Court of Appeal (WA)|2002-03-07|Before: Malcolm CJ

Palmer v Ostrowski [2002] WASCA 39 (7 March 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PALMER -v- OSTROWSKI [2002] WASCA 39

Appeal against conviction - Commercial fisherman - Fishing for rock lobsters in a closed zone - Mistake of fact or mistake of law - Inaccurate information supplied by Fisheries WA - Honest and reasonable, but mistaken, belief - Effect of officially induced error of law - Whether recognised principles of law

'BRK' v The Queen [2001] WASC 161

Ainsworth v The Queen [2001] WASCA 212

Becker v Roberts, unreported; SCt of WA (Murray J); Library No 970686; 12 December 1997

Brooks v Roberts, unreported; SCt of WA (Templeman J); Library No 970072; 17 February 1997

Carter v The Queen (1997) 19 WAR 8

CMHC v Elbarbari (1996) SKQB 95248

Denton v Bodycoat [2000] WASCA 424

Geraldton Fishermen's Co-op Ltd v Munro [1963] WAR 129

Gibbon v Fitzmaurice [1986] TASSC 55; [1986] Tas R 137

Giorgi v Playboy Holdings Pty Ltd, unreported; SCt of WA (White J); Library No 930442; 16 August 1993

GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183

Kelsall v Avins (1997) 25 MVR 57

Lamb v Clews (1989) 10 MVR 465

Long v State (1949) 65 A 2d 489

LW's Maintenance Services Pty Ltd v Morrison, unreported; SCt of WA (Walsh J); Library No 960741; 20 December 1996

McCaskie v Bagby, unreported; SCt of WA (Wallace J); Library No 1534; 18 April 1975

Moore v Moore [2001] WASCA 126

O'Brien v Ostrowski [1999] WASCA 184

Ostrowski v Zaza [1999] WASCA 156

Parker v The Queen [1997] HCA 15; (1996) 186 CLR 494

Pearce v Stanton [1984] WAR 359

R v Cancoil Thermal Corporation (1986) 27 CCC (3d) 295

R v Erotica Video Exchange Ltd (1994) 163 AR 181

R v Forster [1992] 1 SCR 339

R v Pontes [1995] 3 SCR 44

R v Provincial Foods Inc (1992) 111 NSR (2d) 420

Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19

Riley v Hunter [2000] WASCA 371

Robinson v The Queen (2001) BCSC 204

Taylor v Bow & Virgo t/as Esperance Meat Supply, unreported; SCt of WA (Wallwork J), Library No 8835; 26 April 1991

Ward v The Queen [1972] WAR 36

Wroblewski v Starling [1987] WAR 233

1 MALCOLM CJ: In my opinion this appeal should be allowed and the conviction of the appellant set aside together with the penalties imposed. There should be substituted an order that the complaint should be dismissed. I would hear counsel regarding any consequential orders. I have reached these conclusions for the reasons to be published by Olsson AUJ.

2 I would only add some comments on the distinction between a mistake of fact and a mistake of law in this particular context. The appellant, who made himself known as a commercial fisherman, requested the office of Fisheries WA at Fremantle on or about 11 November 1998 to provide a copy of the current regulations to cover the 1998-99 season for taking lobster in Zone B. He was told that a copy was not immediately available but he could collect one on the following Friday, 13 November. As luck would have it, unbeknown to the appellant, the documentation with which he was provided was incomplete in that it omitted an amendment which closed an area for rock lobster fishing in the vicinity of Point Quobba, but outside the total exclusion zone in that vicinity. The area closed was described in reg 34, but no mention was made of it in the material provided to the appellant.

3 In my opinion, the mistaken belief under which the appellant laboured at the material time was a mistake of fact, namely, that the materials with which he had been provided comprised a complete set of what was required to enable the appellant to determine where he could and where he could not set his pots to fish for lobster. He was given what in fact was described as a complete set of the relevant regulations. As a matter of fact it was incomplete. In the mistaken belief that the set was complete, the appellant was led to believe that there was no restriction on him setting his pots in the area he did. Had the material been complete he would have been aware that he could not set his pots in the relevant area. In this respect, I entirely agree with Olsson AUJ that the mistake, namely that the documentation provided by Fisheries WA at Fremantle was a complete copy containing all the material relevant to identify where one could and where one could not fish for lobster in Zone B, was a mistake of fact. The mistake was that the material provided was complete whereas it was in fact incomplete: cf London Street Tramways Co Ltd v London County Council [1898] UKHL 1; [1898] AC 375 at 380 - 381 per Lord Halsbury LC; and Iannella v French [1968] HCA 14; [1968] 41 ALJR 389 at 394 per Barwick CJ. These and the other authorities referred to by Olsson AUJ make it clear that the mistake in this case that the set of regulations the appellant had been given was complete was a mistake of fact which led to the belief in the absence

of any prescription the subject of the omitted regulation, reg 34, which contained the relevant prohibition.

4 STEYTLER J: I have had the advantage of reading the reasons for decision of each of Olsson AUJ and the Chief Justice. I am consequently able to be brief in the expression of my own reasons for the different conclusion at which I have arrived.

