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  • Unreported Judgment

Bunt v Perrin

 

[2020] QDC 21

DISTRICT COURT OF QUEENSLAND

CITATION:

Bunt v Perrin [2020] QDC 21

PARTIES:

EDWY ROBERT BUNT

(appellant)

v

CHRISTOPHER JOHN PERRIN

(respondent)

FILE NO/S:

Appeal No: 160 of 2019

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

4 March 2020

DELIVERED AT:

Cairns

HEARING DATE:

11 December 2019

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 – summary trial – convicted of unlawfully possessing two male mud crabs in contravention of the Fisheries Act 1994 (Qld), but acquitted of failing to comply with a condition of an authority pursuant to s 230 of the Fisheries Regulation 2008 (Qld) – mode of hearing of appeal – whether error of law – witness credit – whether verdict unreasonable and against the weight of circumstantial evidence – whether conviction on review or retrial.

Legislation

Justices Act 1886 (Qld) s 222, s 223(1) & 227

Fisheries Regulation 2008 (Qld)

Fisheries Act 1994 (Qld)

Cases

Allesch v Maunz (2000) 203 CLR 172

Boyesen [1982] AC 768

Chidiac v R (1991) 171 CLR 432

Devries v Australian National Railways Commission  (1993) 177 CLR 472

Dwyer v Calco Timbers (2008) 234 CLR 124

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy (2003) 214 CLR 118

Knight v R (1992) 175 CLR 495

McDonald v Queensland Police Service [2017] QCA 255

Morris v R (1987) 163 CLR 454

Nudd v The Queen (2006) 80 ALJR

Peacock v The King (1911) 13 CLR

R v Baden-Clay [2016] HCA 35

R v Campbell (2009) 195 A Crim R 374

R v Duncan [2011] SASCFC 46

R v Hillier (2007) 228 CLR 618 at 637 [46]

Warren v Coombes (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

COUNSEL:

D A Holliday for the appellant

SOLICITORS:

Department of Agriculture and Fisheries In-house Legal for the appellant
The respondent appeared self-represented

  1. [1]
    On 15 August 2019, the appellant was convicted after a summary trial in the Magistrates Court held in Cairns, of unlawfully possessing two male mud crabs in contravention of the Fisheries Act 1994 (Qld), but acquitted of failing to comply with a condition of an authority pursuant to s 230 of the Fisheries Regulation 2008 (Qld).
  1. [2]
    The appellant now appeals the decision.
  1. [3]
    Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered together with the evidence adduced in the case.

Background

  1. [4]
    The respondent faced trial after pleading not guilty to two charges:
  1. That on the 30 September 2017 in the Starcke River area the respondent unlawfully possessed regulated fish, namely 66 male mud crabs, in contravention of s78(1) of the Act;
  2. That on the 30 September 2017 in the Starcke River area the respondent, being a person to whom a condition of an authority applied, namely s230 of the Fisheries Regulation 2008 (Qld), failed to comply with the said condition in contravention of s 79A of the Act.
  1. [5]
    The trial was heard over one day on 5 July 2019 in the Cairns Magistrates Court. The respondent was self-represented. Four witnesses from the Queensland Boating Fisheries Patrol gave evidence at the trial. After hearing all of the evidence and submissions, the Acting Magistrate reserved his decision.
  1. [6]
    On 15 August 2019, the Acting Magistrate convicted the respondent of charge one for two mud crabs only (not 66 mud crabs particularised) and sentenced him with an $800 fine, but acquitted the respondent of charge two.

Grounds of Appeal

  1. [1]
    The appellant appeals against the decision on the following grounds:
  1. The learned Acting Magistrate misapplied the law relating to circumstantial evidence;
  2. The learned Acting Magistrate erred in failing to take into account, in determining the circumstantial case, a number of circumstances established by the evidence;
  3. The learned Acting Magistrate misapplied the law relating to a defendant giving evidence;
  4. The learned Acting Magistrate erred in finding on the facts that the defendant did not possess the other 64 mud crabs;
  5. The learned Acting Magistrate erred in finding on the facts that the defendant was not subject to a condition of an authority.

Mode of Appeal

  1. [2]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Section 222(1) relevantly provides:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

  1. [3]
    Pursuant to section 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:

“(1)  An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.

  1. (3)
    However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  2. (3)
    If the court gives leave under subsection (2), the appeal is—
  1. (a)
     by way of rehearing on the original evidence; and
  2. (b)
     on the new evidence adduced.”
  1. [4]
    For an appeal by way of rehearing “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”[1]
  1. [5]
    The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[2] 
  1. [6]
    Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the Magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the Magistrate’s view.[3]
  1. [7]
    This necessitates my independent examination of the evidence, including credit of witnesses subject to what I said above,[4] to make my own assessment of both the sufficiency and quality of the evidence.[5] 

Evidence

  1. [8]
    The events occurred in the context of inspection operations of the officers of the Queensland Boating Fisheries Patrol in the Starcke River area about eighty kilometres north of Cooktown.
  1. [9]
    Four witnesses, officers, gave evidence in the prosecution case.

