White v Patterson[2009] QCA 320

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Chesterman JA's reasons for granting the application for leave to appeal; allowing the appeal; setting aside the judgment of the District Court; and, instead, dismissing the appeal to the District Court.

[2] The respondent, Mr Patterson, was charged under s 38CA(1) Great Barrier Reef Marine Park Act 1975 (Cth) with the summary offence of negligently using a Marine National Park Zone of the Great Barrier Reef Marine Park for the purpose of fishing.  The magistrate convicted him but the District Court judge allowed his appeal and quashed that conviction.  This case raises a question of some significance about which there is little decided authority: the correct interpretation and application of s 5.5 Criminal Code 1995 (Cth) to summary offences.[1] 

[3] Under the Criminal Code (Cth), every offence consists of physical elements (conduct; result of conduct; or a circumstance in which conduct or a result of conduct occurs)[2] and fault elements (which may be intention; knowledge; recklessness; or negligence) unless otherwise provided.[3]  For a person to be found guilty of an offence, the prosecution must prove the physical elements of the offence and, where relevant, the fault element for each physical element of the offence.[4]  A fault element for a particular physical element of an offence may be negligence.[5]  The Criminal Code (Cth) defines "negligence" in this way:

"5.5  Negligence

A person is negligent with respect to a physical element of an offence if his or her conduct involves:

(a)such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b)such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence."

[4] Section 38CA Great Barrier Reef Marine Park Act relevantly provided:

38CA  Zones to be used only for permitted fishing

(1)A person is guilty of an offence if:

(a)the person … negligently uses … a zone for the purpose of fishing; and

(b)that fishing is not permitted under the zoning plan that relates to the zone.

Penalty:2,000 penalty units."

[5] The physical elements of the offence under s 38CA(1) are, first, the conduct of using the zone for the purpose of fishing (s 38CA(1)(a)) and, second, the circumstance that fishing is not permitted under the zoning plan that relates to the zone (s 38CA(1)(b)).[6]  The fault element for the first physical element under s 38CA(1)(a) is negligence.  As to the second physical element under s 38CA(1)(b), the fault element is not specified so that it is recklessness: see s 5.6(2) Criminal Code (Cth).  This case turns only on the question of negligence in s 38CA(1)(a).

[6] Unfortunately, instead of construing and applying s 5.5 in its terms and statutory and factual context, the learned District Court judge wrongly considered the jury directions under s 289 Criminal Code 1899 (Qld) (Duty of person in charge of dangerous things) which are given for indictable offences involving personal injury.  His Honour misapprehended that the concept of criminal negligence under s 5.5 requires a consideration of proportionality between the physical element of the charged conduct and whether such conduct involves:

"(a)such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b)such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence."  (my emphasis)

[7] In the charge brought against Mr Patterson, this requires a consideration of whether, in all the circumstances, his conduct in fishing in the Marine National Park Zone of the Great Barrier Reef Marine Park involved such a degree of negligence and such a high risk that he would be fishing in a Marine National Park Zone of the Great Barrier Reef Marine Park that it justified a finding of guilt and punishment for the offence against s 38CA(1). 

[8] When s 5.5 is construed in this way and applied to the charge brought against Mr Patterson under s 38CA(1), there was no doubt that, on the evidence before the magistrate, Mr Patterson negligently fished in a Marine National Park Zone of the Great Barrier Reef Marine Park.  He was rightly convicted by the magistrate.

[9] I agree with Chesterman JA's reasons and proposed orders.

[10]  MUIR JA: I agree with the reasons of Chesterman JA and with his proposed orders.

[11]  CHESTERMAN JA:  On 22 July 2008 after a trial in the Magistrates Court the respondent was convicted of an offence against s 38CA of the Great Barrier Reef Marine Park Act 1975 (Cth) (“Barrier Reef Act”).  The applicant’s complaint was that:

“… on or about … 9th … September 2007 … in the waters near Tongue Reef off the coast of Queensland (the respondent) did … negligently (use) a marine national park zone of the Great Barrier Reef Marine Park namely … zone 15-1047 for the purpose of fishing, a purpose not permitted”.

