Magistrates - Appeal and review - Tasmania - Motion to review - Other matters - Error of law and or error relating to facts.

Justices Act 1959 (Tas), ss107(1), 110.

Living Marine Resources Management Act 1995 (Tas).

Fisheries (Rock Lobster) Rules 2011 (Tas), r17.

Phillips v Arnold [2009] TASSC 43; Von Lieven v Stewart (1990) 21 NSWLR 52; State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721; G J Coles & Coy Limited v Goldsworthy [1985] WAR 183; Adelaide Bay Seafoods Pty Ltd v Chief Magistrate A G Shott [2005] TASSC 30, considered.

Primary industry - Fish - Regulation - Offences - Taking or possessing under prescribed weight or size - Taking or possessing - Honest and reasonable belief.

Living Marine Resources Management Act 1995 (Tas).

Fisheries (Rock Lobster) Rules 2011 (Tas), r17.

Phillips v Arnold [2009] TASSC 43; Von Lieven v Stewart (1990) 21 NSWLR 52; State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721; G J Coles & Coy Limited v Goldsworthy [1985] WAR 183; Adelaide Bay Seafoods Pty Ltd v Chief Magistrate A G Shott [2005] TASSC 30, considered.

Judgment Number: [2013] TASSC 50

SERGEANT RICHARD ADAM LANE v MARCUS JOHN HINDRUM

1 The applicant has moved pursuant to the Justices Act 1959, s107(1), to review an order of Magistrate G Hay dismissing a complaint against the respondent charging him with offences of taking an undersized male rock lobster and possessing an undersized male rock lobster, contrary to the Fisheries (Rock Lobster) Rules 2011, r17(a) made under the Living Marine Resources Management Act 1995.

2 The respondent is a 73 year old commercial rock lobster fisherman. Between 9 August 2012 and 17 August 2012, he undertook a fishing trip in waters near Maria Island off the east coast of Tasmania, singlehandedly operating his vessel, the Silver Cloud. During this trip he set his 24 licensed rock lobster pots each day, and over the entirety of the period he caught and retained a total of 86 rock lobsters, an average catch of approximately 10 rock lobsters per day.

3 The respondent alone was responsible for baiting, setting, pulling, re-baiting and re-setting the pots during the trip, and solely responsible for deciding whether or not individual rock lobsters caught by him were retained, or thrown back overboard, having regard to the minimum legal size requirements prescribed by the Fisheries (Rock Lobster) Rules, namely, 110mm for male fish and 105mm for females.

4 In some cases, being a very experienced rock lobster fisherman, the respondent would make the decision as to legal size on a visual assessment alone. In other cases he would undertake further examination which involved physically holding the lobster and placing a brass measuring device along the carapace of the fish in order to measure its length.

5 The respondent's evidence as to the method by which he measured all of the 86 lobsters, was that he did it in the way he had done for over 60 years, that is to say, first by eye and then if the lobster was not obviously oversize to the eye, but yet large enough to be "worth the measure", then by physically applying the measure to the fish.

6 On 17 August 2012, the Silver Cloud was inspected by marine police officers shortly after it had delivered the bulk of the lobsters to a buyer and had berthed at Triabunna. Of the six fish that thereafter remained in the boat's well, and which were measured by police, one male fish was found to measure 108mm, 2mm under the legal size.

