The applicant was convicted on the following matters of complaint:

"CHARGE: Knowingly furnish information false or misleading in a material particular. BREACH OF: Fisheries Management Act 1991 Section 107 PARTICULARS: THAT NORMAN BRINKMAN on or about 12 August 1993 at Hobart in Tasmania in a record entitled 'South East Fishery - Catch Disposal Record Form SEF2' Page No 07 Book No 245 dated 12 August 1993 relating to the fishing vessel 'Saxon Onward' did knowingly make a statement to the Australian Fisheries Management Authority that was false or misleading in a material particular in that he certified that a consignment of fish of the species Orange Roughy (Hoplostethus Atlanticus) received by Fishpak Pty Ltd on 12 August 1993 weighed 12,672 kilograms which was false in that the true weight was approximately 26,048 kilograms. CHARGE: Knowingly furnish information false or misleading in a material particular. BREACH OF: Fisheries Management Act 1991 Section 107 PARTICULARS: THAT NORMAN BRINKMAN on or about 13 August 1993 at Hobart in Tasmania in a record entitled 'South East Fishery - Catch Disposal Record Form SEF2' Page No 17 Book No 244 dated 13 August 1993 relating to the fishing vessel 'Moira Elizabeth' did knowingly make a statement to the Australian Fisheries Management Authority that was false or misleading in a material particular in that he certified that a consignment of fish of the species Orange Roughy (Hoplostethus Atlanticus) received by Fishpak Pty Ltd on 12 August 1993 weighed 24,152 kilograms which was false in that the true amount was approximately 27,200 kilograms."

In broad summary, the prosecution case concerned the unloading of Orange Roughy from two fishing vessels, the "Saxon Onward" and the "Moira Elizabeth", on 12 and 13 August 1993. The unloading operation was recorded by covert video surveillance. Fishpak Pty Ltd is a fish processor. The applicant took part in the unloading. The applicant made some entries on a form known as an "SEF2 form". SEF is an acronym for South-East Fishery. In the case of each unloading, the prosecution claimed that the applicant understated the weight of Orange Roughy by the amounts set forth in the complaints. In the court below evidence was given by an expert witness who said that he had looked at the video film and, in his opinion, the fish unloaded were Orange Roughy if they had been caught in the waters of Tasmania. Much of the video evidence was concerned with establishing the actual weight of fish unloaded. Evidence was given of the weight of the bins and boxes into which the fish were unloaded when those bins and boxes were full of fish, and a process of counting the boxes and bins shown on the video established the actual weight of the fish unloaded from the two vessels. Upon the hearing of the motion to review, Mr Porter QC, for the applicant, made no challenge to the findings of the learned magistrate that the total weight of fish unloaded from the "Saxon Onward" was 26,400 kilograms and from the "Moira Elizabeth", 27,200 kilograms.

When the hearing of the motion to review commenced, the applicant's principal complaint was that the learned magistrate erred in finding that the fish unloaded from both vessels had been caught in the South-East Fishery. However, as the hearing progressed, other grounds were added to the motion, some of which concerned the conduct of the case on behalf of the applicant in the court below and which were argued by different counsel. Before I deal with those matters, it is convenient to set out some material legislative provisions and background.

The Scheme for the Management of the Orange Roughy Fishery in 1993

At the material time, the management of the fisheries in the Australian Fishing Zone (defined by the Fisheries Management Act, s4(1)) was in the hands of the Australian Fisheries Management Authority (AFMA). The Act, s32, authorised AFMA to grant fishing permits. The permits may have been (inter alia) confined to identified species and limited with respect to the quantity of fish that may be taken (the quota). The permits were issued to permit holders, usually the boat owners or operators and related to the boat or boats under the permit holder's control. There was a power to issue fishing permits subject to such conditions as may be specified in the permits. The relevant permits describe the area of the South-East Fishery by reference to degrees of latitude and longitude. A witness from AFMA in the court below said that the South-East Fishery:

"... extends from Baron Joey Point north of Sydney to Kangaroo Island in South Australia and includes the waters around Tasmania."

In the case of the "Saxon Onward" and the "Moira Elizabeth", it was a condition of the permit that the holders ensure that (inter alia) the Catch Disposal Record for the South-East Fishery (SEF2) is "completed and lodged in accordance with the instructions contained within each of them".

