MESSEL v DAVERN & ANOR.

Supreme Court of the Northern Territory of Australia Gallop J.
8,9,10,11,14,15,16,17 April and 20 May 1986 at Darwin

Appeal - Appeal against convictions - Onus of proof of, exculpatory matter and honest and reasonable mistake.

Evidence - Character - Relevance - Likelihood of appellant having committed offences charged.

Evidence - Expert evidence - Value of evidence - Necessity for proof of facts upon which opinion based.

Fisheries Act 1965 (NT) ss.13(1), 13(2), 37A(l), 37A(2)
Justices Act 1928 (NT) s.177
Territory Parks and Wildlife Conservation Act 1976 (NT)
SS.	24(1), 24(2)., 29(1), 31(1)

Cases.applied:
He Kaw Teh v R. (1984) 60 LAR 449
V' Murphy (1986) 63 ALR 53

Cases considered:
Bank of New South Wales v Piper (1897) A.C. 383 Barritt v Baker (1948) V.L.R. 491
Dowling v Bowie (195i) 86 C.L.R. 136
R. v Tolson (1829) 23 Q.B.D. 168

Cases followed:
Atwood v The Queen (1960) 102 C.L.R. 353
Paric v John Holland (Constructions) Pty. Ltd. (1985)
62 ALR 85

Cases referred to:
R. v Deathe (1962) V.R. 650
Vines v Djordjevitch (1955) 91 C.L.R. 512

Counsel for the Appellant: Solicitors for the Appellant: Counsel for the Respondent: Solicitor for the Respondent:

'I'. Pauling Q. C. Ward Keller
A. Moffa
O'Rourke, Crown Solicitor for the Northern Territory of Australia.

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IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSrrRALIA
AT DARWIN
No. 743-746 of 1980

ON APPEAL FROM THE COURT OF SUMMARY JURISDICTION, DARWIN
BETWEEN:
•.
HARRY MESSEL	·"
Appelian

AND:
JOHN THOMAS DAVE-RN
Respondent

BETWEEN:
HARRY MESSELL
Appellant

AND:
PHILLIP ANTHONY MITCHELL
Respondent
CORAM:	GALLOP J.

REASONS FOR JUDGMENT (delivered 20 May 1986)

These four appeals are against convi	ions and penalties imposed by Mr. G. Galvin,·Chief Stipendiary Magistrate, sitting as a Court of Summary Jurisdiction, Darwin, on 1 July 1980 whereby he recorded convictions for the following offences and imposed the sentences indicated:

Between 14 and 16 October 1979 at Andranangoo Creek in the Northern
/ /	Territory of Australia -

In waters declared to be closed against the taking of barramundi by the Administrator in Council acting pursuant to s.13(1) of the Fisheries Act and published in the Northern Territory Government Gazette G34 dated 24 August 1979 did take barramundi from those waters contrary to s.13(2) of the Fisheries Act.	The penalty imposed was a fine of $400, in default 16 days imprisonment and an order for forfeiture of 2 workboats, 2 outboard motors, lures, hand lines, fuel tanks, and barramundi;

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Using in a protected area, namely Melville Island, a weapon that discharges a projectile, namely a shotgun, contrary to s.24(2) of the Territory Parks and Wildlife Conservation Act.	The penalty imposed was a fine of $750, in default 12 days imprisonment

Killing a protected animal, namely Magpie Geese, (Anseranas Semipalmata), contrary to s.29(1) of the Territory Parks and Wildlife Conservation Act.	The penalty was a fine of $750, in default 30 days imprisonment, and a further $2000 in respect of each additional geese killed, in default 80 days imprisonment.

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Having under his control the flesh of a protected animal, namely breasts of Magpie Geese (Anseranas Semipalmata) contrary to s.31(1) of the Territory Parks and Wildlife Conservation Act.	The penalty imposed was a fine of $250, in default 10 days imprisonment.

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In addition the learned magistrate ordered that the appellant pay the informant's costs in the sum of $1377.60 and allowed 28 days to pay the penalties and costs.

The notices of appeal are dated 11 August 1980 and the grounds of appeal which are common to each matter are as follows:

That the Cour erred in that it failed to apply properly the criminal onus of proof in evaluating the evidence in the case.
That the conviction was wrong and contrary to law.
That the Court should have held on the evidence that the Defendant was not guilty of the charge brought against him.
That the Court should have held that because no declaration had ever been made under the Wildlife Conservation and Control Ordinance of Melville Island as a protected area within the meaning of that Ordinance,

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Section 6 of the Territory Parks and Wildlife Conservation Act did not operate to continue Melville Island as a protected area for the purposes of the last-mentioned Act.
5•	That the Court erred in failing to perceive for the purposes of applying the said Section 6 a
distinction in law between a	,.
proclamation and a declaration.
That the Court erred in Law in failing to hold that proof of Mens Rea was essential to the establishment of the charge brought against the Defendant.
That the Court erred in holding that the activities giving rise to the charge were not authorised by the licence issued to the Defendant under the Fisheries Act.
That the Court erred in holding that the Defendant lacked an honest and reasonable belief that the activities referred to in the previous ground were authorised by the aforesaid licence and should have held on the evidence that he had such a belief.
That the Court erred in rejecting the Defence that the Defendant had an honest and reasonable belief that the relevant incidents had a scientific purpose and/or were incidentally relevant to the pursuit of such a purpose.

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_That the Court erred in failing to appreciate that the relevant question by reference to which was to determine whether the Defendant's activities were authorised by any of the relevant licences or permits was the Defendant's subjective belief upon that question.
That the conviction was against the
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evidence and the weight of the evidence.
That the conviction was unsupported by evidence.
That the penalty imposed (including the order for forfeiture) was excessive.

By arrangement all four appeals were hear together.

Pursuant to directions given on 18 November 1981 the appeals were conducted by way of complete rP.hP.Aring nf all the evidence.	Following certain rulings which I gave on
2 April 1982, an appeal to the Federal Court of Australia, and the grant of two applications for special leave to appeal by	the High Court of Australia, the matter was eventually remitted to this court and the heaiing resumed on
8 April 1986.	It continued from day to day until 17 April 1986 when I reserved my decision in each matter.

The procedure and power of this court on appeal at the relevant time were as set out in s.177 of the Justices Act, which read:

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"177.(1)	Every appeal shall be heard and determined by the Supreme Court in a summary way, and according to the rules of practice in force with reference to the proceedings of the Court in that behalf, and the Supreme Court shall have all the powers and duties, as to amendment and otherwise, of the Justices whose decision is appealed from.

Upon the hearing of the appeal the Supreme Court may -

( a)		adjourn the hearing from time to time;

mitigate or increase any penalty, forfeiture, or sum;
affirm, quash or vary the conviction, order, or adjudication appealed from, or substitute or make any conviction, order, or adjudication which ought to have been made in the first instance;

remit the case for hearing or for further hearing before the Court of Summary Jurisdiction; and

the Supreme Court may upon such terms as it thinks fit at any time before the order of dismissal is drawn up and sealed reinstate any appeal dismissed for want of prosecution."

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Andranangoo Creek - 14-16 October 1979

The prosecution version of the events giving rise to the four charges was given in evidence by Paul Howard Wilkinson, who was at the relevant time employed as a wildlife ranger by the Territory Parks and Wildlife

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Commission. He was relatively inexperienced in crocodile surveys and had only joined the Wildlife Commission on 20 February 1979.

On 8 October 1979 he was assigned as a crew member to the vessel "Harry Messel" for the purposes of taking part
in the Crocodile Research Program being jointly conducted by
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the University of Sydney and the Northern Territory Parks and Wildlife Commission.	He boarded the vessel on 8 October 1979 and it left Darwin wharf at about 1500 hours that day. The vessel proceeded from Darwin to the Adelaide River, arriving there about midnight and a survey of the crocodiles in the Adelaide River was conducted until 0430 hours.
Having completed that survey the party proceeded to the east side of Melville Island and continued surveying the rivers  on the north side of Melville Island as they headed west.