7 The learned magistrate's reasons for dismissing the complaint were as follows:

"These reasons will be brief. This is a summary matter that's before me and time has not permitted me to be other than brief and in summary form. The Defendant is charged with taking one undersized male rock lobster and also with possessing one undersized male rock lobster contrary to the provisions of r17 of the Fisheries (Rock Lobster) Rules of 2011. The Defendant does not dispute that he took the lobster or that he had it in his possession between the 9th of August 2012 and the 17th of August 2012. He does not dispute the lobster was measured at one hundred and eight millimetres - two millimetres shorter than the minimum size limit permitted by r17. There is little dispute about the facts in this case and I do not pause to repeat them here. I have the evidence of two police officers and well as the evidence of the Defendant. I accept the evidence of the two police officers and prefer their evidence where it is in conflict with any evidence of the Defendant as to events surrounding the two charges. I make that preference as the recall of the two police officers was consistent and clear whereas the recall by Mr Hindrum - he readily conceded that his memory of particular events was not very good. I found that all three witnesses gave their evidence in an honest and bone fide way. It is Mr Hindrum's evidence that over the relevant period of time he took and possessed in total some eighty six lobster and one of them was subsequently found by the police officers to be that two millimetres undersized. It is his evidence that he used a measuring device which seems to be acceptable and standard within the fishing industry. It's his evidence that he measured all the fish in accordance with his usual practice and he believed at all relevant times that all fish were at or above one hundred and ten millimetres. He concedes that he may well have made a mistake on the one fish and that - and that given that there was only one fish in eighty six marginally undersized that his mistake is reasonable in all of the circumstances wherein he is fishing in an unstable platform or on an unstable platform dealing with live fish at the relevant time. Whilst he did not give precise evidence about it I infer that he was really saying that the undersized measurement of two millimetres was minimal and excusable and reasonable in all of the circumstances. I find that his measuring device was accurate. I find that the relevant fish was a hundred and eight millimetres. 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 - I 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." (Underlining added.)

8 The notice to review sets out five grounds on which it is asserted that the learned magistrate erred. They are as follows:

"1. The Learned Magistrate erred in fact and/or in law in directing himself that the prosecution was required to prove that a margin of measurement error of 2 millimetres in respect of the rock lobster, the subject of the charges was on the evidence unreasonable in all the circumstances.

1. The Learned Magistrate erred in fact and/or in law in finding that margin of measurement error of 2 millimetres in respect of the rock lobster, the subject of the charges was on the evidence not unreasonable in all the circumstances.
2. The Learned Magistrate erred in fact and/or in law in directing himself that the reasonableness of the error in measurement made by the defendant in respect of the rock lobster subject of the charges could give rise to a reasonable belief on the part of the defendant that the rock lobster did not have a carapace shorter than 110 millimetres.
3. The Learned Magistrate erred in fact and/or in law in finding that the defendant held an honest and reasonable belief that the rock lobster, the subject of the charges did not have a carapace shorter than 110 millimetres.
4. The Learned Magistrate erred in fact and/or in law in dismissing the complaint on the basis that the prosecution had failed to negative the existence of an honest and reasonable belief held by the defendant, [that] the rock lobster, the subject of the charges did not have a carapace shorter than 110 millimetres."

9 Crawford CJ set out the relevant principles to be applied on a review such as this in Phillips v Arnold [2009] TASSC 43 at [46] as follows:

"46 Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."

10 Counsel for the applicant, Mr Virs, argued the five grounds of the notice to review, in effect as one, although he advanced two principal contentions, the second of which was put as further to the first, or in the alternative.

11 Counsel's first argument was 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. He relied for those propositions on the authority of Von Lieven v Stewart (1990) 21 NSWLR 52 and State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721.

12 In Von Lieven v Stewart Handley JA, with whom Mahoney JA agreed, said at 66 - 67:

It is beyond argument that a reasonable but mistaken belief can only furnish an excuse where the mistake is one of fact: see He Kaw Teh v The Queen (at 532-533, 550-551, 572-574, 576 and 593). Otherwise the general principle applies that ignorance of the law is no excuse: see R v Turnbull [1943] NSWStRp 56; (1943) 44 SR (NSW) 108 at 109; 61WN (NSW) 70 at 71 per Jordan CJ. Accordingly a belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse in cases such as this. Nor can inadvertence excuse either. The only excuse is the existence of an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent: see Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 at 541 and He Kaw Teh v The Queen (at 575)." (Underlining added.)

13 In State Rail Authority of NSW v Hunter Water Board, Gleeson CJ, with whom Cripps JA and Slattery AJ agreed, said 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." (Underlining added.)

