Crosthwaite v Loader [1995] QCA 42 (1995) 77 A Crim R 348

IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Brisbane APL No. 176 of 1994 O.S.C. No. 14 of 1994 [Crosthwaite v. Loader] BETWEEN: RAYMOND KEITH CROSTHWAITE Appellant AND: ANTHONY STEPHEN SHANE LOADER Respondent Macrossan CJ McPherson JA Thomas J Judgment delivered 15 March 1995. Separate concurring reasons for judgment delivered by each member of the Court. APPEAL DISMISSED WITH COSTS. CERTIFICATE OF CONVICTION AMENDED. CATCHWORDS: FISH AND FISHERIES - Fishing Industry Organisation and Marketing Act 1982 - Fishing Industry Organisation and Marketing Regulations 1991 - Possession of undersized scallops - Damage to lips of scallops at or after taking - Whether measurements need to be related back to time of taking - Regulation permitting measuring of broken or chipped scallops - Master with inadequate system to eliminate undersized scallops - Possession generally - Whether measurement by callipers adequate when not tested at time - Amendment of conviction when precise number charged not proven. COUNSEL: L. Hampson for the Appellant W. Isdale for the Respondent SOLICITORS: Stephen Comino & Cominos for the Appellant Crown Solicitor for the Respondent -- 1 of 23 -- HEARING DATE: 14 February 1995. -- 2 of 23 -- THE COURT OF APPEAL [1995] QCA 042 SUPREME COURT OF QUEENSLAND Appeal No. 176 of 1994 Brisbane Before Macrossan CJ McPherson JA Thomas J [Crosthwaite v. Loader] BETWEEN: RAYMOND KEITH CROSTHWAITE Appellant AND: ANTHONY STEPHEN SHANE LOADER Respondent REASONS FOR JUDGMENT - THE CHIEF JUSTICE Judgment delivered 15/03/1995 The essential facts and relevant statutory provisions are set out in the reasons of Thomas J. In reaching my own conclusions I have had the advantage of reading those reasons and also those prepared by McPherson J.A. and I express my agreement with both. A feature of this case was that certain matters of relevance were not established with the precision that would have been welcome, but yet I agree that the prosecution case was sufficiently established in the circumstances beyond reasonable doubt. A firmer view of the extent to which the standards prescribed by the Act and regulations were departed from by the appellant would have emerged if it had -- 3 of 23 -- 2 been shown by what margins the non-conforming scallops failed to meet the statutory standard. However, the percentage extent of the non-conformity amongst the substantial numbers measured by the inspectors has considerable weight in proving culpable possession of undersized scallops at the time when the appellant was in possession on 8 December 1993. There is an apparent relationship between the significant level of non-conformity with prescribed standards and the nature of the processes employed on the appellant's vessel to separate out under-sized items. There could have been no real confidence entertained by the appellant that the method used would be effective to ensure that other than in exceptional cases, all under-sized scallops were not retained. Indeed, the setting of the tumbler device at a measurement so close to the legal limit combined with the absence of any further testing procedures by the crew to ensure conformity with that limit constitutes a procedure distinctly likely to result in significant numbers under nine centimetres in measurement being retained. The likelihood of this result is compounded by the consideration that subsequent chipping of scallops is likely to occur while they are in their handlers' possession, thus increasing the numbers which would not attain the legal limit. The only sorting procedure adopted does not impress as one likely to be effective to ensure even a high degree of compliance. Therefore it must be thought that the appellant embraced an obvious risk in the -- 4 of 23 -- 3 way he dealt with his scallop catch and in these circumstances it could not be said that his infringing possession was unintentional within the meaning of s.45AA(b). I agree that the appeal should be dismissed with costs making the formal amendment to the certificate of conviction suggested by McPherson J.A. for the reason he states. -- 5 of 23 -- 4 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 176 of 1994 Brisbane Before Macrossan C.J. McPherson J.A. Thomas J. [Crosthwaite v. Loader] BETWEEN RAYMOND KEITH CROSTHWAITE Appellant AND ANTHONY STEPHEN SHANE LOADER Respondent REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered the 15th day of March 1995 This is an appeal by order to review against the appellant's conviction in the magistrates court at Bundaberg of an offence of being in possession of 286 undersized saucer scallops contrary to the Fishing Industry Organisation and Marketing Act 1982. The scallops, which were part of a larger quantity, were first inspected by field officers of the Department of Primary Industries at the premises of M & M Fisheries at Urangan on 8 December 1993. They were part of a catch which during the preceding three weeks had been taken from the sea near Yeppon by the vessel Pacific Mist, of which the appellant was the master. The vessel stopped