In the early hours of the morning of 14 October they reached the mouth of the Andranangoo Creek where they anchored.	One of the survey boats·was lowered into the water and three members of the crew went and checked out the navigability of the sand bank at the entrance ·to the mouth. When that boat returned the other survey craft was launched and a party of six went ashore to set up a base camp from which they were going to survey.	The six included George Vorlicek, Graham Wells and Wilkinson in one boat, and the appellant, Sandra Bourne and Bill Green in the other boat.

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After the camp was set up the boat containing Vorlicek, Wells and Wilkinson proceeded upstream taking salinity measurements.	When they reached the 20 kilometre mark upstream they turned back and passed the second boat containing the appellant, Sandra Bourne and Green, which was continuing up to about the 40 kilometre mark intending to

survey for crocodiles downstream from the 40 kilometre ,.

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to about 20 kilometres.	The first boat was intending to survey that night from the river mouth up to the 20  kilometre mark.	On the way back to the river mouth Graham Wells caught about five barramundi and they were taken back to the "Harry Messel" where they were cooked and eaten by those on the vessel.	The appellant, Sandra Bourne and Green were still upstream at the time.

The first party then went back to the river mouth intending to survey that ni ht for	rocodiles from the mouth up to 20 kilometres	Wells made a de6ision that because of the tide increase there would not be enough exposed bank for the survey to be worthwhile and that it would be resumed at

0400 hours the next day. night.

They decided to go to bed for the

At about 2230 hours the appellant, Sandra Bourne and Green arrived back.	The appellant castigated the first party for not having a fire lit.	The first party went surveying the next morning and arrived back at about 0700

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hours on the morning of 15 October.	The appellant again criticised the three members of the first party for not having lit a fire when they had arrived the previous  evening.	According to Wilkinson, he was very loud, very vocal and criticised them for not doing things the "Messel way", which was to share and have fun.	At the same time the appellant announced  that they were "all going to have fun and fish" that day.	The appellant made no mention of any experiments with barramundi or magpie geese.	The only mention of scientific work was the surveying of crocodiles.

The first party proceeded upstream and initially

were collecting mangrove and other vegetation samples. were passed by the second party, which included the

They

appellant, .and were instructed to stay behind because they

were scaring the geese.	Shortly after the appellant's party

pa sed the first party, Wilkinoon heard a number of shols being fired and saw the appellant at the front.of the boat with a double-barrelled shotgun shooting the geese.	Later, both parties fished for barramundi and a large number were caught and brought on board.	At about the 20 kilometre mark the first party were filleting barramundi and the appellant was taking the breasts out of magpie geese.		The second party then proceeded to fillet barramundi.	The appellant ceased taking the breast out of magpie geese and commenced fishing at a landing.	As the barramundi were filleted the carcasses were tossed over the shoulder on to a general

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pile.	The carcasses of the magpie geese were thrown onto the same general pile.	The fish fillets were stored in containers, put onto the survey boats and later taken back to the "Harry Messel" and put in a freezer.	According to Wilkinson the appellant gave no instructions on what to do other than to follow him later to the "Harry Messel'' after
they had finished filleting the fish.	He gave them no
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instructions about the carcasses of the barramundi or the magpie geese.	After the first party had finished filleting and the appellant had returned to the ship, there was some conversation between them as a result of which the barramundi carcasses were put in the creek.	Having taken the fillets back to the ''Harry Messel", the first party then camped back at the mouth of the Andranangoo Creek.	Some of the barramundi caught during the day had been saved to be eaten that evening.	They were not filleted and were cooked whole.

On 16 October 1979 both parties went upstream in their boats with the intention of fishing.	Wilkinson recalled that earlier on the morning of 16 October, as both parties set off, the appellant had mentioned £1at it would be interesting to see what was left of the carcasses which had been left the day before.	The survey party then packed up and left the mouth of the creek.	The first party sampled some vegetation and then spent most of the day fishing.
They met up with the second party who had also been fishing.

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Shots were heard during the day but Wilkinson did not actually see any shooting.	Back at the landing at the 20 kilometre mark Wilkinson saw that about 70 barramundi had been caught that day.	Approximately 20 magpie geese also came out of the boat used by the second party, including the appellant.	They filleted the barramundi.	Sandra Bourne
noticed a fairly large crocodile about 20 metres on the
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other side of the creek, estimated to be approximately 15 feet in length.	The carcass of a magpie goose was thrown into the water and the crocodile was seen to move towards it and eat the goose.· Green was instructed to photograph the crocodile eating the goose.	Subsequently, another three or four goose carcasses were thrown into the water and the crocodile ate all the carcasses except the last one.

The filleting of the barramundi was completed.	The fillets wArP	1t in	Rskys on board the curvcy boats and taken back to the "Harry Messel'' and deposited with the magpie geese breasts in the freezer.		The carcasses of the barramundi were just left in a pile where they landed on the bank of the creek.	The carcasses of the geese were likewise left in a general heap.	No instructions were given by the appellant about what to do with the carcasses of either the barramundi or the geese.		Nobody went back to check what had happened to the carcasses of the geese and barramundi left  at the 20 kilometre mark that day.	The "Harry Messel" then went to Snake Bay where the appellant and Wilkinson flew out in a light plane to Darwin on 17 October 1979.

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Wilkinson said in evidence that at some stage after some barramundi and geese had been taken there was a conversation on board the ''Harry Messel" about the correctness of fishing in Andranangoo Creek.	The appellant had said that the number of barramundi caught and magpie geese shot was insignificant, that there were lots more
barramundi and magpie geese and what was important was the
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conservation of crocodiles and the big, powerful crocodiles that were in danger.		Wilkinson said very little during the conversation because he was overawed or intimidated by the appellant.	He further said in evidence that prior to arriving in Andranangoo Creek the appellant had stated how good the fishing was there and had stated on several occasions that he had a fisheries permit to catch fish for scientific purposes and that this allowed him to fish in Andranangoo Creek.	Wilkinson saw the document he referred to as a fisheries permit on the wall of the cabin of the Wardroom.

In cross-examination Wilkinson denied that Wells had shown any interest in the stomach contents of barramundi during the three days when the party was at Andranangoo Creek and that Wells had done nothing by way of inspecting the stomach contents.

He was cross-examined about what was done with the fish and geese carcasses after the appellant had left the

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creek bank on 15 October 1979.	He said that he had mentioned to Wells and Vorlicek that it	did not look good to leave the barramundi carcasses on the river bank because it was closed barramundi season and that if anybody saw them it could create adverse publicity for the appellant and his crew.	According to Wilkinson, Wells and Vorlicek decided to throw the barramundi carcasses into the creek.	The ma1pie geese carcasses were left on the bank because there was no closed season on magpie geese in the Territory at the time. When the appellant said to him on the morning of 16 October that it would be interesting to see what was left, he did not tell him that they had thrown the barrarnundi carcasses into the water because he did not want to incur his wrath.
He	ook the appellant's statement that it would be interesting to see what was left as an indication that the appellant would not have wanted them disposed of.	He did nQt consider that he and the others had wrecked the appellant's experiment, because he did not regard it as an experiment.

Asked about how they went about putting the barramundi carcasses in the water, he said they were picked up individually by hand and thrown into the water.	They were taken from a heap on the bank.	He denied that after the filleting had taken place and the geese breasts removed, Wells suggested to him that he have a bet with the appellant when they got back to the ship for $5 or some such amount

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that when the appellant returned in the morning he would find the geese carcasses taken.	Wilkinson said he had no recollection of Wells making that suggestion, nor of making the bet when they arrived back at the ship.

He agreed in cross-examination that crocodiles and that barramundi may predate crocodile hatchlings were the constant topic of conversation amongst the team.	Such conversations took place before the party arrived at Andranangoo Creek.

The appellant, Wells and Mrs Green gave accounts of the events of 15 and 16 October 1979 in Andranangoo Creek.
Those accounts varied in very significant respects from the evidence of Wilkinson.

