisfied that the learned judge applied the wrong test, that would amount to an error in point of law.

1. There was uncontested evidence before the learned magistrate that the inspection of the appellant's boat occurred as he returned from fishing in waters about 15 to 18 miles off Triabunna, near Maria Island on the east coast of Tasmania. The trip had commenced on 9 August 2012. While fishing, the appellant set 24 licensed rock lobster pots each day. He was fishing alone, and thus solely responsible for baiting, setting, pulling, re-baiting and re-setting the pots. Over the course of his fishing, he caught a total of 86 rock lobster. On the day he came back to port, he tied up at the jetty of his fish buyer where the commercial portion of his catch was unloaded. The appellant retained five or six male rock lobster (the evidence was unclear about whether it was five or six but nothing turns on it) for his personal use. Those fish were live and in the well on the boat. He then proceeded to Triabunna wharf where the police were waiting. At the hearing before the learned magistrate the appellant gave evidence that:
   • he was 73 years old. He was an experienced commercial rock lobster fisherman and had been measuring crayfish for about 60 years. He was "born and bred in the crayfishing game";
   • he knew how to distinguish a male rock lobster from a female, knew what the carapace of a lobster was, and knew the minimum size requirements for each sex;
   • after raising a rock lobster pot to the boat he placed the pot on the deck and removed each fish from the pot by hand. He looked at each fish as he did so. With his experience he could "get pretty close" to correctly estimating, by looking at it, whether a fish was size or not;
   • he did not measure every fish. If a fish was, when taken out of the pot, obviously over the legal size, then he may put the fish into the boat well without measuring it. If a fish was obviously under the legal size when taken out of the pot, he would return it to the water so as to keep it out of the water for as little time as possible;
   • if he was in any doubt about the size of a fish, he would measure it using a standard commercial fisherman's measuring device he believed to be accurate. Measuring a fish took 10 seconds or so at a maximum. He said, "if you have to measure it twice you throw it away";
   • the only way to ensure that a fish was not undersize was to measure it. He agreed that, "there's no rocket science to measuring a fish". Each fish he measured was usually measured only once, as it was taken from the pot and before it was put in the boat well, although there was nothing to stop him from later checking the measure;
   • he could not remember what the weather was like while he was fishing, but at that time of year it was often windy and choppy which made conditions uncomfortable for work;
   • he could not remember catching the particular fish that was undersize, nor on what day it was taken;
   • as lobster are taken out of the pot, they flap about;
   • he believed none of the lobster he took on his fishing trip were undersize. He thought he used the measure correctly and he tried not to be careless. He could not explain how he had a fish that was 2 millimetres undersize. When it was suggested to him he had made an error he said, "it's possible I guess your Honour but I don't think so".

The learned magistrate's reasons for dismissing the complaint

1. The learned magistrate found that the measuring device used by the appellant was accurate. He referred to some of the evidence, including the appellant's evidence that he believed that all the fish he had were at or above 110 millimetres, and continued:

"This is a strict liability offence but I also find that honest and reasonable mistake of fact must be ruled out by the prosecution evidence. I had little or any evidence from the police officers to persuade me that two millimetres is an unreasonable margin of error. It seems clear to me that if the particular fish had been five millimetres or ten millimetres undersize in the measuring process that would be an unreasonable measurement in any circumstance however a margin of two millimetres error must be ruled out by prosecution evidence as being unreasonable in all of the circumstances. For example I had no evidence one way or the other to say whether fish shrink or expand during the taking or storage process or change in atmosphere; pressure; process. I just do not know. I also do not know with sufficient accuracy to persuade myself that the mechanism of measurement in an unstable circumstance to any degree can be so certain or uncertain as to rule in or out minor fluctuations. If it was found that a particular fish was 0.1 millimetres less than the minimum for example could this give rise to a reasonable error and thus a reasonable mistake of fact being made. I would've thought so. So where does one draw the line. I've already said that five to ten millimetres would certainly be a line but I'm not so convinced that two millimetres on the evidence before me is not an unreasonable belief to hold. That is the defendant measured the fish with his accurate device taking reasonable care on the evidence that I have but in difficult circumstances but he made an honest error of the minimal degree. In those circumstances in my view he might well be entitled to hold a reasonable belief on the facts of this case. It is not for the defendant to prove the conditions on which he caught the fish at the time but he certainly gave evidence that generally speaking the fish are flapping and moving when measurements are taken and that generally at this time of the year fishing conditions can be what he called 'second hand', prosecution did not rule out those possibilities and in all of the circumstances I'm satisfied not only that the defendant had an honest belief - there is -1 have no doubt about that at all - but - than an honest belief that the fish was one hundred and ten millimetres or more but that he reasonably held that belief in all of the circumstances of this particular case. On that basis I dismiss the complaint".