fishing on 7 December and returned to port. The scallops were landed from it and loaded into trucks at Bundaberg on the following day 8 December 1993, -- 6 of 23 -- 5 which was the date of the possession laid in the complainant. The appeal was directed essentially to two aspects of the conviction. One was the reliability of the evidence concerning the size of the scallops alleged to be undersized. The other was the responsibility (if any) of the appellant for having them in possession, which was a matter that on appeal was argued as depending on the proper interpretation of the Act and Regulations. In the way in which the submissions were put on appeal, these two matters were to some extent related, but it is convenient to consider the matter of proof as the first question. The instruments used by the field officers to measure the scallops were a vernier calliper and a steel scallops gauge. On appeal a challenge was made as to the accuracy of those instruments, or, rather, to the absence at the hearing of evidence of their accuracy. However, no point to this effect having been taken at the hearing of the complaint, it is not now open to the appellant to raise it on appeal. In fact, the instruments in question were later tested in the Measurements Laboratory of the State Trade Measurement Branch, Brisbane. Certificates dated 4 July 1994 state that each of the instruments was found to be within the maximum permissible error "and may be deemed to be equal to their denomination". A certificate like those issued under Part III of the National Measurement Regulations in force under the National Measurement Act 1960 (Cth) is, by reg.80A of those Regulations, evidence of the matters stated in it and -- 7 of 23 -- 6 may be received in evidence in any court. The two certificates were tendered without objection and admitted at the hearing as ex.3. There was nothing to displace the evidence about accuracy of the matters which they contained. A somewhat more compelling complaint is that the measuring of the scallops was carried out at Urangan over 8 and 9 December 1993, which was after the offence of having the scallops in possession was alleged to have been committed in Bundaberg on 8 December. The offence of which the appellant was convicted was charged under s.45AB(1) of the Fishing Industry Act, which prohibits a person from having in possession any "fish" (defined in s.6 of the Act to mean, among other things, scallops) the having in possession of which is prohibited by the regulations. Regulation 34(1) of the Fishing Industry Organisation and Marketing Regulations provides that a person must not have in possession any fish of a size specified in the Eighth Schedule. In the case of saucer scallops the size specified, so far as relevant at the time in question, in the Eighth Schedule is 9 cms. The evidence of the field officers was to the effect that, after examining some 1409 scallops over the two days in question, they found 286 that were less than 9 cms in measurement, and so "undersized" in the sense in which that word is being used here. Such an outcome would ordinarily warrant an inference that at the earlier time on 8 December, which is the date of the possession laid in the charge, the same scallops were also undersized. One would not expect -- 8 of 23 -- 7 their shells to have shrunk in transit between Bundaberg and Urangan. There was, however, expert and other evidence that the shells of scallops are in some respects fragile. Growing scallops have a fine protruding edge or lip which is vulnerable to damage through handling. In the course of unloading the cargo of scallops from the Pacific Mist at Bundaberg, then loading them on to the trucks and transporting them to Urangan on 8 December, and then offloading them and handling them there, the shells of scallops forming part of that cargo (from which the 286 measured scallops were randomly drawn) would have been liable to damage about the lip. This would, so it was contended, have rendered the measurements made on the subject 286 scallops prone to error; in short, scallops whose shells on 8 and 9 December measured less than 9 cms. might nevertheless have been 9 cms or more in dimension at the last moment at which the appellant had possession of them on 8 December. A partial response to this contention may be found in the evidence of the two field officers who carried out the measuring, which was to the effect that they did not measure shells of scallops that were badly chipped or damaged but instead treated them as "legal" and eliminated them from consideration. Unfortunately, the evidence does not describe in any degree of detail the extent of the chipping or damage that resulted in the elimination of those scallops. Assuming only a fine margin was involved in some instances, it is possible that some of the scallops measured -- 9 of 23 -- 8 at Urangan and found to be less than 9 cms on 8 or 9 December were not under that size at the time they were last in the appellant's possession at Bundaberg on 8 December. They may have suffered chipping or damage in consequence of their subsequent transportation