Each boat in respect of which a fishing permit had been issued received a book of SEF2 forms. The books issued for the "Saxon Onward" and the "Moira Elizabeth" were tendered in evidence in the court below. On the outside cover there are instructions on how the forms are to be completed. The forms in the book are in quadruplicate. Three of the four leaves are self-carbonated paper. According to the instructions, the top (white) copy has to be completed by "Permit Holder or Representative" and lodged with AFMA within twenty-four hours of unloading the catch. This copy is divided into Parts A and B. According to the instructions, the green copy, immediately underneath the white copy, is to be left in the book. Underneath the green copy is a pink copy. The book is designed so that what is written by the "Permit Holder or Representative" on the white copy, Parts A and B, comes through to appear in carbon on the pink copy. However, the pink copy has an additional part, Part C. According to the instructions on the form, this is for the "Receiver to Complete". Underneath the pink copy is an identical copy coloured yellow. According to the instructions on the book, the receiver is to keep the yellow copy for his own records and is to post the pink copy to AFMA. Each book has a unique number and each set of four pages is numbered sequentially. I set out below the form relating to the applicant's first conviction. In Part C under the printed heading "Receiver's Signature & Date" there appears a signature that is unintelligible. All the writing in Part C is in biro. All the other writing is a carbon copy. The form relating to the second conviction is identical apart from the date, the name of the vessel, the weight of the fish received and one or two other inconsequential matters.

At the material time, by virtue of the condition of the fishing permit, the permit holder was under an obligation to complete Parts A and B of the SEF2 form and return it to AFMA. There was then no legal obligation on the receiver of the fish to complete Part C of the SEF2 form, nor to hand it in to AFMA.

Part A - Permit Holder or Representative to Complete

Time of Departure of consignment from point of unloading

I certify the information which I have provided in Part C to be

Evidence was given that these two forms, which for convenience I will call P25 (the "Saxon Onward") and P26 (the "Moira Elizabeth"), formed part of the records of AFMA. They were extracted from those records and tendered in evidence in the court below. There was no evidence of how they became part of those records. The only evidence to link the applicant with Part C of those forms came from Sergeant Dale, a handwriting expert in the Tasmania Police Force. He said that he compared the signatures in Part C above the printed name "N BRINKMAN" on P25 and P26 with three signatures on documents that were established by the evidence to be the applicant's signatures (the specimen signatures). His opinion was that the signatures on Part C of P25 and P26 and the specimen signatures were all written by the same person.

The Course of the Proceedings in the Court Below

At the conclusion of the case for the prosecution, the defence submitted that there was no case to answer. The submission was overruled. The defence elected to call no evidence. The submission in support of the argument that there was no case to answer and the submission made after the election to call no evidence, was maintained in this Court. It was that before the applicant could be convicted of a breach of the Fisheries Management Act, s107, as charged by the complaints, there must be evidence, or it must be established beyond reasonable doubt as the case may be, that the fish unloaded from the two vessels, or more accurately, the fish unloaded the weight of which was not disclosed in SEF2, Part C, came from the South-East Fishery. Mr Porter QC put the submission to the learned magistrate in this way:

"There is no evidence that the fish representing the difference between the fish stated in the document and the fish said to be the total unloaded came from the South East Fishery. That is a point one factual matter. There is simply no evidence from which -- sorry, I will rephrase that. There is simply no evidence which is capable of enabling that finding to be made. ... The second aspect of that is it follows, in any event, that there is no evidence at all that the defendant, Brinkman, and hence Fishpak, knew that the balance of the fish came from the South East Fishery so as to require him to include them in the documentation. So the first is, there is no evidence that in fact they came from the South East Fishery, the second is, there is no evidence that even if they did that he knew they did and there is no evidence from which those inferences can be drawn."

In argument in this Court, Mr Porter QC developed this submission by contending that Orange Roughy caught outside the South-East Fishery and/or outside the Australian Fishing Zone, are of no concern to AFMA. Returns are only required to be made of Orange Roughy caught in the South-East Fishery. If the Orange Roughy, the weight of which was not disclosed, had been caught in international waters, outside the Australian Fishing Zone, the particular relied upon -- the weight -- although false, was not material to AFMA. From the time this submission was first made, the case in the court below appeared to proceed upon the basis that it was correct and that it was necessary for the prosecution to establish that the fish unloaded, the weight of which was not disclosed, had been caught in the South-East Fishery. The learned magistrate discussed this issue at some length in his reasons for judgment. Although he does not expressly so state, it is clear that the learned magistrate found that the catch not included in the weight disclosed by the applicant, was caught in the South-East Fishery and that the applicant knew this to have been the case. That finding of fact and the process which the learned magistrate adopted to make it, are the subject of separate grounds in the motion to review, but first, it is necessary to inquire whether the fact that the fish were caught in the South-East Fishery was an element in the offence charged. I raised this issue with counsel during the hearing of the motion. After consideration, it led to amended grounds, the filing of an affidavit and a change of counsel to argue part of the motion. Before all that falls to be considered it is necessary to identify the essential facts that must be established to the requisite standard of proof before the offences charged are made out.

The elements of any offence as charged can be spelled out from the statute and the charge document, in this case, the complaint. They are that:

(1) the applicant; (2) made the statement in P25, Part C; (3) to AFMA; and (4) that statement was false in a material particular, viz, the weight (in the case of the "Saxon Onward") was not 12,672 kilograms; and (5) the applicant knew that it was false at the time he made it to AFMA.