5 There is, at least in the absence of any amendment, only one ground of appeal, being that which contends that the Magistrate erred in finding that the provisions of s 24 of the Criminal Code were not available to the appellant on the basis that the mistake made by him was one of law.

6 The facts which are said to give rise to a mistake of fact on the appellant's behalf, sufficient to found a defence under s 24 of the Criminal Code, are essentially these. The appellant approached the office of Fisheries WA in Fremantle on about 11 November 1998. He asked for a copy of the current regulations to cover the 1998/1999 fishing season for lobster in Zone B, being an area in which he wished to fish for lobster. He was told to come back on 13 November 1998 when the relevant material would be made available to him. Upon his return, on the appointed day, he was given a copy of a document entitled "West Coast Rock Lobster Limited Entry Fishing Notice 1993" which included various manually inserted amendments. He was told that this was all that he required in relation to the area in which he proposed to fish, or words to that effect. He was also given a pamphlet entitled "Fishing for Rock Lobster", published by Fisheries WA. He left the office believing that he had a complete set of the relevant regulations. Having examined the material given to him he formed the belief that he could lawfully fish for lobster in a particular area ("the relevant area") in Zone B. He did so. In fact, the materials he had been given were not complete. Fishing in the relevant area was prohibited by regulation 34 of the Fish Management Regulations 1995, but this regulation had not been included in the materials given to him.

7 It is plain that the appellant honestly and reasonably believed, in the light of what he had been told, that he could fish for lobster in the relevant area. However it seems to me, with great respect, that, at the time of committing the offence with which he was subsequently charged, the appellant was labouring under a mistake of law.

8 The distinction between a mistake of fact and one of law has arisen in the context of two long-standing principles of the common law. The first is the rule that ignorance of the law does not excuse those who break

it. The second is that a person who acts under an honest and reasonable, but mistaken, belief in the existence of circumstances which, if they existed, would make that person innocent of a criminal charge, should be found not guilty of that charge.

9 The first of those principles has been in existence for many centuries. It dates back to Roman law, being referred to (albeit in a civil law context) in the Digest of Justinian (par 22.6.9). Windeyer J, in Iannella v French [1968] HCA 14; (1968) 119 CLR 84 at 112, has pointed out that from Hale, or earlier, until Austin, Salmond and today, the rule has been stated by writers on criminal law and jurisprudence. Various justifications and explanations have been offered for it. These have ranged from a presumption (absurd though it may be) that everyone knows the law (see Brett v Rigden (1568) Plowd 340 at 342; 75 ER 516 at 520 and Hale 1 P.C 42 (Emlyn ed, 1736) to notions of public necessity (see People v O'Brien (1892) 31 Pac 45, 4 and see, generally, Brett: Mistake of Law as a Criminal Defence" [1966] MelbULawRw 3; 5 MULR 179 at 194-5). The rule has been severely criticised (see Brett, above, and Griffin v Marsh (1994) 34 NSWLR 104 at 122-3) but it has also been described as "the working hypothesis on which the rule of law rests in British democracy" (see Blackpool Corporation v Locker [1948] 1 KB 349 at 361).

10 The second of the two principles has often been said (for example, by Gleeson CJ in State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 at 725) to originate in the following statement of Cave J in R v Tolson (1889) 23 QBD 168 at 181:

"At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim 'actus non facit reum, nisi mens sit rea'. Honest and reasonable mistake stands in fact on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy."

11 The first of the two principles to which I have referred has, in this State, found expression in the first paragraph of s 22 of the Criminal Code, as follows:

"Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence."

12 The second of the two principles has found expression in s 24 of the Criminal Code, as follows:

"Mistake of Fact

A person who does or omits to do 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 or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

13 As Brennan J (as he then was) has pointed out in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 572-3, provisions of this kind, when first drafted in this form (and the first draft of its kind was done by Sir Samuel Griffith), were intended to reflect the common law (see also the comments of Dixon J in Thomas v The King [1937] HCA 83; (1937) 59 CLR 279 at 306). As Brennan J also pointed out (ibid), in earlier times criminal responsibility was imposed upon or imputed to an accused upon proof of the external elements of an offence alone (see J W C Turner, Russell on Crime, 12th ed (1964), vol 1 at 33-34) and hence an honest and reasonable but mistaken belief in a state of facts which would make the supposed offender's act innocent was treated as an excuse or a true exception to criminal responsibility. Brennan J points out (He Kaw Teh at 573) that the origin of that state of mind as an exception is reflected in the exculpatory form in which it appears in the Criminal Codes (including that in this State) which have adopted Sir Samuel Griffith's draft, although the prosecution bears the ultimate onus of negativing the defence (Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462 and He Kaw Teh above).