1. The notice to review the learned magistrate's decision contained five grounds. Estcourt J found all five of the grounds made out. His Honour's conclusion was that the "defence" of honest and reasonable mistake should not have succeeded. Relying on Von Lieven v Stewart (1990) 21 NSWLR 52 and State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721, his Honour found that the appellant had not discharged the evidential burden of raising an honest belief on reasonable grounds based on an actual or positive belief that the lobster was of legal size, as opposed to a mere general understanding or assumption, and that the learned magistrate could not reasonably have come to a different conclusion. Thus, the evidential burden having not been discharged, the exculpatory principle of honest and reasonable mistake was not engaged, and the prosecuting authorities were not required to negative such a mistake.

1. To understand the learned magistrate's decision and the reasons that Estcourt J came to the conclusion he did, it is necessary to examine the basis and operation of "honest and reasonable mistake" and its application to this case. Although honest and reasonable mistake is, for convenience, sometimes referred to as a defence (and I will do so in these reasons), it is not strictly so. The principle has application in cases where guilty knowledge or intention is not an element of the offence. In such cases, an accused may nevertheless avoid criminal responsibility if he or she acted under an honest and reasonable mistake as the existence of facts, which, if true, would have made his or her act innocent: Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523; Jiminez v R [1992] HCA 14; (1992) 173 CLR 572; CTM v R [2008] HCA 25; (2008) 236 CLR 440.
2. Honest and reasonable mistake was explained by the majority in CTM v R (above) at [8] in these terms:

"Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word 'innocent' means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be 'outside the operation of the enactment'; Proudman v Dayman; [1941] HCA 28; (1941) 67 CLR 536 at 541. As explained in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 534-535, the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution. The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact." [Citations included.]

1. Heydon J, in CTM at [199], stated the defence in these terms:

"Legislation will be construed so as not to render criminally liable an accused person provided that, first, the accused person satisfies an evidential burden of establishing an honest belief on reasonable grounds in the existence of a state of factual affairs which, had it existed, would have made the acts alleged by the prosecution non- criminal, and, secondly, the prosecution fails to discharge a legal burden of establishing beyond reasonable doubt that the accused did not have that honest belief on reasonable grounds".

1. It follows from those statements that an accused person must first satisfy an evidentiary onus to raise the ground of exculpation. If that burden is discharged then the prosecution bears the legal burden of proving beyond reasonable doubt that the accused person did not a have an honest and reasonable but mistaken belief.
2. The mistaken belief must be one of fact, not law, and be about an element of the offence: Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493. It must be an affirmative belief about a fact in question. Inadvertence, a mere absence of knowledge, or not turning one's mind to the issue, is not sufficient: see Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 251 ALR 135, where Reeves J referred to Proudman at 541 per Dixon J; State Rail Authority of NSW v Hunter Water Board (above) at 725 per Gleeson CJ, and CTM v R (above) at [7] per Gleeson CJ, Gummow, Crennan and Kiefel JJ.
3. In this appeal, there is no challenge to the proposition that the offence created by the Rules, r17(a), is one of strict liability. That is, the prosecution was not required to prove that the appellant intended to take and possess a lobster smaller than the minimum prescribed size. Neither was there challenge to the proposition that the defence of honest and reasonable mistake was available, for reasons similar to those applied in Hibble v Cannon [2001] TASSC 1 and Browning v Barrett [1987] TASRp 16; [1987] Tas R 122.

1. There was no dispute in this matter that the appellant had an obligation to raise the issue of honest and reasonable mistake if he wished to rely on it. The question raised in this appeal was what that actually required him to do. Counsel for the appellant submitted that all that was required was that the appellant "raise" the issue by reference to the evidence. The threshold, he submitted, was a low one. Counsel referred to a number of authorities, none of which dealt with the issue of the degree of satisfaction about the issue which was required. It is necessary to look at just what an evidential burden is.
2. The learned author of Cross on Evidence at [7015] and following discusses the concept of an evidential burden. He does so in the context of explaining the differences between what might amount to a legal burden of proof on one party and an evidential burden only on the other. He says at [7015]:

"An evidential burden is not a burden of disproof. Rather the evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue."

"With regard to a number of common law defences it is settled that, although the prosecution bears the legal burden of disproving them, the accused bears the burden of adducing sufficient evidence to raise the issue of their existence."

1. While neither this commentary, nor the cases which are referred to in it, specifically refer to the degree to which an offender is required to adduce evidence (or indeed elicit it by way of cross-examination of prosecution witnesses) such as to "raise" the issue of honest and reasonable mistake, they do suggest the evidence need only be "sufficient" to raise it.
2. In any prosecution of an offender for an offence contrary to the Rules_,_ r17(a), a necessary element to be proved is the size of the rock lobster the subject of the charge or charges. In this case, the mistaken belief the appellant said he had was as to the size of the rock lobster measured by marine police. In the context of whether the appellant had met the evidential burden upon him as to the existence of a possible "defence" of honest and reasonable mistake as to the size of the rock lobster, all the appellant needed to do was adduce sufficient evidence to raise the issue. He did not need to prove to any particular standard that he had a mistaken belief. As the Full Court said at 134 in Geraldton Fishermens' Co-Op v Munro [1963] WAR 129:

"The appellant alleged that it honestly and reasonably believed that all the crayfish tails which it had in the cold store were of at least five ounces. Section 24 does not merely provide a matter of defence: it involves an exoneration from criminal responsibility: there must of course, in the first place, be some evidence of honest and reasonable mistake, but once such evidence is adduced the onus remains on the prosecution to prove guilt beyond a reasonable doubt: and it follows that even if the explanation is not affirmatively established, nevertheless if the tribunal of fact thinks that it might reasonably be true the defendant must be acquitted: Brimblecombe v Duncan [1958] Qd R 8, at pp. 12 and 22-23, and the cases there cited."