and handling. I was at first inclined to think that such instances would be catered for by reg.35. It specifies the way in which measurements of various kinds of "fish" in the Eighth Schedule are to be carried out. In the case of saucer scallops, reg.35(4) provides that they are to be measured at the widest diameter "whether or not the shell is broken or chipped in any way". However, although that means that it is the diameter of the shell in its broken or chipped condition that determines the size of the scallop at the time the measurement is made, it does not and cannot establish that a particular scallop, measured on 8 or 9 December in the manner prescribed by reg.35(4) and found to be undersized, was in fact less than 9 cms in dimension at the time it was last in the possession of the appellant on 8 December 1993. The statutory offence is having possession of undersized scallops, not having possession of scallops which when measured are undersized. What may, nevertheless, with a degree of confidence capable of precluding any reasonable doubt, be predicated is that at least one of the 286 scallops measured and found to be undersized on 8 or 9 December was (whether it was chipped or not) in the same condition and possessed the same dimensions as when it was last in the appellant's possession -- 10 of 23 -- 9 on 8 December. The difficulty which confronts the prosecution here stems from the form of the complaint. Instead of charging simple possession of saucer scallops of less than the regulation measure, it charged possession of a specific number (286) of such scallops. No one supposes that if in the end only 285 of those scallops had been proved to be undersized, the appellant would on such evidence have been entitled to an acquittal. As long ago as 1878, Archbold's Criminal Practice, 19th ed., at 220, said that "a variance in the number of articles, or in their value, is immaterial ..." unless, of course, a particular value is a constituent of the offence and so must be proved to establish it. Examples of the rule are R. v. Lindsay [1963] Qd.R. 386, 400-401, followed in R. v. Organ (C.A. 104/1994); and R. v. Carson (1815) R & R 303; 168 E.R. 815. The first two are cases of stealing, and the third of embezzlement, but the rule is applicable here. On the evidence in the court below, it was open to the magistrate to convict the appellant of having in possession at Bundaberg on 8 December 1993 fish being a saucer scallop or scallops measuring less than 9 cms. The possible inability of the prosecution to prove on the evidence beyond reasonable doubt that a total of precisely 286 saucer scallops were in the possession of the appellant at Bundaberg on 8 December 1993 is therefore not a ground for allowing the appeal altogether. It amounts to no more than a variance between the complaint and the evidence adduced at the hearing. Being satisfied, as the magistrate -- 11 of 23 -- 10 was and I am on appeal, beyond reasonable doubt that at Bundaberg on 8 December 1993 the appellant had in possession at least one or more undersized scallops, I would, acting under s.213(1)(ii) of the Justices Act omit reference to the number 286, where it appears in words or figures in the certificate of conviction, and, so amended, confirm the conviction. The other point mentioned at the outset remains to be considered. Whereas the complainant has striven to approach the interpretation of the relevant statutory provisions as if they prohibited possession of fish which on later measurement prove to be undersized, the appellant naturally approaches those provisions in quite the opposite way. He seeks to move the critical time back to the moment of taking of the scallops by, in effect, reading s.45AB(1) and reg.34(1) as if the offence were expressed to be one of having possession of fish which, when taken, were undersized. It is, in my opinion, not possible to read the statutory provisions in that fashion. They create quite separate and distinct offences of (1) taking; (2) having in possession; and (3) selling fish, of the specified size or weight. Far from detracting from this impression, the provisions of s.45AA only serve to confirm it. They exclude the application of the Act to: (a) unintentional taking of undersized fish, where the person taking them returns them to the water immediately, without first wilfully injuring them; and (b) unintentionally being in possession of undersized fish, where the person having them in possession -- 12 of 23 -- 11 has been unable, owing to circumstances beyond his control, to return them to the water immediately after first having them in possession, again without wilfully injuring them in the meantime. One can readily conceive of circumstances in which either of those two "defences" might be available. None appear in the present case. Here the appellant made no attempt to return the undersized scallops to the water immediately after taking them or first having them in his possession, and there is nothing to show that he was prevented from doing so by circumstances beyond his control. The reasons for judgment of Thomas J., which I