I deal first with the evidence of the appellant.
He said that the ves el arrived at the mount of Andranangoo Creek at about 0912 hours on Sunday, 14 October 1979.
Relations between the appellant and Wells were very strained.	Wells was threatening to resign.	He did not want to go to Andranangoo Creek to do the goose tests.	He did not believe in them and thought that there was more urgent work to be done elsewhere.	The appellant instructed Wells that he was to survey that night from kilometre  Oto kilometre 10 and to carry out a "high water salinity run".
He was also to carry out mangrove studies and to check with

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his hand lines whether there were any barramundi in Andranangoo Creek.	When they had gone there in 1975 there were many barramundi.		But when they went there again in 1977 the Creek seemed to be barren.	Therefore, one of the first things the appellant had to determine was whether there were any barrarnundi and geese in the creek in order to carry out his tests.		He said Wells knew exactly what tu hey
had to do.

They took the camping gear ashore and set up camp.
The appellant, Green and Sandra Bourne were engaged that night on a re-survey of the creek from kilometre 45 to kilometre 10.		When they returned to the camp the other team were asleep.	The appellant got angry and made his feelings known.	Up to this point his evidence as to the events is no different from the evidence of Wilkinson.	He agreed that he had not told Wilkinson the nature of the tests which he proposed to carry out in the creek.	He said Wilkinson seemed to be a quiet, reserved individual, not very much interested other than looking at the birds and water.	The appellant saw no reason whatsoever to discuss any scientific matter with him, as he would not have understood.

On the morning of Monday, 15 October 1979 the first party engaged in a survey from 0-10 kilometre mark and two creeks between the hours of 0400 and 0630.	They then came back to the ship.	Both parties left the ship at 0900 hours

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to shoot geese and catch barramundi for hatchling and bait tests.	The appellant said that he shot probably 20 geese that day.	He did not make a note of the number of geese that were shot.	He said he wanted to try to shoot enough to make a couple of heaps out of them.	Having shot the geese he radioed the first party, who had been catching  barramundi, to meet him at kilometre 25.3.	,,

The appellant then digressed in his evidence to a discussion which he had had with Wells on the morning of 15 October when both boats ieturned to the ship.	Wells gave him a report on the results of the survey which they had carried out between 0400 and 0630 hours that morning and the appellant gave Wells a report on the survey which he had carried out from kilometre 25 to kilometre 10 the previous evening.	They discussed that they had only discovered four hatchlings and that the appellant had found a number of old nests upstream of kilometre 27 in the nesting areas which they had discovered previously and which are shown in the  map on p.21 of Monograph 6.

The appellant then gave Wells very specific instructions that they were to go and catch barramundi between kilometre 26 and 26..5.	He told Wells that the second party would go upstream and fish from 26.5 to 27 and that the appellant would shoot geese upstream as well.	The appellant said this was a very important point for them

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because from his studies on the Blyth River in 1978 and June 1979, which are reported in Chapter 8, Monograph 1, in great detail, he knew that hatchlings had a tendency to move downstream.	Consequently, if there was going to be a chance of capturing a barramundi which had a hatchling in it, they felt it would be wise to survey just downstream of the main nesting sites.	That is why they chose that very parti ular area between 26 and 26.5 and 27, and that is where all the fishing on the day of 15 October took place.	The appellant stressed that it was a very specific area, not ranging up  and down the river, and chosen with regard to the place  where they had seen nest previously and a few nests on 14 October 1979.

Returning to the activities of 15 October, the appellant said that the first party left and the appellant's
party later	amA 11pnn thPm	t kilometre 10, pulled into the
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bank looking at mangroves.	The appellant issued an order, ''get off your bottoms.		You are supposed to be catching barramundi upstream".	The first party then started up their boat and reluctantly proceeded upstream to start fishing.
The two boats arrived at their respective areas of the river and carried out fishing and shooting.

The appellant was asked why they did not use nets for catching barramundi rather than lures.	He replied that in June 1979 after he had received his licence under the

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Fisheries Act, he tried to lay down a net for catching barramundi in the hatching or nesting areas on the Blyth River.	He said he had a terrible disputation with Wells who refused to have anything to do with a net and threatened to resign.		There was no way that the appellant could have used nets in Andranangoo Creek without halting the whole program
there and then because, he said, "they wouldn't do it11   •,.	At
that time the appellant was very concerned about the morale of the team and he thought that if he could get them to think they were having fun then they might be able to do what he wanted.	They did it, but very reluctantly.

When the two parties met up at the 25.3 kilometre mark they set about filleting the barramundi.	Every fish filleted was examined by Wells for the contents of the stomach and the carcass then thrown on a heap.		Later Wells placed the carcasses in the water at the edge of the river. They were not thrown in the water.	They were placed in the river at the edge after they had been examined.			The appellant debreasted the geese and placed their carcasses in two or three heaps about 10-15 feet away from the water's edge, where the mud was relatively soft, in the hope that if a crocodile had come up to take them he would be able to estimate the size by the slide and track.

Asked why he removed the goose breasts the appellant said that first and foremost he was concerned not

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to be criticised about waste.	When the program started, a senior officer of the Department of the Northern Territory, Mr. Martin Finger, had warned him that under no circumstances should the program ever be placed in a situation where it could be criticised for waste.	Finger had said that in many biological programs people had shot large numbers of birds or taken a large number of spec1,mens, which had been wasted and the program had been under great criticism.	As a consequence, in 1973 when the appellant caught some 1,000 barrarnundi his team worked all day filleting so that the fillets could go to the Darwin Hospital.

The other factor was that during the 1975 tests the appellant had used some carcasses and some whole birds and  it appeared to him that the crocodile did not know the difference.	Indeed, by taking off the breast there was more blood around, the smell of the goose would be enhanced and the crocodile more likely to be attracted.	He said he was conscious of the fact that he had a wildlife enforcement officer with him, obviously referring to Wilkinson, who the appellant knew would be reporting back and he was not going to leave himself open to any criticism whatsoever.	He said that the breasts were going back to Maningrida to go in a freezer and that they would probably go to the Aborigines.
In any event, his own staff did not seem to care for them as
food.

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Asked why he had not used carcasses from commercial fishermen he referred to a number of factors, but in particular that the barramundi season had closed on 1 October and there were no comrnercial fishermen about.

The appellant was at pains to stress in his evidence that every fish was examined for stomach contents
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and not thrown into the river but placed at the water's edge.	He said that after he finished filleting the geese he caught three or four more barramundi which were filleted and examined in the same way and placed in the river.	H announced loudly that the fish fillets belonged to the University of Sydney and were going back to Maningrida to be put in the freezer there.

The second party, comprising the appellant, _Green and Sandra Bourne, then rPt11rned to the vecccl.	The appellant decided that the tests would be continued the next day and put off his return to Darwin for a day by postponing the aircraft which was to pick him up at Snake Bay, Melville Island.	He said that if they had not been successful in getting the barramundi and geese he would have accepted the results and broken camp.	As things turned out, he was very pleased with himself and said it was going to be very interesting to see what was left the next day.

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The first team returned, comprising Wells, Wilkinson and Vorlicek.	He said that Wilkinson offered to bet him $5 that there would be no geese carcasses left on  the bank the following day.	The appellant declined the bet. He did not know until 1982 that his experiment had been sabotaged by Wilkinson and Wells after he had left the site at kilometre 25.3.			,,

On the morning of 16 October 1979 the first team had completed their resurvey and were then instructed by the appellant to go back to the 26 26.5 kilometre area to continue to try to catch barramundi.	He instructed them not to go to the 25.3 kilometre mark until he had examined it.
In the meantime they were to catch more barramundi for the barramundi hatchling test and if the appellant decided that more barramundi would be needed for the geese/barramundi bait preference tests he would be able to sue them for those two purposes.

Both parties then set out and the appellant's boat proceeded directly to kilometre 25.3 mark to see the results of the tests.	To the appellant's amazement, all the barramundi carcasses were gone and so were all the geese.
The appellant was very excited and decided to carry out another test.	He decided to get more geese and string them out on a line.		Also he decided to get more barramundi carcasses and string them out on a line in front of the

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geese on the bank and see what the crocodile would do.	As soon as he saw the results of his experiment of the night of
15 October he instructed those in boat 1 to continue fishing, that he would shoot more geese and that they would meet a kilometre 25.3 at approximately 1400 hours.	The decision to carry out the further test was very much a spur of the moment decision.		The appellant shot more geese and more fish were caught.		Both teams then returned to the 25.3 kilometre mark.		Breasts were taken from the geese and the barramundi filleted.	Every barramundi filleted was taken by Wells in his hands and examined.	The appellant started placing the geese carcasses out in a line while Wells was examining the barramundi.		While they were doing that, he spotted a large crocodile downstream.	He quickly ran to the line of geese, grabbed one, jumped in a boat and threw the carcass into the river, out into midstream.	The crocodile submerged, but came up just behind the goose.		The appellant shouted to Green the photographer, to get the camera.	After the crocodile ate the goose it was found that the camera was empty.	The appellant became desperate.	The camera  was loaded very quickly.	The appellant threw another goose carcass and the crocodile ate it.		The crocodile kept coming and the appellant threw one closer deliberately to see whether the crocodile was going to come in in spite of  people around.	The appellant fed the crocodile a number of geese carcasses and this was recorded on film.		The photographs are in evidence as Exhibit K.