14 The distinction between a mistake of fact and a mistake of law arises in other contexts also. So, for example, it arises in cases in which rights of appeal are limited to questions of law. It has also arisen in the case, referred to by Malcolm CJ and Olsson AUJ, of London Street Tramways Co Ltd v London County Council [1898] UKHL 1; [1898] AC 375, in what I consider to be a somewhat different context, being that of whether a decision of the House of Lords upon a question of law binds it in subsequent cases. There Lord Halsbury LC considered (at 380) the question what would be the situation if the House omitted to notice an act of Parliament, or might have acted upon an act of Parliament which was afterwards found to have been repealed. His Lordship concluded that this would be a mistake of fact. However it seems to me, with great respect, that what has been said in that context, and perhaps even in the context of deciding what cases might be found to raise questions of law in the case of appellate tribunals which are confined to such questions, may be of only limited assistance in the somewhat different context of the defence raised by s 24 of the Code (cf Griffin v Marsh, above, at 120, per Smart J).

15 The distinction between a mistake of fact and one of law is not easily drawn. The difficulty inherent in the drawing of this distinction has often been referred to: see, for example, Iannella v French, above, at 114, Fitzpatrick v Inland Revenue Commissioners [1994] 1 WLR 306 at 320 and Griffin v Marsh, above, at 122.

16 The distinction also raises many questions. In Iannella (at 114), Windeyer J mentioned the "troublesome" questions of what, exactly, is meant by ignorance of law, whether private rights are included, whether the maxim covers not only complete ignorance of relevant law but also a mistake as to its application in a particular case and how, exactly, a mistake of law is to be distinguished from a mistake of fact.

17 Particularly difficult questions are raised, in my opinion, in cases in which there are mixed questions of law and fact. In Thomas v The King, above, at 306, Dixon J said (as has been pointed out by Olsson AUJ) that "a mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law". However, it is well accepted that, when the facts are ascertained, it is a question of law whether a thing or place answers a particular description in a statute (see, for example, Hoddinott v Newton Chambers & Co Ltd [1901] AC 49 at 56; Iannella, above, at 115, per Windeyer J and Von Lieven v Stewart (1990) 21 NSWLR 52 at 67, where Handley JA expressed the opinion that, once all the relevant facts are known, a mistake as to whether those facts establish an issue, offer or invitation to the public would be a mistake of law). Moreover, Gleeson CJ has said (with the concurrence of Clarke JA and Lee AJ), in Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751, that mistakes on mixed questions of fact and law will not ordinarily constitute mistakes of fact (see also Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 at 677 and Griffin v Marsh, above, at 109).

18 On the other hand, it has been accepted by Hunt CJ at CL (with whom James J was in agreement) in Griffin v Marsh, above, at 118, that if any ultimate conclusion reached by an accused person, including one of law, is flawed by an earlier mistaken, but honest and reasonable, belief as to a relevant and important fact, usually the mistake should be regarded as one of fact. As Hunt CJ points out (ibid), that would be consistent with the principle that, ordinarily at least, the law generally punishes criminality only where there is a guilty mind.

19 In Power v Huffa (1976) 14 SASR 337 at 344, Bray CJ suggested that the distinction between mistake of fact and mistake of law depends on how the mistaken belief in question is formulated. He said (at 345), of the distinction between a misrepresentation and a mistaken belief, that:

"A representation may appear to anyone hearing it as a representation of fact although, unknown to the hearer, it has involved in it hidden propositions of law. On the other hand when we are talking of the nature of a belief we have to try to ascertain what is in the mind of the believer and to disentangle the various components, and if one of the components vital to the total belief is a belief on a question of law I do not see how the mistake can be other than a mistake of law.

20 The Court was there dealing with a woman who had been convicted of loitering, but who had believed she was entitled to remain in the place in which she was under the authority of a senator. Bray CJ said, in that respect (at 345):

"The belief posed ... is the belief that the appellant was acting under the lawful authority of Senator Cavanagh. That resolves itself into two parts: (a) a belief that she was acting under his authority, (b) a belief that that authority was lawful. Expressed in that way, I think that if her second belief was mistaken the mistake was clearly one of law. Therefore I think that a vital part of the alleged mistaken belief was a mistake as to the law. The defence is not open."

21 There is also authority for the proposition (which might work harshly in many cases) that, once all the facts are known, incorrect legal advice in relation to them would be a mistake of law (see Griffin v Marsh, above, at 119 and Crichton v Victorian Dairies Ltd [1965] VicRp 6; [1965] VR 49 at 52). It seems to me, with respect, that, as a matter of principle at least, that conclusion must follow. While the obtaining of legal advice might explain a mistake of law (and, in some cases, morally justify conduct in pursuance of that advice), it cannot alter the characterisation of the mistake as one of law any more than the intervention of a lawyer giving advice on facts could alter the characterisation of a mistake of fact (cf Griffin v Marsh, above, at 119, per Smart J).

22 That brings me back to this case. The appellant, in my respectful opinion, made no mistake of fact in respect of any element of the offence with which he was charged. He knew that he was fishing for lobster. He knew where he was fishing for lobster. This is not a case in which he believed that he was somewhere other than the place where he in fact was or in which he believed that he was fishing for something other than what in fact he was fishing for and hence that his conduct in fishing at that place was lawful. Rather, the only mistake that he made was to believe that it was lawful for him to fish for lobster in the place in which he was in fact fishing. That, in my opinion, was a mistake of law.