The only statements made by the applicant on P25 and P26 are those to which his signature certifies, viz, the information provided in Part C of the SEF2 forms. That which is written by another by virtue of carbon impregnation is not evidence against the applicant for there was no evidence that he adopted any of that writing.

The representation in Part C is (relevantly) confined to the weight of a consignment of Orange Roughy received on 12 August 1993. No part of the statement made by the applicant refers to the South-East Fishery, nor to where the Orange Roughy were caught. There was ample evidence to establish elements 1 and 2, and, with respect to 4 (that the stated weight was false), and 5. Whether error attended a finding, if any, that the applicant made the relevant statements to AFMA, is a separate ground of appeal to which I shall turn later. This leaves the only question: was the statement made by the applicant in Part C false in a material particular viz, was the false statement of the weight of Orange Roughy received material to AFMA? It clearly was, in my view, even in the absence of evidence of where the consignment or any part of it was caught.

In Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 110 ALR 367, the Full Court of the Federal Court said at 371:

"The expression 'false in a material particular' appears in may statutes, both in this country and overseas. It has been discussed in R v Lord Kylsant [1932] 1 KB 442; Murphy v Griffiths [1967] 1 WLR 333; R v Mallett [1978] 1 WLR 820; R v M [1980] 2 NSWLR 195; R v Brott [1988] VicRp 1; [1988] VR 1. In the last mentioned case, Brooking J pointed out that the concept is well understood. As his Honour said at 11: 'an assertion that a document is false is to be taken as an assertion that it is false in a material particular. The terms 'material' requires no more and no less than that the false particular must be of moment or of significance, not merely trivial or inconsequential."

The above passage was approved by the New South Wales Court of Criminal Appeal in Maslen and Shaw v R (1995) 79 A Crim R 199. See also Hsiao v Minister for Immigration, Local Government and Ethnic Affairs (1992) 36 FCR 330 at 338. In Tarasovski v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 515; (1993) 45 FCR 570, Wilcox J applied the passage cited above, and said, at 582, the relevant question was whether the false statement was one that would not be taken into account in determining the application. If it would not be taken into account, it was not material. Proof that the fish referred to in Part C were caught in the South-East Fishery is not an element in the offence. No part of the impugned statement alludes to where the fish were caught. Is proof that the fish were caught in the South-East Fishery necessary in order to provide the false statement with the necessary materiality? The statement is made on an SEF2 form. AFMA have a statutory obligation to manage (inter alia) the Orange Roughy Fishery in the South-East Fishery. To assist in the discharge of this obligation, AFMA collects data about the fishery on SEF2 forms. A material or important part of that data is the weight of Orange Roughy caught in the South-East Fishery. It would make no difference to the materiality of a false statement whether the weight of fish caught was over-stated or under-stated. Similarly, it would make no difference to the materiality if the fish were in fact caught in the South-East Fishery or not. If a statement concerning the weight of Orange Roughy caught is made on an SEF2 form AFMA will take that statement into account in the discharge of its statutory obligations. One can imagine an extremist who hopes to persuade the Authority to reduce the Orange Roughy quotas lodging information with AFMA overstating the weight of Orange Roughy caught. Such a statement would be taken into account by AFMA and thus would be false in a material particular. In this case, a false statement on an SEF2 form would be material unless it was something that would not be taken in account by AFMA in the discharge of its obligations concerning the management of the Orange Roughy Fishery in the South-East Fishery. Thus, the provenance of the fish, the weight of which was not disclosed, is not an element in the offence, nor is evidence that such fish were caught in the South-East Fishery necessary to establish that the false part of the statement made by the applicant on SEF2, Part C was material. I turn to the grounds of review as they were before amendment, although it is unnecessary to do so in view of the conclusion I have reached with respect to the relevance of where the Orange Roughy were caught, as all but one of them concern the learned magistrate's finding that the fish were caught in the South-East Fishery. However, in deference to the submissions made, I will deal with those grounds.

No admissions were made by the applicant and there was no direct evidence about where the fish were caught. The only evidence touching this matter was given by Mr Yearsley, a fish taxonomist employed by CSIRO Fisheries. He explained that taxonomy is the classification of living organisms. With respect to Orange Roughy generally, Mr Yearsley was asked and answered these questions:

"And are you able to say anything with respect to the taking of orange roughy in Tasmanian waters? ... First discovered in about 1981, I believe, and then they were targeted by commercial fishermen starting in the late 1980s; maybe 1989 was the first time they were fished commercially to any degree, and it certainly was an explosive fishery during the late 80s and early 90s.

And when are they -- are you able to say anything about when the fish are taken in the greatest quantities? ... Normally at an aggregation, when the fish come together, is the best time obviously to target the species; and that occurs in winter in a place called St Helens Hill and it's well known to many people as being the best place to catch orange roughy at any one time because they are aggregated there for spawning. And that's an underwater mountain, if you like, which rises from about 1100 metres up to about, I think, 600 metres below the surface -- off St Helens, obviously."