14 Counsel for the applicant submitted that the high water mark of the respondent's attempts to engage or enliven this exculpatory principle was reached in the following exchange in his evidence-in-chief:

"Q. What was your belief when you measured those fish and kept them on your boat?

A. That they were all legal size. Your Honour I have a system - we all do - most of us - if you have to measure a fish twice you throw it away."

15 Counsel submitted that in order to determine whether the evidential burden resting on the respondent was discharged, the learned magistrate was obliged to not only reach a conclusion as to whether the claimed belief was honestly held, but also to evaluate its reasonableness having regard to relevant facts and circumstances proved in evidence, and any inferences available from that evidence. With regard to the evidence, he submitted that (and the transcript of the hearing before the learned magistrate confirms):

• The respondent stated that he could not recall the particular rock lobster in question, or when he took it or when he measured it.
• The respondent agreed that the physical task of measuring a rock lobster was not difficult and is generally completed in a matter of seconds, and that in cases of any doubt a fish could be put aside for re-checking (although this was not a practice adopted by the respondent).
• The respondent acknowledged that there was "no problem" with his measuring device, and that it was accurate. (However counsel noted there was no evidence given by the respondent as to the method he adopted in using that device to determine the carapace length of a rock lobster).
• Whilst there was reference in general terms to the influence of adverse weather on fishing activities and the propensity for rock lobsters to be "flipping about" when they are removed from a pot, the respondent had no recollection of prevailing weather conditions during the fishing trip and, in any event, he did not (and could not, given his evidence that he did not recall taking the fish in question), point to these as factors affecting his opportunity or ability to accurately measure the fish in question.
• The respondent agreed that the only way to ensure that he did not take an undersized rock lobster was to accurately measure the fish using a measuring device. However, there was no evidence that the respondent used the measuring device on the rock lobster in question. Indeed, the respondent's evidence was that he did not measure every fish he took, and that it was not his practice to re-check retained fish.
• The respondent conceded that any belief held by him concerning the size of the rock lobster in question was based only on his "general practice". When asked to explain his possession of the undersized fish in question, the respondent replied, "Well I can't explain. I don't know. It shouldn't have done (sic)."

16 Counsel for the applicant submitted that, on the evidence, the only explanation for the respondent being in possession of the undersized rock lobster was that after he took the fish he either made an erroneous assessment as to its carapace length without using the measuring device, or that he incorrectly used the measuring device in respect of that particular fish (to which I add for completeness only; or that he erroneously identified it as a female lobster).

17 Counsel submitted that the respondent had no recall of the actual circumstances under which the undersized rock lobster in question was taken by him and retained in his possession, and that there was no evidence that he applied his measuring device on the particular fish at all, or, that having done so, the measurement was properly undertaken. The respondent, he said, was, in evidence, unable to offer any explanation for his possession of the undersized fish, and in those circumstances the claimed belief could amount to no more than a generalised assumption or expectation and, in the absence of any specific recollection, a belief that the "general practice" he adopted with respect to the taking and subsequent possession of that fish, whatever that might have actually involved, would not produce the result that he took and retained a rock lobster having a carapace shorter than 110 mm.

18 Such an assumption, counsel submitted, fell well short of raising any reasonably held "actual or positive", or sufficiently specific, belief that the individual rock lobster in question did not have a carapace shorter than 110mm and, accordingly, the evidential burden borne by the respondent in this regard was not discharged and the learned magistrate erred in finding that it was.

19 Counsel for the applicant's second principal argument, put in the alternative, was that on the evidence the respondent's mistake was unreasonable, and that the learned magistrate erred in ultimately concluding that the prosecution had failed to negative the respondent's relevant belief beyond reasonable doubt. Counsel submitted that central to the learned magistrate's conclusion in this regard was his characterisation of the respondent's belief as being that "the undersized measurement of two millimetres was minimal and excusable and reasonable in all the circumstances", and his holding that "a margin of two millimetres must be ruled out by the prosecution evidence as being unreasonable in all of the circumstances".