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The appellant said he then jumped to the bold conclusion that, if a crocodile in the wild would come and take a goose bait dur ng the day, he had his bait which  would be good for catching sub-adult crocodiles.	He immediately decided to break camp.	They did so between 1600 and 1700 hours and put the barramundi fillets and geese breasts in the freezer.	The appellant worked on the results of the tests from 1700 hours to 0330 hours the next morning. The ship proceeded to Snake Bay where the appellant joined  an aircraft and flew to Darwin on Wednesday, 17 October  1979.	Wilkinson accompanied the appellant on the aircraft and made no complaint about the fact that barramundi had  been caught and geese shot.	The appellant said Wilkinson was very excited about the whole matter, thought it was marvellous and pleaded with him to be able to come again on another trip.

On arrival back in Darwin the appellant telephoned Mr. Murray Elliott, the executive officer of the Territory Parks and Wildlife Commission, who had issued the appellant's licence for scientific research under the Territory Parks and Wildlife Conservation Act, and reported to him in a very full description what had occurred.	He said that Elliott sounded very delighted and certainly made no mention that taking magpie geese was not covered by the licence.

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The appellant gave evidence about his interviews with Messrs Davern and Mitchell to which I shall return  later in these reasons.		In the course of investigations by those officers the appellant prepared a statement which he produced to Elliott on the afternoon of Thursday, 23 October 1979.	He said he discussed the contents of the statement with Elliott and that at no time did Elliott say that the taking of geese was illegal.		Nor did he refer to the discussion which they had previously had on board the vessel in Bynoe Harbour on 25 September 1979 when the question of licences was discussed prior to the vessel's journey to Melville Island on 14 October 1979.	(I return to this conversation later).	He said that the matter was discussed on 23 October 1979 with Elliott and Mr. John Houser, "the Deputy Director".	They told him he had done nothing wrong and discussed the statement which was then typed by one of Elliott's sP. rP.tnriPs,		he	appellant signed it and his signature was witnessed by Elliott.	The appellant then took the statement to the Chief Minister's office.

He saw Elliott again when Elliott came to see him off before he flew to Sydney on the afternoon-of 25 October. Again, nothing was said to the effect that the licence issued by the Wildlife Commission did not cover the taking of geese.	There was a further discussion between the appellant and Elliott and Houser on 12 February 1980 at the offices of the Commission at Berrimah and again nothing was

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said to the effect that the licence did not cover the appellant for the taking of geese.	(The proceedings the subject of these appeals were instituted against the appellant by complaints dated 11 December 1979).

The appellant was then referred to various scientific texts dealing with the subjects of science generally, scientific investigation, and scientific method. Finally, he said in his evidence in chief that the endeavour to determine predators of hatchling crocodiles is very much part of scientific research and that that was his honest belief in October 1979 and was still his belief; and furthermore that testing food preferences for crocodiles formed part of scientific research into the feeding habits of crocodiles and that that was his honest belief in October 1979 and he still held that belief.

The appellant was closely and exhaustively cross­ examined by counsel for the respondent.	He said that he thought the study of predators of hatchlings and the question of survivorship of hatchlings go together and that it is a matter of considerable interest.		A series of propositions were then put to the appellant, the import of which was to prove that the activities conducted in Andranangoo Creek on 15 and 16 October 1979 did not amount to scientific research.

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It was put to the appellant that there was no record kept of the number of barramundi caught, to which the appellant replied that that was not necessary as he was not carrying out detailed surveys but a simple test and that for that sort of experiment he did not have to keep records  other than those which he kept in the ship's notes.

"
In his extended answer the appellant compared the records kept on that occasion with the same sort of tests carried out in Maningrida from 1974 to 1977, when bait was put on the bank.	He referred to the very first time that he became alert to what he believed was a predilection of crocodiles for magpie geese, which was in 1972 when he observed a shot magpie geese hit the water and be very rapidly taken by a crocodile.	He said that he had receiverl similar reports from Dr. Webb and Dr. Griff but that was several years later.	He referred further tn thP result of a test carried out in 1975 in Andranangoo Creek, recorded in Monograph 6, Colour Plate 6.12 (part of Exhibit 18).

The suggestion was put by counsel for the respondent that records had been kept of the result of the tests in 1975, whereas no real records were kept in relation to the alleged tests on 15 and 16 October 1979.	I accept the appellant's explanation that it was not necessary to keep any more extensive records than those which he had in fact kept.

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The other propositions put to the appellant in cross-examination to establish that the events at Andranangoo Creek on 15 and 16 October 1979 did not amount to scientific research included the fact that in the amended schedule for the '1 Harry Messel" made on 2 April 1979 the vessel was not prograrr ed to go to Andranangoo Creek in
1979, that as the creek was found to be barren of barra» mundi in 1977 the appellant could not have been confident that
there would be barramundi there in October 1979, that crocodile hatchling production reaches its height in May of each year and not in October, that it would have been important, if the hatchling test had been a serious one, to record the number of fish caught, that the fish fillets and breast of 140 fish and 40 magpie geese would have had considerable commercial value and that the test was inappropriate anyway because fish caught by line and lure would probably disgorge their stomach con Pnts before they were landed and it would be impossible to examine them.

Throughout his cross-examination the appellant steadfastly maintained that his purpose in going to
-
Andranangoo Creek was to conduct the hatchling test and the
bait preference test, that it was not a complicated test but a simple one, which he chose to conduct in his own way, and that it was part of his scientific research.	In my judgment the cross-examination of the appellant did not detract from the appellant's evidence of that state of mind.

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An important witness on the issue of whether the events at Andranangoo Creek on 15 and 16 October were for the purposes of scientific research or not was Dr. Alan Graeme Wells.	He worked with the appellant from 1974 to 1979 as a research assistant.	He had completed his Bachelor of Arts court in Botany and Geological Sciences at the University of New South Wales and had taken up full-ti e employment in the Department of Environmental Physics at Sydney University in 1975, the topic of his thesis being mangrove vegetation in Northern Australia.	He had worked on that thesis from about 1977 through until 1979 while he was associated with the Crocodile Research Program.	It is apparent from his evidence that by October 1979 relations between him and the appellant were very strained.		He described it as a ''stand off" situation.

He gave evidence of crocodile bait tests which he had conducted under the supervision of a prosecution witness, Dr. Graham John Warren Webb, in late 1974 and 1975. Dr. Webb was also involved in the Crocodile Research Program under the leadership of the appellant from 1973 to 1977.
Dr. Wells said that they had experimented with various types of bait such as sharks, flying fox, saw sharks, different types of fish, buffalo, feral cat and a dog.	He also gave evidence about the various methods tried for capturing crocodiles.	Photographs of bait tests were in evidence (Exhibit 8).

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Turning to the events leading to the subject matter of the charges, Dr. Wells said that in September 1979 the vessel was engaged in a survey of Port Darwin, Port Patterson, and Bynoe Harbour.	While the vessel was at Bynoe Harbour there was some discussion about the appellant wanting to go to Andranangoo Creek.	When the vessel
returned to Darwin Dr. Wells went to see Elliott to protest
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about having to go to Melville Island to be associated with geese and bait tests.	He said that he told Elliott that other projects deserved greater priority and he mentioned the Blyth River and the Daly River.	On returning to the ship he told the appellant that they were running out of time and that it would be better spent going to the Daly River.	The appellant had disagreed in forceful terms and the vessel had sailed to the Adelaide River en route to Melville Island.