23 As was said by Lucas J (with whom the other members of the Court were in agreement) in Horne v Coyle, Ex parte Coyle [1965] Qd R 528 at 532-3, a defence under s 24 cannot apply in circumstances in which an accused person merely says, "I admit that I did so-and-so, but I believed that it was lawful and not an offence against the act in question". Also, in Von Lieven v Stewart, above, at 66-7, Handley JA said:

"It is beyond argument that a reasonable but mistaken belief can only furnish an excuse where the mistake is one of fact: see He Kaw Teh v The Queen (at 532-533, 550-551, 572-574, 576 and 593). Otherwise the general principle applies that ignorance of the law is no excuse: see R v Turnbull (1943) 44 SR (NSW) 108 at 109; 61 WN (NSW) 70 at 71 per Jordan CJ.

Accordingly a belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse in cases such as this. Nor can inadvertence excuse either. The only excuse is the existence of an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent: see Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 at 541 and He Kaw Teh v The Queen (at 575)."

24 (See also Strathfield Municipal Council v Elvy, above, at 749-750, per Gleeson CJ and R v Sheehan [2001] 1 Qd R 198 at 211).

25 In this case, the fact that the appellant's mistake of law was induced by what was said and done, as described above, by a representative of Fisheries WA cannot alter the characterisation of his mistaken belief any more, in my opinion, than could have been the case if his belief had been induced by mistaken legal advice from his solicitors as a consequence of their failure to draw his, or their own, attention to regulation 34 of the Fish Management Regulations.

26 It might be worthwhile to add a reference, in this context, to the somewhat analogous situation which arose in Howell v Falmouth Boat Construction Co Ltd [1951] AC 837. There a government officer, in his dealings with the respondents, was said to have assumed an authority, which he did not possess, to grant a particular licence. The House of Lords held (obiter) that the fact that the officer may have done so did not debar the Crown from enforcing a statutory prohibition or entitle the respondents to maintain that there had been no breach of it. Lord Simonds said, at 845:

"The illegality of an act is the same whether or not the actor has been misled by an assumption of authority on the part of a government officer however high or low in the hierarchy. I do not doubt that in criminal proceedings it would be a material factor that the actor had been thus misled if knowledge was a necessary element of the offence, and in any case it would have a bearing on the sentence to be imposed. But that is not the question. The question is whether the character of an act done in face of a statutory prohibition is affected by the fact that it has been induced by a misleading assumption of authority. In my opinion the answer is clearly No. Such an answer may make more difficult the task of the citizen who is anxious to walk in the narrow way, but that does not justify a different answer being given."

27 What was there said has since been applied in a number of cases: see R v Rushbrooke [1958] NZLR 877, J & P Ingram Ltd v Collector of Customs (Cook Islands) [1966] NZLR 393; Attorney-General v Gray [1977] 1 NSWLR 406 and Chapman v Commissioner, Australian Federal Police (1983) 50 ACTR 23 at 34.

28 While the conclusion at which I have arrived might be thought to work an injustice in the circumstances of this case, that is not, in my respectful opinion, a sufficient reason for this Court, at least, to depart from what seem to me to be settled principles of law. I am consequently compelled to the conclusion, hard though it might be for the appellant to accept, that any remedy will have to lie in the hands of the executive. I am not prepared to uphold the appeal on this ground.

29 As has been mentioned by Olsson AUJ, a second ground was sought to be introduced, by way of amendment to the grounds of appeal, to the effect that, if the appellant's error was one of law, the Magistrate erred in failing to acquit him on the ground that his error was induced by Fisheries WA, an official agency of the State of Western Australia involved in the administration of the regulation contravened by the appellant.

30 I agree with Olsson AUJ that there is a valid objection to this ground that the point was first sought to be raised on the appeal in circumstances in which, had the issue been identified at the trial, the prosecution might well have conducted its case differently. I would, for that reason, refuse the application for leave to amend the grounds of appeal in order to raise this point.

32 OLSSON AUJ: The appellant is an experienced commercial fisherman of good character.

33 At all material times he was the holder of a commercial fishing licence, which entitled him to engage in commercial fishing in accordance with the provisions of the Fish Resources Management Act 1994 and the Regulations made under it.

34 He was also the lessee of a vessel known as the "Fire II", in respect of which there was a current fishing boat licence, as well as what is known as a managed fishing licence. The first of these licences entitled the person in control of the boat to use it for commercial fishing in accordance with the relevant legislation. The second authorised the appellant to engage in fishing for western rock lobster in the relevant fishery, by means of a temporary pot entitlement of 87 pots in what is called zone B of the fishery.

35 As at 1999 the appellant had been a professional fisherman for some 30 years, 25 of which had included involvement in the rock lobster industry. For a period of several years until early 1999 he was engaged in what has been referred to as "wet line fishing". He then decided to revert to rock lobster fishing.

36 Prior to 1999 the appellant had always fished for rock lobster in an area outside zone B, to the south of it. He decided that he would attempt operations in zone B, that is, in an area north of a feature known as Greenhead. He had not previously fished in these waters. He was well

aware, based on his general experience, that rock lobster fishing was tightly controlled and that, within a prescribed fishing zone, there were likely to be areas closed to commercial, or even recreational, fishing activity.

