Ostrowski v Palmer [2004] HCA 30

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, KIRBY, CALLINAN AND HEYDON JJ

GEORGE PETER OSTROWSKI APPELLANT

AND

JEFFREY RYDER PALMER RESPONDENT

[2004] HCA 30

16 June 2004

P35/2003

ORDER

1. Appeal allowed. 2. Set aside orders 1, 2 and 3 made by the Full Court of the Supreme Court of Western Australia on 7 March 2002 and, in lieu thereof, order that the appeal to that Court be dismissed. 3. Appellant to pay the respondent's costs of the application for special leave to appeal and of the appeal to this Court.

On appeal from Supreme Court of Western Australia

Representation:

G T W Tannin SC with K E McDonald for the appellant (instructed by Crown Solicitor for the State of Western Australia)

K J M de Kerloy with K J Levy for the respondent (instructed by Freehills)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Ostrowski v Palmer

Criminal law – Defences – Respondent charged with fishing for rock lobsters in a prohibited area while holding a commercial fishing licence, contrary to a regulation made under statute – Respondent made inquiries at an office of a State Government department and was provided with incomplete information relating to prohibited areas – Respondent believed he had been provided with complete set of relevant regulations and was therefore unaware that fishing in relevant area was prohibited by law – Whether respondent could rely on defence of "mistake of fact" under s 24, Criminal Code (WA) – Whether respondent's honest and reasonable, but mistaken, belief was one of fact or law – Effect of officially induced error of law – Relevance of rules concerning pleading and proof of regulations.

Words and phrases – "mistake of fact", "mistake of law", "state of things".

Criminal Code (WA), ss 22, 24.