1. At [34], Estcourt J said of the evidential burden the appellant was required to discharge:

"Counsel for the applicant correctly submitted that the respondent was obliged to discharge an evidential burden of establishing an honest but mistaken belief, held on reasonable grounds, in the existence of a state of facts which, had it existed, would make the defendant's acts innocent, before the prosecution was required to undertake the burden of negativing any such belief beyond reasonable doubt: Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 per Dixon J at 540 - 541; CTM v R [2008] HCA 25; (2008) 236 CLR 440 at 445 - 447; Browning v Barrett [1987] TASRp 16; [1987] Tas R 122 (per Neasey J at 127 - 128; Cosgrove J at 137 - 138; Underwood J at 142 - 143) and Hibble v Cannon [2001] TASSC 1; (2001) 10 Tas R 129 per Crawford J (as he then was) at 139."

1. The words which precede the cases cited are not taken directly from those cases. For example Dixon J at 541 in Proudman v Dayman (above) said:

"The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear (my emphasis) that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe."

What was said by the Court in CTM (above) is extracted at [12] of these reasons. In Browning v Barrett (above), at 128 Neasey J refers to the applicant in that matter providing (my emphasis) "the necessary evidentiary basis for raising it as an issue". While Crawford J (as he then was) in Hibble v Cannon (above) briefly dealt with a ground of review relating to the issue of honest and reasonable mistake, he did not deal with the principles in any detail.

1. I have examined the cases to which Estcourt J made reference. It appears to me that he has elevated the degree to which the appellant was required to meet an evidential burden to a level higher than was necessary. He required that the appellant establish (my emphasis) certain matters. With respect, he only needs to raise the possibility of the "defence". In my view, the evidence of the appellant was sufficient to raise the issue which was all that was required to place an obligation upon the prosecution to negative the existence of the belief.
2. To that extent, I am of the view his Honour erred when he found that the appellant had not met the evidential burden upon him such as to require the prosecution to negative the existence of such belief beyond reasonable doubt.

1. Accepting therefore that an error in point of law has been made out, what are the consequences? Had his Honour applied the correct test, it would follow that he would need to have considered whether it was open to the learned magistrate to be satisfied that the prosecuting authorities had not proved beyond reasonable doubt that the appellant did not hold an honest and reasonable but mistaken belief as to the size of the fish.
2. The prosecuting authorities were required to negative not only the existence of an honest belief, but also the existence of a reasonable belief. In my view the evidence was such that the issue of whether any belief held by the appellant was an honest one simply does not arise. There was no evidence at all to suggest that any belief held by the appellant was other than an honest one. The issue is the reasonableness of the appellant's belief.

"The word 'reasonable', in the context of the exculpatory principle of honest and reasonable but mistaken belief, does not involve a hypothetical ordinary or reasonable person test; it is the respondent's belief that must be looked at, but it must also be objectively reasonable, that is to say it must be, 'based on his appreciation of primary objective fact which is in reason capable of sustaining belief', G J Coles & Co Limited v Goldsworthy [1985] WAR 183 at 187, per Burt CJ, Brinsden and Smith JJ."

1. In Mei Ying Su at [104], Reeves J said at [104] - [106]:

[104] In the Criminal Code jurisdictions of Queensland, Western Australia and Tasmania, the defence of acting under an honest and reasonable, but mistaken belief, has been said to reflect the common law with 'complete accuracy': see Thomas at 305 - 306 per Dixon J and CTM at [3] per Gleeson CJ and Gummow, Crennan and Kiefel JJ. Different judges of the Western Australian Court of Appeal (and the Full Court) have described the expression 'honest and reasonable belief' (in s 24 of the West Australian Criminal Code) in the following terms:

(a) '...it must be reasonable, which is to say that it must be based on his appreciation of primary objective fact which is in reason capable of sustaining the belief ...', in GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183 at 187 per Burt CJ, Brinsden and Smith JJ;

(b) '... a reasonable man or woman in the position of the defendant carrying out the same actions in the same circumstances may make the same mistake', in O'Brien v Ostrowski [1999] WASCA 184 at [108] per McKechnie J;

(c) 'It is that belief which must be reasonable; i.e., in all the circumstances it must have been reasonable for the accused person to hold the belief which, in this case, would render his conduct innocent'; and '....it is the actual belief of the accused with which the section is concerned, in judging reasonableness it will always be necessary to advert to the circumstances as they existed at the time in so far as they were known to the accused', in BRK v R [2001] WASCA 161 at [34] and [36] per Murray J.