37 Having gone to considerable lengths and expense to prepare his vessel for the proposed resumption of rock lobster fishing, the appellant attended at a major office of Fisheries WA at Fremantle, on or about 11 November 1998. He requested a copy of their current regulations to cover the 1998/1999 fishing season for lobster in zone B. He was informed that the office did not have a copy immediately available but that, if he came back on the following Friday (ie 13 November 1998), Fisheries WA would have the material available for him.

38 The appellant returned, with his son, at about lunch time on 13 November. A member of Fisheries WA staff, apparently at the direction of a senior officer, supplied him with a photocopy of what appears to have been the master copy of the relevant documentation maintained in that office of the Department. The appellant was told that such documentation would suffice for his needs.

39 It is beyond doubt that what was given to him was the original of the document now comprising exhibit JRP02 to the affidavit of the appellant filed in relation to these proceedings. This is entitled "West Coast Rock Lobster Limited Entry Fishery Notice 1993", containing various, manually inserted, amendments.

40 It is equally clear that, at the same time, the attention of the appellant was directed to a pamphlet entitled "Fishing for Rock Lobster" on a rack in the office. He was invited to take a copy, as this was said to contain some additional information.

41 Whilst the pamphlet was primarily directed to recreational fishermen, it also contained information of equal relevance to commercial operators as well. Of importance for present purposes is the fact that the pamphlet indicated that the area of Point Quobba reef, near Carnarvon, was a total exclusion, protected marine life location. That situation was duly noted by the appellant, who at all times, stayed well clear of it.

42 It should here be mentioned that there could have been no doubt in the minds of the staff of Fisheries WA that the appellant was a commercial fisherman and interested in information related to commercial fishing. At the time at which he procured the material from the Fremantle office he also ordered a commercial research log book, to be posted to him.

43 For some reason, which has never emerged, the copy material given to the appellant by Fisheries WA was deficient, in that the Fishery Notice had not been amended to indicate that an area described in Regulation 34 (of which no mention was made) was closed to rock lobster fishing. That area was near Point Quobba, but outside the total exclusion zone.

44 The appellant departed Fremantle not long after procuring the documentation from Fisheries WA. He commenced fishing operations on about 15 November 1998, working up the coast from Geraldton towards Carnarvon.

45 In what was found to be a genuine belief that he was entitled to do so, having regard to the documentation which he had been given, the appellant commenced fishing in the general Point Quobba area, being careful to avoid the total exclusion area.

46 On about 8 February 1999 he observed Fisheries WA staff motoring alongside his pot markers. He had been fishing quite openly in the area since 5 February and assumed that they were merely carrying out a routine check. Because the catch there was good he placed additional pots in the vicinity on 9 February.

47 During the morning of 10 February the appellant observed the Fisheries WA boat coming into the harbour at Carnarvon, carrying the 51 pots which he had placed near Point Quobba - which had obviously been pulled. When he challenged the relevant officer he was told that the pots had been in closed waters. The appellant thereupon produced the documentation with which he had been supplied in Fremantle. The officer simply commented "I don't think this is the correct information".

48 On 5 November 1999 an officer of Fisheries WA charged the appellant with the offence of having fished for rock lobster in a closed zone on 13 February 1999, contrary to Regulation 34 of the Fish Management Regulations 1995 and s 222 of the Fish Resources Management Act 1994. It should be noted that the date of the alleged offence appears to be incorrect, on any view, but no point has been taken as to that.

49 The appellant appeared before a stipendiary Magistrate at Carnarvon on 1 March 2000. He pleaded not guilty to the charge.

50 At the conclusion of the trial the learned Magistrate, although accepting the appellant's evidence and that, on the basis of the material supplied to him by Fisheries WA, he honestly and reasonably believed that he was entitled to fish in the area in which he had dropped his pots, felt constrained to record a conviction against him. This led to the imposition of a fine of $500 and costs of $2,000, together with a mandatory additional penalty of $27,600. However, the learned Magistrate declined to make a discretionary order for forfeiture of the appellant's pots.

51 It is fair to say that the learned Magistrate accepted the appellant as a witness of truth and was sympathetic towards him. However, he was persuaded by counsel for the prosecution that any mistake made by the appellant as to the relevant situation had been a mistake of law and not of fact. Accordingly, he held that the appellant could not avail himself of the statutory defence erected by s 24 of the Criminal Code.

52 The last mentioned section is expressed in these terms:

"24. Mistake of fact

A person who does or omits to do 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 or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

53 It is apparent from his expressed reasons that, had the learned Magistrate been able to conclude that any relevant mistake on the part of the appellant been properly characterised as a mistake of fact, rather than a mistake of law, he would have found the statutory defence made out.

54 In this regard the highlights of his reasons may be summarised as follows -

• The appellant quite openly worked his pots in the location in question, well aware that his actions were within the observations of the local fisheries inspectors, who made no attempt to approach him concerning his activities. As the learned Magistrate put it -

" ... his actions through the days mentioned in the complaint are either those of an offender who is so bold as to be completely stupid, or else the actions of someone who thought that he was perfectly entitled to be doing what he was doing."

