Court of Appeal (WA)|1999-08-30|Before: Mr P, Nicholson J, Anderson J, Heenan J

Ostrowski v Zaza [1999] WASCA 156 (30 August 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : OSTROWSKI -v- ZAZA [1999] WASCA 156

Criminal law - Undersized rock lobsters - Measured by member of crew - Prosecution of skipper - Mistaken belief as to size - Reasonableness of mistake - Appeal against dismissal of charge

MacDonald v Mosel, unreported; SCt of WA (Nicholson J); Library No 8035; 30 January 1990

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306

Wann v Mosel, unreported; SCt of WA (Anderson J); Library No 8839; 30 April 1991

1 HEENAN J: On 18 February 1999 in the Court of Petty Sessions at Fremantle Mr I G Brown SM dismissed a charge that the respondent had consigned undersized western rock lobsters (in these reasons referred to also as "rock lobsters", "lobsters", "crayfish", "crays" and "fish"), contrary to s 46(d), s 52 and s 222 of the Fish Resources Management Act 1994. Now the fisheries officer who brought the charge seeks to have the dismissal set aside.

2 The respondent, a 44-year-old man, has been a rock lobster fisherman since 1980. He is the owner and skipper of a fishing boat named "Risky Business". From the opening of the season on 15 November 1997 he was fishing from Lancelin. Michael Lee-Wilson had been one of the two members of his crew for four and a half years and for almost all of that time had graded the rock lobsters as they were taken from the pots.

3 On 25 November 1997, as was the usual practice for fishermen early in the season, the respondent had been fishing in shallow water where almost all of the rock lobsters were close to the minimum size. Having returned to port he took three crates to the factory at Lancelin. They contained a total of between 180 and 200 rock lobsters which had been taken from 101 pots pulled that day. Cameron Dawe-Smith, the duty fisheries officer at the factory, examined the fish and measured them with a Sheridan gauge, an almost rectangular, flat piece of pressed metal on one side of which is a gap not less than 77 mm long. After deciding that 28 were undersized he summoned Robert Sutton, a senior fisheries officer. Mr Sutton checked some of the fish himself and confirmed that they were undersized. By then the respondent had been told of the problem. He went to the factory, measured the 28 fish and agreed that they were all undersized. The officers seized them and, accompanied by the respondent, took them to the district office at Lancelin. There Mr Dawe-Smith interviewed the respondent. Then he measured the 28 fish with Vernier callipers, scientific instruments which are well recognised. Mr Sutton verified the readings on the callipers but did not do the actual measuring. In respect of each fish the officers concluded that its carapace was of less than the minimum length of 77 mm. In one case the measurement was 76.90 mm - that is, within the tolerance margin of .20 mm allowed as a matter of policy - and so the respondent was charged in respect of only 27 fish. Neither the respondent nor, to his knowledge, Mr Lee-Wilson had previously been prosecuted for a fisheries offence.

4 At the trial the matter of honest and reasonable mistake was raised. Thus the prosecution was obliged to prove beyond reasonable doubt not only that the fish were undersized but also that there was no honest and reasonable mistake as to their size on the part of the respondent (see Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129 per Hale J at 134 - 135).

5 In his reasons the learned Magistrate dealt first with the submission that the measurements made by the fisheries officers were not reliable because they failed to measure the fish in the manner prescribed by the relevant regulations, that is, by measuring "along the mid-dorsal line from the anterior edge of the pronounced ridge which joins the front edges of the rostral horns (immediately posterior to the eye stalks) to the posterior margin of the carapace" (Fish Resources Management Regulations 1995 Sch 8 Item 7). Having commented that "[a]t best it could be said that (Mr Dawe-Smith) had a vague idea of how to legally measure these fish" but that Mr Sutton clearly understood what was required, his Worship expressed the view that "to measure a rock lobster in accordance with the regulations, in the manner described by Sutton is inherently unreliable". His Worship elaborated by saying that, whilst the first stage of measurement (that is, placing one end of the gauge at the anterior edge of the carapace) was carried out satisfactorily by Mr Sutton, the second stage (that is, placing the other end of the gauge at the posterior margin of the carapace) was not. The second stage was unsatisfactory, his Worship explained, because the posterior margin of the carapace is "a curved edge which has no natural centre point". Nevertheless, his Worship went on to say:

"The measurements taken by Sutton are relied upon, together with the concession by the defendant that 27 were undersize, to establish that the defendant did consign 27 undersize rock lobsters. ... Although the court has accepted as fact that the measurements ... are evidence of being less than 77 mm in each case, the inherent unreliability of the method of measuring used by Sutton, which he purports to conform with the regulations, does become relevant in the context of the defence raised under s 24 of the Code."

