21 Counsel for the Crown submitted that the magistrate had a discretion even after the close of the Crown case to allow the reception of this material. It was pointed out that a judge of this court has the same powers as a magistrate. In these circumstances it was contended that subject to any particular prejudice the justice of this case required the reception of the further evidence.

22 In Dorizzi the court did not consider the issue of the reception of further evidence. There was no suggestion that the prosecutor had overlooked attending to proof of formal matters through a misunderstanding.

23 In Dorizzi the appeal court was unable to make any assessment of the evidence that the Crown had proposed to call. Many witnesses were to be called. The appeal court was unable to reach any conclusion as to whether the Crown would make out a case to answer. In the present case the statements made by Mr Holder in the interview and the documents identified by the Crown would make out a case to answer against all defendants. The difficulty that confronted the appeal court in Dorizzi does not arise in the present case. This appeal is not a "thinly veiled" attempt to challenge an evidentiary ruling.

24 For reasons that appear later the Crown case was established against Mr Holder if the statements of Mr Holder to the fisheries officers were admitted into evidence. On that evidence Mr Holder had a case to answer. However the further evidence was necessary to establish formal matters concerning the status of the other defendants. As discussed later those documents should be received as further evidence.

25 The appeal is authorised by section 42. This court has jurisdiction to hear and determine the appeal.

26 Counsel for the Crown made an application to this Court to receive further evidence. It was not submitted that this evidence was strictly necessary, but out of an abundance of caution, the application was pressed. An affidavit in support of the application sworn by counsel for the crown at trial provided inter alia:

I was instructed to prosecute Dennis Mark Holder ("the first defendant"), Karen Louise Holder Pty Ltd ("the second defendant") and Karen Louise Holder ("the third defendant"). The defendants were charged with fishing in an aquatic reserve, contrary to section 48G(1) of the Fisheries Act, 1984. The defendants indicated that they would be pleading not guilty, and the matter was set down for trial on 10 March 2003.

Exhibited to this affidavit and marked as indicated are the following documents:

(a) Section 67 certificate indicating that the second defendant was the holder of a Blue Crab Fishery Licence, No K06 - "Exhibit FLL1";

(b) Copy of Blue Crab Fishery Licence No K06 - "Exhibit FLL2";

(c) Section 67 certificate indicating that the first defendant was a registered master by endorsement on licence K06 - "Exhibit FLL3";

(d) Company extract indicating that the third defendant was the sole director of the second defendant - "Exhibit FLL4"

(e) Copy of the gazettal dated 27 July 1989 by which the Blanche Harbour - Douglas Bank Aquatic Reserve was proclaimed - "Exhibit FLL5"

(f) Bundle of three section 67 certificates, one for each defendant, indicating that none of the defendants were the holder of a permit under section 48G - "Exhibit FLL6"

The documents comprising Exhibits FLL1-5 were provided to the defence well in advance of the trial as documents upon which the prosecution would rely. The bundle of documents comprising Exhibit FLL6 was provided to the defence of the morning of the trial as further documents upon which the prosecution would rely.

After some discussion, [the magistrate] decided that a voir dire would be held. Prior to the commencement of the voir dire, [the magistrate] invited a brief opening from me to provide some background to the matter. During the course of my opening submissions, I attempted to tender a number of documents. [Defence counsel] objected to this course. Subsequently, [the magistrate] indicated that it was not the appropriate time to tender them, and that they could be dealt with after the voir dire. Had I been permitted to tender documents as part of my opening, I would have tendered the documents in Exhibits FLL1-6, as outlined in [the paragraph] above.

Subsequently, [the magistrate] ruled that the interview was inadmissible. After that ruling, I tendered no further evidence as I thought it would be futile to continue with the case in the absence of the record of interview. At the time, I did not consider the potential significance of tendering the documents marked Exhibit FLL1-6 in relation to a possible appeal.