He said that on 14 October 1979 the vessel arrived and anchored at the mouth of Andranangoo Creek.	The appellant instructed him to conduct a high tide salinity run up the river and to see whether they could catch any barramundi.	There had been previous discussion amongst the scientists in the teams that before they could conduct the bait tests they would have to see whether they could catch any barramundi.	Dr. Wells caught three fish and took them back to the research vessel where they were filleted, their stomach contents looked at, and then eaten.	Dr. Wells said

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that every fish they caught was looked at for stomach contents.

He then gave an account of what the first team did on 14 October.	They were supposed to do a crocodile survey but the tide came in too fast and Dr. Wells cancelled the survey.		The first team then settled down for the night on the bank of the creek.	Later that night the appellant arrived back and was very annoyed that the fire was not lit. He chastised the members of the first team.	The next morning at about 0400 hours the first team did a survey for crocodiles, returned to camp at 0630 or 0700 hours and he and the appellant then discussed their surveys.	Dr. Wells and the appellant decided to conduct the bait test and for that purpose to catch fish in the section of the river 26-27 kilometres because that area was downstream of the crocodile nests the appellant had found the previous day and in the same general area where they had found nests in previous years.	On their way to their section of the river the first team stopped here and there so that Dr. Wells could examine mangrove specimens.	The appellant came along with his team and castigated the first team for not getting--on with what they were supposed to do in the research program.	According to Dr. Wells the appellant told him "to get my arse into gear and get going and start on the flaming fishing".	The first team then proceeded to their section of the river and proceeded to catch fish.	It was raining and they only  had two hand lines.		Dr. Wells did not regard it as having fun.

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The two teams met up at the landing on the creek bank.	They proceeded to fillet the fish and the appellant was debreasting geese.	He was piling the good carcasses into a couple of piles further up the bank.	Dr. Wells stopped filleting and involved himself in taking all the fish carcasses and looking at them, cutting some open for stomach contents.	According to his observation the stomachs were empty.	He then placed all the fish carcasses in a pile in the very shallow water at the edge of the bank in still, clear water.		The appellant's team then left, leaving the first team at the landing.

There was then a discussion between Dr. Wells and Wilkinson.	Dr. Wells suggested to Wilkinson that this was a good chance to win some money from the appellant and that if they threw all the geese away into the water, Wilkinson could go back to the ship and make a bet with the appellant that there would not be any geese there the next morning.
The appellant had already told them at the landing that he wanted to see what would happen to the geese.	Wilkinson and Dr. Wells then threw all the geese into the water but did not touch the fish left in the piles in the shallow water.
They then left and returned to the ship.	The fish carcasses were not thrown into the water.	It will be noted that in this respect Dr. Wells' evidence is vastly different from the evidence of Wilkinson.	In making the suggestion to Wilkinson, Dr. Wells had in mind that, when the appellant

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saw next morning that there were no geese carcasses there,  he would decide to break camp and they could all leave.	Dr. Wells had no interest at all in the geese/barramundi tests. On arrival back at the ship, Wilkinson offered the bet to  the appellant but he refused  to take it, saying that he would wait and see what happened.

On the morning of 16 October before both teams set off upstream to the landing again the appellant instructed the first team that under no circumstances were they to go ahead of the appellant to the landing.	The appellant's team preceded the other team to the landing.		On arrival the appellant saw a crocodile track and slide, made some exclamation such as "terrific" and ordered the survey team to do more fishing.	They proceeded to do the same as they had done the day before, while the appellant shot geese.
Both teams then returned to the landing.	The appellant said that the fish carcasses were to be placed in the same position where they were the day before.	The appellant was stringing out the geese in a line back from the bank.
Somebody observed a crocodile.	The appellant threw a goose carcass into the water, followed by a number of other carcasses.	The events were photographed by the official photographer, Bill Green.	According to Dr. Wells, the appellant was ecstatic and he ordered that they break camp, which they did and went back down the river.	The appellant was saying that he had proved that crocodiles had a

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predilection for geese.	The team returned in the survey vessel to Snake Bay where Wilkinson and the appellant left.

Dr. Wells was in no doubt about why the appellant ordered them to catch fish and why he was shooting geese in Andranangoo Creek.	He said that the appellant really wanted to see if crocodiles had a preference for geese, to	,.
determine what sort of bait he could use to catch small
crocodiles.	The fish were caught for the bait tests and so that Dr. Wells could look for hatchlings.

Subsequently Dr. Wells was interviewed by Messrs. Davern and Mitchell at Maningrida and a record of interview was compiled.	He was cross-examined about the answers he had given but in my view the effect of the cross-examination was not to detract from the account given by Dr. Wells of  the events at Andranangoo Creek between 14 and 16 October 1979.

In so far as the actual events between 14 and 16 October 1979 are concerned, I think that the more reliable version is that given by the appellant and Dr. Wells, and to a lesser extent Mrs. Green.	(I deal with Mrs. Green's evidence later in these reasons).	I conclude that Wilkinson is wrong in his evidence that at the end of the day on 15 October 1979 the fish and magpie geese carcasses were thrown on to a general pile and that subsequently the barramundi

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carcasses were put in the creek.	His recollection about that subject was confused.	He did not really comprehend or appreciate the nature of the tests which the appellant was carrying out, and I can only assume that for that reason he was not aware that Dr. Wells was examining the stomach contents of the fish as they were filleted.	His failure to remember the circumstances giving rise to the $5 bet with the appellant amply demonstrates his faulty recollection.

I find that the actual events in Andranangoo Creek between 14 and 16 October occurred as described in evidence by the appellant and Dr. Wells.

The Investigation

Wilkinson made a report to his superior officer, David Lindner, on 19 October 1979 and was later interviewed by fisheries officers of the Fisheries Division of the Department of Primary Production.	Those officers were Thomas John Davern (the respondent in the appeal in respect of the first charge) and Phillip Anthony Mitchell (the respondent in the appeals in respect of the other three charges).	Davern and Mitchell interviewed the appellant on Monday, 22 October 1979 at Maningrida.	Davern gave evidence of the following conversation:

"'We are investigating a report of illegal fishing that took place at

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Andranangoo Creek on 14, 15 and 15 of this month, and was carried out by crew members of the "Harry .Messel" and yourself. 1
Messel said, 'I have caught fish covered by my scientific permit at Andranangoo Creek.'
I said, 'What did you do with the fish you caught?'
Messel said, 1 T hey were used for scientific experiments. 1
Messel then produced a monograph number 6 in relation to Andranangoo Creek.11

After having the appellant identify certain documents, including a photostat copy of a Fisheries Licence for Scientific Purposes, Davern continued to question the appellant as follows:

"'How did you use the fish for scientific experiments?'		Messel said, "I shot some geese.		I used the breast of those as bait, and filleted the barramundi.		We placed those out on the bank near my camp.'		I said, 'What did you :do with the rest of the barramundi?'		Messel said, 'The fillets were put in my freezer.'		I said, 'Who was involved in the fishing?' Messel said, 'Myself,·wells, Doctor George Vorlicek, and young wildlife officer, a bloke Wilkinson, and Bill Green.'			I said, 'I have heard that the barramundi were caught on hand lines and rods and reels, is that correct?'	Messel said, 'Yes, we didn't use the nets.			I couldn't be bothered.'		I said, 'Were all the barrarnundi used for the scientific experiment?'	Messel said, 'Not all of them.	They were filleted.	I  wasn't going to give all the fish to the crocs. We just used the carcasses.		The crocs cannot tell the difference.'			I said, 'Were any of the fish used for other than scientific purposes?'	Messel said, 'No.' I said, 'How many fish were caught?' Messel said, 'I don't know, I don't count.'			Messel then branched into a conversation in relation to crocodiles.

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After that conversation I said, 'I would like to talk to your crew in relation to this matter.'		Messel said, 1 They were all asleep.		They had been working this morning, and they have just gone to bed. 1 I said, 'What time do you think they will be available?'		Messel said, 'How about 4 o'clock?'	I said, 'All right.'	I said{ 'Yes all right, could you have - have them come to the police station then?' Messel said, 'I will - I'll have Graeme,
Bill and George up at that time.'	I
said, 'All right, I'll talk to you later	c•
after I have spoken to your crew.	How long will the "Harry Messel be here?' Messel said, 'It could be a week.'"