Evidence of Daniel Sweeney

  1. [10]
    Officer Sweeney confirmed that it was a remote region. He stated that it is not an area where you would visit for a day as it’s just “not feasible, it’s ludicrous”.[6]  He testified that he turned up at the boat ramp and inspected a camp inhabited by Evan Friend.  He could see that there was another camp further down and was aware, from his knowledge of the area, that there were two camps there[7] and that he also knew that there were “only two crabbers up there”.[8]  He headed downstream to the second camp.  There was no one present but he could hear a generator.  It was feeding some water to a holding tank that contained tied undersized mud crabs.[9]  He then took the patrol boat through the mouth of the river, across the bay and into the first creek where he saw the respondent going to crab pots.  He saw that a couple of the crab pots had the markings “FXDT.[10]  He approached and introduced himself to the respondent.  On request, the respondent handed over a bin containing two undersize crabs.  He asked the respondent why he didn’t have his commercial fishing symbols marked on his boat and the respondent replied “I didn’t bring any paint with me.”  The respondent was presently tending to a crab pot marked “FXDT.”  The respondent changed demeanour when the conversation was recorded as they drifted into the mangroves.  The officer then returned to the camp, seized all of the crabs and left the area.  The “60 odd” seized crabs were undersize.  He returned the next day with police.  They found the camp totally packed up and everything (including personal gear, vehicle, boat and wheelie bin) other than one boat in the river was gone.[11]  The respondent left the Cooktown area after further investigations were foreshadowed.[12]  There were no other crabbers in the area and there were no other camps or persons.[13]
  1. [11]
    During cross-examination, Officer Sweeney said the “FXDT” markings on the pots were quite significant and could be seen “plain as day”, and he saw five pots.[14]  He described that the respondent’s car and trailer were at the camp, and the vehicle was registered to the respondent.  He described the respondent said to him: “you’ve been at my camp”, in response to being told about being at the camp and that there were undersize crabs there, and his manner became hostile.  Officer Sweeney said to the respondent “no we haven’t been to your camp”, only the holding tank and then the respondent “exploded more”.[15]  The officer testified that there was no one else in the area at all and said that his search was extensive.[16]  There were no other vehicles and no one there.[17]  In re-examination, Officer Sweeney explained that the crabs on the boat were tied with the same string and in the same way as those in the holding tank.  He further explained that there are three different ways of tying a crab.[18]

Evidence of Edward Bunt

  1. [12]
    Officer Bunt testified that he travelled in a vehicle with Officer Hunt and they firstly unhitched the boat and then spoke to Mr Friend at his camp. He only saw the tank at the second camp from a distance and then he returned to the boat ramp.[19]  They launched the boat and travelled with the other QBFP boat for a time until they saw a dinghy about 300 metres away; he and Officer Hunt then returned to just off the camp site.  He observed the camp site to have a lot of equipment strewn throughout the site and also two boats with boat markings.[20]  The other officers returned and they seized the crabs and left.  He returned to the area the next afternoon about 2.30pm and the camp had been abandoned.  He photographed and measured the crabs.  The tank looked like a commercial operation to keep the crabs alive.  In cross-examination, Officer Bunt acknowledged that there may have been a group of recreational fishers near the ramp.[21]

Evidence of Andrew Wright

  1. [13]
    Mr Wright’s evidence was that he was with Officer Sweeney conducting patrols. He had been to the area on a regular basis over the past two years and that there were only two camps at the area.[22]  He first went to Mr Friend’s camp and then to the second camp where he saw a vessel anchored with the commercial boat mark “FXDT” and another vessel on the sand with the same markings.  The licence for “FXDT” was owned by Anthony Gatti (the respondent’s father).  There was a Toyota LandCruiser at the camp which was registered to Anthony Gatti.[23]  He observed the tank containing crabs with a sprinkler operating via a generator and they inspected a number of the crabs and they were undersize.[24]  The respondent was in the first creek south of the Starcke River on a boat.  The boat was not marked with commercial boat markings.  The respondent was checking a crab pot marked “FXDT” and Officer Wright was not aware of anything else written on the crab pot float.  It is a lawful requirement for commercial crab pot floats to have the boat mark on it.  For a recreational fisher it must be marked with the surname of the owner of the float.[25]  They inspected the crabs on the boat and found some to be undersized.  The respondent became agitated and was yelling.  Officer Sweeney requested the respondent to come back to his camp as they’d identified that there were undersized crabs in the tank, but the respondent refused.[26]  They returned to the camp and seized the crabs which were commercially tied with the same string, but he accepted that was common both with commercial and recreational crabbers.[27]  They returned the next day and the camp was abandoned.  They had measured the crabs. 
  1. [14]
    During cross-examination Officer Wright testified that he only saw one pot in close proximity to the respondent. He did not accept that the respondent was staying at another camp further along the beach on the southern side.[28]  The crabs in the tank were being looked after commercially and there were only two commercial crabbers in the area; the respondent and Mr Friend.[29]  He did not recall any other people in the area or fishing in the area.  He did not see any other vehicle.[30]

Evidence of Craig Hunt

  1. [15]
    Officer Hunt was conducting a compliance patrol on 30 September 2017 with Officer Bunt. He said there were two camps and the one attributed to the respondent was “definitely a commercial setup” with various equipment.[31]  He did not see anyone else on the day besides the respondent and Mr Friend.  He travelled in the vessel with Officer Bunt and saw the respondent who “certainly appeared that he was servicing crab pots, from one side heading over to another side.”[32]  He saw the respondent servicing two crab pots.  He headed back to the camp area with Officer Bunt, and when the other officers returned, they seized the crabs and left.  They returned the next day, the respondent was gone and the camp was abandoned.  They measured the crabs and released them.[33]  In cross-examination, Mr Hunt said he did not recall seeing any other vehicles.[34]