27 In CDJ v VAJ[7] the High Court addressed the approach to be taken to the reception of further evidence on appeal. McHugh, Gummow and Callinan JJ considered that the terms of a statutory right to appeal determined the nature of the appeal and the right, if any, to adduce further evidence. The power, if any, to receive further evidence was regulated by the statutory provision and not by common law doctrines. The statutory power under consideration was in relevantly similar terms to the South Australian rule. Their Honours observed:

One consideration in construing s 93A(2) [of the Family Law Act (Cth)] is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

Another consideration is the effect of the principle that a provision conferring judicial power upon a court should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by the legislature. That is so whether the limitation derives from the common law principles governing the grant of new trials upon proof of fresh evidence or from some other source. ...

28 The discretion conferred by Rule 97.17 to receive further evidence on appeal is not expressed to be limited in any way. The sub-rule does not require that "special grounds" be shown before the evidence can be adduced. Section 42 refers to the rehearing of witnesses or the receiving of "fresh evidence" rather than further evidence. Relevantly the power conferred by section 42 is not constrained. McHugh, Gummow and Callinan JJ continued:

Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by he trial judge and put that person to the expense, inconvenience and worry of a new trial.

No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration.

The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.

29 Counsel for the defendants submitted that this court did not have the power to receive further evidence if the purpose of the tender was to overcome a deficiency of proof at trial. This submission should be rejected. The discretion to receive further evidence is wide. The overriding consideration is the interests of justice. There is no basis identified for fettering the discretion in the manner suggested. When an appellate court comes to exercise its discretion to admit or reject evidence, the fact that the tender is intended to overcome a deficiency of proof will be a relevant matter for the court to weigh with all other relevant considerations in the exercise of its discretion.

30 In the present case, there was no challenge to the contents of the affidavit filed by the Crown in support of the application to tender the proposed further evidence. It was accepted that trial counsel had made a mistake and overlooked the tender of the proposed further evidence. It was not suggested that any dispute would arise in regard to the facts the subject of the tender, or the conclusions that could be drawn from the documentation. Apart from the complaint about overcoming a deficiency of proof, no other prejudice could be identified by counsel for the defendants.

31 Accepting that the tender of the documents was necessary to overcome a deficiency of proof, strong considerations for the admission of the documents arise. The defence were on notice of the proposed tender. The prosecution made a "slip" through a misunderstanding and oversight. To refuse the application to receive the documents as further evidence would mean that a misunderstanding and oversight would result in a situation where the case was resolved without regard to relevant information. In the circumstances the documents should be received on appeal as further evidence. Such a course in this case accords with the interest of justice.

32 A case to answer on the complaint against Mr Holder would be established if the evidence of the statements made by Mr Holder in the interview were admitted. He made relevant admissions as to the registration of the boat, the particulars of the licence and his status. There was no need to tender the extract from the Gazette. Reference could be made to the Gazette without the need for formal tender. The case to answer against the other defendants required tender of the further documents. Counsel for the Crown argued that Mr Holder's statements, were admissible against the other defendants as a result of principles of agency. On balance this submission should be rejected. There was no sufficient evidence of agency or other authority.

33 On the voir dire the adequacy of the caution was challenged. Counsel for the defendants submitted that the cross-examination of Mr Hanson established that Mr Holder was suspected of having committed an offence against section 48(G)(1)(b) of the Fisheries Act by taking crab in an aquatic reserve. It was said that in the circumstances a caution was required. It was accepted that a caution had been given but was it said to be inadequate. Mr Holder should have been told that he was suspected of the particular offence. He should have been given this information prior to the commencement of the interview.