• The only question arising for decision was whether the appellant fished in the waters closed under Regulation 34 under an honest and reasonable, but mistaken, belief in the existence of a state of things, ie that he was permitted by his various licences to fish there.

• The photocopy, cut and paste, version of the Fisheries Notice was difficult to read, even by a legally trained person, but it clearly contained no reference at all to the content of Regulation 34.

• In terms, the notice covered all of the waters in the defined zones A, B and C.

• Although the pamphlet obtained by the appellant was primarily related to recreational fishing, it did make the appellant aware that, at Point Quobba, in a semi-circular 400 metre radius from the point, there was an exclusion zone which applied to everybody, commercial or recreational, "and he [the appellant] was aware of that and took care to stay not only outside that, but well away from it".

• When interviewed by the fisheries officers in formal records of interview, the appellant was open, honest and consistent in what he said to them as to his state of understanding; and that it was his attitude that he had, at all times, made every effort to stay within the confines of the western rock lobster regulations.

• The evidence disclosed circumstances which indicated honesty and even reasonableness on the part of the appellant, as to a mistake made by him - consisting of a complete lack of knowledge of Regulation 34.

55 The learned Magistrate expressly commented that, if he was simply looking at the matter on the basis of s 24, he would have found "that the defendant has acted entirely honestly and, in my view, reasonably throughout". Notwithstanding that, he felt bound by the decision of Scott J in Pennings v Williams, unreported; SCt of WA (Scott J); Library No 960512; 13 September 1996; to hold that any mistake on the part of the appellant was a mistake of law, rather than one of fact. Thus, the appellant was unable to call s 24 of the Criminal Code in aid.

56 In Pennings the defendant had been charged with removal of soil from a nature reserve, contrary to provisions of the Wildlife Conservation Regulations 1970.

57 It was not disputed that, on the date alleged, the defendant had removed soil and shell grit from a gazetted nature reserve, without authority under the applicable Regulations.

58 The defendant gave evidence that he had been employed to do what he did by one Wiseman who, upon an inquiry by the defendant in that regard, had told him that the site was just outside of Mt Leseur National Park. In fact it was within another nature reserve, known as "Beekeepers Reserve". The defendant testified that he was aware of the existence of the National Park, but knew nothing of the Reserve; and that it did not enter his mind, at any time, that he was removing material from a Reserve.

59 In that case the learned Magistrate held that the defendant had brought himself within s 24 of the Criminal Code.

60 On appeal, Scott J pointed out that the sole positive belief which the defendant had entertained - one which was true - was that the area from which he was taking soil was outside the National Park. As to whether the soil was being taken from within a Reserve, the defendant "did not think about it ... and he did not turn his mind to it."

61 In the course of his reasons for decision Scott J stressed that the critical question was not whether the defendant was taking soil from outside the National Park, but whether he had a relevant "belief" that the soil was being taken from outside a Reserve, namely the Beekeepers Reserve. As he had given no evidence of a relevant positive belief, it could not be said that he had discharged his evidentiary onus of establishing facts which could potentially enliven s 24.

62 Against the foregoing background the present appellant sought and obtained leave to appeal against the decision of the learned Magistrate, including an extension of time in which to do so. By order of Miller J the appeal was referred for the consideration of the Full Court.

63 On the hearing of the appeal the appellant sought leave to raise an alternative ground of appeal namely that, if the appellant's error was one of law, the learned Magistrate fell into error in failing to acquit the appellant, or to excuse the appellant's conduct, on the ground that the appellant's error was induced by Fisheries, an official agency of the State of Western Australia involved in the administration of the regulation said to have been contravened by the appellant.

64 Counsel for the parties spent considerable time in traversing certain aspects of the relevant detailed circumstances; and what was said to be the concept emerging from the decision in Pennings. However, it seems to me that this appeal can and should be disposed of on one quite narrow point.

65 In my opinion, the decision in Pennings is not decisive of, or even relevant to, the present case.

66 As already appears, the s 24 defence there failed because the defendant had never directed his mind at any relevant factual issue at all. He had therefore not formed any positive factual belief in relation to which the section could possible operate.

67 With all due respect, it seems to me that, in the instant case, the learned Magistrate has overlooked what was a fundamentally important facet of the pertinent circumstances.

68 Had the factual situation been that the appellant merely misconstrued the terms and effect of the documentation given to him, then, at best, it could properly be said that his mistake was a mistake of law and not a mistake of fact.

70 On the evidence which the learned Magistrate plainly accepted, the appellant expressly went to a major office of Fisheries WA (as the proper regulatory authority) to procure from it a copy of the applicable Regulations, so that he could, inter alia, inform himself of what were, and were not, permissible fishing areas within zone B. That was, undoubtedly his express purpose, which he communicated to the relevant officer at the time.

71 In response to that request officers of Fisheries WA ultimately gave him what they represented was a complete set of the relevant Fishery Notices, amended up to date. That representation was false, no doubt unwittingly. The appellant quite reasonably and accurately interpreted the material given to him as indicating that there was no gazetted restriction on fishing in the area in which he in fact worked at the time of the alleged offence.