Exhibits

  1. [16]
    The following documents were tendered during the trial and marked with the following exhibit numbers:
  1. An evidentiary certificate proving that at the relevant time the authorised owner of the boat marks was Anthony Gatti;
  2. An evidentiary certificate proving that Anthony Gatti was a commercial fisher at the relevant time;
  3. An evidentiary certificate proving that the respondent was a commercial fisher at the relevant time, and could operate under boat marks (including FXDT) as a commercial fisher;
  4. The certification of Officer Sweeney’s measuring callipers, and proving the accuracy of the measurements of the mud crabs within 0.02mm;
  5. The digital recording with the respondent when intercepted on the creek on 30 September 2017;
  6. The map showing the proximity of the crabbing camp to the respondent and the remote locality;
  7. Notes of Officer Bunt, transcribing the sizes called out by Officer Sweeney as he measured the crabs with his callipers;
  8. Photographs depicting each crab being measured with the sizes visible, the crabs in the black containers, and the crabs being released into the Starcke River;
  9. The recording of the Queensland Police Service and the respondent.
  1. [17]
    The appellant particularly relies upon following exchange during the digital recorded conversation with the respondent on the creek on 30 September 2017:

Officer: Hey, oi! Mate, you haven’t got your symbols on your boat, you can’t fish

Respondent:You know what my symbols are.

Officer:No, we don’t, you can’t fish. Go back. You haven’t got your symbols on, you’re not complying with the legislation, you can’t fish.

Respondent:You know what my symbols are.

Officer:No, I don’t know what your symbols are.

Respondent:My boat’s in the river, you know what my fucking symbols are you dipshit.

Officer:Go backwards. I don’t know what your symbols are.

  1. [18]
    The appellant also relies upon the following exchanges made during the recorded interview between the police and the respondent:

Police: Was there anyone else about other than you, Desley and the four blokes from Fisheries?  Or two blokes.

Respondent: Two, and the other two fucked off, don’t know where they were.

Police: Yeah.

Respondent: Mmm.

Police: But no other fishermen or anything about?

Respondent: No.

Police: No.

Respondent: No.”

And:

“Police: No.  Alright.  What I’ll get you to do is just run me through in your words what happened with these Fisheries blokes yesterday.

Respondent: It was what Saturday morning, it was about, no, it was Saturday afternoon, sorry, oh 2 o’clock in the arvy, 2:00, probably a bit later.  Yeah, just me and the missus going checking a few of our pots we had.  And we get some, a couple of Fisheries officers.  There was two boats there.  One zoomed over and knocked us into mangroves there and he’s demanded to see me crabs.  Snatched the bin of crabs out, threw them all over the deck.  And he says oh we’re keeping these, couple of undersize ones there.  I said alright, let me out of the mangroves and that. And he’s backed his boat out.  Was a bit upset you know.  He says oh you got to come back to us, come back with us to the boat ramp, and can’t keep fishing ‘cause you got no symbols on your boat and that.  Said you can see my boat mark on the boat you know, fucken, so get out of my fucken road, keep fishing.  And well you told me that I threatened them with a knife.  Which is bullshit.  Blue handled knife, didn’t have a blue handled knife that day I know for a fact.”

Defence Evidence

  1. [19]
    The respondent elected to give evidence. He testified that he headed up to the area on Friday 29 September 2017, from his home in Cooktown with his girlfriend. They drove up in their Kia Pregio van towing a trailer with a boat on it.[35]  They went straight to the boat ramp and launched the boat and left a trailer under a tree at the boat ramp.  He jumped into the boat and went for a quick steam around the point along the beach.  They slept in the back of the van in the bank of a small little inlet between the Starcke River and the first main branch of the river (off the map exhibit 6).[36]  He got up the next morning and went straight out to set the eight pots.  The pots were just round pots that he had picked up “along the way sort of thing, here and there.  They had their initials on the pots with phone numbers written on the floats.  The boat was privately registered.”[37]  When asked about “FXDT” markings on the float he said “look they were old floats, so maybe one of them might have had old markings.  They were pretty banged up.  So just floats to hold the ropes.”[38]  He went back later to collect the crabs and explained that his partner was indigenous so could have undersized crabs.  He got cross with the fisheries officers as he was forced into the mangroves and his partner got a scratch on her back.  He was not aware of any camps.  There were a few other people around - a couple of cars coming and going.[39]  Anthony Gatti is his father and he was on a fishing trip in Gladstone at the time.  They have a broken relationship.[40]  During cross-examination, he asserted that people were coming and going on the date.