34 The magistrate identified areas of concern about the adequacy of information being provided by the fisheries officers to Mr Holder:

At 2.30 Mr Hanson commenced his interview with the defendant by saying as follows, 'Dennis I am currently conducting an investigation into a report to Fish Watch in relation to crab pots set in an Aquatic Reserve and would therefore like to ask you some formal questions in relation to your possible involvement. Do you understand.' The answer came back 'Yep'. There are some questions of the defendant's age, date of birth and address and then the defendant is cautioned. It is not until the interview is some distance into its continuation that the officer said 'As stated earlier Fish Watch received several complaints about pots being set at the Douglas Banks beacon. Did you have any pots set in this area' and the defendant answered 'Yes'. It is the naming of the area which removes any shadow of a doubt whatsoever that to fish for crabs in this area is totally prohibited and at no stage, even up to this stage, had the defendant been informed that he may be facing charges against breaches of the Fisheries Act and/or its regulations or associated legislation. I say associated legislation because there are also schemes of management blue crab fisheries and other Aquatic reserve regulations as well.

I believe this was such a case where the officer should have added a simple sentence in his initial statement and indeed it would have been preferable even prior to this. If he had said this 'I would like to ask some formal questions in relation to your possible involvement' and added the following sentence, 'You must understand that your involvement may result in you being charged with offences under the Fisheries legislation', and followed by a caution, then the result in the defendant choosing to answer may very well have been different. Alas, we won't know that because that additional information was not given to the defendant. It is this lack of informing this defendant that he may be facing charges for breaches of Fisheries legislation which leads me to the view that in all of the circumstances the interview against the defendant was unfair and in exercising my discretion I should therefore not admit that evidence.

35 The general approach of an appellate court to overturning discretionary factual findings is well settled. In House v The King[8] the High Court observed:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use of has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.

36 The magistrate made the following observations concerning Mr Hanson's credibility and reliability:

Fisheries officer Hanson has been a Fisheries officer for some three years. He gave evidence in a very frank and forthright manner and, although there were times he clearly had difficulty in understanding some of the questions, I put a lot of his misunderstanding down to his nerves and not to any deliberate attempt to mislead the court. In fact he was so frank that he said that the reason why he had not specifically set about informing the defendant of possible potential charges that he believed it appropriate to be friendly to a suspect so as to encourage that suspect to answer questions. The officer is not to be criticized, but to be friendly with a view to encourage a suspect to speak with him, again there is no criticism of that. But if a person in authority, whether he or she be a police officer, or in this instance a Fisheries officer, is asking questions of a potential defendant, whom he or she believes, and believes on reasonable grounds tht an offence had in fact been committed, that he should issue a caution, which this officer did. But the authorities are clear that in many circumstances the issuing of a mere caution does no solve any fairness towards defendant.

These observations of the magistrate have not been challenged on appeal. The magistrate accepted Mr Hanson's evidence. The question was whether an adequate caution had been given. This court is in a position to consider the record of interview and draw inferences and come to its own conclusions. In deciding what are the proper inferences to be drawn respect and weight are to be given to the conclusions of the trial magistrate.

37 On appeal there was no dispute between the parties as to the relevant law concerning cautions. In R v Szach[9] King CJ observed:

In making their inquiries the police were entitled and, indeed, would be expected, to employ all legitimate investigatory skills. These include the skills relevant to conducting inquiries by means of putting questions in a way likely to elicit the truth. Very often a skilful inquiry will involve the non-disclosure of information known to the police. The police are not obliged to disseminate information in their possession. Frequently the prospects of the success of their inquiries would be enhanced by nondisclosure and damaged by disclosure. The truth may emerge when a suspect under questioning imparts information, already known to but not disclosed by the police, which could only be known to the suspect if he were the culprit.

Such legitimate investigatory tactics are not to be confused with falsehood or dishonest trickery. Honesty is to be demanded of the police and other law enforcement agencies at all times. Falsehood, express or implied, and dishonest trickery must always bring the condemnation of the courts however worthy the ends sought to be achieved by such methods. The end can never justify such means, and the courts must be ever ready to use the discretion to exclude evidence obtained by such means, even if technically admissible, in order to preserve the Stream of justice from pollution and protect the citizen from the possibility of oppression. Devices and stratagems have a part to play in police investigation, but they must not be allowed to degenerate into dishonesty in any of its forms.