He was fined $6,000 but allowed 12 months to pay.

[12]  The respondent appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld).  On 23 March 2009 the appeal was allowed and the conviction set aside.  The applicant, who was the complainant before the Magistrate, seeks leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld).

[13]  Section 38CA of the Barrier Reef Act provides:

“(1)A person is guilty of an offence if:

(a)the person intentionally or negligently uses or enters a zone for the purpose of fishing; and

(b)that fishing is not permitted under the zoning plan that relates to the zone.”

[14]  The evidence clearly established, and findings were made, that at the relevant time the respondent’s boat was within the boundaries of the Marine National Park Zone 15-1047 and that fishing was prohibited in that zone.  It was also proved that the respondent was in waters of the zone for the purpose of fishing.

[15]  The only issue contested before the Magistrate, in the District Court and before this Court, was whether the respondent had negligently used a zone for the purpose of fishing.  The Magistrate thought he had: the District Court Judge disagreed.  The manner in which his Honour expressed the reasons for disagreement are said to demonstrate a misunderstanding of s 5.5 of the Criminal Code 1995 (Cth) (“the Code”) which should be corrected by this Court lest the error lead other Inferior Courts astray in the future.

[16]  Section 3.1 of the Code provides that an offence consists of “physical elements and fault elements”.  By s 4.1 physical elements may be:

“(a)conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, occurs.”

[17]  Section 5.1 of the Code provides that a fault element for a particular physical element may be intention, knowledge, recklessness or negligence. 

[18]  Section 5.5 provides:

“A person is negligent with respect to a physical element of an offence if his … conduct involves:

(a)such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b)such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence.”

[19]  The physical element of the charge against the respondent was to use the Marine National Park Zone for the purpose of fishing.  That element was proved beyond reasonable doubt.  The respondent was guilty of the offence charged if his use of the Marine Park for the specified purpose was negligent in the sense described by s 5.5.  The Magistrate recorded his findings in these terms:

“… it’s … common ground the (respondent) was fishing … .  There were two baited lines entering the water from his vessel and … the lines were baited … in his evidence (the respondent) accepts that he was fishing. 

…was the (respondent) in a marine park national zone … very extensive evidence was given … to endeavour to prove that the (respondent) was in a marine park national zone. … after hearing that evidence I’m satisfied … that the (respondent) was at least 600 metres (within) the boundary of the zone.”

[20]  The Magistrate then quickly identified that the question for determination was whether the respondent negligently entered the zone.  His Honour referred to s 5.5 and set out its terms with complete accuracy.  He continued:

“…the (respondent) had three licences relating to commercial fishing and he had been commercial fishing for three to four years … He was fishing in a vessel where the GPS system was faulty, it was dropping in and out, it was 12 years old and he gave evidence he was supposed to put a battery in it every four years so that would suggest … a lack of maintenance in terms of that system or a lack of knowledge of how it operated and how it was to be maintained.

…

The (respondent) was aware of the (Marine Park Zone) and had a map … the map sets out the zones but is not an accurate map in terms of navigation … it’s not intended for that purpose but the (respondent) seems to have used it for that purpose.  It’s quite clear from the (respondent’s) own evidence that he fished very close to the line of the zone.

There were three other vessels there and the (respondent) gave evidence ‘… if they can fish there, I can fish there.’  To me that falls well short of the standard of what a reasonable person would expect of a commercial fisherman.  It would really fall short of what a reasonable person who’s not a commercial fisherman would expect.  There is sufficient publicity about the Great Barrier Reef Marine Park Zones, that everyone who goes out on the water in this particular area should know where the zones are, have accurate maps and simply not rely on the fact that there were other vessels in the area at the time.  So … there was a failing in that regard and it’s not acceptable to simply rely on the fact that there were other vessels there at that time.

… the (respondent) was not familiar with the area.  He … usually fished in closer to shore.  But … if he’s not entirely familiar with the area, then it points even more to the point of the necessity when fishing close to a zone, that he have an accurate GPS system …

… (The respondent) also gave evidence he did not know how to properly work the GPS system … he was not entirely familiar with it …

He said he was not a big person on navigation but he could catch fish.”