Davern gave evidence of a later conversation at 2.30 p.m. in the afternoon as follows:

"When we approached Messel, Messel said,_ 'Now that you've asked me some questions I want to ask you some?	I've thought about this.	Why are you guys out here wasting my time and money.	I've got a major scientific program going on here and you:guys are holding it up.1	I said,
·'Weare carrying out investiqations in relation to a report of barramundi fishing by crew members of the "Harry
Messel" and yourself.	We have a job to do to check any reports submitted.' Messel said, 'The fish caught in Andranangoo Creek were caught for scientific purposes and to feed the crew. We were running short of food, and also to give the crew a rest and also a bit of sport.'		I said, 'Like a couple of rest and recreation days?'	Messel said, 'Yes that's right.	I decided to give them a break.	The fillets are going to the Maningrida community.'		I said, 'Where is Graeme Wells?'		Messel said, 'He's upstream.		He's broken the aerial off his
-radio, we can't contact him.	He should be back shortly.'	There was then some conversation in relation to dolphins sighted in the river.	I then walked over to Green, Onley and Vorlicek and introduced myself and I came back to

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Messel and I said, 'I 1 d like to talk to your men when they finish photographing. 1 Messel said, "all right, you can talk to Bill Green now, we'll go back to the boat and just give us a wave when you want us and George will come over.'"

There was a further conversation at about 6.00 a.m. on 23 October 1979 between the appellant and Davern and Mitchell. When they arrived the appellant was on board the "Harr§ Messel" anchored in the river.	He was seen to go into his cabin, come out, get into a dinghy and come across to the landing.	As Davern and Mitchell approached the appellant at the land the appellant said:

"'Before I say anything, and this is speaking officiaily, what right to you have to question and harass my crew, wasting out valuable time?	I don't appreciate that.		According to this, you've got no right.'		Messel then produced a draft copy of the proposed fisheries bill.	You should be using the current Fisheries Act.'			Messel said, "I've made a statement on the incident at Melville Island' and he produced a handwritten statement.			I said, 'I must tell you, Harry, that you don't have to say anything or say anything in the statement, as whatever you do say in the statement may later be given in evidence.'		Messel said, 'I want you to follow me while I read this statement out aloud.'	Messel then read the statement out aloud.		When he finished, he said, 'I want a copy sent to Mr. Paul Everingham, Mr. John Dillon, Mr. Dick Slack-Smith and Mr. Murray Elliott.'	I said, 'Can I have that?, indicating the statement.	'You don't have to give it to me if you don't want to.'	Messel said, 'You can have it. I want you to type it up, keep a copy and give it back to me.'	Messel then handed the statement to me and he said, 'You guys better know what you're doing.	This

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could break you, financially.	You could wind up in trouble. 1	I said, 'That sounds a bit like intimidation, Harry.' Messel said, 1 No, no, I'm not trying to intimidate you guys, for Christ sake.
We're all in the job together.	I'm just trying to keep things friendly.'		I said, 'What's your program for today, Harry?' Messel said, "Hughie will be arriving at
9 a.m. and then we're going to take a few photographs of the boat from the plane. I'll be leaving about 1.00 and going straight in to see Paul Everingham,
Slack-Smith, Dillon and Elliott.'	I said
11 I 1 d like to talk to George and Sandra. What would they be doing today?'	Messel said, 'George is preparing the typing and paperwork for me to take back to Darwin with me, and Sandra's working about - working around the boat.'	I said, 'Could we see Sandra now?'		Messel said, 'I tell you what.	I'll be down to pick up the photographer at 9.30 a.m.	I'll bring George up to the police station then.'	I said, 'All right.	Where are the barramundi fillets that were taken in Andranangoo Creek?'		Messel said, "They're in the freezer in Maningrida.'
I said, 'How much fish is in the freezer at Maningrida?'	Messel said, 'l don't know.	I don't count it.'	I said, 'I'm seizing the barramundi fillets.	Do you want a receipt for them?'	Messel said, 'They're in the freezer at the moment.
If you like, I'll leave them there.
No-one'll touch them.'	I said, "All right.'	Mitchell then said to Messel, 'As you k.now, Harry, I am a wildlife conservation officer.'	And he started to produce his identification.	Messel said, "I know that, I am a wildlife conservation officer too.'"

There was a further conversation about 9.40 sa.m. on the same day at the Crocodile Research Unit at Maningrida.	As Davern and Mitchell approached:

"Mitchell said, 'Are they the goose fillets?'	indicating a hessian bag and

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plastic fish tray in the back of the vehicle.	Messel said, 'Yes, I've brought the goose fillets up.	I'll put them in the freezer with the fish.	No-one will touch them until this matter is sorted out.' 11

The appellant then handed the hessian bag and the plastic fish tray to Wells.	He accompanied Davern and Mitchell to
,.
the freezer and placed the articles in the freezer.	Two

photographs of the 7 plastic trays of fish fillets were taken and were tendered in evidence as Exhibit F.

On about 25 October 1979 while the "Harry Messel" vessel was engaged in survey work in the Blyth River, a direction was given by the Chief Inspector of Fisheries that the vessel proceed to Gove.	It arrived there after a voyage taking 30½ hours.	Davern and Mitchell boarded the vessel and seized the two 17 foot work boats and two 50 horsepower Johnson motors, two hand lines and lures and two plastic fuel tanks.	The "Harry Messel" was then permitted to return to Maningrida, a journey which took 36 hours.

The appellant did not agree in his e idence with the evidence of Davern and Mitchell concerning their conversations with the appellant.	The portions of the conversations in dispute were not of great significance.
The appellant denied that he had told Davern that the fish were caught in Andranangoo Creek for scientific purposes and to feed the crew.	He denied having said that they were

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running short of food.	He said that he had told Davern that the fish were caught for scientific purposes, that the ship had just been ievictualled for the next three months in Darwin, that they were not going to get back to Sydney until December so there was lots of food on board.	He told Davern they had plenty of food on board but did not have any fresh
food ashore.
V

He denied having said anything about having a bit of sport.	He said he did use the word "fun", because he was trying to make the work pleasurable for the team.	He agre d that Davern had used the words "like a couple of rest and recreation days" but he had not agreed that that was what he was doing, or said that he was giving the crew a break.	He agreed that he said that the fillets were going to the Maningrida community.

In relation to his conversation with Mitchell on 23 October 1979, he denied saying to Mitchell that he was a wildlife conservation officer.	He said that he had told Mitchell that he was a conservationist too.

In so far as the conversations between the appellant and the investigating officers may be said to contain admissions, I am of the view that because the precise terms of the conversations are in dispute and the investigating officers gave evidence of the conversations

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from notes made shortly after each conversation took place, the prosecution evidence is not totally reliable in a criminal case and not sufficiently probative to amount to admissions in all the circumstances.	I therefore do not attach much weight to any inculpatory statements alleged to have been made by the appellant.	In my view the general tenor of the appellant's replies to the investigating officers was to exculpate himself from an allegation that he was not engaged in scientific work and to maintain his own strong belief that he was so engaged.

The Licences

Section 37A of the Fisheries Act provides that the Chief Inspector may issue to a person a licence for that person to take fish for the purposes of scientific research or investigation into the fauna of the Northern Territory. Sub-section 37A{2) provides that subject to the conditions and restrictions contained in the licence being complied with, the provisions of the Act do not apply to the taking  of fish under the licence.	It follows that if the appellant had been issued with a licence to take fish for the purposes of scientific research and was complying with the conditions and restrictions contained therein, he could not be  convicted of any offence against the Fisheries Act and, in particular, of any offence against s.13(2).

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There is no prescribed form of licence under s.37A although other forms of licence are prescribed by the Fisheries Regulations made pursuant to the Act.