Mr Yearsley also gave some evidence about what he saw on the video film but all of that evidence was given upon an assumption put to him that the fish were caught in Tasmanian waters in August.

The above evidence alone is insufficient to permit an inference to be drawn that the catch unloaded from the "Saxon Onward" and the "Moira Elizabeth" in fact came from "Tasmanian waters" or the South-East Fishery or, for that matter, any other particular place. Both questions asked of Mr Yearsley were confined to fish caught in Tasmanian waters. The witness was not asked whether Orange Roughy are found anywhere other than in "Tasmanian waters", whatever that expression means. The second question was confined to a general proposition "about when the fish are taken in the greatest quantities". The answer is prefaced with the word "Normally". The learned magistrate referred to Mr Yearsley's evidence which I have cited above, although he misquoted it. He said that Mr Yearsley said, "they are taken in greatest quantities when they aggregate ...". The word "Normally" was omitted. After referring to Mr Yearsley's evidence, the learned magistrate observed, "there is no evidence that orange roughy are caught elsewhere". That, of course, is correct but, with respect, the absence of evidence is not probative of the fact in issue. The learned magistrate then referred to the respondent's evidence about the configuration of the "Saxon Onward". He said:

"Constable Dix's evidence about the configuration of 'Saxon Onward' and the manner in which it was unloaded from its forward hold does not suggest that fish were stored within it with any differentiation as to origin or otherwise, and there is no evidence from the defendant Brinkman that he had any knowledge, information or belief that any fish originated other than in the South East Fishery. I put that in those terms to acknowledge, as Mr Porter submitted, that knowledge as to such matters originates in the fisher; primarily at any rate one may reasonable suppose, but it is not necessarily confined to that source."

With respect, it seems to me that Constable Dix's evidence which, at best, in this respect tended to prove that all the fish were caught in the same place, does not tend to prove that the fish were caught in any particular place, and again, absence of evidence from the applicant does not itself tend to prove where the fish were caught. The learned magistrate then proceeded to draw an adverse inference against the applicant and in so doing referred to Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217. The learned magistrate said:

"This is a case where inferences adverse to the defendants are open in the absence of some explanation to be ordinarily expected from an innocent person. In this case the best and probably only source of what the fisher told Mr Brinkman is Mr Brinkman, bearing in mind that the fisher has been prosecuted -- but not yet to finality -- by the same complainant in relation to the same fish."

(The last part of the above passage refers to the prosecution against the permit holders and skippers of the two ships. I was informed that at the time the learned magistrate delivered his reasons for conviction in this matter, the permit holders had pleaded guilty before another magistrate but no penalty had then been imposed.) At the outset, it must be said that the applicant could not know where the fish had been caught unless he had seen them caught. He may have entertained a belief as to where they had been caught if he had been told where they had been caught. The learned magistrate misapplied the ratio decidendi in Weissensteiner. Before any question arises of what may be made of the silence of an accused person, there must be evidence that tends to prove the relevant fact or evidence from which the tribunal might reasonably infer the relevant fact. If there is no such evidence, the fact cannot be found from the silence of the accused. Weissensteiner is authority for the proposition that in a case where the relevant fact is peculiarly within the knowledge of the accused, his or her silence at trial may bear upon the probative value of other evidence which itself is probative of the fact in issue. In this case, the fact said to be in issue - where the fish were caught - was not within the direct knowledge of the applicant, nor was there any evidence which tended to prove that fact either directly or by inference. The joint judgment in Weissensteiner made it quite clear that the silence of an accused cannot make up for the absence of evidence. Their Honour's said at 229:

"The failure of the accused to give evidence is not of itself evidence. It is not an admission of guilt by conduct. It cannot be, because it is the exercise of a right which the accused has to put the prosecution to its proof. In some other circumstances, silence in the face of an accusation when an answer might reasonably be expected can amount to an admission by conduct. But when an accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence."

Apart from the reference to Mr Yearsley's evidence, the learned magistrate does not identify the evidence from which he drew the inference that the fish were caught in the South-East Fishery. After citing two passages from Weissensteiner the learned magistrate simply said, "That is the case. I find the complaints proved ...". It almost appears as if the learned magistrate considered that the applicant had some obligation to give evidence and, as he failed to do so, the learned magistrate was entitled to draw an inference of guilt.

Ground 3 of the motion to review conviction was abandoned and the foregoing reasons dispose of all the grounds of the motion before amendment except ground 4.

"4 There was no evidence upon which the magistrate could have been satisfied: (a) that Norman Brinkman knew that the 'Time of Departure' inserted in P23 and P25 was not inserted whilst all four parts of the form were in P38; and (b) that he was party to the completion of the 'Time of Departure' found in P23 and P25."