72 The belief arrived at by the appellant was the direct product of a mistake of fact engendered by the incorrect representations made to him, namely that the documentation supplied was complete and accurate. It was not. Hence his mistaken belief.

73 In those circumstances the matter before the learned Magistrate was, in my opinion, a classic illustration of a proper s 24 defence. The appellant had put forward evidence of an honest and reasonable, but mistaken, belief in the existence of a state of things by reason of which he acted as he did. Unlike the situation in Pennings, he did apply his mind to the critical issue and his belief was the product of a mistake of fact induced by the actions of Fisheries WA. The statements made to him concerning the documentation supplied were positively misleading as to a vital factual state of affairs - whether they contained all applicable materials upon which he could determine his licence rights. Patently (and I may say inexcusably) they did not.

74 Counsel for the respondent strongly contended, inter alia, that such a conclusion was the product of an erroneous characterisation of what had actually occurred. He submitted that, however such a situation came about, the conclusion of the appellant as to his right to fish in what proved to be closed waters was "a belief as to the operation of the Regulations on his entitlement as a commercial fisherman to fish in particular waters"; and was thus a mistake of law. Accordingly, s 24 had no operation.

76 On the evidence as accepted by the learned Magistrate this was neither a case of mere ignorance of Regulation 34 nor of a mere faulty interpretation of such a regulation actually known to the appellant. Here the precipitating event which ultimately led to the commission of the proscribed act was the provision to him of the incorrect documentary information which induced the error made. The effect of the provision to the appellant of the documentation omitting Regulation 34 (or even any reference to it) amounted to a factual representation that there was no relevant regulation bearing on the closure of the waters proposed to be fished by him. This, in turn, gave rise to a positive belief on the part of the appellant that he was entitled to drop his pots in the relevant area.

77 In the broadest sense, a mistake of fact to which s 24 attaches will almost inevitably also involve a mistake of law. In the instant case a conclusion that the appellant was entitled to fish where he did was no doubt a belief as to a question of law. However, that conclusion cannot logically be disassociated from the factual events which gave rise to it and, in any event, a clear distinction needs to be made between the interpretation of a document on the one hand and the fact of its existence on the other. (Cf Iannella v French [1968] HCA 14; [1967-1968] 41 ALJR 389 at 394, London Street Tramways Co Ltd v London County Council [1898] UKHL 1; [1898] AC 375 at 380-381).

78 I consider that the correct principle to be applied in a case such as this is best summarised by the dictum of Smart J in Griffin v Marsh (1994) 34 NSWLR 104 at 118 in these terms -

"If any ultimate conclusion reached by an accused, including a conclusion of law, is vitiated or flawed by an earlier mistaken but honest and reasonable belief as to a relevant and important fact, usually the mistake should be regarded as one of fact."

79 This is essentially because, to employ the language of Dixon J (as he then was) in Thomas v The King [1937] HCA 83; (1937) 59 CLR 279 at 306, where the evidence reveals the existence of a mistake as to what he described as a 'compound event', consisting of law and fact, that mistake is generally to be regarded, for the purposes of the criminal law, as one of fact and not a mere mistake of law.

80 In my opinion the evidence in this case reveals the existence of such a compound event. The conclusion of the appellant that he was fishing in a permitted area (or, more precisely, that he was not fishing in closed waters) was initiated by his earlier mistaken but honest and reasonable belief induced by Fisheries WA, that Regulation 34 did not exist.

81 As to this I would reject the proposition of Mr Tannin, counsel for the respondent, that the s 24 defence cannot be relied upon because the appellant had not demonstrated the existence of a positive relevant belief. The learned Magistrate clearly and properly held that the appellant entertained a positive belief that he was entitled to fish in what was, in fact, a proscribed area, because the documentation given to him did not contain any reference to the closure of the waters, by reason of the existence of Regulation 34.

82 It follows that I am satisfied that the learned Magistrate fell into error in rejecting the appellant's s 24 defence.

83 On that view it is not strictly necessary to reflect on the other issue sought to be argued on behalf of the appellant, namely as to whether, in this State, the so called doctrine of officially induced error of law can be invoked by a person accused of an offence.

84 As to this the appellant based its submission on the developed case law on that topic in Canada. Some reliance was also placed on the New Zealand decision of Tipple v Police [1994] 2 NZLR 362.

85 All that need be said about Tipple is that Holland J expressly commented that he did not consider that there was any need, in that case, to seek to introduce into the New Zealand law any doctrine of officially induced error. It was his view that the practical justice of the case - on the special facts relating to it - was best satisfied by resorting to the power conferred by the Criminal Justice Act of discharging a person found guilty of an offence without conviction. That was the course which he actually adopted, having regard to the evidence. It therefore stands as no authority for the proposition signalled by the appellant.

86 In the Canadian case of R v MacDougall (1982) 142 DLR (3d) 216, the Supreme Court of Canada approved a dictum of Macdonald JA, in the Appeal Division of the Nova Scotia Supreme Court, that what he described as officially induced error may not be a mistake purely of law, but may well be an error of fact, or a mix of both fact and law, or, perhaps, a form of colour of right. In that case the Supreme Court held that there was no evidence of such a situation.