[21]  The respondent’s evidence was that when approached by officers of the Great Barrier Reef Marine Park Authority he did not believe that he was fishing inside the prohibited zone.  The reason he gave for the belief was:

“… I had plotted my course the best I could.  I have a GPS which was broken down at the time ... I lined up the bottom of Tongue (Reef) with the top of Satellite (Reef).  You pick that angle with a ruler that I put on the chart … I simply … came in to where three other boats were fishing”.

[22]  The map which the respondent used to plot his course to avoid the prohibited zone bore this endorsement:

“This map must not be used for marine navigation, comprehensive and updated navigation information should be attained from public hydrographic charts.”

[23]  The course which the respondent plotted, if followed exactly, would not have taken the respondent into the zone but “touched right on the boundary” of the zone.  Because his GPS was unserviceable the respondent had no way of knowing whether the effect of wind and and/or current or some deviation from the plotted course, caused by human error, might have taken him across the boundary and into the zone.  His belief that he had not entered the zone was based upon the fact that “three boats were fishing there”.

[24]  The District Court judge allowed the appeal “with considerable regret”.  His Honour did so because he thought the applicant had failed “to establish the element of negligence … that being the ‘fault element’ relied on.”  His Honour opined that “the last nine words” of s 5.5 “cause(d) the problem for the prosecution”.  Those are the concluding words of the definition, “that the conduct merits criminal punishment for the offence”.  The judge said:

“The insuperable difficulty I find is reaching a view which takes cognisance of the relevant standard of proof that the conduct proved against (the respondent) merits criminal punishment.  In my view, the significance of that is that the offender is someone who ought to be branded a criminal in the way in which offenders against the Traffic Code, for example, are not.  This type of conduct … is more akin to a regulatory offence. 

Undesirable, one might say indefensible, as (the respondent’s) conduct might have been, I can’t bring myself to the view that it’s something for which he ought to be branded a criminal or which ‘merits criminal punishment’.  I would recommend to the Legislators that in contexts such as the present where the intention may well be to establish something like absolute liability for fishing in the green zone, the considerable task of establishing that ‘criminal punishment’ is merited ought not to be inflicted on the prosecution.”

[25]  His Honour had earlier referred to the direction to juries, recommended by the Benchbook, in cases where an accused is charged with a breach of the duty imposed by s 289 of the Criminal Code Act (Qld).  By that section every person in control of anything which, in the absence of care, may endanger the life, safety or health of another must take reasonable care to avoid the danger.  The direction, quoted by his Honour includes the following:

“To convict, you must be satisfied … that his conduct … so far departed from the standard of care (imposed by the section) as to amount to conduct deserving of punishment.  Since we are in a criminal Court, we are concerned with whether there was a departure from those standards which is serious enough for the State to intervene and punish the person on the basis that he behaved with so little regard for the safety of others that he deserves to be punished as a criminal, not merely made to pay compensation.”

[26]  The applicant’s submissions claim to identify two errors in the reasons of the District Court Judge.  The first was to regard the concluding words of s 5.5 as importing an additional requirement into the section which must be separately satisfied before conduct can be said to be negligent for the purposes of the Code.  The error was, it was submitted, in construing s 5.5 as though it read:

“A person is negligent with respect to a physical element of an offence if his … conduct involves:

(a)such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk that the physical element exists or will exist; and

(c) the conduct merits criminal punishment for the offence.”

[27]  It is, I think, plain from the passages I have set out from the reasons for judgment that his Honour did approach s 5.5 on the basis identified by the applicant. 

[28]  His Honour noted what, in his view, was “the problem for the prosecution”, and that the Magistrate had not “given any particular attention to … that aspect”.  The aspect was whether the respondent’s conduct merited criminal punishment for the offence.  It was, his Honour thought, an “insuperable difficulty” because the prosecution had failed to prove that the respondent’s conduct merited criminal punishment and that his conduct was something for which “(he) ought to be branded a criminal”. 