have had the advantage of reading, explain the method used on board the Pacific Mist to separate out the undersized scallops as they were being taken and so reduced into possession. It involved the use of a tumbler designed to return smaller scallops to the sea. The efficacy of the device depends on the diameter of the aperture through which the undersized scallops fall. The tumbler used by the appellant had a diameter that was set at 89 mms. It may be that the tolerance or margin it allowed was too small having regard to the minimum size of 90 cms that might lawfully be retained. The tumbler was in any event not self-sufficient but was designed for use in conjunction with a gauge applied by the crew members who were under the control of the appellant as master. Knowing how the tumbler performed, the appellant nevertheless took the risk that some scallops that were undersized were likely to be retained instead of being -- 13 of 23 -- 12 returned to the sea. Under those circumstances, his claim that his possession at Bundaberg on 8 December 1993 of undersized scallops was unintentional, or that he did not knowingly have possession of undersized scallops, cannot be sustained. He knew that unless the process on board ship was carefully watched and carried out, he would end up in possession of undersized scallops; which is what happened. Subject to amending the conviction in the way I have mentioned, I would dismiss the appeal by discharging the order nisi to review with costs. -- 14 of 23 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Brisbane APL No. 176 of 1994 O.S.C. No. 14 of 1994 Before:Macrossan CJ McPherson JA Thomas J [Crosthwaite v. Loader] BETWEEN: RAYMOND KEITH CROSTHWAITE Appellant AND: ANTHONY STEPHEN SHANE LOADER Respondent REASONS FOR JUDGMENT - THOMAS J Judgment delivered 15 March 1995. The appellant was convicted of having possession of 286 saucer scallops less than the prescribed size of nine centimetres. The date of possession was alleged to be 8 December 1993. The essential point on appeal is whether the scallops were proved to have been less than the prescribed size at the relevant time. The 286 scallops in question were all measured by inspectors using instruments on 8 and 9 December 1993. The main submission is that these scallops had been damaged between the time of their taking from the sea and the time of measurement to such an extent as to falsify the readings. Inherent in that submission is the premise that measurements to sustain a charge of possession must be able to be related back to the time of taking. There is also an alternative submission which challenges the reliability of the instruments which were used. The appellant was master of the fishing vessel "Pacific Mist" which netted a considerable quantity of scallops over a period of three weeks prior to 8 December 1993. On -- 15 of 23 -- 2 that day they were unloaded and transported to a factory at Urangan to be processed. Officers from the Department of Primary Industries sample checked two of the bins (numbered 39 and 10). From the first bin 194 scallops were checked of which 54 were found to be undersized. Of the second bin 215 scallops were checked of which 70 were found to be undersized. A more substantial inspection was then arranged for the following morning. Just on 1,000 scallops were on that occasion examined, from three samples taken at the start, middle and end of the unloading of the relevant container. 162 of the scallops were found to be undersized. The overall effect of these procedures was that 1409 scallops were tested and 286 of these (a little over 20 percent) were found to be undersized. The instruments used were a vernier calliper and a scallops gauge. Each instrument was set in a position fixed at 8.9 centimetres between the jaws of the instrument. There is a special regulation covering the measurement of the various kinds of fish (which includes scallops). That relating to scallops is Regulation 35(4) of the Fishing Industry Organisation Marketing Regulations 1991:- "Saucer scallops must be measured at the widest diameter, whether or not the shell is broken or chipped in any way." As is probably well-known, much of a scallop shell is roughly circular in shape, but there is a base or hinge section which is fairly straight and which ends in a rounded point at both ends. In the ordinary case the widest diameter will be the distance between one of these points and the fartherest extremity from it of the shell. A slight asymmetry would result in the measurement from one point being different from that taken from the other point. Accordingly the measuring procedure involves a double test by putting one point of the shell on the calliper jaw and "racking" the shell backwards and forwards to see if it passes through the other jaw of the calliper. The process is then repeated starting with the other point of the shell. If the shell passes through the jaws of the callipers on both tests it is regarded as undersized. -- 16 of 23 -- 3 The defence called an expert witness, one Mr Lamprell who spoke of the fragility of scallop shells. When asked how