20 Counsel for the respondent, Mr O'Rafferty, pointed out, quite correctly, that it is not open to a judge conducting a review under the Justices Act, s107, to weigh the evidence and reach his or her own conclusions (Nilsson v McDonald [2009] TASSC 66 at [59], Blow J (as he then was) Crawford CJ agreeing).

21 Counsel drew attention in his written submissions to evidence relevant to the fish, the subject of the complaint, and to the respondent's measuring device as follows:

MR O'RAFFERTY....They're quite - they're alive. Quite alive. Quite lively having just come out of the water and they're flipping about in there and you sort of have to catch them and - and estimate whether they're small or large or big enough or - and if they're somewhere about the measure put the measure on them which can be a little bit difficult when they're flipping about and a bit of roll on. They could - sort of - take some holding down sometimes. They're then measured.

MR O'RAFFERTY:...What was your belief when you measured those fish and kept them on your boat?.... That they were all legal size. Your Honour I have a system - we all do - most of us - if you have to measure a fish twice you throw it away.

MR O'RAFFERTY.... All right. Do you - do you remember - do you remember these fish being seized by the officers on the 17th August?...Yes I do.

MR O'RAFFERTY....Now were any of those fish - whilst you were fishing - do you remember any of those fish? In your mind were they undersized?... No. No. Certainly not.

MR O'RAFFERTY:...Did you use that measure for the period - the 9th of August 2012 to the 17th of August 2012?... Yes I would've done. Certainly. Yes."

22 Counsel then submitted that the respondent's evidence was of his actual, positive but mistaken belief, having used his accurate measuring device, of the fact that the fish was not undersized. He submitted that there was no evidence of mere inadvertence on the part of the respondent, and that indeed, his evidence was that he used the measuring device correctly and was not careless, and that he was a very experienced commercial rock lobster fisherman who had been measuring crayfish for about 60 years.

23 Counsel for the respondent pointed out, in addition, that the learned magistrate had evidence that the weather during the respondent's trip was not fair, that the respondent had caught 86 fish, of which only one was undersized, and that his Honour had observed that the gap of two millimetres was of "a minimal degree".

24 Counsel contended that the learned magistrate was entitled to afford the weight he did to the evidence as to the weather conditions, the liveliness of the fish, the instability of the platform upon which it was measured, and the "minimal" degree of the error of measurement, and to determine that the mistaken belief of the respondent was objectively reasonable - a matter over which reasonable minds may differ.

25 Counsel submitted that in view of all of that, the respondent had discharged his evidential burden of raising the defence of honest and reasonable mistake of fact, and that the learned magistrate did not err in stating that "a margin of two millimetres error must be ruled out by prosecution evidence as being unreasonable in all of the circumstances".

26 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.

27 The respondent gave the following evidence, in evidence in chief and under cross-examination, which, in my view, must be considered, in the context of all of his evidence, in determining whether the learned magistrate, as a reasonable person, could have come to the necessary conclusion inherent in his decision, namely, that the respondent had an actual or positive belief based on his appreciation of primary objective fact that was capable of sustaining belief:

"MR O'RAFFERTY: (Resuming) All right. Now you're pulling your pots up. Just describe how you measure these fish........The pots comes up. I pull it over the side and I take it up to an area where I sit the pot on deck and clear it. Take the old bait out. Take the fish out.

Right. Describe - describe what the fish is doing at this point when you're taking it out.........What?

The fish?.........Oh they're flipping about in the pots. Yeah.

All right........They're quite - they're alive. Quite alive. Quite lively having just come out of the water and they're flipping about in there and you sort of have to catch them and - and estimate whether they're small or large or big enough or - and if they're somewhere about the measure put the measure on them which can be a little bit difficult when they're flipping about and a bit of roll on. They could - sort of - take some holding down sometimes. They're then measured. If they don't go the measure they go over the side and if they measure they go in the bin so - ...