[29]  It is clear that his Honour thought that this was an aspect of the proof of negligence which required separate consideration from the other aspects.

[30]  This is, with respect, a serious misunderstanding of s 5.5.  It is plain that, for the purposes of that section, an offender is negligent if his conduct falls short of the standard of care to be expected of a reasonable person in the circumstances, and a consequence of the falling short is a high risk that the physical element of the offence has come, or will come, about so that it can be seen that the conduct merits criminal sanction.  The concluding phrase: “that the conduct merits criminal punishment for the offence” is a qualification, upon, or a description of, the departure from the appropriate standard of care and the degree of risk that the departure will bring about the physical element.  This plainly appears from the words of the section: “such a falling short … and such a risk … that the conduct merits punishment.”

[31]  The grammatical structure of the section opposes any tendency to read the concluding phrase as a separate element or aspect of the definition of negligence.  The section defines a compendium: it does not describe two (and certainly not three) elements.  Negligence, for the purposes of the Code, is compendiously a departure from the relevant norm of carefulness creating a risk of such magnitude that the physical element of an offence would exist so that the conduct merits punishment.  An overall assessment is called for, not a separate analysis of distinct elements though, of course, regard must be had to the whole description of negligence.

[32]  The learned judge did not approach s 5.5 in this way.  His Honour’s analysis of the section was flawed.

[33]  The second error is interrelated to the first, and may explain why the judge fell into it.  The second error was to assess the respondent’s conduct to see whether it merited punishment by reference to the degree of carelessness necessary for a conviction on a charge brought under s 289 of the Criminal Code (Qld).  The reference to that section and the Benchbook direction is only explicable on the basis that his Honour understood the degree of criminal negligence described in the direction to be appropriate to the summary offence with which the respondent was charged.

[34]  His Honour did not appear to consider that s 5.5 allows different degrees of moral obloquy, or blameworthiness, depending upon the offence with which an accused is charged.

[35]  One struggles to see anything in common between the negligent handling of a dangerous object which kills or maims another, and negligent navigation which takes one into a prohibited fishing zone.  Yet the learned judge appeared to think that the same standard should be applied to both when judging whether the conduct merited criminal punishment.  Such an approach implies that with respect to all criminal offences against the Commonwealth in which negligence is the fault element there is a universal norm against which one determines the existence of criminality.  The approach eschews flexibility which would allow one to adapt the degree of criminal negligence to the conduct which constitutes the physical element of the offence charged. 

[36]  This is the consequence of his Honour’s reference to the conduct in question being of such a nature as to justify “branding” the accused “a criminal”.  Section 5.5 will not be satisfied unless conduct falling short of the reasonable and importing a high risk that the physical element of an offence will occur is so obnoxious in character that one should regard the accused as a criminal.

[37]  Indeed his Honour appeared to think that the requirement could never be satisfied where the offence charged was akin to a Regulatory offence or a contravention of the Traffic Act or regulations.  His Honour referred to:

“… the significance of (meriting criminal punishment) is that the offender is someone who ought to be branded a criminal in the way in which offenders against the Traffic Code, for example, are not.  This (the respondent’s) type of conduct … is more akin to a regulatory offence.”

[38]  It is, I think, clear from the terms of the section that no universal norm of criminality was intended.  The inquiry in each case is one of relativity: is the conduct in question such that it merits punishment for the offence charged?  Just as there are degrees of seriousness of criminal offences so there are degrees of blameworthiness or culpability. 

[39]  The words, “for the offence”, set the reference for the inquiry whether the conduct merits punishment.  The inquiry is not a general one whether, in the abstract, conduct merits criminal punishment or is such as to depict the person whose conduct is in question a criminal.  The inquiry is whether the conduct is such as to merit punishment for the particular offence.

[40]  It would make little sense to read the concluding words of s 5.5 as though they require, in the present case, a conclusion that the respondent should only be found to have been negligent if his careless navigation was to be equated with the degree of criminal negligence necessary to support a conviction for manslaughter, or causing grievous bodily harm through careless conduct. 