Ground 1: Misapplication of the law relating to circumstantial evidence (Charge 1)

  1. [20]
    Clearly the prosecution case was largely circumstantial in nature but for the limited interaction between the officers on the creek when two undersized crabs were located.
  1. [21]
    The learned acting magistrate correctly stated that “where the prosecution case is based entirely on circumstantial evidence, then it is necessary that a finding of guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.[41]
  1. [22]
    The settled principles concerning cases that turn upon circumstantial evidence were most recently summarised by the High Court in R v Baden-Clay:[42]

“46. … In Barca v The Queen (1975) 133 CLR 82 at 104, Gibbs, Stephen and Mason JJ said:

‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King.[43]  To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen;[44] see also Thomas v The Queen.’[45]

  1. For an inference to be reasonable, it ‘must rest upon something more than mere conjecture.  The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’[46] (emphasis added).  Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’[47] (emphasis added).  The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[48]
  1. Further, a criminal trial is accusatorial, but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.”[49]
  1. [23]
    The appellant argues that whilst the learned acting magistrate correctly stated the law relating to circumstantial evidence, he wrongly analysed the circumstances in a separate and piecemeal fashion rather than holistically. The appellant points out by way of example, to the learned acting magistrate remarks that the officers gave evidence that they “clearly observed that the crab pot being pulled from the water by the defendant at the time of interception was marked FXDT.  They did not observe any other markings on the pot.” This is to argue that His Honour failed to consider this piece of circumstantial evidence with “all of the circumstances established by the evidence” including, but not limited to, the camp having a vehicle and boat also marked with the markings FXDT and that being associated with the respondent’s father.
  1. [24]
    His Honour’s analysis, contained on pages 5 and 6 of the decision, as submitted by the appellant, does tend to expose an approach by the magistrate of isolating, comparing and contrasting the evidence in a separate, artificial and piecemeal fashion. It is not clear whether His Honour did have in mind a holistic approach, but an absence of explicit consideration and weighing up of all the circumstantial evidence bespeaks an error in determining whether there is an inference consistent with innocence reasonably open on the evidence.

Ground Two: The learned acting magistrate erred in failing to take into account, in determining the circumstantial case, a number of circumstances established by the evidence (Charge 1)

  1. [25]
    The appellant contends that the learned acting magistrate erred in failing to take into account, in determining the circumstantial case, a number of circumstances established by the evidence.
  1. [26]
    The trial magistrate’s findings of fact based on inference ought be taken as correct unless and until the contrary is demonstrated. In Warren v Coombes,[50] the majority of the High Court reiterated the rule that:

“In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.  In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

  1. [27]
    It sometimes happens in a circumstantial case that crucial basal evidence is not in dispute, but the parties disagree about the inference or inferences which should be drawn from the facts. Here, the prosecution rely upon several intermediate factual circumstances. On the other hand, the respondent was critical about the officer’s conduct and observations whilst interacting with him, and disavowed any personal connection with the camp associated with markings of his estranged and absent father (according to his account).
  1. [28]
    During the course of his decision, the learned acting magistrate expressly took into account:
  1. The presence of a vehicle registered to the respondent’s father.
  2. The presence of a boat marked “FXDT,” and the boat mark was registered to the respondent’s father;
  3. The respondent was observed removing a crab pot marked “FXDT” from the water during the field intercept;
  4. No other boats, motor vehicles, or trailers were observed by fisheries officers at the boat ramp or on the Starcke River;
  5. No other person was observed there apart from the defendant, his partner, and Mr Friend;
  6. The crabs seized by the fisheries officers during the field intercept were tied in the same way and with the same type of string as the crabs located in the storage tank at the camp site;
  7. The respondent, when directed to return to his camp as fisheries officers had located undersized crabs there, “exploded and said to me, “You’ve been at my camp?” And then, like, went off big time
  1. [29]
    While the appellant acknowledges that the learned acted magistrate exercised his independent judgment about the width of the intermediate, it is critical that His Honour did not consider all of the factors identified by the prosecution in the closing address, in particular, the remoteness of the location.
  1. [30]
    The appellant argues that it is feasible for a person to travel up to the area and stay for a short time, also having regard to further evidence that:
  1. (a)
    The Starcke River is about 80-90 km north of Cooktown where the respondent resides and requires a journey of a couple of hours form Cooktown to the Starcke River boat ramp;
  2. (b)
    It was not possible to camp between the two crabbing camps and the beach because of the presence of thick mangroves on the left hand side.  The right side had brush, and no one was observed camping in it;[51]
  3. (c)
    There are only three or four tracks that cross through the mangroves and across the salt pan, and this area is quite open with clear visibility from one end to the other;[52]
  4. (d)
    There were no signs of people camping on the beach;[53]
  5. (e)
    There were no other vehicles in the area,[54] and if another vehicle had been present it would have been observed either when the officer traversed the road or the river.[55]
  1. [31]
    It seems to me that distance and time of the journey from and to Cooktown is feasible and the learned magistrate was entitled to place little or no weight to a contrary opinion. Even if the learned magistrate failed to take account of these additional intermediate facts, when considered with all the other circumstantial evidence, the prosecution fell short of proving the requisite possession of the camp crabs beyond reasonable doubt. I elaborate upon these matters in respect of ground 4.
  1. [32]
    It seems to me that the prosecution case invites vacuous conjecture and speculation about the respondent’s possession of the captured crabs held at the camp. In my view the state of the prosecution case does not permit for only one rational inference open to reasonable people upon consideration of, and weighing up, all of the circumstances established by the evidence. Other reasonable hypotheses consistent with the respondent’s innocence are reasonably open on the evidence, including that the respondent’s father had possession of the camp and the additional crabs, and the camp was accessible by another local commercial fisher.