one goes about getting an undamaged scallop he replied, "With difficulty". The area of the shell up to the outer part of the radial ribs is reasonably sturdy, but the growth margin beyond that point was described as a very fragile lip. The lip area is particularly fragile in a young or immature shell. As they mature the lips are inclined to thicken and toughen. In a normal fully mature scallop the radial ribs terminate between 2.5 and 3 millimetres from the edge of the margin. In his view scallops of this kind are susceptible to damage through friction with other shells during the initial haul and through depositing them in the boat, during the sifting procedure when the haul is sieved through rings to eliminate the obvious undersized specimens (which are immediately returned to the sea), and from spontaneous damage whilst the duct muscle still works without the lubrication of sea water between the margins. He also thought it possible that the freezing process might increase the brittleness. Further damage could occur during transportation or further handling. The undersized shell was stored and tagged and "kept as evidence". During the trial Mr Lamprell inspected some of the scallops which were in a bag in an esky produced by the prosecution. It was admitted that the scallops he produced to the Court in the course of giving his evidence were "the same scallops that were taken from inside the bag there today". It is not clear how many were inside that bag or what proportion it bore to the entire batch of 286. With respect to the contents of that bag he was invited by defence counsel to look through the plastic, and having done this, said that he was unable to see any with intact margins. He observed that they all seemed to be damaged but further stated, "I can't see anything through those packets". Obviously no thorough examination of the degree of damage to the 286 scallops was undertaken either by prosecution or by defence. The effect of Mr Lamprell's evidence was to emphasise the degree of risk to which the whole catch of the scallops (including the ones in -- 17 of 23 -- 4 question) had been subjected, and to indicate that his examination as far as it went, revealed some damage to the margin of all such scallops. He agreed that none of the shells appeared to be split and that there was no evidence of shattering. The damage of which he spoke was the chipping or uneven effect around the outer part of the shell. At one stage he demonstrated to the Magistrate (by showing him a particular shell) the average size of the damage or missing pieces about which he spoke. Nothing was recorded with respect to this, and this Appeal Court is therefore deprived of any opportunity of knowing the typical degree of damage Mr Lamprell was attempting to describe. The evidence of the fishing inspectors was to the effect that if a scallop was "badly chipped" or "damaged beyond normal handling" or "obviously damaged" or "broken" they were not measured and they would be passed as a normal scallop. This was not contested. The degree of damage considered necessary before testing was regarded as inappropriate was not elicited by prosecution or defence. Furthermore, the prosecution adduced no evidence (even in a general way) of the extent by which the scallops, or even some of them, fell short of the prescribed measure. The evidence leaves it open to think that they may all have failed by a very small margin. If the prosecution is required to prove that the scallops were less than nine centimetres at the time of taking, I do not think that the evidence is capable of doing so beyond reasonable doubt. It may well be that at least some of the 286 scallops were substantially undersized but there is no evidence to this effect. The evidence adduced by the defence (as to which there was no challenge, and as to which there is no good reason for discounting), showed that as far as Mr Lamprell had been able to inspect the scallops in question, all of them were damaged, and that the damage was potentially capable of reducing readings by as much as 2.5 millimetres. The prosecution did not respond by producing even one scallop from the pile to demonstrate a sufficient deficiency to falsify the point. On the whole of the evidence I think it could not be held beyond reasonable doubt that at the time of taking, any of these scallops was -- 18 of 23 -- 5 less than the legal size. It does however demonstrate that they were all of less than legal size on 8 December, the date contained in the charge. I turn to the relevant statutory provisions. The offences are prescribed by s.45AB of the Fishing Industry Organisation and Marketing Act 1982-1989. It includes the following:- "...a person shall not... have in possession ... any fish ... the ... having in possession.. of which is prohibited by the regulations." Regulation 34 of the Fishing Industry Organisation and Marketing Regulations 1991 states:- "(1) A person must not take, have in possession or sell any fish or marine product of a species and size or weight specified in the Eighth Schedule. The Eighth Schedule relevantly includes the