(d) 'For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused belief must be reasonable (mixed element) ... the mixed element is not wholly objective; reasonableness is not to be judged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself', in Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229 at [43] per McLure JA (with whom Roberts-Smith JA and Buss JA agreed).

[105] The Queensland Court of Appeal considered the equivalent expression (in s 24 of the Queensland Criminal Code 1899 (Qld)) in R v Mrzljak (2005) 1 Qd R 308; (2004) 152 A Crim R 315; [2004] QCA 420, and described it as requiring:

(a) '...a consideration of whether there were reasonable grounds for the belief, not what a reasonable person would have believed' per McMurdo P at [21];

(b) '...that the critical focus is on the offender rather than the theoretical reasonable person. It is the information available to the offender which must determine whether the belief was honest and also was reasonable ...' per Williams JA at [53];

(c) that '[t]he section directs attention to the actual belief of the accused; nothing in its language invites reference to the reasonable man's putative belief. What must be considered, in my view, is the reasonableness of an accused's belief based on the circumstances as he perceived them to be', per Holmes JA at [81].

[106] From these authorities it is apparent that the word 'reasonable' in s 9.2:

(a) does not involve the hypothetical ordinary or reasonable person test;

(b) requires that the belief be that of the accused;

(c) requires that the accused's belief be objectively reasonable i.e. rational, based on reason, or capable of sustaining belief; and

(d) requires the objective reasonableness of the accused's belief to be assessed by reference to the subjective circumstances in which the accused was placed, including the accused's personal attributes and the information available to him or her at the time."

1. Further, in Pearce v Stanton [1984] WAR 359 at 363, Rowland J said, "in ascertaining whether the respondent's belief was reasonable I agree with the appellant that one should look to the policy thrown up by the statute ...". The policy which underpins the Living Marine Resources Management Act 1995 and the rules made thereunder is clearly to protect and preserve the fisheries resources managed under that legislation, and to that end control strictly the ability of persons to take fish from those fisheries.
2. The appellant did not measure every fish he took by the use of a measure. He had a practice of visually inspecting each fish. His experience of many years allowed him to make a fairly accurate assessment by that visual inspection as to whether a fish was legal size or not. If he was in any doubt he would measure. Evidence was given about fish flapping about when they were pulled from the pot to be assessed or actually measured. In the present case quite clearly this fish, if checked, would not have been assessed as obviously over the legal size. At best it had to have fallen into the doubtful category. In those circumstances, had it been measured with a measure, the length would have been less than 110 millimetres. The appellant was a fisherman of many years' experience. It must be inferred he had measured fish under both difficult and calm conditions. It must also have been inferred he knew the significant consequences of being found with an undersize fish.
3. The only conclusion open is that he did not measure this fish and that he either did not visually check it, or if he did so, he did it so casually as to not give him an accurate assessment. In those circumstances any belief he might have held cannot be said to have been objectively reasonable.

1. It must follow that the conclusion reached by the learned magistrate was not one reasonably open to him on the evidence before him.
2. The ultimate conclusion of Estcourt J to the effect that the order of dismissal made by the learned magistrate should be set aside is therefore correct, but for reasons other than those given by him. As to the ultimate disposition of the matter however, it must also follow from my conclusions that the offences on the complaint should have been found proved. There should therefore be a finding to that effect and the appellant should be sentenced. I would however need to hear from counsel as to whether this Court should hear a plea in mitigation and sentence, or whether the matter should be remitted to the magistrate for that purpose.

MARCUS JOHN HINDRUM v SERGEANT RICHARD ADAM LANE

1. I have read the reasons for judgment of both Tennent and Pearce JJ. Tennent J has set out the background to and the nature of the appeal, along with the evidence before the magistrate, part of the magistrate's reasons for dismissing the complaint, and a précis of the primary judge's decision. There is no need for me to repeat any of it. I agree with their Honours that the primary judge erred in relation to whether Mr Hindrum had discharged the evidential burden of raising the ground of exculpation of honest and reasonable mistake of fact. However, for reasons which I will explain, I respectfully have a different view about what that error was.
2. As to the issue of whether the magistrate could not reasonably have come to the conclusion he did about the objective reasonableness of the mistake of fact, I agree with Tennent J. I also endorse the additional comments of Pearce J about this issue.

1. I agree that it would have been an error for the primary judge to take the view that the appellant needed to "establish" matters relevant to the defence, if by that his Honour meant proof on the balance of probabilities of some fact or facts, or intended in some way to set a more elevated threshold than the law requires.
2. The error is said to appear from par [34] of the primary judge's reasons. It is set out by Tennent J, but I will again set it out for the sake of convenience:

"34 Counsel for the applicant correctly submitted that the respondent was obliged to discharge an evidential burden of establishing an honest but mistaken belief, held on reasonable grounds, in the existence of a state of facts which, had it existed, would make the defendant's acts innocent, before the prosecution was required to undertake the burden of negativing any such belief beyond reasonable doubt: Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 per Dixon J at 540 - 541; CTM v R [2008] HCA 25; (2008) 236 CLR 440 at 445 - 447; Browning v Barrett [1987] TASRp 16; [1987] Tas R 122 (per Neasey J at 127 - 128; Cosgrove J at 137 - 138; Underwood J at 142 - 143) and Hibble v Cannon [2001] TASSC 1; (2001) 10 Tas R 129 per Crawford J (as he then was) at 139." [My emphasis]

1. In this passage the primary judge endorsed the proposition that Mr Hindrum needed to discharge an evidential burden of "establishing" an honest and reasonable, but mistaken, belief, before the prosecution was required to negative any such belief beyond reasonable doubt Moreover, in the next paragraph, his Honour said:

"35 I accept the submission of counsel for the applicant that the respondent did not discharge the necessary evidential burden so as to require the applicant to negative an honest and reasonable mistake by the respondent based on an actual or positive belief, ..." [My emphasis].