Ground Three: Misapplication of the law relating to a defendant giving evidence (Charges 1 and 2)

  1. [33]
    The appellant contends that the learned acting magistrate misapplied the law relating to a defendant’s evidence.
  1. [34]
    The appellant asserts that the learned acting magistrate should have set the respondent’s evidence to one side and returned to consider the prosecution’s evidence to determine the case. This argument is premised on the proposition that the acting magistrate determined that the respondent’s evidence should not be accepted, and that the case was one where he was in a reasonable doubt as to what the true position was.  I do not accept the premise of the argument.
  1. [35]
    Whilst the learned acting magistrate did not assess the respondent as being honest and reliable, or find his evidence unconvincing in answer to the prosecution case, His Honour was nevertheless left in a state of reasonable doubt as to what the true position was, and harboured a reasonable doubt. So much is clear in the decision where His Honour variously said:
  • I have considerable doubts about the reliability and accuracy of the evidence of the defendant”;
  • As indicated earlier, I do entertain considerable doubt as to the reliability of the evidence of the defendant”;
  • I have treated [the evidence about the defendant having located old pots with other markings on them] with a high degree of scepticism but I acknowledge that his evidence as to the condition [sic] crab pots was not so inherently implausible that it could be disregard [sic] completely as being simply self-serving fabrication
  • “…although I do hold real concerns about the reliability of the defendant’s evidence, I am not prepared to reject his evidence as being completely unreliable and inaccurate”;
  • Not without some reservations, I am prepared to accept that there is a reasonable possibility that the defendant’s evidence may have been honest and accurate”;
  • As earlier indicated, whilst I do have some reservations about the reliability and accuracy of the defendant’s evidence, I am not prepared to completely disregard his evidence as pure fabrication.”
  1. [36]
    Accordingly, in relation to Charge 1 the learned acting magistrate said:

In light of the strong circumstantial case against the defendant and my concerns about the reliability of the defendant’s evidence, my view is the prosecution case is very close to the threshold level as to whether or not the charge has been proved to the requisite standard i.e. beyond reasonable doubt.

I have given serious consideration to making a finding that the charge has been proven beyond reasonable doubt.

However, although I do hold real concerns about the reliability of the defendant’s evidence, I am not prepared to reject his evidence as being completely unreliable and inaccurate.”

  1. [37]
    And, in relation to Charge 2 His Honour said:

As earlier indicated, whilst I do have some reservations about the reliability and accuracy of the defendant’s evidence, I am not prepared to completely disregard his evidence as pure fabrication.

I am prepared to give the benefit of any doubt I may hold in favour of the defendant.

In the circumstances, I am not prepared to completely reject the evidence of the defendant that at the relevant time and place he was partaking in recreational fishing in his privately registered boat.”

  1. [38]
    In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:[56]

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

  1. [39]
    Similarly, in Fox v Percy,[57] Gleeson CJ, Gummow J and Kirby J referred with approval to earlier cases,[58] as to the correct approach of an appellate court where findings of fact based on credibility are challenged, this way:

“[28] the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (references omitted)

  1. [40]
    This is not an exhaustive formula. The court went on to recognise that an appellate court might interfere even though the facts fall short of being “incontrovertible,” where, for example, the decision is “glaringly improbable” or contrary to “compelling inferences.” Gleeson CJ, Gummow J and Kirby J said:

“[29] In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case.   In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. 

[30] It is true, … that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court.  However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.”  (References omitted)

  1. [41]
    The learned acting magistrate’s assessment was such that he could not discard the whole of the respondent’s evidence as implausible. Like any tribunal of fact, it was open for His Honour to accept or reject whole or part of respondent’s evidence, and harbour doubt about the evidence of the prosecution witnesses.
  1. [42]
    The appellant is critical of the court’s focus on individual facts rather than the respondent’s evidence as a whole, and the absence of reference to the ‘obvious gaps’, including: the respondent’s assertion that he left his trailer under a tree yet no one saw it; not explaining why he told the officers that “you know what my symbols are” when first approached (he again repeated this version to police); that he didn’t bring his paint with him rather than explaining that he did not need symbols as he was fishing recreationally; his simultaneous reaction to attending his camp site; or why he “exploded more” when the officers said they had been to the holding tank only.
  1. [43]
    Even though there were gaps in the evidence, I do not accept that the respondent’s evidence is glaringly improbable or contrary to compelling inferences. In my respectful assessment, the prosecution evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in relation to the other crabs found at the camp, and the use if the vessel.  I deal with these matters in a little more detail the next ground.  Suffice it to say for this ground, that it seems to me that the respondent’s behaviour and remarks, described above, is explicable having regard to the tense atmosphere when the fisheries officers intercepted the vessel and displacing the respondent’s partner.  It was not conducive to eliciting a logical, calm, considered and responsive explanation by the respondent, but instead manifested in an antagonistic exchange and miscommunication between the respondent and the attending officers.
  1. [44]
    I am not satisfied that the learned magistrate misapplied the law relating to the defendant’s evidence.