following:- "22. Scallop - Saucer (Amusium japonicum balloti) - less than 9 cm between 8 a.m., Eastern Standard Time, on 1 November in any year and 8 a.m., Eastern Standard Time, on 1 May in the following year..." Regulation 35 deals with the measurement of the size of fish (including scallops). Sub- paragraph 1 deals with fish and requires the measurement to be taken from the point of the snout to the extremity of the tail. Sub-paragraph 2 deals with crabs, for which the primary measurement is the dimension of the carapace, but in cases where the carapace is damaged or missing an alternative method is prescribed. Sub-paragraph 4 deals with saucer scallops and it will now be repeated:- "(4) Saucer scallops must be measured at the widest diameter, whether or not the shell is broken or chipped in any way." Confining the subject to possession, the combined effect of s.45AB and the regulations is to prohibit the possession of fish of a certain size. Ignorance of the size of a fish would not of itself avoid criminal responsibility. I am not speaking here of involuntary custody or the -- 19 of 23 -- 6 presence of something that the possessor does not know he has. The central requirement of possession, both at common law and in the definition in s.6 is "having under control" and this has been held to include at least the requirement that the person knows that he has something in his possession even if he does not know its nature or quality (He Kaw Teh (1985) 157 C.L.R. 523; R v. Clare [1994] 2 Qd.R. 619). It may be that there should be different tests applicable to the concept of possession for the purposes of the Drugs Misuse Act 1986 and for those of the Fishing Industry Organisation and Marketing Act, but there is nothing in any relevant statutory definition to call for different meanings to be ascribed to the term. It has now been held (R v Clare above) that to sustain a charge of "possession" under s.9 of the Drugs Misuse Act it is enough to show that an accused person has and knows that he has a thing or substance. If it is in fact a dangerous drug, it is immaterial that he did not know that to be so. A defence of non-intentional possession under s.23 of the Code was expressly disclaimed by the respondent's counsel in the present matter, and I shall not discuss it further. Code defences aside, express defences (through non-application of the Act) are provided in s.45AA of the Fishing Industry Organisation and Marketing Act. That section provides:- "Non-application of Act in certain circumstances. This Act does not apply to - (a) the unintentional taking of fish or marine products of any species of a less size than that prescribed in respect of that species or of fish or marine products that are otherwise protected by or under this Act where fish or marine products so taken are returned immediately to the water by the person taking them without firstly wilfully subjecting them to injury; (b) the unintentional having in possession of fish or marine products of any species of a less size than that prescribed in respect of that species or of fish or marine products that are otherwise protected by or under this Act where the person having in possession such fish or marine products has been unable owing to circumstances beyond his control to return them to the water immediately after he first had them in possession and has not in the meantime wilfully subjected them to injury;.." In my view sub-paragraph (a) is incapable of having any application to the present circumstances. -- 20 of 23 -- 7 Under sub-para. (b) however the question arises whether chipping such as that described by Mr Lamprell might have resulted in the appellant having "unintentional" possession of scallops of that lesser size. If such scallops were nine centimetres or larger when taken from the water the only reason why he should have returned them to the water was the risk that they might reduce in size and become in due course scallops of a size that he was prohibited from possessing. Accepting that it was lawful to freeze (and therefore wilfully injure) scallops which were still 9 centimetres or more in size, a difficulty remains in satisfying the requirements of s.45AA(b). Was the appellant "unable owing to circumstances beyond his control to return them to the water immediately after he first had them ..."? The tumbler on the "Pacific Mist" was to eliminate obviously undersized scallops as quickly as possible but it was not capable of affording a guarantee to the person in charge that what remained was of legal size. It was not uncommon for smaller scallops to adhere to larger ones, and to fail to pass through the rings. The appellant considered that it was the crew's responsibility to check the scallops that were retained after the tumbling process but there is no satisfactory evidence of any system, instructions or supervision. These circumstances fail to demonstrate any involuntariness in relation to the appellant's possession of the scallops which he caused to be retained on his vessel. In his capacity as master he had the necessary control and I reject the submission that this