MS MUNNINGS: (Resuming) Now you've heard the evidence today from the two Senior Constables and you've agreed that one of those fish was undersized but you can't actually recall, can you, when you took that particular fish within this fishing trip?.........No of course I can't.

And you also can't recall when you actually measured it?........No.

So you can't actually positively say 'I believed that fish was the right size' because you can't recall?........Well no, I can't recall that particular fish because I don't number or brand them your Honour so -

WITNESS: As far as I was concerned that fish was certainly size.

MS MUNNINGS: (Resuming) You can't actually recall that specific fish?.......No of course I can't.

So any belief that you have would be based on your - just your general practice on how you go about measuring fish?........Well yes it would be because as I say I don't - I don't brand each individual fish...

And like other commercial fishermen - with your experience you come to - you'd agree that you can actually come to work out what a fish - whether a fish is size or not simply based on what it looks like?..........You can get pretty close to it your Honour. Yes.

Now your process is that you bring in your rock lobster pots over the side of your vessel and you place them on the deck and you remove each of the fish by hand?........Yes.

And your evidence was that you estimate at that point whether or not a fish is sized or not?..........Well yes you estim - you have a look at it and you say whether it - think to yourself now is that worth measuring or not and if you think it's not well it goes over the size (sic) and if you pop the measure on it and it still doesn't come to scratch you throw it over the side.

HIS HONOUR: When you put this measure on it I would've thought what you do is you pull the pot - take the fish out have a look and - and use your eye and think well yep that's size - pop it in the bin or you look at it and think no that's way under - that's just a baby - toss it over the side - clear the pop - re-bait it - drop the pot back over again -

WITNESS: Store it on deck for the time being your Honour.

HIS HONOUR: Okay. So when do you run the brass measure over it? When - in all of that sequence - usually?

WITNESS: As - when the fish - you first grab hold of the fish and you pull it out of the pot.

HIS HONOUR: Okay. So when do you run the brass measure over it? When - in all of that sequence - usually?

WITNESS: As - when the fish - you first grab hold of the fish and you pull it out of the pot.

HIS HONOUR: Oh okay. So you measure it - out of the pot - measure it - into the bin - from the bin into the well. Is that the sequence?

MS MUNNINGS: (Resuming) But you might not necessarily use the measuring device at all because your evidence was that you - you look at a fish and you think if this is worth measuring I'll measure it otherwise it will - you'll toss it over or you put it in your - in your fish bin?.........Yes. Oh well it's obviously - if it's obviously oversized and fairly large it goes in without measuring. If it's obviously small and undersize it goes straight over the side.

But your evidence is that you don't necessary measure each of the fish that you take?..........Oh not every fish. No your Honour." (Underlining added.)

28 For the reasons that follow, I am unable to accept the submission made by counsel for the respondent, that the learned magistrate was "entitled to afford the weight he did" to the evidence as to the weather conditions, the liveliness of the fish, the instability of the platform upon which it was measured, and the "minimal" degree of the error of measurement, and to determine that the mistaken belief of the respondent was objectively reasonable. Equally, I am unable to accept the submission that the respondent "had discharged his evidential burden of raising the defence of honest and reasonable mistake of fact", and that the learned magistrate did not err in stating that "a margin of two millimetres error must be ruled out by prosecution evidence as being unreasonable in all of the circumstances".

29 In the absence of any specific recollection on the part of the respondent as to measuring the particular lobster, and given his evidence that he did not use the measure on every lobster, the search by the learned magistrate for a primary objective fact that might have been appreciated by the respondent must have focussed on the respondent's evidence that he measured all of the rock lobsters himself in the way he had done for over 60 years, that is to say first by eye, and if not obviously oversized to the eye, but yet large enough to be "worth the measure", then by physically using the measure. Or, to use the respondent's precise words, he would take the lobster out of the pot and "estimate whether they're small or large or big enough or - and if they're somewhere about the measure put the measure on them".