Ground Four: The learned acting magistrate erred in finding on the facts that the defendant did not possess the sixty-four (64) mud crabs (Charge 1)

  1. [45]
    The acting magistrate only convicted the respondent in relation to the two mud crabs found in the boat when he was intercepted by the fisheries officers, and acquitted him in relation to the other 64 undersized mud crabs found in the holding tank at the campsite.
  1. [46]
    The respondent contends that the learned acting magistrate erred in finding that the respondent was not the occupant of the commercial crabbing camp and, by extension, was not in possession or control of the mud crabs at that campsite.
  1. [47]
    The respondent was charged under s 78(1) of the Fisheries Act 1994 (Qld), which provides for the offence as follows:

“78 Prohibited acts about regulated fish

  1. (1)
    A person must not unlawfully take, possess, use or sell a regulated fish.
  2. (2)
    ….

Maximum penalty—1000 penalty units.”

  1. [48]
    There is no dispute that the mud crabs were regulated fish of a size rendering possession of them unlawful. As to possession, s 4 and the dictionary schedule of the 78(1) of the Fisheries Act 1994 (Qld), provides that:

“Possess a thing includes -

  1. (a)
    have custody or control of the thing; and
  2. (b)
    have an ability or right to obtain custody or control of the thing”
  1. [49]
    This is consistent with the long-standing common law that possession involves custody or control of the thing and/or ability or right to obtain custody or control of the thing.[59]  Proof of possession in a case, in which joint possession is not alleged, requires proof that others were, or could be, excluded from control of the thing in question.[60]
  1. [50]
    The respondent disavows of being in possession of the mud crabs located in a tank at his father’s camp. However, the appellant submits that the respondent’s evidence should be rejected in that face of a strong and overwhelming circumstantial case proved to the requisite standard on the evidence showing:
  1. (a)
    A vehicle was located at the campsite registered to the respondent’s father;
  2. (b)
    Boats were located at the campsite which bore the boat marks FXDT used by the respondent’s father;
  3. (c)
    The respondent was using crab pots marked with ‘FXDT’;
  4. (d)
    When approached by fisheries officers he simply stated that his boat markings were known to the officers;
  5. (e)
    The respondent was in close proximity of the campsite when located by the officers and was crabbing including having undersized crabs;
  6. (f)
    The respondent admitted that his father was in Gladstone at the relevant time;
  7. (g)
    It was a remote locality and no other persons or vehicles were seen in the vicinity by the officers and no trailer was seen by the officers at the boat ramp (on the respondent’s version he left his trailer at the boat ramp);
  8. (h)
    There were only two commercial crabbing camps in the area and the respondent was known by the officers to have been commercially crabbing in Cooktown prior to this incident and had spoken of having issues with a person in Cooktown;
  9. (i)
    No other persons were seen camping in the area despite extensive inquiries by the officers;
  10. (j)
    There was a generator running in the commercial crabbing camp suggesting that it was currently being used (also as evidenced by the vehicles and boats);
  11. (k)
    The manner of tying the crabs and the string were the same at the campsite as that utilised by the respondent in the crabs located in the boat;
  12. (l)
    When the officers said that they had been to his camp, the respondent got aggressive and became more aggressive when the officers said that they had been to the holding tank;
  13. (m)
    The next day the camp was abandoned and the vehicles and boats had left. The respondent was back in Cooktown.
  1. [51]
    At best the respondent’s use of some crab pots marked “FXDT” and mode of tying the crabs provide some link to the boats, pots and crabs also found at the camp. 
  1. [52]
    I think the respondent provided a satisfactory explanation about the pot markings, and use of the van to stay accompanied by his partner recreationally in a familiar location. I find nothing particularly remarkable about such an excursion some 80 to 90 km from Cooktown. It was accepted that the manner and material used to tie the crabs was common practice and unremarkable.
  1. [53]
    Beyond that the other inferences involve a high degree of guesswork, speculation and conjecture.
  1. [54]
    There was no other evidence associating the respondent with the car (registered to Mr Gatti), boats, trailer or the holding tanks at the camp. The respondent’s father, Anthony Gatti, was known to occupy the camp. The LandCruiser car was registered to Mr Gatti, who was also associated with the boats, trailers, markings and equipment at his camp site. There was no evidence equating the size and make of the boat actually used by the respondent when intercepted with any matching trailer adjacent to a ramp or elsewhere at the camp. The respondent described a different car and trailer at the place of ramping, which was not rejected by the learned acting magistrate.
  1. [55]
    The respondent’s demeanour, reaction and responses to the fisheries officers is consistent with the goading by the officers in the circumstances of the intercept and possession of the two undersized crabs on the boat, rather than going to some consciousness of guilt about the camp and the other 64 crabs in some holding tank. There was no evidence of the capacity of the generator giving context to some necessarily short term use relative to the respondent’s presence in the area.
  1. [56]
    The evidence of flight (of abandonment and absence of things) is dependent upon a finding that the defendant knew he was guilty of the further camp site offending, and not for any other reason. It seems to me that the behaviour is consistent with panic, fear or other reason arising from the respondent’s misconduct of fishing in an unmarked boat, using his father’s pots and having two undersized crabs on board, and have nothing to do with unlawful possession of crabs in the camp holding tank.
  1. [57]
    I think the evidence falls well short of the respondent having the requisite custody or control, or even the ability or right to obtain custody or control of the crabs located at the camp.  The campsite and holding tank were demonstrably accessible by others and the evidence does not enable the court to find that other people (such as the respondent’s father, or indeed Mr Friend) were, or could be, excluded from control of the crabs at the campsite in question.  Mr Friend was in the locality, and there was no evidence of the duration of Mr Gatti’s absence in Gladstone, even if the court accepted the respondent’s bare assertion about the movements of his estranged father.
  1. [58]
    I do not agree with the appellant that the case falls into that category described by Peek J in R v Duncan,[61] where there may come a time where the number of required concurrent matters becomes so great that a hypothesis of innocence becomes so improbable that it cannot be a rational hypothesis.
  1. [59]
    Looking at all of the circumstances established by the evidence holistically considered and weighed I think inferences consistent with innocence were reasonably open on the evidence in relation to access by others to the camp. I am not satisfied on the whole of the evidence that the prosecution have proved beyond reasonable doubt that the respondent possessed the other 64 crabs located at the camp.
  1. [60]
    Therefore I do not accept that the learned acting magistrate erred in this regard.