1. The submission referred to was that which his Honour had, at par[11], described as the "first argument" by the applicant, (the respondent in this Court), "that the exculpatory principle of honest and reasonable but mistaken belief is only enlivened when the mistake is one of fact that is specifically identified", as distinct from a general understanding or assumption that everything was in order. His Honour noted the reliance on the authorities of Von Lieven v Stewart (1990) 21 NSWLR 52 and State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721, and set out quotations from judgments in both cases.
2. At par [14], when examining aspects of the argument, the primary judge referred to what counsel said was "the high water mark of [Mr Hindrum]'s attempts [in evidence] to engage or enliven this exculpatory principle". At par[15], his Honour noted the applicant's submission "that in order to determine whether the evidential burden resting on [Mr Hindrum] was discharged", the magistrate was obliged to reach certain (specified) conclusions. At par[18], in the discussion of this submission, there is further reference to to the discharge of the evidential burden, and in par[19], when dealing with the an alternative submission of the applicant, his Honour noted it that it related to the magistrate's ultimate conclusion "that the prosecution had failed to negative [Mr Hindrum's] relevant belief beyond reasonable doubt." [My emphases]
3. As I understood it, the appellant's argument in this Court was that the primary judge erred in finding that the appellant's evidence was insufficient to discharge the evidential burden of raising the defence. That is the point to which the first three grounds in the notice of appeal relate. They attack the finding that the evidence suggested no more than an assumption or generalised belief, rather than an actual or positive belief in the relevant state of affairs. As part of that argument, counsel addressed what was needed, in conceptual terms, to discharge the evidentiary burden.
4. The remaining six grounds concern the second alternative argument advanced to his Honour by the respondent which, although his Honour said was strictly speaking unnecessary to decide, he went on to determine.
5. It seems to me that in light of those things, particularly the extracts which I have set out, it is unlikely that by the use of the words "establishing an honest but mistaken belief held on reasonable grounds" in par [34] of his reasons, the primary judge intended to impose a requirement that the appellant establish the relevant matters on the balance of probabilities, or that his Honour otherwise made the threshold requirements too onerous.
6. The submission referred to by the primary judge in par [34] is a composite description of the evidential burden, and the nature of the mistaken belief which must be raised. To the extent that they were relied on in relation to the evidential burden, the cases cited by his Honour of CTM v The Queen, Browning v Barrett and Hibble v Cannon, particularly CTM at 447 [8], make it clear that the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution.
7. A requirement to "establish" an honest and reasonable but mistaken belief, was referred to by Dixon J in Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536. The primary judge's reference to the judgment of Dixon J in Proudman v Dayman may be a little problematic. Whilst the nature of the defence of honest and reasonable mistake was explained in terms of its nature, whether there was only an evidentiary onus on accused to raise the issue, or whether the accused had to establish the defence on the balance of probabilities, was not decided.
8. In He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 at 534 - 535, Gibbs CJ (with whom Mason J agreed) said that Dixon J "may have intended to say that the accused bore only an evidentiary onus, but his words were somewhat equivocal ...". Wilson J at 551 said that it appears that Dixon J may have "at least contemplated [this] possibility." See also Brennan J at 574 and Dawson J at 593. Of course, the position was settled in He Kaw Teh.
9. However, the requirement for a defendant to satisfy "an evidential burden of establishing an honest belief on reasonable grounds" was spoken of by Heydon J in the CTM case at 497 [199]. Ignoring the use of the word "discharge" in place of "satisfy", that is essentially the same as what was said by the primary judge in this case. In CTM, Heydon J agreed with the other members of the Court that the appeal should be dismissed, but on a different view of the relevant statute. There is nothing at all to suggest that his Honour was at odds with his colleagues over the nature of the onus on the defendant in relation to the "defence".
10. For my part, I am not persuaded that his Honour took an incorrect approach to the issue of the evidential burden. The contrary view may be open, but I think that at the least, there is some doubt about it. It is more likely that his Honour intended the word "establish" to be synonymous with the notion of "raising the issue of ...". However, even accepting that the primary judge took the correct approach as to where the evidentiary and legal burdens lie and what is involved in their discharge, I think that his Honour erred in law in any event, and the outcome of the relevant grounds would remain the same. My reasons are as follows.
11. In the passage from Von Lieven v Stewart (above) which his Honour set out, Handley JA, with whom Mahoney JA agreed, said, by reference to Proudman v Dayman (above) at 541 and He Kaw Teh v The Queen (above) at 579, that inadvertence cannot excuse, and that "The only excuse is the existence of an actual or positive belief, based on reasonable grounds an existence of some fact or facts which, if true, would make the act in question innocent".
12. His Honour set out the following passage from the judgment of Gleeson CJ, with whom Cripps JA and Slattery J agreed, in State Rail Authority of NSW v Hunter Water Board (above) at 725 - 726:

"It would be inconsistent with the legislative purpose underlying the Clean Waters Act to conclude that the mere lack of knowledge that pollution was occurring, or was likely to occur, based upon a general understanding or assumption that everything was in order, would be sufficient to amount to a mistaken belief. Rather, a belief in the existence of a set of facts which, if true, would take the conduct in question outside the operation of the statute would entail, in a case such as the present, a positive belief that the operation of the plant and equipment would not result in pollution. That belief would also need to be sufficiently specific to relate it to the elements of the particular offence. In the present case it could be a belief that the particular pipeline did not leak, or a belief that, if it did, oil that was leaked would not pollute waters. Such a belief might relevantly constitute a mistake, and it would then be necessary to examine the question whether that mistake was honest and reasonable." [Estcourt J's underlining.]

1. His Honour set out passages from Mr Hindrum's evidence which, his Honour said, must be considered in the context of all his evidence in determining whether the evidence was capable of establishing that Mr Hindrum, "had an actual or positive belief based on his appreciation of primary objective fact that was capable of sustaining belief".
2. His Honour highlighted parts of the evidence. His Honour highlighted that Mr Hindrum said that:
   • the fish are quite lively and you have to catch them and estimate whether they are small or large, and if they are somewhere about the measure put the measure on them;
   • he could not actually and positively say that he believed a particular fish was the right size, because he did not recall the particular fish as he did not number or brand them;
   • any belief he had would be based on his general practice on how he went about measuring the fish, because he did not brand each individual fish;
   • it is possible to get "pretty close to estimating whether a fish is of size or not, simply based on what it looks like;
   • his system was that he had a look at a fish and said whether it was worth measuring or not, and if it was not, it went over the side; if you put the measure on it and it still did not come up to scratch it is thrown over the side;
   • he might not necessarily use the measuring device at all because if it is thought worth measuring it, it will be measured - if it is obviously oversize and fairly large it is kept without measuring; if it is obviously small and undersized it goes straight over the side;
   • he did not necessarily measure each of the fish that he took.
3. His Honour went on to specifically refer to Mr Hindrum's words that he would take a lobster out of the pot, estimate whether it was small or large enough; "and if they're somewhere about the measure put the measure on them". His Honour said that such a focus could reveal nothing beyond a general understanding or assumption on the part of Mr Hindrum that because he had adopted his longstanding practice, everything was in order and none of the lobster so assessed would be undersize. His Honour noted that Von Lieven v Stewart (above) and State Rail Authority of NSW v Hunter Water Board (above) make it clear that such an understanding or assumption is not enough to engage the exculpatory principle.
4. His Honour went on to say at [32] - [33]:

"However one characterises the respondent's general belief or confidence that his system of measuring would not allow an undersized rock lobster to be taken by him and to remain in his possession, it does not amount, in my view, to anything more than a mere assumption, the validity of which was displaced in fact, either by a flaw in the system born of visually appraising the size of some fish or alternatively by a mistake in the implementation of the system.

The evidence did not support an actual or positive belief, based on reasonable grounds, in the existence of some specific fact or facts which, if true, would make the acts of taking and possession in question, innocent acts. On the contrary, the respondent's evidence that he did not remember measuring the particular fish, coupled with his evidence that he did not measure every lobster, but visually appraised the size of some, meant, in my view, that he could not have been found by the learned magistrate, on any reasonable view, to have had the required actual or positive belief. Rather, what he had was, in reality, a misplaced confidence in his longstanding method of assessing legal size by a combination of relying on his trained eye on some occasions and upon the measure on others."

1. There is no doubt that a lack of knowledge or ignorance is not sufficient to raise the defence; there must be more than a general understanding that everything is in order. The evidence must show that the defendant, turning his mind to facts that relate to the elements of the offence, formed a particular belief in a fact or set of facts which, if true, make the act innocent. "An honest and reasonable belief in a certain fact or state of affairs may be very different from an absence of concern": CTM v The Queen (above) at 447 [7]
2. The State Rail Authority case involved what was described as a "result offence": see Gleeson CJ at 725. The relevant proscription was on operating industrial plant and equipment in such a manner or in such circumstances that polluting substances were introduced into protected waters. The facts were that diesel fuel from the Authority's depot leaked from a break in an underground pipeline which was in a swampy area. The break was caused by natural settlement and movement of fill which surrounded the pipe.
3. The evidence for the Authority was from the manager who said that he understood that the relevant systems were working properly, and that he had not observed any previous leakage. He believed that the system would work properly, but agreed in cross-examination that the nature of the material in which the pipe was located made differential movement, settlement and consequential breakage, a risk. He also conceded that it was possible to conduct checks for fractures, and that not such checks had been made. The observations of Gleeson CJ are in that context.
4. A further example of a "result offence" is to be found in Valsane Pty Ltd v Environment Protection Authority [1996] NSWLEC 265, in which the State Rail Authority case was followed. The charge was one of allowing the use of a motor vehicle which emitted excessive air impurities. A truck was seen to be emitting black smoke. The evidence for the defendant was that the truck had been checked a few months after its purchase, and that regular maintenance was carried out afterwards. Pearlman J found that there was an assumption that the truck would not emit excessive black smoke, based on the fact that it was in good working order.
5. Her Honour said that more was required to excuse the defendant than a general assumption that the truck was in good working order:

"What is required is a positive belief that some element of the construction or operation of the truck was such that the truck could not emit excessive black smoke. An assumption based on the belief that the truck was in good working order is not sufficient to exonerate the defendant from culpability."

1. The present case involves charges of taking and possessing one undersize rock lobster. That involves positive acts. In my view what was involved was not a general understanding or assumption that everything was in order of the type referred to in the State Rail Authority case, nor an absence of concern. The evidence made it clear that Mr Hindrum specifically addressed his mind to the question whether he was taking and keeping undersize fish. Often he went by visual assessment using his experience, applying the measure to the fish when there was any doubt.
2. The assumption Mr Hindrum made was that his adopted method of assessing the size of fish was reliable. The fact that Mr Hindrum could not, of course, remember the particular fish is irrelevant to the point. In my view, there was sufficient in the evidence to support a belief that all of the fish he took and retained were of the correct size, that belief being based on his adopted system. Mr Hindrum's belief went to a relevant fact, the belief being based on the system he adopted. The fact that Mr Hindrum's system may have been flawed goes to the reasonableness of the mistake.
3. It follows that even if the primary judge applied the correct threshold test, there was, in my respectful view, an error in point of law in holding that the evidence did not satisfy the threshold test. The effect of the evidence was raised was wrongly assessed, and it was an error to hold that the 'defence' had not been sufficiently raised. The grounds of appeal which relate to that point are made out, but in the context of this appeal, it does not mean that the appeal should be allowed.

1. As Pearce J has pointed out, the ultimate question for the primary judge was whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he did; in other words, whether the primary judge was satisfied that on no reasonable view of the evidence, could the magistrate have failed to be satisfied beyond reasonable doubt of Mr Hindrum's guilt.
2. Ground 5 of the notice to review asserted that the magistrate erred in dismissing the complaint on the basis that the prosecution had failed to negative the existence of an honest and reasonable but mistaken belief. That was one of the grounds which the primary judge said it was unnecessary to decide, but did so in any event. Also argued before his Honour were grounds which were specifically directed to the magistrate's description of the mistake of two millimetres in length as being excusable and reasonable. That issue was really an aspect of the more widely expressed ground 5. The primary judge upheld the motion to review on all grounds.
3. One of the grounds of Mr Hindrum's appeal to this Court was that the primary judge erred in law in holding that no reasonable magistrate could have come to the conclusion to which he did. A further ground complained of error in holding that the motion succeeded on all grounds. Of course, as to both grounds, the respondent contended to the contrary.
4. The point about the evidential burden and whether the 'defence' was sufficiently raised is subsumed within the determination of the ultimate question. If the primary judge did not err in law in his conclusion as to the ultimate ground, then the error made about the discharge of the evidential burden is of no consequence. It is not an error which vitiates the decision itself: see for example, in the context of appeals on questions of law alone, AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; (2008) 163 LGERA 245 at 271 [120] per Gyles AJA (with whom Bell JA agreed), and Roads and Traffıc Authority (NSW) v Mosca [2006] NSWCA 159; (2006) 146 LGERA 335 at 340 [22] per Handley JA (with whom Mason P and Bryson JA agreed).
5. I have expressed my agreement with Tennent and Pearce JJ as to the nature of Mr Hindrum's mistake. The primary judge did not err in relation to the reasonableness of the mistake. His Honour was correct in allowing the motion on the ground that the magistrate erred in dismissing the complaint on the basis that the prosecution had failed to negative the existence of an honest and reasonable but mistaken belief. The grounds of the appeal to this Court which relate to the nature of the mistake should fail.
6. I would dismiss the appeal. The order of the primary judge setting aside the order of the magistrate dismissing the complaint remains. His Honour did not make any consequential orders as he was to hear from counsel about what was sought. I agree that this Court should now hear from counsel as to what further orders should be made.