30 Such a focus could, in my view, reveal nothing beyond a general understanding or assumption on the part of the respondent that because he had adopted his long standing practice, everything was in order and none of the lobsters so assessed would be undersized. In the result, of course, that understanding or assumption on the part of the respondent was misplaced in the case of at least one undersized fish, however he in fact assessed its size.

31 The authorities relied upon by counsel for the applicant, namely Von Lieven v Stewart (supra) and State Rail Authority of NSW v Hunter Water Board (supra), make it clear that such an understanding or assumption is not enough to engage the exculpatory principle.

32 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.

33 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.

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] 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.

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, as opposed to a mere general understanding or assumption. The learned magistrate erred in law in holding otherwise. In my opinion, applying the relevant legal principles to the facts as he found them, his Honour could not, as a reasonable person, have come to the conclusion to which he did.

36 As to the alternative submission advanced by counsel for the applicant, although strictly speaking unnecessary for me to decide, I have no hesitation in accepting that a two millimetre margin of error, of itself, cannot be relevantly characterised as "minimal" or "excusable" or "reasonable" in the context of regulations governing size limits which are required to be accurately ascertained. If that was what the respondent was really advancing in his defence, as the learned magistrate inferred it was, then his Honour should, with respect, have rejected the contention as having no relevance on its own. Without more, such considerations did not engage the principle of honest and reasonable mistake, and raised nothing that the prosecution was required to negative.

37 In my opinion the learned magistrate could not, as a reasonable person, have come to the conclusion to which he did by so reasoning, and he erred in law in taking such considerations into account in the way in which he did. What he did, in my view, was to confuse the reasonableness of the error so obviously made by the respondent, with the reasonableness of the legally required belief. It is the reasonableness of the honest but mistaken belief in a fact or facts that engages the exculpatory principle, not the reasonableness per se of the act or omission giving rise to the offence.

38 The error that was made by the respondent may have been, in common parlance, reasonable in the sense of being understandable, or even forgivable, given that such a tiny a margin of mis-measurement was involved, but that is not to the point. The question was whether the respondent had an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent. The evidence fell well short of establishing such a belief.

39 The learned magistrate almost appears to have approached the case as though it was one involving the maxim "the law does not concern itself with trifles". It was not of course, and such an approach would undermine the purpose and object of the rules aimed at the enforcement of strict legal size limits in order to protect the State's rock lobster resource.

40 The position might have been different if the respondent had given evidence that he actually physically used the measure on, not just some, or even many, but on every one of, the lobsters he had caught, and that he positively believed that the measure was used correctly and showed every fish measured using it to be of legal size. In such circumstances the exculpatory principle would have begun to be enlivened, and the very small nature of an error of two millimetres in the case of, potentially only one out of some 86 lobsters, would have been a relevant consideration in determining whether the respondent's actual or positively held, honest but mistaken belief in specific facts, also met the additional necessary precondition that such belief was reasonably held.

41 In my judgment the motion succeeds on all five grounds set out in the notice to review.

42 Counsel for the respondent submitted that in the event that the motion to review was decided in favour of the applicant, then no substantial miscarriage of justice would arise, and that accordingly, the motion should be dismissed pursuant to s110(2)(ab) of the Justices Act.

43 The question whether a substantial miscarriage of justice has occurred may be answered in accordance with the formulation of Brennan J (as he then was) and Dawson and Toohey JJ in Wilde v R [1988] HCA 6; (1988) 164 CLR 365 where his Honour said at 371 - 372 :

"Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524; Reg v Storey (supra); Gallagher v The Queen (1986) [1986] HCA 26; 160 CLR 392 at 412-413."

44 In my opinion, it cannot be said that, had the learned magistrate not erred in the manner in which I have found that he did, he would, acting reasonably on the evidence, inevitably have dismissed the complaint. In fact the opposite must be true in my view.

45 I order that the order reviewed be set aside and I will hear counsel as to any additional orders sought to be made pursuant to the Justices Act, s110.