Ground Five: Finding on the facts that the defendant was not subject to a condition of an authority (Charge 2)

  1. [61]
    Finally, the respondent asserts that the learned acting magistrate erred in finding that the respondent was fishing recreationally during the field intercept and was, therefore, not subject to the conditions of an authority.
  1. [62]
    The regulations provide for management of commercial, recreational and indigenous fishing.
  1. [63]
    Section 79A of the Fisheries Act 1994 (Qld) provides for the offence of contravening a condition of an authority subject of Charge 2, as follows:

“A person to whom a condition of an authority applies must comply with the condition.

Maximum penalty—100 penalty units.”

  1. [64]
    The prosecution rely upon a contravention of s 230 of the Fisheries Regulation 2008 (Qld), which provides:

230  Authorised boat must not be used without boat mark

It is also a condition of the authority that a person in control of an authorised boat must not use the boat, or allow it to be used, to take fish for trade or commerce, unless a boat mark for the boat has been attached to or placed, and remains, on the boat in compliance with section 229.”

  1. [65]
    Section 229 of the regulation provides:

229  Requirements for attaching or placing boat mark on authorised boat

  1. (1)
    It is a condition of the authority that the authority holder must ensure the boat mark for the authorised boat is placed on the boat in a way that complies with subsections (2) to (7).
  2. (2)
    The boat mark must be written in black on a yellow background.
  3. (3)
    If the boat has a length of less than 10m—
  1. (a)
    each letter or number in the boat mark must have a height of at least 20cm; and
  2. (b)
    each stroke or serif of the letter or number must have a width of at least 2cm but no more than 2.5cm.
  1. (4)
    If the boat has a length of 10m or more but less than 25m—
  1. (a)
    each letter or number in the boat mark must have a height of at least 30cm; and
  2. (b)
    each stroke or serif of the letter or number must have a width of at least 3.5cm but no more than 4cm.
  1. (5)
    If the boat has a length of 25m or more—
  1. (a)
    each letter or number in the boat mark must have a height of at least 45cm; and
  2. (b)
    each stroke or serif of the letter or number must have a width of at least 6cm but no more than 6.5cm.
  1. (6)
    The boat mark must be—
  1. (a)
    if the authorised boat is a primary boat or another boat identified in the authority—attached to each side of the primary boat’s hull; and
  2. (b)
    if the authorised boat is a tender boat or another boat not identified in the authority—placed on each side of the tender boat’s hull; and
  3. (c)
    placed on—
  1. (i)
    if the boat has a deck or shelter at its front—the deck or shelter or an enclosed cabin or wheelhouse on the deck; or
  2. (ii)
    otherwise—a flat surface on the boat.
  1. (7)
    The boat mark must not—
  1. (a)
    be attached or placed below the water line of the boat; or
  2. (b)
    be attached or placed below the water line of the boat; or
  3. (c)
    be removed from the boat’s hull, or replaced with another boat mark on the boat’s hull, during a fishing trip on the boat.”
  1. [66]
    The appellant contends that the respondent was engaging in commercial fishing, whereas the respondent asserts that he was engaged in recreational. The respondent now accepts that he was not engaged in indigenous fishing (in association with his indigenous partner) or otherwise entitled to any defence available for Aboriginals and Torres Strait Islanders for the offending.
  1. [67]
    The evidence clearly shows that the respondent was the holder of a commercial fishing licence at the relevant time, and therefore was he was a commercial fisher within the meaning of s 14 of the regulation.
  1. [68]
    However, Charge 2 is not so concerned with whether the respondent was a ‘commercial fisher’ per se, but recreational fisher. The critical issue to make out the charged offence was whether he was using an “authorised boat” for commercial fishing, in particular, taking crabs “for trade or commerce”.
  1. [69]
    The appellant pointed to the following matters to make out the offence:
  1. The respondent was operating a boat at the time of the field intercept by the fisheries officers.
  2. The boat operated by the respondent did not bear commercial boat marks, being black letters on a yellow background; it bore the yellow background only.[62]
  3. As fisheries officers approached the Respondent, they observed a number of crab pots marked with “FXDT.[63] The respondent was observed tending to at least one crab pot marked with boat marks “FXDT.[64]  No other markings were seen on the pot.
  4. The circumstances established charge one and that the respondent was commercially crabbing at the time he was intercepted. The statements the respondent provided to fisheries officers and the police (exhibits 5 and 9) are consistent with this.  He did not state that he was recreationally fishing but instead that he had forgotten his paint (as an explanation for not having boat markings), that the fisheries officers knew his boat markings and could see them on the boat.
  5. The appellant submits that the finding of fact that the respondent was fishing recreationally is an error.  The only evidence in support of that finding of fact was the respondent’s oral evidence at trial, which could not be accepted. The prosecution evidence established the charge to the requisite standard.
  1. [70]
    I am unable to discern from the evidence that the boat was an “authorised boat,” instead, the prosecution rely upon the partial paintwork and the respondent obfuscation suggesting that the officers ought know. It seems to me that the respondent was being uncooperative in relation to the officer’s abrupt behaviour, who instead asserted that he must stop fishing in the absence of such appropriate markings. The respondent, in my view, provided a satisfactory explanation consistent with recreational fishing and consumption albeit mistakenly asserting indigenous fishing rights to do so. The markings “FXDT” seen on a couple of pots is not enough in my view to demonstrate to the criminal standard that that respondent was fishing for “trade or commerce”.  
  1. [71]
    Therefore this ground fails.