A stage may come, moreover, in the course of police inquiries when some degree of disclosure is necessary. If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ. from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his right to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position. Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated. These considerations led White J. to exclude confessions in Fieldhouse (1977) 17 SASR 92 and Hart (1977) 17 SASR 100. I think that fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution.

38 Counsel for the Crown submitted that the magistrate had erred in his approach to resolving the issue on the voir dire. It was said that the magistrate had overlooked the content of the second stage of the interview which evidenced a clear understanding on the part of Mr Holder that he was under investigation for taking crab from an aquatic reserve. This was the substance and gravamen of the possible charge that he faced. Mr Holder was made aware of these matters from the outset. It was said that careful analysis of the evidence on the voir dire allowed this conclusion to be safely drawn.

39 It was further submitted that the magistrate had overlooked or failed to give sufficient weight to a statement made by Mr Holder towards the end of the interview when he was asked whether he wished to add anything further. Mr Holder then stated:

[the Fisheries officers] came aboard the vessel [today]. I became aware of an aquatic reserve known as the Blanche Harbour/Douglas Bank Aquatic Reserve. When I became fully aware of that I cooperated fully in the best possible manner I could.

It was said that this answer demonstrated that Mr Holder had known from the outset of the specific nature of the investigation.

40 The Crown submitted that there were other aspects of the record of interview that clearly demonstrated that Mr Holder was aware of the allegations that he was facing. Reference was made to the production of documents that Mr Holder apparently had on hand in anticipation. Another example was Mr Holder's reference in the record of interview of the approach of the vessel from the Department of Marine and Harbours.

41 Counsel for the Crown also complained of a finding made by the magistrate about Mr Holder's state of mind. The magistrate concluded:

Those answers highlight that [Mr Holder] to my mind had no idea whatsoever that he was facing potential charges under the Fisheries legislation.

It was submitted that there was no basis for this finding in the record of interview. It was pointed out that Mr Holder had to make out appropriate grounds for excluding the record of interview. It was said that in the circumstances as Mr Holder did not give evidence the court was left to draw conclusions as best it could from the record of interview. It was contended that any fair analysis of the record of interview did not support the conclusion drawn by the magistrate.

42 Counsel for the defendant supported the Magistrate's conclusion. It was said that his findings were open on the evidence and within his discretion. It was contended that the fisheries officer had arrived with the intention of charging Mr Holder with an offence. In those circumstances the caution was inadequate.

43 The interview can be separated into three stages. At the outset there was a general conversation about the Peter Crombie and fishing. This was accepted to be irrelevant. Then followed a discussion that was not recorded. However, later that day Mr Hanson made a note of the substance of this part of the interview whilst the facts were fresh in his memory. There was a third stage. The commencement of the third stage is identified as the point at which Mr Hanson commenced taking handwritten notes of each question and answer.

44 Mr Hanson's written statement tendered on the voir dire contains a reference to the opening remarks, the substance of the conversation at the second stage and then a transcription of the continued interview in question and answer format.

45 When cross-examined Mr Hanson was not challenged in any substantive way about the accuracy of his part. The written statement setting out the second and third stages of the interview appeared for the purposes of the voir dire to be reliable and accurate.

46 At the commencement of the second stage of the interview Mr Holder was informed that "Fishwatch" had received several calls concerning the location of pots set in Upper Spencer Gulf and that those pots had been identified as belonging to Mr Holder. He was then told that the pots had been found in a closed area around the Douglas Bank area. Mr Hanson then informed Mr Holder that he wished to formally record Mr Holder's side of the story word for word. Mr Holder acknowledged that he understood what Mr Hanson intended to do. Mr Hanson subsequently commenced the contemporaneous recording of the questions and answers. At this point Mr Hanson informed Mr Holder that he was conducting an investigation into a report received by "Fishwatch" in relation to crab pots set in an aquatic reserve and that he wished to ask Mr Holder some formal questions in relation to his possible involvement.

47 It was the Crown's submission that Mr Holder as a commercial licensed fisherman had been sufficiently put on notice that he was being investigated concerning his possible involvement in fishing for blue crab in a prohibited area.