87 MacDougall was followed by the decision of the Supreme Court of Canada, in R v Jorgensen [1995] 4 SCR 55.

88 That case was decided against the background of s 19 of the federal Criminal Code which provided that -

"Ignorance of the law by a person who commits an offence is not an excuse for committing that offence."

89 The accused, as proprietor of an adult video store, had been convicted of the offence of knowingly selling obscene material without lawful justification and excuse. Evidence was led that he had sold videos which contained obscene material, but that he had done so in reliance upon the fact that they had formally been approved by the Ontario Film Review Board.

90 The Supreme Court allowed an appeal against the conviction and substituted a verdict of acquittal. All members of the Court, other than the Chief Justice, arrived at that result on the express basis that, on the evidence as led, the Crown had not satisfied the mens rea requirements of the section creating the offence.

91 They expressly declined to address the issue of officially induced error of law, because it had not been ventilated either at first instance or on the actual appeal itself.

92 Lamer CJ alone, whilst agreeing with the reasoning of the other members of the Court as to mens rea, considered that the element of lawful justification and excuse gave rise to a need to consider the concept of excuse based on officially induced error of law. Despite the fact that no argument had been advanced with regard to that issue, he dealt with the topic at length and held that officially induced error of law could function "as an excuse rather than a full defence" under Canadian law, on the basis outlined in his judgment.

93 It follows then that, on an examination of the authorities to which our attention was invited, it cannot be concluded that the concept sought to be relied upon by the appellant has, unequivocally, been accepted in Canada, although it certainly remains open for future consideration. It has, to date, actually been rejected in New Zealand.

94 Even if it were otherwise, it by no means follows that the concept is susceptible of importation into Western Australia, having regard to the existence and provisions of the Criminal Code. As to this the article "Developments in Canadian Criminal Law 1995" (Mackinnon and Quigley) (1996) 20 Crim LJ 321 is instructive. The learned authors there make the important point that there has been what they describe as a fundamental difference in the interpretive approach taken in relation to the Canadian Criminal Code (modelled on the Stephen Code) by way of contrast with that taken in relation to the Griffiths based Codes in certain of the Australian States, including Western Australia.

"In Canada, the common law is frequently considered in the interpretation of the Code. In addition, some defences are derived from the common law while others are enshrined in the statute.

In contrast, the Australian Codes are generally considered complete and resort to the common law as an interpretative aid is limited to instances of ambiguity in the Code provision or where the language used has acquired a technical meaning at common law.

Comparisons of the criminal law of Canada and Australia must therefore take account of these differences in jurisdiction, the sources of criminal law, and the interpretative approaches."

96 (See also R v Barlow (1997) 188 CLR 1 at 32).

97 Against that background it would seem quite inappropriate to embark upon an issue such as this when it has arisen for the first time on appeal - the more so as Mr Tannin complains that to do so would work an injustice on the respondent. He contends that, had this issue been identified at the outset, the prosecution case may well have been developed differently and other witness evidence may have been called. The course of the cross-examination of the appellant may also have taken another direction, at least to some extent.

98 These appear to me to be valid objections. Moreover, particularly as this appeal is susceptible of disposal on a narrower footing, the present case, in the manner in which it has developed, is scarcely an appropriate vehicle for consideration of what is such an important and potentially far reaching concept. I would refuse leave to amend the grounds of appeal to raise this alternative ground.

99 For the sake of completeness, it should also be recorded that, in the course of argument, the attention of the parties was invited to the possibility that s 22 of the Criminal Code may have some bearing on the disposition of a case such as this.

"Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."

101 Its scope of operation and correct interpretation were extensively canvassed by the Full Court in its recent judgment Molina v Zaknich [2001] WASCA 337. That case established that the section is to be accorded a liberal interpretation. It is applicable to any situation in which an act is done with respect to property in the exercise of an honest claim of right and without intention to defraud. It is not restricted in its application to offences relating to property under Part VI of the Criminal Code.

102 In the course of his submission Mr Tannin was prepared to concede that, for the purposes of s 22, it could properly be said that the charge against the appellant was an offence in relation to an act done by him with respect to property (given the extended statutory definition of that word); in that it was an act related to the attempted procurement of rock lobster, as to which, once caught, the appellant would then claim ownership. However, he made the points that this also had not been a live issue at trial and that the section did not apply to the facts, because there had been no relevant claim to entitlement with respect to property. The entitlement claimed was merely an entitlement to fish in a particular area.

103 As there is no specific proposed ground of appeal which seeks to raise this issue it is desirable to leave it for consideration on another, more appropriate, occasion.

104 For the reasons above expressed I would allow the appeal, set aside the conviction recorded against and penalties imposed on the appellant, and substitute an order of dismissal of the relevant complaint. I would hear counsel as to what consequential orders should be made in the circumstances.

Management Regulations 1995(WA)

Resources Management Act 1994

Conservation Regulations 1970

(1996) 20 Crim LJ 321

Palmer v Ostrowski [2002] WASCA 39

At a glance

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Judgment (165 paragraphs)

Palmer v Ostrowski [2002] WASCA 39 (7 March 2002)

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Legislation Cited (3)

Cases Cited (20)