Conclusion

  1. [72]
    For these reasons, it seems to me that despite the piecemeal approach to the circumstantial evidence, on my review the verdict was reasonable and supported by the evidence.
  1. [73]
    Therefore, I am bound to dismiss the appeal against conviction.

Judge DP Morzone QC

Footnotes

[1]Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.

[2]Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].

[3]White v Commissioner of Police [2014] QCA 121, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47].

[4]Chidiac v R (1991) 171 CLR 432, 443-4 per Mason CJ, 452-3 per Dawson J, 459 per Gaudron J; Knight v R (1992) 175 CLR 495, 503 per Mason CJ, Dawson and Toohey JJ.

[5]Morris v R (1987) 163 CLR 454, 463-4, 466 per Mason CJ, 473 per Deane, Toohey and Gaudron JJ, 477-9 per Dawson J.

[6]T1-12/35-40.

[7] T1-9/30-40.

[8] T1-12/15.

[9] T1-10/10-30.

[10] T1-10/5; T1-11/5.

[11] T1-17/30-40.

[12] T1-12/15-25.

[13] T1-13/20; T1-14/05.

[14] T1-21/10-20.

[15] T1-23/35.

[16] T1-23/30-40.

[17] T1-59/10-20.

[18] T1-26/10-20.

[19] T1-28/35-1.29.05.

[20] T1-29/23.

[21] T1-34/20.

[22] T1-36/12-30.

[23] T1-37/8-30.

[24] T1-39/5-10.

[25] T1-39/15-40.

[26] T1-41/20-30.

[27] T1-43/0; T1-05.

[28] T1-45/10.

[29] T1-45/15-30.

[30] T1-57/05-15.

[31] T1-52/0; T1-10.

[32] T1-50/20-25.

[33] T1-51/35-40.

[34] T1-55/30-35.

[35] T1-63/0; T1-20.

[36] T1-64/0; T1-10.

[37] T1-65/55; T1-66/35.

[38] T1-66.40

[39] T1-69.25-35

[40] T1-70.10-30

[41] Decision T2-5/4-6

[42] R v Baden-Clay [2016] HCA 35 at [46]-[47]:

[43] (1911) 13 CLR 619 at 634

[44] (1963) 110 CLR 234 at 252

[45] (1960) 102 CLR 584 at 605-606

[46] Peacock v The King (1911) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133 CLR 82 at 104

[47] R v Hillier (2007) 228 CLR 618 at 637 [46]

[48] R v Hillier (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535.

[49] Nudd v The Queen (2006) 80 ALJR 614 at 618 [9]; 225 ALR 161 at 164. See also Ratten v The Queen (1974) 131 CLR 510 at 517; Doggett v The Queen (2001) 208 CLR 343 at 346 [1].

[50] Warren v Coombes (1979) 142 CLR 531, 551 affirmed in Fox v Percy (2003) 214 CLR 118, 127 [25] per Gleeson CJ, Gummow J and Kirby J.

[51] 1-13/29; 1-20/21-30.

[52] 1-20/25-29.

[53] 1-13/31; 46-47.

[54] 1-55/27-44; 1-57/8-15.

[55] 1-56/9-13; 1-57/27-30; 1-58/36-45; 1-59/12-14.

[56] Devries v Australian National Railways Commission (1993) 177 CLR 472; 479.

[57] Fox v Percy (2003) 214 CLR 118, [26]-[30].

[58] For example, Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

[59] Boyesen [1982] AC 768 at 773-774 per Lord Scarman quoted with approval by the Court of Appeal in R v Shew [1998] QCA 333.

[60] Cf. R v Campbell (2009) 195 A Crim R 374.

[61] R v Duncan [2011] SASCFC 46 at [25], cf Martin v Osbourne (1936) 55 CLR 367.

[62] 1-39/21-27.

[63] 1-11/1-2.

[64] 1-11/26-27.

Close

Editorial Notes

  • Published Case Name:

    Bunt v Perrin

  • Shortened Case Name:

    Bunt v Perrin

  • MNC:

    [2020] QDC 21

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    04 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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