48 Counsel for the Crown submitted that later aspects of the interview evidenced Mr Holder's state of mind at the outset of the interview. During the course of the interview Mr Holder described that on 16 September 2002 a marine safety vessel came alongside whilst Mr Holder was fishing in the Douglas Bank area and that the vessel pulled alongside each float. Mr Holder then recounted his reaction to his crew member at the time that: "Compliance will turn up here". Mr Holder then recounted how as a result of earlier conversations he was sure "Compliance would come and rattle my chain within a fortnight."

49 Mr Holder then informed Mr Hanson that following the visit by the marine safety vessel he had spoken with the Department to remove any doubt from his mind that he was fishing in a legal manner. He then added: "Consequently I have been waiting for you gentlemen to contact me to discuss it further."

50 This interchange allows the conclusion to be drawn that Mr Holder was aware that an issue would arise as to whether he had complied with his obligations to fish legally on 15 and 16 September 2001. Mr Holder was aware that he had been observed and expected that there would be follow up discussion. When the fisheries inspectors arrived on 26 September 2001 Mr Holder was prepared and in a position to put "his side of the story". During the interview he produced documents and refer to matters that he said supported his position. Later in interview he was asked the question: "Would you like to add anything further to this?" The substance of Mr Holder's answer was that when the inspectors came on board on the day of interview Mr Holder became aware that they were there to speak about the Blanche Harbour-Douglas Bank Aquatic Reserve and once he knew that was the source of their enquiry he cooperated fully in the best possible manner that he could.

51 These matters establish that at the commencement of the interview Mr Holder was expecting the officers to discuss the question of whether he was fishing legally at the time he was setting crab pots in the Blanche Harbour-Douglas Bank Aquatic Reserve. He was prepared and ready to answer questions about the specific incident. He knew that it was alleged that he had been involved in illegal fishing. He was ready with his defence. He intended to use the opportunity of the interview to present his side of the story in the most cooperative way he could.

52 The magistrate failed to have proper regard to all of the evidence. Mr Holder was aware of the specific nature of the offences under enquiry and that he was being investigated about illegal fishing. He was aware of the time, the place and the circumstances of the alleged conduct. He was expecting the investigators to arrive. He had prepared himself to put his side of the story. He sought to demonstrate that he was fishing legally. The magistrate was in error in concluding that Mr Holder had no idea whatsoever that he was facing potential charges under the Fisheries legislation. Such a finding was not supported by the evidence.

53 In this case the caution that was given was adequate. No unfairness to Mr Holder arose. The magistrate erred in excluding the record of interview. The record of interview was admissible.[10] As earlier observed the further evidence proposed to be led by the Crown should be received.

54 Having regard to the contents of the record of interview Mr Holder had a case to answer. The charge against him should not have been dismissed. Karen Louise Pty Ltd and Ms Holder also had a case to answer. The order of the magistrate dismissing the complaint against the three defendants is set aside. The matter is remitted for further hearing.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENTS

3 [2002] SASC 356; (2002) 84 SASR 416

5 [2002] SASC 356; (2002) 84 SASR 416 at 419

6 (2002) 83 SASR 416 at 420-424

8 (1936) 55 CLR 499

9 (1980) 23 SASR 504 at 580

10 Counsel for the defendants foreshadowed the possibility of other unspecified challenges to the admissibility of the interview or specific parts of the interview. If other legitimate complaints are identified the magistrate will be able to address these matters on the further hearing.

[3] [2002] SASC 356; (2002) 84 SASR 416

[5] [2002] SASC 356; (2002) 84 SASR 416 at 419

[6] (2002) 83 SASR 416 at 420-424

[8] (1936) 55 CLR 499

[9] (1980) 23 SASR 504 at 580

[10] Counsel for the defendants foreshadowed the possibility of other unspecified challenges to the admissibility of the interview or specific parts of the interview. If other legitimate complaints are identified the magistrate will be able to address these matters on the further hearing.