This ground refers to carbon entry on P25, Part A which was made by someone other than the applicant but which did not come through onto the pink copy. It is unnecessary to deal with this ground. The findings made by the learned magistrate only go to the issue of the applicant's credit and, as he gave no evidence, his credit was not in issue. In any event, although the learned magistrate made some findings about this matter, they do not appear to play any part in the reasoning process that led to him finding that the complaints were proved.

As mentioned earlier, the grounds of the motion to review conviction were amended during the course of the hearing. Three new grounds were added. Mr Tree appeared in the place of Mr Porter QC to argue them.

"10 There was no evidence upon which the magistrate could have been satisfied beyond reasonable doubt that the defendant Norman Brinkman made to AFMA, the statement alleged to have been false."

An element in the offence charged was that the statement which was false in a material particular was made to AFMA by the applicant. There is no doubt that the statement was made to AFMA by someone. It was produced from the authority's records. Apart from the evidence of the handwriting expert that tended to prove that the statement was made by the applicant, there was no other evidence relevant to this issue. The learned magistrate did not directly address this matter in his reasons for judgment, although in order to proceed to conviction he must have been satisfied beyond reasonable doubt that the applicant did make the relevant statement to AFMA.

A reasonable inference from the fact that the applicant completed Part C is that he intended to deliver it to someone. Otherwise, there would be no point in him completing the form. The printed instructions on the part to be retained by the receiver state that Part C is to be sent to AFMA. The uncontradicted evidence is to the effect that it was sent to AFMA. In the absence of any conflicting evidence, it seems to me that the evidence to which I have referred was sufficient to enable the learned magistrate to infer therefrom that the applicant, either directly, or by the hand of another, sent the statement he made in Part C to AFMA. I should say that this ground was added after I had raised the issue with counsel during the course of the hearing, but on reflection I conclude that ground 10 is not established.

"2A The magistrate erred in law in that he proceeded to determine the case against the applicants on the basis that the particular said to be material, was the weight of the South East Fishery fish, rather than the weight of fish irrespective of its origin. 2B The findings that the complaints were proved were unsafe and unsatisfactory in that the prosecution and defence cases were conducted, and the magistrate proceeded to determine the case, upon the basis that the particular said to be material was the weight of South East Fishery fish, rather than the weight of fish irrespective of its origin."

The amendment to the grounds of the motion to review put the above two grounds as alternatives to grounds 1 and 2 and as alternatives to one another. In support of these grounds, an affidavit from Mr Morris, counsel's instructing solicitor in the court below, was read. The substance of the affidavit was that at all times, both in preparation for the proceedings in the court below and during those proceedings, the defence proceeded upon the basis that proof that the Orange Roughy were in fact caught in the South-East Fishery was necessary in order to secure conviction. In that belief, the submission of no case to answer was made and in that belief, the election to call no evidence was made. Mr Morris deposed that he had briefed the evidence of witnesses who were to be called for the defence in case the prosecution adduced evidence tending to prove that the fish were caught in the South-East Fishery. However, in the absence of that evidence the defence decided not to call evidence and relied on a submission that commission of the offences had not been established to the requisite degree because there was no evidence to prove where the fish had been caught.

For the reasons already given, ground 2A is established. With respect to ground 2B, there was some dispute as to whether the prosecution case had been conducted upon the basis that "the particular said to be material, was the weight of the South-East Fishery fish, rather than the weight of fish irrespective of its origin." As mentioned, no evidence was led by the prosecution to prove where the fish were caught. The point relied upon by the defence did not emerge until after the close of the prosecution evidence and the submission of no case to answer was made. However, the prosecution did respond to the no case submission by submitting that the evidence was sufficient to support a finding that the fish had been caught in the South-East Fishery. The prosecution did not submit that the provenance of the fish was immaterial. Certainly, the learned magistrate considered that proof that the fish were caught in the South-East Fishery was essential to a finding of guilt. This is reflected in the brief reasons he gave for overruling the submission that there was no case to answer and in the reasons for proceeding to conviction.

Thus, a number of the grounds of the motion to review conviction have been established. Error has been made out. Accordingly, the convictions should be set aside unless no miscarriage of justice occurred by reason of the errors that were made. The Justices Act, s110(2) sets out the powers of this Court upon a review of an order made by a magistrate. Section 110(2)(ab) provides that the court may:

"(ab) in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;"