M

The appellant was the holder of a fisheries licence issued on 8 May 1979 and expressed as expiring on 31  December 1979 unless sooner cancelled.	It is appropriate to
set out the terms of the licence in full:

"FISHERIES LICENCES FOR SCIENTIFIC PURPOSES

The following person

representing

Professor Harry Messel and persons employed on Crocodile Research Programmes

The University of Sydney Crocodile Research Facility

have the approval of the Chief Inspector of Fisheries, under s.27A of the Fisheries Ordinance 1965-1972 to collect the following species of fish
Unrestricted
In the following waters of the Northern Territory
Unrestricted

The general provisions of the Fisheries Ordinance do not apply to the above activities, but this licence is subject to the following conditions.

No chemical collection procedures or deto ating devices to be used.
This licence expires, unless sooner cancelled on
31 December 1979.

(signed) ............. .
Chief Inspector of Fisheries
Dated 8/5/79"

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It is to be noted that the appellant's licence is expressed to be in the plural, indicating that he is the holder of more than one licence for scientific purposes.

y

Alternatively, the use of the plural may be intended to indicate that the appellant and persons employed on Crocodile Research Programs are the holders of a number of fisheries licences.	In either case it seem inappropriate to issue a document purporting to be a number of fisheries licences.

The power of the Chief Inspector under s.37A is to issue to a person or to a person on behalf of an authority, institution, association or group of persons a licence for that person or the authority, institution, association or group to take fish for the .purposes of scientific research. I do not think that the issue of a number of licences to the appellant or separate licences to the appellant and persons employed on Crocodile Research Programs is fatal to the prosecution's case against the appellant.	Nor does it matter from the apellant's point of view.	It will be sufficient to bring s.37A(2) into operation if the appellant was the holder of a licence pursuant to s.37A(l) and its conditions and restrictions were being complied with.

The next criticism which must, however, be made of the form of the licence issued to the appellant is that it is expressed to be "for scientific purposes".	The printed

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form does not follow the words of s.37A(l), which states  that the Chief Inspector may issue to a person a licence for that person to take fish "for the purposes of scientific research or investigation".	If it was thought necessary to give a licence issued pursuant to s.37A(2) some form of heading, it should have been a heading in terms which followed the words of s.37A(l).	An appropriate form of words would be "Licence to Take Fish for the Purposes of Scientific Research or Investigation".

Furthermore, the words of the licence itself are inappropriate to achieve what the Chief Inspector no doubt intended to achieve, namely, to issue to a person or to a person on behalf of an authority, institution, association or group, a licence for that person etc. to take fish for the purposes of scientific research or investigation.
Nowher.e in the licence issued does it appear that the Chief Inspector has issued to a person a licence for that person to take fish for the purposes of scientific research.
Instead, the licence states that the person named "have the approval of the Chief Inspector of Fisheries under s.37A of the Fisheries Ordinance 1965-1972 to collect the following species of fish etc."	There is no provision in the Act for the Chief Inspector of Fisheries to give his approval to anyone to collect fish.		His authority is to issue a licence to a person etc. for that person to take fish for the purposes of scientific research or investigation.	Although

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the difference in wording could become significant in some circumstances, it is not so in these appeals on account of the attitude adopted by the prosecution that the wording of the document would not affect the operation of s.37A(2).

Lastly, the document issued states "the general provisions of the Fisheries Ordinance do not apply to the above activities but this licence is subject to the following conditions	II	What then follows is some conditions.	Section 37A(2) does not refer to the general
provisions of the Fisheries Ordinance.	It refers to "the

provisions of this Ordinance".	It is inappropriate to

impose conditions in the licence by the words used.	An appropriate form of words would be "subject to the conditions and restrictions specified below, the provisions of this Ordinance do not apply to the taking of fish under this licence''.	The conditions and restrictions to hP imposed would then follow those words.

For these reasons I am of the opinion that the document issued by the Chief Inspector of Fisheries is grossly defective as a licence issued pursuant to s.37A of the Act.

It was, however, conceded by counsel for the prosecution that the licence was issued pursuant to s.37A
and should be interpreted in that way.	In other words,

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notwithstanding the defects in the document itself, the matter of exculpation, if relevant, is that the appellant had a licence to take fish for the purposes of scientific research.

The appellant was, at all material times, also the holder of a licence for scientific research issued on 5 July
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1979 pursuant to s.111(1) of the Territory Parks and Wildlife Conservation Act.

The three charges against the appellant under the Territory Parks and Wildlife Conservation Act are brought pursuant to s.24(2), 29(1) and 31(1) respectively.	Each offence-creating section contains words of exculpation.	It is desirable to set out the terms of each sub-section:

"24. (2)

29.(1)

Subject to section 25, a person shall not, without the written authority of the Director, use in a protected area any kind of weapon that discharges a projectile or any kind of trap.

Subject	o this Act, a person shall not kill or injure a protected animal unless the act is done under the authority of and in accordance with the terms, conditions and limitations of a permit issued under this Act or a notice under sub-section (3).

- Penalty:		$2000, or imprisonment for 6 months or both; and, in addition, $100 for each animal in respect of which the offence was committed.

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31.(1)		Subject to this Act, a person shall not, except under the authority of and in accordance with the terms, conditions and limitations of the Regulations or of a permit issued under this Act -

have in his possession or under his control;
buy, sell or offer for
sale;	·''
barter or offer to barter; or

otherwise obtain from or dispose of, or offer to dispose of, to another person,

a dead protected animal, or the egg of a protected animal, or any flesh, bone, skin, horn, shell or other part of a protected animal or of the egg of a protected animal.
Penalty:	$2000, or imprisonment for
6 months, or both; and, in addition, $100 for each item in re p ct of which the offence was committed."

Section 111 of the Act gives power to the Director of Conservation to issue a licence to conduct in the  Northern Territory scientific research or investigation into the fauna or flora of the Northern Territory.	Section 111 reads:

"111.(1)	The Director may issue to any person, authority, university, institution, association or group of persons a licence to conduct in the Northern Territory scientific research

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or investigation into the fauna or flora of the Northern Territory.

Subject to sub-section (3) but notwithstanding anything contained elsewhere in this Act a licence issued under this section authorizes the doing of such acts or the possession of such things as are specified in the licence.

V

Where the doing of an act or the possession of a thing is said in the licence to be subject to any condition the issue or possession of the licence does not afford a defence to a prosecution for an offence against this Act unless the defendant proves that he has complied with the condition.

( 4)	II
Counsel for the prosecution conceded that the appellant wis :at all material times the holder of a licence to conduct in the Northern Territory scientific research or investigation into the fauna or flora of the Northern Territory pursuant to s.111 of the Act and that if the appellant was acting under the authority of the said licence he could not be convicted of any of the three offences charged under the Act.	The licence was in the following terms:

"LICENCE FOR SCIENTIFIC RESEARCH
LICENCE NO: SL22/79
DATE: 5/7/79
ISSUED UNDER SECTION 111(1) OF THE

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TERRITORY PJI.RKS AND WILDLIFE CONSERVATION ORDINANCE
Authority is hereby given to ... Prof. H. Messel of ... the University of Sydney .......•.........
to conduct scientific research into	crocodiles
involving ... survey and investigation procedure
...of the vertebrate wildlife listed in the schedule below subject to the following conditions:
This licence is valid for the period	1979

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The research authorised by this licence may be undertaken in . t.,_ he following areas only .......
North ern TerriLory............................
SCHEDULE
Common Name	Scientific Name	Number Saltwater Crocodile	Crocodylus porosus
Freshwater Crocodile	Crocodylus johnstoni

(M. H.

for Director

Elliott) 5 July 1979"

However, counsel for the prosecution submitted that whilst it is necessary to consider the scope of the above licence for scientific research, the licence does not authorise taking magpie geese, confined as it is to the conduct of scientific research into crocodiles involving survey and investigation procedure of saltwater and freshwater crocodiles.	The reason magpie geese were not specifically mentioned in the licence, so it was submitted, was that it was not contemplated that the survey ship and research team would be going to Melville Island, a protected area, in the 1979 program.	The program was set in April 1979 and the licence issued on 5 July 1979.	Elliott was called to give evidence on behalf of the prosecution.	He

/

gave no evidence that he did not include magpie geese in the licence because he knew that the survey vessel would not be going to Melville Island in the 1979 program.	In the absence of any such evidence I would not be prepared to conclude that the advanced explanation was the reason why magpie geese were not specifically included in the licence.
·
It	was also submitted that even if the taking of magpie geese properly fell within the scope of the licence to conduct scientific research into crocodiles, it could not authorise using in a protected area a weapon that discharges a projectile, nor having under one's control the flesh of a protected animal, which are in substance the second and f6urth charges set out above.