MARCUS JOHN HINDRUM v SERGEANT RICHARD ADAM LANE

1. I have read the reasons of Tennent J in draft form. I agree with the substance of her Honour's reasons and with the course she proposes, but wish to add a few comments of my own.
2. This is an appeal is brought pursuant to the Justices Act, s123(1). That provision permits an appeal to the Full Court, but only "in point of law or upon the admission or rejection of evidence". So far as the notice of appeal raises questions of fact it must be ignored: Brown v Bryan and Shepherd; Burles v Bryan [1963] TASStRp 2; [1963] Tas SR 1 per Crisp J. The Full Court has no warrant to interfere with factual findings by a primary judge on a review of the evidence until the decision is shown to have been vitiated by error of law: Australian Securities and Investments Commission v Hosken [No 2] [2000] TASSC 12 per Cox CJ at [19] and Wright J at [33].
3. In my respectful opinion Estcourt J erred, in point of law, in finding the appellant had not discharged the evidentiary burden which rested on him to raise the ground of exculpation. His Honour must have elevated the test to determine whether there was sufficient evidence to raise the issue beyond that which was required. An evidentiary burden is not an onus of disproof: Momcilovic v R (2011) 245 CLR 1, per Bell J at [665]. The appellant carried no onus to prove he held an honest and reasonable belief. There was sufficient evidence to raise the issue. The appellant had given evidence of his belief that all the lobster he had taken and possessed were legal size, and of his system for determining the size of each lobster as he removed it from the pot. The evidence was sufficiently specific to relate it to the elements of this offence, that is the size of the particular lobster. It was open to find that the respondent's evidence of his state of mind went beyond an "understanding or assumption" in the sense those terms are used in State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721, and was different from the "absence of concern" referred to by the majority in CTM v R [2008] HCA 25; (2008) 236 CLR 440 at 447. The issue of whether the appellant held an honest but mistaken belief on reasonable grounds was, on the basis of the evidence, an issue fit and proper to be left to the tribunal of fact: Cross on Evidence, 9th Aust ed (2013) [7015]. Thus, the onus was on the prosecution to exclude the ground of exculpation, and the learned magistrate was required to determine whether the prosecution had established beyond reasonable doubt that the respondent did not have an affirmative belief that the particular lobster was not undersize.
4. However, notwithstanding the error I have referred to, the appeal must be dismissed. In determining the motion to review Estcourt J correctly applied the test established by a long line of settled authority; that is, whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he did: see for example Wood v Smith [1991] TASSC 12; Phillips v Arnold [2009] TASSC 43; (2009) 19 Tas R 21 at [46]; Nilsson v McDonald [2009] TASSC 43; (2009) 19 Tas R 21. In Kent v Gunns Limited (2009) 18 Tas R 454, Porter J expressed the function of a judge in determining a review of a decision of a magistrate of this kind in the following terms:

"The grounds of the motion relate to questions of fact. As such, the decision is to be treated in the same way as an appeal from the verdict of a jury. This is not an appeal by way of rehearing and it is not for this Court to weigh the evidence and reach its own conclusions; Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117, Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 at [7], Phillips v Arnold [2008] TASSC 6 at [13], Murray v Maingay [2008] TASSC 18 at [13]. On this motion I am concerned with the question of whether the magistrate's decision was reasonably open on the evidence; that is, whether on the evidence the only conclusion reasonably open, judged by the criminal standard of proof, was that the respondent was in breach of the Act as alleged. To use the words of Green CJ in Leonard v Newell [1983] TASRp 11; [1983] Tas R 78 at 81, I should 'allow the motion only if I am satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent'."

1. Thus, the question for determination by Estcourt J was whether he was satisfied that, on no reasonable view of the evidence, could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the appellant. That is a question of fact, not of law: see Hanlon v McKay Investments Pty Ltd [2001] TASSC 37; (2001) 10 Tas R 247 per Evans J at [14]. Although he found that the appellant had not discharged the evidential burden as to the holding of an actual or positive mistaken belief, Estcourt J went on to consider the issue of the reasonableness of such belief. He concluded that the evidence was not sufficient to "engage the principle of honest and reasonable mistake and raised nothing the prosecution was required to negative": Lane v Hindrum [2013] TASSC 50 at [36]. It must follow that, whether or not the evidentiary burden had been discharged, his Honour's conclusion was that the learned magistrate could not have been satisfied, as a reasonable person, that the appellant's belief was on reasonable grounds. That conclusion is reflected in his Honour's comments about the application of the proviso under s110(2) of the Justices Act. The challenges to it do not reveal an error in point of law. This Court should not interfere. In any event, not only has no error of any nature in that conclusion been demonstrated, I respectfully agree with his Honour. It was the only conclusion he could reasonably have come to. The only finding open to the learned magistrate, as a reasonable person, was that the appellant's mistaken belief was, although honestly held, not on reasonable grounds. There are only two possible explanations for the mistake. The first is that the appellant did not measure the lobster at all. The second is that he measured the lobster incorrectly. Both possibilities are to be examined in the light of the legislative intention to impose strict controls to protect and preserve marine resources. Particular care is necessary to ensure accuracy and compliance. If the appellant's error was to rely on his estimation rather than measurement, then his belief cannot be said to be objectively reasonable, despite his experience. In this case, a belief based on an incorrect measurement could not be objectively reasonable either. The appellant had an accurate measuring device. He was experienced in measuring and responsible for his own measurement. He had ample opportunity to check his measurement, but said he only ever measured once. A two millimetre margin of error cannot be characterised as "reasonable" per se, when the regulations require accurate measurement.