Senior counsel for the respondent, Mr Walters, submitted that no miscarriage of justice had arisen by reason of the errors in the court below. He submitted that all those errors related to a matter which, upon a proper construction of the law, was not, or rather, should not have been, an issue in the proceedings before the learned magistrate. On behalf of the applicant, Mr Tree submitted that the convictions were unsafe or unsatisfactory or that there had been a miscarriage of justice because the common mistaken view that proof of the provenance of the fish was necessary in order to secure a conviction tainted the proceedings and caused the applicant to act to his detriment and suffer an injustice in that his substantive defence was not tendered in evidence. Careful consideration of that submission leads to the conclusion that although the mistaken view of the defence about the materiality of the provenance of the fish certainly led to the failure of the applicant to adduce any evidence, it could not be said that such failure was occasioned by any error on the part of the learned magistrate. The first time the learned magistrate expressed a concluded view about this matter was when he overruled the submission of no case to answer. The ruling was against the applicant. The ruling was correct. The only error was that it was based, in part, on an erroneous view with respect to one of the legal elements in the charge laid against the applicant. The ruling did not inhibit the applicant from calling any evidence that he wished to call. It may have been thought that if defence evidence was adduced, cross-examination might reveal the provenance of the fish. Whether to proffer defence evidence and take that risk, or whether to avoid that risk and repeat the legal submission already made, was entirely a matter for the applicant and his advisors. The decision taken was based solely upon a belief that the legal submission made on behalf of the applicant was correct and, tactically, it would suit him best if the defence adduced no evidence.

It has been conceded that the learned magistrate's findings with respect to the weight of the catch unloaded are unassailable, so the only possible view of the evidence in the court below is that despite the errors, conviction was inevitable and therefore no miscarriage of justice has arisen from the errors of law that I have identified. As Zeeman J observed in Bernes v Filz 45/1997, the provision in the Justices Act 1959, s110(2)(ab) is in similar terms to the provision in the Criminal Code, s402(2). Applied in a court of petty sessions then, the test is whether a magistrate, acting reasonably on admissible evidence, would have convicted the applicant. See Mraz v R [1955] HCA 59; (1955) 93 CLR 493. In this case the answer is in the affirmative. On the material before the learned magistrate there was no other conclusion he could have reached other than that the applicant was guilty. I might add that I asked counsel what was the nature of the defence that the applicant would have adduced had he elected to call evidence. The question was not answered. I was referred to some parts of the cross-examination of the prosecution witnesses but that shed no illumination on the subject of a possible defence. Counsel only said that Mr Morris had deposed that there was a defence and that had not been the subject of cross-examination.

The motions to review conviction are dismissed. I turn to Mr Brinkman's appeal against sentence.

As drawn, the motion to review the applicant's sentence relied on seven grounds. At the hearing leave was sought to add two further grounds, one of which was:

"8 There is manifest disparity between the sentence imposed on the Applicant and that of two months' suspended imprisonment which was imposed by M A Hill Esq Magistrate on David Wakefield who was the skipper of the Saxon Onward."

Mr Walters submitted that this ground was not available to the applicant upon a proper construction of the Justices Act, s107(4) for that subsection limits the grounds in a notice to review to those which allege an error or mistake on the materials in the court below, and as Mr Wakefield was not sentenced until after the imposition of sentence upon the applicant, no error could be shown on the materials before the learned magistrate. Mr Walters relied upon Green v Fletcher [1988] TASSC 4; [1988] Tas R 59. The Full Court in that case held that error must be shown on the material before the learned magistrate, but the Full Court was there concerned to ascertain the meaning of the expression "error of fact" as then enacted by the Justices Act, s76A(1)(c). However, in an earlier case, Cleaver v Powell [1979] Tas R 134, the former Chief Justice held that an appeal ground of disparity, in circumstances where the disparity was not apparent at the time the impugned order of sentence was made, was not a permissible ground pursuant to the Justices Act, s107(4). His Honour held, at 138, that error of either law or fact had to be shown on the materials before the learned magistrate and consequently, if the disparity was not apparent until the co-offender was subsequently sentenced, this Court had no jurisdiction to review on the ground of disparity.

In Randall v Lowe 59/1985, Cox J (as he then was) assumed that disparity was a ground of appeal under the Justices Act, s107, but it seems that his Honour was not referred to Cleaver v Powell (supra). In Smart v Filz B46/1994 Cox J again entertained disparity as a ground of appeal and said at 3:

"The third ground arises by virtue of the fact that two weeks after the applicant's conviction and sentence, Mooney appeared before the same magistrate and was fined $325 for an assault on the complainant's brother and $150 on a count of trespass to the complainant's land. It is submitted that the disparity in treatment of both offenders is so great as to lead to a justifiable sense of grievance on the part of the applicant. Reliance was placed on Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Prestage v The Queen [1979] Tas R 270, Johnson v The Queen [1983] Tas R 50, Cowen v The Queen 1983 Tas R 94, Cox (1991) 55 A Crim R 396."

However, it must be noted that the cases in the Court of Criminal Appeal to which his Honour referred exercised jurisdiction conferred by the Criminal Code, ss401(1)(c) and 402(4) which then respectively provided:

"A person convicted before a court of trial may appeal to the Court ... (c) by leave of the Court against the sentence passed on his conviction, unless the sentence is one fixed by law."