was insufficient for criminal responsibility in a charge of possession. It is hardly appropriate to say that on the present facts he was "unable owing to circumstances beyond his control" to return them to the water immediately, even though it might have been thought a curious thing to do at the time. At first glance it may seem a hard result if a master may be convicted of possession of something as an undersized fish which was not an undersized fish when he took it. But the question must be answered on the construction of the Act and the Regulations, and different answers may be given in relation to different kinds of marine creature as to which different regulations apply. -- 21 of 23 -- 8 The main submission of counsel for the appellant was that in a case of possession, the size of the fish must be reckoned as at the time when the fish was originally taken. The difficulty with this is that the Act plainly is concerned with the whole chain from taking the fish to the point of sale and possibly beyond. This is hardly surprising given the obvious difficulty of obtaining evidence at the point of actual taking. The offence of possession may relate to the time when the defendant is found in possession, and that is normally the case in bringing such prosecutions. The regulations seem designed to facilitate proof on the part of the prosecuting authority. Indeed, in the case of saucer scallops the regulatory authority has obviously adverted to the propensity of scallops to break or chip, because it contemplates measurement and prescribes how it is to be done "whether or not the shell is broken or chipped in any way". It seems to us that this is decisive in the present case against the submission that the size of the scallops must be proven as at some other time (e.g. the time of taking). The regulation contemplates measurement in a certain way; it contemplates that the shells may be broken or chipped (as well they may be at any stage in their lives including at the time of taking); and it contemplates that such measurement will be valid in relation to the time of the testing. Such an interpretation is in a sense aided by the knowledge supplied by Mr Lamprell in evidence. The natural brittleness of the external surface and the general difficulty of getting a completely undamaged scallop tend to make the outer margins an unsafe part of its anatomy for anyone to rely upon. Regulation 35(4) seems designed to ensure that if damage occurs after catching, the person in possession must bear responsibility for it. This may be thought to be a hard regulation but it is the manner in which the authorities have chosen to regulate the industry. The position should be distinguished from the regulation which pertains to fish (as generally understood) in regulation 35(1). During argument the situation was posed of a fish which, when caught, was plainly of or above legal size, but which subsequently was mutilated as for example by having its head or tail removed. Plainly a person in possession of such a fish -- 22 of 23 -- 9 is not in possession of an undersized fish. Rather is he in possession of part of an oversized fish. Such a possession is not prohibited. The same point would be available in relation to broken or chipped saucer scallops but for the special regulation which contemplates the measuring of such scallops. Accuracy of measuring instruments The instruments used were a vernier calliper and a stainless steel scallops gauge. Certificates attesting to the accuracy of those instruments related to tests made on 4 July 1994, that is to say, seven months after the time in question. No suggestions were made that any of the instruments was subject to distortion, or irregularity or that any accident had befallen it at any material time. No submissions was made on behalf of the defence during the hearing of a failure to establish accuracy of the measuring devices at the material time. Assuming that his matter could now properly be raised on appeal, there is insufficient reason to think that the evidence was unreliable. Certificates under the National Measurement Regulations proved their accuracy at the later date. The instruments were not complex or vulnerable to failure, and are of the kind which in the absence of evidence to the contrary the courts will presume to have been in order at the material time (Porter v. Kolodziej [1962] V.R. 75, 78). Instruments such as clocks, speedometers, thermometers, scales and numerous other reasonably familiar measuring devices have been held to be subject to this prima facie presumption (cf. Cross on Evidence Australian Edition paras. 1180 and 3070). There would in any event be difficulty in dealing with this particular point on appeal. The matter was not raised in cross-examination of any witness or in address. Had it been raised, it is a point upon which the prosecution might possibly have been granted leave by the Stipendiary Magistrate to reopen its case. It is not a matter that was incurable below, and for the reasons already stated I do not consider it to be of merit. The appeal should be dismissed with costs. -- 23 of 23 --