On the hearing of this appeal, having referred to those passages and having pointed out also that the gauge used by Mr Sutton at the factory had not been put in evidence or verified at the trial, counsel for the respondent argued as a preliminary issue that the learned Magistrate had made no finding that the fish were undersized. He submitted that in either event the evidence was incapable of proving that essential element beyond reasonable doubt. In my opinion his Worship's reasons should be interpreted as including a finding of fact, based substantially on the admission of the respondent to the fisheries officers, that the fish were undersized. In the course of this appeal I have proceeded on the basis that the evidence did support such a finding.

6 Although the reasons do not contain an express statement to that effect, it is clear that the learned Magistrate accepted that the respondent might well have honestly believed that all of the lobsters consigned that day were of legal size. His Worship dismissed the charge because he was not satisfied as to the unreasonableness of that belief. The appeal is based solely on the contention by the appellant that in all the circumstances such a belief would have been unreasonable.

7 When interviewed by Mr Dawe-Smith at the district office on 25 November 1997 the respondent spoke of Mr Lee-Wilson's role in these terms:

"He has been grading the crays on my vessel for three years and on numerous occasions we have discussed the correct method of gauging crays with regard to size, setose and tar spot. He is fully aware of the method of gauging crays. Only one person grades the crays into the baskets that's Michael, any crays found on the deck are given back to him for regrading. All crays that are not of grade quality are returned to the sea."

The respondent explained that the design of his boat made it impractical for himself both to control it with safety and to grade the fish. When asked, "Who checks any doubtful or close undersized rock lobster on board the vessel?", he replied:

"There is no need to check because any doubtful or close undersize go over the side. It is not a point for discussion its size or undersize ... If in doubt the cray goes over the side. It is up to Michael to decide."

He went on to say to Mr Dawe-Smith, "I value my integrity and honesty far above going to any length of consigning undersize rock lobsters for monetary returns".

8 In evidence, the respondent said that he and the members of his crew followed the same routine every day. Boyd Carrigg, the other crew member, was winchman/grappler, working the ropes and floats, setting the pots and winching them on board. He had no part in grading the lobsters or placing them in the baskets for consignment purposes. Mr Lee-Wilson removed the lobsters from the pots and graded them. He did not measure those which were clearly undersized or of a legal size: he simply returned the former to the ocean and put the latter in a basket. He measured those which were close to the limit: if in doubt he returned them to the ocean; if they were of legal size he put them in the basket. For measuring them he used a new Sheridan gauge which the respondent had checked against a measuring block provided by the Fisheries Department about a week before the season began. The respondent commanded the boat from the wheelhouse, an enclosed structure towards the front of the vessel. Because his vision was obscured he could not actually see Mr Lee-Wilson measuring the lobsters, but he had a clear view of the pots as they were winched on board and he could see the undersized lobsters being dropped back into the water. In that way he had a "good gauge" of the proportion of the lobsters being returned to the ocean. He had not regularly performed the task of measuring lobsters since 1990, but he took "a stroll around" the deck "every now and then" and checked Mr Lee-Wilson' measuring "periodically" - although he did not do so on the day in question.

9 When his counsel asked what direction he gave his crew members with respect to the minimum size of the lobsters, the respondent said:

"The standard order on my deck is when the crew man is measuring crays if there is any doubt it's not even up to discussion. The cray goes over the side. We don't have a conference. Some boats do but I don't. I leave it to his judgment. If he thinks it's undersize it goes straight over the side, and that's the standing order. We don't try and sort of fudge the system, so to speak. That's the standing order."

He said that it was not his practice to have a holding crate or tank in which to place lobsters of a doubtful size for checking later. When asked why he did not adopt that system he replied:

"The reason for that is at the end of the day - and I'm not talking about the day of fishing, I'm talking about at the end of the season - you are no further ahead. It's marginal on the final summary of the equation, okay then? It's best to keep your nose clean, and I just don't like the heartache of being pulled up for things like undersize crayfish. Some fishermen get away with it for a while and then the hammer falls. I definitely at all attempts tried to steer away from that situation. I don't want to be put in a compromising situation because I value my business, I value the industry and my own integrity."