"On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

Cleaver v Powell (supra) was determined before the authoritative decision of the High Court in Lowe v R (1983 - [1984] HCA 46; 1984) 154 CLR 606. Although disparity was well recognised as a ground of appeal by the time the decision in Lowe was handed down, the legal basis for that ground had not been clearly identified. Mason J said at 611:

"The authorities do not speak with one voice on the question whether marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence or whether such marked disparity is merely indicative of the presence of an undisclosed error in the process of sentencing. As a matter of general principle it is important that this Court should declare unequivocally that marked disparity is itself the ground. The reasons for taking this course are expressed later in this judgment."

Although all the members of the Court were not agreed with respect to the precise wording of the test to be applied to detect disparity, there was unanimity that disparity itself was a ground of appeal. Mason J made it clear that unjustified disparity was an error of law and was not merely indicative of some error in the sentencing process. The principles expressed by Mason J in Lowe have been endorsed and applied many times since. Recently, in Postiglione v R [1997] HCA 26; (1997) 145 ALR 408, Dawson and Gaudron JJ said at 411:

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611 per Mason J). In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error Lowe v The Queen (supra) at 617 - 618 per Brennan J. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen (supra), recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance' (Lowe v The Queen (supra)) especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J). If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options".

It seems to me that marked disparity which engenders a justifiable sense of grievance in the applicant and an appearance of injustice to the objective bystander is an error of law. Such an error does not have to be apparent from the materials before the sentencer at the time the impugned order is made. If the injustice becomes apparent by reason of events that occur after the order is made, that order is infected with a legal error which is reviewable pursuant to the Justices Act, s107. It does not matter for the purposes of the Justices Act, s107(4) that the error was not detectable until after the impugned sentencing order had been made. Lowe is authority for the proposition that that impugned order was infected with error and therefore is a reviewable order pursuant to the Act, s107. At the hearing it was agreed that if I reached this conclusion, the notice of motion should be amended accordingly. It is convenient to deal with this ground immediately.

The learned magistrate sentenced the applicant to three months' imprisonment upon each conviction and ordered those sentences to be served concurrently. Almost two months later, another magistrate sentenced David Robert Wakefield, the skipper of the "Saxon Onward", upon his plea of guilty to one charge, identical in its terms, to the charge against the applicant concerning that vessel. Mr Wakefield completed Parts A and B of the SEF2 form. He pleaded guilty to the charge. In his case, the learned sentencing magistrate sentenced him to two months' imprisonment, but further ordered that Mr Wakefeld be released forthwith upon him entering into a recognisance in the sum of $2,000, subject to the following conditions:

- he be of good behaviour for two years; and - that he will commit no offences under the Fisheries Management Act or similar legislation in that time.

The learned magistrate who sentenced Mr Wakefield handed down detailed reasons for the order that he made. In those reasons, he carefully complied with the sentencing provisions of the Crimes Act 1914 (Cth). That magistrate was aware of the sentence imposed upon the applicant. He referred to its terms in his reasons for sentencing Mr Wakefield. By way of sentencing principle, that learned magistrate referred to a passage from a judgment of mine in Jetopay Pty Limited v Dix A100/1994 at 8:

"General deterrence looms large upon the assessment of penalty for breaches of fisheries legislation. ... The offences are difficult and expensive to detect and the rewards are very substantial for those who take fish to which they are not entitled. Orange Roughy and other species of fish constitute a natural resource, the preservation, controlled harvest and proper management of which is a matter in which the whole community has a legitimate interest. The legislation reflects this legitimate interest. Exploitation of the resource by a few for personal financial gain puts at risk the survival of this resource for future generations"

and, subsequently, to a passage in the Full Court judgment in Stevenson v Dix A36/1995 where Slicer J said, at 4_:_

"The maintenance (and attendant accuracy) of these records is essential to the proper management of a resource. Non-recording, or the recording that fish were taken outside the AFZ, would enable the permit holder to take more fish than the management plan would allow. This is no statistical or revenue-related measure. Evidence placed before the Court of Petty Sessions indicated that in 1990 40,000 tonnes of fish were taken. The comparable figure for 1991 was 27,000 tonnes. Since estimates showed that the fishery can only sustain annual catches of between 2,000 and 3,000 tonnes, the annual quota (resulting from a compromise between the interests of commercial fishermen and conservation) was reduced to 18,256 tonnes in 1992, 13,000 tonnes in 1993 and 8,000 tonnes in 1994. It is essential for the preservation of a resource that commercial interests pay regard to the long term interest of the industry and the values of the society whose resource it is. This is especially so with respect to the species Orange Roughy 'because of the slow maturity and low reproduction rate of these fish, if over fished the stock will take an extremely long time to recover. Some investigations would indicate that the Orange Roughy have already been over fished'. The nature of the offences (failure or falsification to record) struck at the very heart of the existence and preservation of a natural resource."