[41]  Lord Atkin pointed out in Andrews v Director of Public Prosecutions [1937] AC 576 at 583:

“… for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established.”

The felony in Andrews was motorcar manslaughter, and the comment that “a very high degree of negligence is required” must be understood in that context.  The Full Supreme Court of Victoria in Nydam v R [1977] VR 430 (Young CJ, McInerney and Crocket JJ) cited Lord Atkins’ comment with approval.

[42]  In R v Edwards [2008] SASC 303, a trial of the accused on a charge of manslaughter by criminal negligence Layton J, who sat without a jury, thought (para 420) that:

“… the standard of criminal negligence may differ according to the nature of the offence.  If the offence is a serious one, the departure from the standard of reasonableness must be greater than if the offence is minor.”

[43]  His Honour cited NSW Sugar Milling Co-operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6 as authority for the proposition.  That case may be authority for it but it does not, in my opinion, emerge clearly from the reasons.  Nevertheless, it is, I think, correct.  Any other conclusion would make s 5.5 difficult to apply, if not unworkable. 

[44]  The District Court Judge reasoned erroneously to conclude that the applicant had not proved, beyond reasonable doubt, that the respondent merited criminal punishment for his conduct.  The question remains whether the applicant had proved the respondent negligent within the terms of s 5.5 as properly understood.  His Honour thought that the Magistrate did not address the question whether the conduct merited punishment.

[45]  I doubt that assessment of the Magistrate’s reasons.  His Honour set out precisely the terms of s 5.5, reviewed the evidence and concluded that the offence was established.  The reasoning necessarily implies that the Magistrate concluded that the respondent’s conduct merited punishment.  Indeed his Honour punished the respondent. 

[46]  In case the criticism is valid and there has been no finding that the respondent’s woeful navigation was negligent as defined by s 5.5 the findings of fact can be considered afresh to see whether they indicate that the respondent merits criminal punishment for the offence of using a Marine National Park Zone for the prohibited purpose of fishing.

[47]  There can be no doubt about the answer.  The respondent knew of the existence of the zone and knew that fishing was not permitted in it.  He planned to steer a course that took him near a boundary of the zone and, indeed, along part of the boundary.  He had no means at all of determining where his vessel was in relation to the boundaries of the zone.  His satellite navigational system did not work and, in any event, he did not understand how to use it.  His only other means of ascertaining his location was by reference to compass bearings plotted on a map which was unsuitable for the purposes of marine navigation. 

[48]  It is, I think, a fair reading of the evidence that the respondent’s only basis for asserting that he was not within the boundaries of the zone was that other boats were fishing nearby.  One only has to state the fact to see it for the self serving nonsense it is.  The respondent was a commercial fisherman, who, to ply his trade lawfully, needed properly functioning instruments of navigation and the skill to use them.  He had neither. 

[49]  There was a very great falling short of the standard of care that a reasonable, skilful fisherman would exercise in the circumstances and at a very high risk that because of that gross carelessness he would enter the zone.

[50]  There is, in my opinion, no doubt that the respondent’s conduct merited criminal punishment for the summary offence with which he was charged.  He conducted his business with complete disregard for the prohibition contained in s 38CA of the Barrier Reef Act.  He put to sea incompetent to know whether he was, or was not, within the boundaries of a Marine Park Zone. 

[51]  The application for leave to appeal raises a point of general importance, namely the construction of s 5.5 of the Code.  The applicant has demonstrated that the construction adopted by the District Court was wrong and should be corrected. 

[52]  I would grant leave to appeal, allow the appeal set aside the judgment of the District Court and order that the appeal against conviction to the court be dismissed.

[53]  There was also an appeal against sentence which was not considered because of the success of the challenge to the conviction.  The fine imposed by the Magistrate, and the length of time allowed to pay, appear to make the punishment modest but the respondent indicated that he wished to pursue the appeal against sentence should, as has happened, the conviction be reinstated.

[54]  There should be a further order that the respondent’s appeal against sentence be remitted to the District Court for determination.

[55]  The respondent should pay the costs of the application for leave to appeal and the appeal.