Although it seems that the matter was not adverted to at the trial, counsel for the respondent at the hearing referred to the "5 minute rule" in reg 12 of the Fish Resources Management Regulation 1995 which provides that any undersized rock lobster taken from the sea (a) must be released to the sea within 5 minutes of being taken and (b) if taken on board a boat by means of a pot, must be released to the sea before any other rock lobster pot is pulled. The rule is designed, it seems, to ensure that undersized rock lobsters are released promptly within their home territory and as a result will have a better chance of survival, but it limits the extent to which a holding crate or tank might be used for checking purposes.

10 Having noted that the respondent had no prior convictions under the Act, the learned Magistrate accepted his evidence in respect of "his standard instruction as to measuring". His Worship referred to the prosecution evidence that the measurement in respect of each of the 27 rock lobsters was between 76.38 mm and 76.80 mm, only "a whisker" in some cases below the size which results in prosecution and, having accepted that Mr Lee-Wilson had measured between 400 and 500 rock lobsters on the day in question, he went on to say, "I do not regard 27 undersize (given the minute dimensions involved) to be so exceptional as to rebut the (respondent's) reasonable belief". In all the circumstances, including "the experience and expertise of the employee Wilson, together with the fact that measuring is done at sea, in wet conditions, holding a live (moving) rock lobster", his Worship concluded that the charge should be dismissed.

11 As counsel for the appellant acknowledged, it is appropriate for a skipper to delegate the role of measuring rock lobsters, but he bears the eventual responsibility to consign only those which are of legal size. In exercising that responsibility he is required to ensure that the system used is appropriate and that those who do the measuring are suitably experienced and properly instructed and supervised (per Wheeler J in Servaas v Segers, unreported; SCt of WA; SJA 1118 of 1996; 18 November 1996). In Ruljancich v Pearce; unreported; SCt of WA; Library No 2810; 9 January 1980, having commented that in a case such as this "we are dealing necessarily with fine measurements", Burt CJ expressed the view that the skipper of a fishing boat who delegates the measurement of rock lobsters to a member of his crew should check the measurement "if there is any reason at all for him to suppose that the lobster would measure short."

12 Clearly the respondent satisfied the learned Magistrate that the system which he employed was appropriate, that Mr Lee-Wilson was experienced and reliable, that he had good grounds for believing that the latter not only knew but applied the correct method of measuring rock lobsters and that his own supervision was adequate. Counsel for the appellant argued that his Worship was wrong in that he seemed to have taken the approach that "near enough is good enough" and in doing so had failed to appreciate that, as the policy of the statute is highly protective (per Rowland J in Pearce v Stanton [1984] WAR 359 at 363), greater care was demanded of the respondent to comply with the strict requirements of the regulations.

13 In my opinion, the evidence falls short of showing that it was necessary, desirable or even practicable for the respondent to have a holding crate or tank for checking later those lobsters which appeared to be close to the minimum size. In the circumstances, the practice of returning to the sea all lobsters of doubtful size seems to have been more than adequate to fulfil the function of a holding crate or tank. However, as very fine measurements were involved in distinguishing a lobster which was of size from one which was undersized, as it was difficult to measure a live lobster at sea and as the majority of lobsters taken on the day in question were undersized, the respondent was obliged to take particular care in guarding against the likelihood of a mistake being made in measurement. That being so, if I had tried the case, I may not have been satisfied that there were grounds for a reasonable belief that the measurement was done correctly unless the respondent had taken, in his words, "a stroll around" the deck and had checked Mr Lee-Wilson's measuring at least several times that day.

14 However, in this case a great deal depended upon the assessment by the learned Magistrate of the credibility of the respondent not only as a witness but also as the skipper of a fishing boat operating within a highly protected industry and, in particular, as a skipper with a long and close relationship with the crew member to whom he entrusted the task of measuring rock lobsters. Having had the benefit of hearing and seeing the respondent give evidence and being cross-examined quite extensively his Worship formed a favourable impression of him in that capacity. In the absence of any evidence tending to show that, before the fisheries officers intervened, there was reason to suspect that Mr Lee-Wilson was not measuring the lobsters in satisfactory fashion, I am unable now to conclude that the respondent should have done something other than what he did.

15 In those circumstances, I am not satisfied that decision of the learned Magistrate was wrong. The appeal, therefore, should be dismissed.

Resources Management Act 1994

Resources Management Regulations 1995

Resources Management Regulation 1995

Ostrowski v Zaza [1999] WASCA 156

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (36 paragraphs)

Ostrowski v Zaza [1999] WASCA 156 (30 August 1999)

Parties

Legislation Cited (3)

Cases Cited (3)