- The applicant had no prior convictions at all. Mr Wakefield had some prior convictions but none related to matters of dishonesty in the pursuit of his occupation as a fisherman. - The applicant and Mr Wakefield had been in the fishing industry for many years. Both had played a role in assisting the authorities study the Orange Roughy fishery. - The applicant and Mr Wakefield deliberately made the false statement with respect to the weight of the Orange Roughy catch. - The applicant and Mr Wakefield were sentenced on the basis that each made some undefined financial gain by reason of the false statement. I note that the correctness of this in the case of the applicant is a separate ground of appeal in his motion to review. - Mr Wakefield was a fisherman. The applicant was the fish processor. - Mr Wakefield was sentenced upon the basis that the applicant told him what weight to put on the SEF2 form. - Mr Wakefield pleaded guilty.

There is no doubt that the applicant and Mr Wakefield were like offenders with respect to the offence concerning the "Saxon Onward" and both were entitled to be treated alike for the purpose of sentence. The learned magistrate who sentenced Mr Wakefield made express reference to the Crimes Act, s16A and articulated in summary form the principal matters he took into account in passing sentence. The learned magistrate then said:

"So far as the defendant Wakefield is concerned his action in understating the particular of catch [sic] was quite blatant and serious. No pressing reason why the catch was understated was ever put to the court. On that basis his actions can be classed as deliberate and calculated. Notwithstanding the provisions in s17A I consider imprisonment is appropriate as offences of this type strike at the very heart of the legislative provisions and have the tendency to bring those provisions into disrepute."

I respectfully agree with every word his Worship said. Those observations apply with equal force to the applicant. The learned magistrate who sentenced Mr Wakefield went on to refer to Mr Wakefield's prospects of rehabilitation as "sound". There is no reason to think that the applicant's prospects for rehabilitation are not equally sound. He is an intelligent, mature man without prior conviction. With respect to the execution of the sentence, the learned magistrate very properly relied upon the following passage from Wright J's comments on passing sentence on 4 February 1992 in the matter of Noble:

"I should make it clear that in my view, a suspended sentence is not confined to those cases where the act of suspension of itself is likely to move the offender to resile from a course of criminal conduct. I think it is also appropriate to impose a suspended sentence sometimes in those cases where a person of previous good character has committed a serious offence which normally would have itself called for the imposition of an immediate custodial sentence where that person, prior to his appearance in court, has by his actions, demonstrated genuine contrition for his conduct and whose resolve to avoid further criminal conduct may well be reinforced by the suspension of the sentence to the same extent as it may have been reinforced by the imposition of an actual period in custody."

Dawson and Gaudron JJ said in Postiglione v R (supra) at 412:

"Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

Their Honours went on to say in the following paragraph, "a proper comparison involves a consideration of all components." There is a great deal of difference between a sentence of imprisonment, the execution of which is conditionally suspended, and a sentence of imprisonment, the execution of which is to take immediate effect. There were no circumstances that warranted conditional suspension of the execution of the sentence of imprisonment in Wakefield's case that were not present with equal force in the case of the applicant. The difference of one month in the length of the sentences is explicable by the fact that Mr Wakefield legitimately received a discount for his plea of guilty. Leaving that to one side, the plain fact is that with respect to the offence concerning the "Saxon Onward", the applicant was sentenced to an immediate term of imprisonment of three months, while the sentence of imprisonment imposed upon the co-offender was wholly suspended. Different orders for the execution of sentence cannot be justified and is so gross that it constitutes a marked disparity engendering in the applicant a justifiable sense of grievance. Ground 8 of the motion to review sentence is, accordingly, made out.

There is no need to consider any of the other grounds for a review of sentence. Success of any one or more of those grounds will only result in the same order that will be made as a result of the success of ground 8.

In the exercise of the sentencing discretion, I find no need to repeat that which I have said when considering the issue of disparity. Taking into account the plea of guilty in Mr Wakefield's case, the appropriate order in the case of the applicant is a sentence of three months' imprisonment upon each conviction. There will be a further order that the applicant be released forthwith upon entering into a recognisance in the sum of $2,000, subject to the following conditions:

1 he will be of good behaviour for two years; and 2 that he will commit no offences under the Fisheries Management Act or similar legislation in that time.

The terms of the recognisance release order are the same as those used in the recognisance release order made in Mr Wakefield's case. That has been done to demonstrate parity of sentence, although I consider that the terms of the first condition encompass the terms of the second condition, rendering the latter otiose. In summary:

- the motion to review convictions brought by the applicants Brinkman and Fishpak Pty Ltd (LCA 72/1997) is dismissed; - the motion to review sentence brought by the applicant Brinkman (LCA 76/1997) is allowed; - the orders of sentence are quashed and in lieu thereof, orders are made with respect to each conviction in the terms set out above.