Ostrowski v Palmer [2004] HCA 30; 218 CLR 493; 206 ALR 422; 78 ALJR 957

Ostrowski v Palmer [2004] HCA 30; 218 CLR 493; 206 ALR 422; 78 ALJR 957 - HCA 2004 case summary — Zoe

[10]

For present purposes, we use the expression "elements of the offence" to embrace matters of exculpation, and without regard to any special consideration as to onus of proof that might exist in relation to particular offences. Ignorance of the legal consequences that flow from the existence of the facts that constitute an offence is ordinarily not a matter of exculpation, although it may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute. In Blackpool Corporation v Locker[2], Scott LJ called the rule that ignorance of the law is no excuse "the working hypothesis on which the rule of law rests in British democracy". His Lordship went on to make the point that the corollary of the rule is that information as to the content of the law should be readily accessible to the public. In a society in which many personal, social and commercial activities are closely regulated, and the schemes of regulation are frequently changed, the detail of regulation may be difficult for citizens and their lawyers to keep up with. Courts themselves normally require evidence of regulations as distinct from statutes.
One of the reasons that has been given for the common law rule that courts do not take judicial notice of regulations, as they do of statutes, and that a party relying on regulations must prove them in evidence, is that, in the past, in England, there was no official publication that would give ready access to the content of regulations of the kind that existed in relation to statutes[3]. For purposes of pleading and evidence, unless the statute pursuant to which regulations were made provided that they were to be taken to be part of the statute, and subject to considerations that might arise out of the way particular litigation was conducted, in civil litigation the making and content of regulations were treated by the common law as facts to be alleged and proved. Proof of the making and the terms of regulations established that they formed part of the law to be applied to the resolution of the case[4]. The same applied in criminal proceedings. Regulations duly made form part of the law but, subject to any statutory provision to the contrary, in legal proceedings their existence and content must be alleged and proved by the party relying on them. This principle has been held to apply in Western Australia[5].
The rule that ignorance of the law does not afford an excuse for an act which would otherwise constitute an offence applies in Western Australia by virtue of s 22 of the State's Criminal Code. The respondent contends, however, that the present case is governed, not by s 22, but by s 24, which provides that a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed to exist. The outcome of the appeal turns upon the operation of ss 22 and 24 in the circumstances of the case.

[11]

The facts, the relevant legislation and regulations, and the history of the proceedings, are set out in the reasons of Callinan and Heydon JJ.
The respondent was charged with a contravention of reg 34 of regulations made under the Fish Resources Management Act 1994 (WA). That regulation prohibited the holder of a commercial fishing licence from fishing for rock lobsters in an area defined in a Table to the regulation and described in the heading to the regulation as the waters surrounding Quobba Point. It is sufficient for present purposes to adopt the description in the heading. The prohibition was expressed in unqualified terms. There were three elements of the offence created by the regulation: being the holder of a commercial fishing licence; fishing for rock lobsters; and doing so in the waters surrounding Quobba Point, as defined. The respondent's conduct satisfied all of those elements. Furthermore, the respondent made no mistake, and had no erroneous belief, about any of those elements, or about any matter relevant to them. He knew he held a commercial fishing licence; he knew he was fishing for rock lobsters; and he knew where he was fishing. What he did not know was that there was a regulation prohibiting his conduct. He was fishing where he intended to fish; he did not know there was a law against it.
The respondent's explanation of his lack of knowledge of the regulation was not challenged by evidence to the contrary, and was accepted by the magistrate. He contended that this explanation gave him a defence under s 24 of the Criminal Code. The magistrate rejected that contention. In the Full Court of the Supreme Court of Western Australia, an attempt was made to broaden the basis of the respondent's defence by relying upon what was said to be a principle of common law concerning inducement of error by the conduct of public officials. The Full Court refused to allow that issue to be raised because, if it had been raised before the magistrate, the prosecution may have wanted to call evidence from Departmental officers. The prosecution at first instance had been content to argue the s 24 defence on the basis of the respondent's version of what occurred. If the new argument had been raised before the magistrate, the evidence might have taken a different course. It is only the s 24 defence with which this Court is now concerned.
There was some debate between counsel as to exactly what was said, and not said, by the officers with whom the respondent dealt, but the points of difference are immaterial. It is the substance of what passed between the respondent and those officers, not the precise language used, that matters. On his evidence, the respondent was seeking to obtain from the Department knowledge as to where it was lawful, and where it was unlawful, for him to fish for rock lobsters. His requests for information must have been so understood, and the information he was given was a response to these requests. The respondent submits, the magistrate found, and the Full Court agreed, that, in substance, the respondent was led to believe that the documentary material he was given contained a complete reference to the places in which commercial rock lobster fishing was prohibited, that it was reasonable of him to have that belief, and that the belief was mistaken. That, it is said, was an honest and reasonable, but mistaken, belief in the existence of a state of things and was covered by s 24.

[16]

The respondent, seeking to characterise his mistake as one of fact rather than law, says that his mistaken belief as to a state of things was a belief that he had been given, by the officers of the Department, complete information as to the regulatory prohibitions on commercial rock lobster fishing so far as they affected his proposed activities. Let it be accepted that this was so. The information provided to the respondent was not an element of the offence created by reg 34, any more than the respondent's state of mind concerning the existence of the prohibition is an element of the offence. The three elements of the offence are stated above. The respondent had no mistaken belief about any of them. The reference in s 24 to "the real state of things" is a reference to the state of things relating to the elements of the offence in question, not to the state of things as to whether the offence exists, or whether the conduct constituted by those elements is an offence. An example of the application of s 24 may have arisen if, as a result of navigational error, the respondent had been under an honest and reasonable, but mistaken, belief as to his location. In that event, it may have been that, if the real state of things had been as he believed, his conduct would not have contravened reg 34, and thus he would have had a defence under s 24.
The only mistake that the respondent made was a mistake that resulted from his ignorance of the law. The acts of the respondent would have constituted a breach of reg 34 even if he had been given complete and accurate information by the Department. What the respondent's argument amounts to is that, in that event, he would not have done the acts. That is not the issue raised by s 24. It is beside the point. The magistrate, and the dissenting member of the Full Court, were right to hold that the case fell within s 22 of the Criminal Code, and not s 24.
This is not a case that gives rise to the difficulties that are sometimes involved in distinguishing between mistakes of law and mistakes of fact, or in applying the common law, or ss 22 and 24, to what are sometimes described as mixed questions of fact and law[10]. Here the mistake that was made, however it is characterised, was not relevant to any element of the offence charged. Rather, it was a mistake that resulted in ignorance of the existence of the prohibition contained in reg 34, that is to say, ignorance of the law.

[35]

Queensland courts have interpreted the phrase "state of things" in s 24 of the Criminal Code (Q) - which for all intents and purposes is identical to s 24 of the Western Australian Criminal Code - as referring to matters of fact only[16]. Western Australian courts appear to have assumed a similar interpretation[17].
Mr Palmer contends, however, that s 24 is significantly different from the common law in that the phrase "belief in the existence of any state of things" has a broader operation with respect to mistake than the equivalent common law principle, which applies in relation to a belief "in the existence of a state of facts"[18]. He submits that the phrase "belief in the existence of any state of things" extends to cover the object of his mistake, which involved an erroneous conclusion about the state of the law, based on two mistakes of fact.
In support of his contention that his mistake was covered by the phrase "state of things" in s 24, Mr Palmer relies on a statement by Isaacs and Powers JJ in Duncan v Theodore[19] that "'state of things' includes the existence of a law or a valid regulation under a law." That dictum is of no assistance in this case. In Duncan, one of the issues before this Court was whether s 7 of the Sugar Acquisition Act 1915 (Q) - which declared that no action should lie against certain persons for damage sustained by reason of the making of a Proclamation under that Act or by anything done or purporting to be done thereunder - applied to acts done under an invalid Proclamation. The Court had to determine whether the term "anything done or purporting to be done thereunder" protected the seizing of cattle by a police officer under an invalid Proclamation. The owners of the cattle had brought an action for damages against the police officer.
Isaacs and Powers JJ, who dissented on this and other issues, held that the section applied to acts done under an invalid Proclamation. Their Honours adopted a statement in Maxwell on the Interpretation of Statutes that, in enactments such as s 7, terms such as "under", "by virtue of" and "in pursuance of" require a belief by the relevant officer "in the existence of such (1) facts, or (2) state of things as would, if really existing, have justified his conduct."[20] It was in this context that their Honours said that "'state of things' includes the existence of a law or a valid regulation under a law."[21] Isaacs and Powers JJ held that the defendant officer's belief that the Proclamation was valid brought the case within s 7 and that, accordingly, no action lay against him. The majority Justices held to the contrary.
The dictum of Isaacs and Powers JJ about the operation of a provision which conferred an immunity on government officials from actions for damages carries no persuasion in the different context of the Criminal Code, even if one ignores the fact that the dictum was expressed in a dissenting judgment. In the Criminal Code, the very different issue is whether the term "state of things" applies to an incorrect belief as to the state of the law (including the existence of a regulation) or its application. Unlike Duncan, the issue is not whether an expression in a protective provision should be given a beneficial interpretation to apply to an otherwise invalid regulation.
No doubt s 24 may protect mistaken belief concerning an event or matter which involves a mixed question of fact and law. This is consistent with the suggestion by Dixon J in Thomas that such a mistake should be characterised as one of fact. His Honour said[22]:

[56]

Mr Palmer believed that he was legally entitled to fish for rock lobster in the area in which he was fishing. He was operating under this mistaken belief when he committed the offence. His belief was clearly connected to one of the elements constituting the offence, namely, that "[a] person who is the holder of a commercial fishing licence must not fish for rock lobsters at any time in the area described in the Table to this regulation." (emphasis added) Mr Palmer's mistake, however, was one of law, not fact.
The statement of Handley JA in Von Lieven, set out above, exactly covers this case. Mr Palmer was the holder of a commercial fishing licence. He fished for rock lobsters in the area described in the Table to reg 34 of the Regulations. He intended to fish for rock lobsters in that area and he knew that he was in that part of the Indian Ocean described in the Table to that regulation. Mr Palmer made no mistake as to any of the factual elements of the charge. His mistake was that he believed that the law of Western Australia did not prohibit or regulate fishing for rock lobsters in that area. His mistaken belief was not a mistake as to a fact or "state of things", but a mistake as to the operation of the law. His case fell within s 22, not s 24, of the Criminal Code. It was ignorance of the law that caused him to make the mistake that he did. Under s 22 of the Criminal Code, ignorance of the law is not an excuse for an act or omission that "would otherwise constitute an offence, unless knowledge of the law by [the] offender is expressly declared to be an element of the offence."
The mistake made by Mr Palmer may be contrasted with that made by another Western Australian rock lobster fisherman, Mr Stanton, who successfully relied on s 24 of the Criminal Code as a defence to a charge under the Act of selling undersized rock lobsters[44]. In Pearce v Stanton[45], the s 24 defence succeeded because Mr Stanton was found to have held an honest and reasonable belief that the lobsters were the correct size. Such a belief - as to the actual size of the lobsters - was a belief in the existence of a fact which constituted one of the elements of the strict liability offence. If, by contrast, Mr Stanton had held a mistaken belief as to the minimum size of rock lobster permitted by law, this would have been a mistake of law. The belief in those circumstances would have been based on a misunderstanding of the regulations governing the minimum lobster size.

[59]

It is irrelevant that Mr Palmer's mistake was induced by the conduct of an employee of Fisheries WA. That conduct cannot convert a mistake as to the applicable law into a mistake of fact. If a defendant knows all the relevant facts that constitute the offence and acts on erroneous advice as to the legal effect of those facts, the defendant, like the adviser, has been mistaken as to the law, not the facts.
Four cases which address this issue are Olsen v The Grain Sorghum Marketing Board; Ex parte Olsen[48], Loch v Hunter; Ex parte Loch[49], Cambridgeshire and Isle of Ely County Council v Rust[50] and Power v Huffa[51]. In the first two cases each defendant claimed that he or she was acting on the erroneous advice of a third party - either a legal adviser or a government official - that the acts in question were legal and that this mistake amounted to a mistake of fact. In the last two cases each defendant claimed that he or she had been given lawful authority to act as charged and that this mistake likewise amounted to a mistake of fact. In each case the defendant's argument failed, the court finding that each defendant was acting under a mistake of law. Accordingly, the bare fact that the adviser or official may have been mistaken as to the state of the law does not convert the defendant's mistake into one of fact. Both the adviser or the official and the defendant operate under a mistake of law.
In Olsen[52], the defendants relied on s 24 of the Criminal Code (Q) to defend a charge under a Queensland statute of buying grain from a person other than the Grain Sorghum Marketing Board. The defendants, who were grain merchants, had carried grain from Queensland into New South Wales and then back to Queensland in the belief that they were protected by s 92 of the Constitution[53]. In doing so, the defendants had acted under advice from counsel, an advice which was based on a decision of the Full Court of the Supreme Court of Queensland, which was subsequently reversed by this Court. The Full Court of the Supreme Court of Queensland rejected the defendants' claim that as the result of counsel's advice they were engaged in interstate trade, which involved a question of mixed fact and law. Stable J said that the mistake was clearly one of law[54].
A defence under s 24 of the Criminal Code (Q) also failed in Loch[55] where the licensee of a hotel was prosecuted under the Liquor Act 1912 (Q) for keeping the hotel open for the sale of liquor outside legal trading hours - at 11am on a Sunday. The licensee contended that she was entitled to rely on s 24 because she believed, following advice given to her by a licensing inspector, that the legal trading hours were 10am to 12 noon on a Sunday. Stanley J (with whom Mack and O'Hagan JJ agreed) held that s 24 could not apply because[56]:

[61]

In principle, the present case is no different from those cases where the defence of mistake of fact failed even though the defendant believed that he or she had been given lawful authority to act as charged. In Rust[57], the English Court of Appeal concluded that a highway trader was acting under a mistake of law rather than of fact when, contrary to law, he operated a stall on the highway for several years. Before setting up the stall he had consulted various officials, none of whom told him that he could not set up the stall. His belief that he had lawful authority to operate his stall did not constitute a defence, because none of the officials who he approached had the legal right to license him to operate the stall. Thus, even if the facts were as the trader believed them to be, he would not have been acting lawfully because, as a matter of law, the officials could not permit him to do so[58].
Similarly, in Power[59], the Full Court of the Supreme Court of South Australia rejected the defence of mistake of fact where a woman, who had been convicted of the offence of loitering, claimed that she had acted under the authority of the Commonwealth Minister for Aboriginal Affairs. The woman claimed that the conviction should be quashed because she had believed that, on the authority of the Minister, she was entitled to remain where she was. However, the Minister had no authority to permit the defendant to loiter. Bray CJ said that the woman's belief had two parts: (1) that she was acting under the authority of the Minister; and (2) that that authority was lawful. This second belief was a mistake of law, not of fact. Because a vital part of her mistaken belief was a mistake of law, the defence of mistake of fact was not open to her[60].
The four cases show that, without more, a mistaken belief that an activity is lawful or authorised will be a mistaken belief as to a matter of law rather than to a matter of fact. Accordingly, the fact that Mr Palmer's mistake was induced by the conduct of an employee of Fisheries WA cannot convert what is a mistake of law into a mistake of fact. Moreover, as Mr Palmer acknowledged, for the purposes of s 24 of the Criminal Code, it is irrelevant whether the mistake of law is induced by incorrect information obtained from an official government body or from any other third party or is induced by any other form of mistaken factual understanding. Thus, in any situation where a person's mistaken belief as to the legality of an activity is based on mistaken advice, that person would not have a defence under s 24. To find otherwise would expand the scope of the defence in s 24 to an unacceptable extent. It would also undermine the principle that ignorance of the law is no excuse, a principle expressly provided for in s 22 of the Criminal Code.

[81]

At all material times the respondent was the lessee of a commercial fishing licence pursuant to which he fished for rock lobsters. The licence permitted him to fish in particular for western rock lobsters in a "managed fishery" with 87 pots in zone B of the western rock lobster fishery ("Zone B").
On or about 11 November 1998 the respondent visited the Fremantle office of the relevant State Government department, Fisheries Western Australia ("Fisheries WA"), to obtain the relevant regulations for Zone B. He was told by an unidentified official that "a copy of the current regulations to cover the 98/99 fishing season for lobsters" was not available, but that if he were to return on 13 November 1998, "they would have them available".
Two days later, the respondent returned to the office of Fisheries WA, Fremantle, where an "office lady" at the public counter told him that the office "still did not have the regulations on hand". She volunteered however to photocopy "the copy that they had themselves". The appellant accepted that the inference that the regulations to which the woman was referring were complete was available. We interpolate that on the uncontradicted account of the respondent, the inference was irresistible.
In consequence, the respondent was given a photocopy of the "West Coast Rock Lobster Limited Entry Fishery Notice 1993" made under s 32 of the Fisheries Act 1905 (WA) ("the Management Plan") and a bundle of notices given pursuant to the Fisheries Act or the Act. Neither the Management Plan nor the bundle of notices made any reference to the Regulation. At the same time the respondent was told that "if [he] required any further information [he should] take one of the pamphlets" which were on a rack in the public reception area of the Fremantle office of Fisheries WA. Accordingly, the respondent took a copy of a pamphlet entitled "Fishing for Rock Lobsters" for the 1998/99 rock lobster season issued by Fisheries WA. The pamphlet in question related to recreational fishing. It stated that the waters mentioned in the Management Plan "[were] not specifically set out in these pamphlets". It is common ground that the respondent did not inform the staff that he was the holder of a commercial fishing licence. Subsequently, it was clear that the person to whom the respondent spoke should, or would have been aware that he was a commercial fisherman because he ordered a commercial research log book at the same time.
Between 5 and 10 February 1999, the respondent fished with 54 rock lobster pots within the waters described in the table to the Regulations. There is no doubt that the respondent knew the location of each of the 54 rock lobster pots. He also truly believed, it is not suggested to the contrary, that his licence permitted him to fish in the waters in which he was fishing. The respondent was observed checking and resetting the rock lobster pots by fisheries officers. They made no attempt to rebuke or stop him from continuing to fish. There is no suggestion that the respondent sought to conceal his activities in any way or that he was doing otherwise than attempting to earn a living in a responsible and lawful manner.
The respondent was charged with a breach of r 34 of the Regulations. The respondent was tried by a magistrate at Carnarvon. In the course of the proceedings the appellant proved the relevant regulation and the table. This was done in accordance with the Western Australian practice, the necessity for which at common law was explained by Roberts‑Smith J (Wallwork J and Pidgeon AUJ agreeing) in Norton v The Queen[62]. Extraordinarily, and after the uncontested facts to which we have referred emerged, the appellant pressed the prosecution. To do so in those, and the further circumstances that a conviction would result not only in the distress and opprobrium that any conviction carries, but also in the imposition of harsh mandatory penalties, has the appearance of an act of mindless oppression. The magistrate found that the respondent:

[111]

It is impossible not to sympathize with the respondent. On any fair and objective view he was not culpable in any way. To the contrary he was most diligent. He went to the office of the administering authority twice in order to ascertain what his obligations were. Entirely openly and strictly in accordance with his licence he sought to comply with his understanding of what he could do based on official information personally provided by officials.
Be that as it may, it is the task of this Court to apply the law by answering the question whether the respondent should be regarded merely as having been ignorant of the law, an excuse which s 22 of the Code would deny him, or whether he had an honest and reasonable, but mistaken, belief in the existence of a state of things which if they had in fact existed would have meant that he was not criminally responsible. The question is an important one. A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it, however relevant such matters might be to penalty when a discretion, unlike here, in relation to it may be exercised.
The evidence and the findings as to the respondent's honesty and reasonableness are one way and need no further reference. What then were the mistaken "things" which he honestly and reasonably believed to exist? Olsson AUJ described them as the completeness of the "applicable materials upon which [the respondent] could determine his licence rights"[81]. We do not disagree with that description so far as it goes but do not think that it is a complete one. It is also another matter whether the things to which his Honour referred formed part of or constituted the relevant operative mistake.
The respondent submits that the matter or matters of which he was unaware were of mixed fact and law. Dixon J in Thomas v The King[82] acknowledged the possibility in an appropriate case of a compound of law and fact. He said:

[115]

Duncan v Theodore subsequently went on appeal to the Privy Council[86] where it was held that the relevant proclamation had been validly made with the result that it was not necessary for their Lordships to consider the effect of the protective provision. In the course of their opinion, their Lordships said however that they were "in agreement with the view of the Act taken as the conclusion of the powerful reasoning of Isaacs and Powers JJ."[87] The case is distinguishable. It was a civil case and was concerned with one provision in an enactment and not the relationship between two provisions in a criminal code based on the common law at the time of its composition.
The difficulty for the respondent is that there were here a series of mistakes, the one to which Olsson AUJ referred, the actual decision to rely on the information with which he had been provided, and the actual reliance, by fishing in the embargoed waters. The last is a different mistake from, for example, a mistake as to the location of his vessel or his lobster pots. The last, it can be seen, is discrete in time, place and physical activity from the other two, although but for them it is unlikely that it would have been made. The offence of which the respondent was convicted was not of failing to obtain, or hold and rely on complete and accurate materials, but of fishing where professional fishing was impermissible. The elements of the offence consisted of fishing in the embargoed waters, an activity which the respondent knew to be proscribed. Unfortunately, in the circumstances he could be no less guilty than a motorist who has done everything reasonably possible to ascertain the speed limits on a stretch of roadway along which he is to travel but having failed to do so, in one or more instances, exceeds those limits because he was unaware of them.
During the course of the appeal the appellant objected to any reliance by the respondent on the ground of defence which the Full Court did not need to determine, that is, a defence of official inducement to act, because evidence relevant to it might have been adduced at trial had it been raised there. The objection was upheld and accordingly needs no further reference.
We regret to say that for the reasons which we have given the appeal must be upheld. The judgment of the Full Court of the Supreme Court of Western Australia should be set aside and the conviction reinstated. The order for costs in favour of the respondent in the Full Court should stand. The appellant should pay the respondent's costs of the application for special leave and the costs of the appeal as agreed by the appellant.

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