That is a very surprising submission because one cannot imagine that the Director of the Territory Parks and Wildlife Commission could have intended to authorise by the licence issued the killing of a protected animal and not to authorise the means of killing, namely by using a weapon that discharges a projectile, or the ordinary consequence of killing a protected animal, namely having und r control the flesh thereof.	When counsel made this submission I expressed my tentative views about the inconsistency in issuing a licence with that restrictive object in view and gave counsel an opportunity to seek specific instructions on whether the submission was to be persevered in.	After a

/

short adjournment granted a.t counsel I s request; it v1as apparent that there was some misunderstanding about the tentative view I had expressed 1 but counsel declined any further opportunity to obtain instructions.	In those circumstance I have accepted that the submission is pressed and I deal with it accordingly.
,.
It	is necessary to trace the history as given in evidence concerning the issue of the licence.	By letter dated 22 March 1978 (Exhibit 5) the appellant forwarded to the Territory Parks and Wildlife Commission a document setting out the aims of the Joint Crocodile Project of the University of Sydney and the Territory Parks and Wildlife Commission.		Those aims are expressed to include the following:

"A.	Current status, pop11l;,tinn ;,nr'l associated studies of C. porosus in Northern Australia

The need here is to determine the present magnitude of the Australian C. porosus population when it is at an all time low, then to monitor the recovery in different river systems and habitats of the north.	By examining population structure, nesting and survivorship, suitability of a river for C. porosus can be quantified; and by examining annual changes in population structure, mortality can be assessed.	Studies were also planned on feeding habits, growth and movement, the last requiring the development and use of radio telemetry techniques" (emphasis added).

/

By letters dated 28 March 1978 and 3 May 1978 the Wildlife Commission replied to the appellant's letter.		It is unnecessary to set out the terms thereof.	However, by letter dated 2 May 1978 addressed to Mr. Murray Elliott, Assistant Director, Territory Parks and Wildlife Commission, Darwin, the appellant applied for the necessary permit in the following terms:		,.

"Dear Murray,
re: PERMIT COVERING OPERATION OF THE JOINT CROCODILE RESEARCH PROJECT

Following assent to the Territory Parks and Wildlife Conservation Ordinance it is now probably essential for the Director of the Commission to reissue the necessary formal permit covering the operations of the joint crocodile research project in the Northern Territory.

The formal permit should cover both C. porosus and C. johnstoni and permit the doing - in all places in the Northern Territory inhabited by the species - of all those things necessary for carrying out the aims of the project.
Would you be good enough to arrange for the above and let me have a copy when completed.
Many thanks. Yours sincerely,

(H. Messel)"

The subject licence did not issue until 5 July 1979.

/

The appellant1  s letter of 2 May 1978 in clear terms requests the issue of the requisite licence to do all things necessary for carrying out the aims of the Joint Crocodile Research Project.	Elliott, who issued the licence, gave the following answers in cross-examination:

"I'm asked to remind you of something you were asked on a precious occasion; you regarded it as reasonable, did you not, in the study of the feeding habits of crocodiles, that magpie geese might be taken in a protected area for that purpose, provided it was covered by a permit?---Yes, I would regard that as reasonable.

As a matter of fact, you thought that was quite a -reasonable part of the study of the feeding habits of crocodile - regardless of whether it was lawful, or not?---If there was a need to take magpie geese for a - for a scientific experiment, then I would think it was justified to take them in a protected area."

!-'

I conclude from the correspondence and Elliott's answers in cross-examination that if he intended to authorise taking magpie geese for scientific research when he issued the licence on 5 July 1979, he also intended to authorise the use of a weapon that discharges--a projectile and the ordinary consequence of killing a protected animal, namely having under control the flesh of that animal.	If Elliott had some more restrictive authority in mind when he issued the licence, I think that he would have said so, either in the licence itself or in the answering

/

correspondence.	I therefore reject the submission made by
counsel for the prosecution.

That still leaves the question of the range of activities which may be legitimately carried out under the licence for scientific research.	I construe the licence as
authorising the killing of magpie geese by the use of a
V

weapon which discharges a projectile and, as reasonably incidental thereto, having under control the flesh of magpie geese, provided that such acts were conducted as part of scientific research into saltwater and freshwater crocodiles.

Prima facie cases established

In relation to the first charge the High Court has held that the evidence establishes prima facie that there  was a valid declaration made by the Administrator-in-Council pursuant to s.13(1) of the Fisheries Act in respect of Andranangoo Creek.	As there was no evidence to the
contrary, I am satisfied of that element of the first charge beyond reasonable doubt. The other elements of the offence, namely, taking barramundi from those waters are also
established on the evidence beyond reasonable doubt.

In relation to the second charge the High Court has held that the evidence establishes prima facie that Melville

/

Island is a protected area within the meaning of s.24(1) of the Territory Parks and Wildlife Conservation Act.	As there was no evidence to the contrary, I find that element of the second charge and the other elements of the second charge, namely using a weapon that discharges a projectile in that area, established beyond reasonable doubt.
"
In relation to the third charge the High Court has held that the evidence establishes prima facie that magpie geese are a protected animal within the meaning of s.29(1) of the said Act.	There being no evidence to the contrary, I find that element of the third charge and the other element of the charge, namely killing, proved beyond reasonable doubt.

The same applies in relation to the fourth charge and I am satisfied beyond reasonable doubt of all the elements of the offence of having under control the flesh of a protected animal, namely breast of magpie geese.

I turn to the matters of exculpation in respect of each charge.

Onus of Proof

It is, of course, quite clear that if the appellant took fish for the purposes of scientific research, he cannot

/

be convicted of the offence charged under s.13(2) of the Fisheries Act.	Likewise, if the appellant shot magpie geese in the conduct of scientific research he cannot be convicted of any of the offences charged against the Wildlife Conservation Act.	In relation to each offence it appeared to me to be relevant to consider where the burden of proof of the exculpatory scientific research lay.

It is to be noted that in relation to the offence against the Fisheries Act the matter of excuse does not form part of the description of the offence itself created by s.13(2).	The exculpation based upon scientific research is contained in s.37A.

In respect of the offences against the Wildlife Conservation Act the legislation is differently framed.	The matter of exculpation is contained within the description of each offence.	The distinctions in drafting could have been important in relation to the burden of proof of the exception or exemption from liability for the offence created.	Where the burden lies in such cases has been the subject of extensive judicial pronouncement arid the resolution of the question in relation to any particular legislation is often difficult.

Because of the concession made by counsel for the prosecution, to which I refer later, it is unnecessary to

/

dilate upon the principles which guide the resolution of the question.	I refer shortly, however, to some authorities on the subject.	In Barritt v Baker (1948) V.L.R. 491 Fullagar J., in construing the legislation then under consideration, said that the court's task was purely and simply one of statutory construction.	He went on to say:

"It has only to say what are the elements which the Legislature has specified as the prirna facie ingredients of the offence.	When it has determined, as a matter of construction, what those ingredients are, it necessarily follows that the burden of proving the totality of those ingredients rests upon the prosecution.	The solution of the logical problem of the classification of things is governed by logical considerations, and logical considerations will determine what is to be stated as a rule and is to be stated as an exception.	But the Legislature may formulate its rule or its rule and exception as it pleases.	It might, for example, provide that any. person who made a bet in a city, town or borough should be guilty of an .offence.
Or it might provide that any person who made a bet in any municipality other than a shire should be guilty of an-offence.
The substance might be precisely the same, but it might well be held that sec.
214 applied to the latter case but not to the former.	This would be because the essential elements in the specification of the offence are differently stated in each case."

In Dowling v Bowie (1952) 86 C.L.R. 136 the High Court referred to the principles.	Dixon CJ referred to the common law rule at pp.139-40:

/

"The argument treats the 6ase as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his within it.	The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of
liability contains within itself the	,.
statement of the exception or
qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification.	See
Barritt v Baker ·[supra].	The distinction has been criticised as unreal and illusory and as, at best, depending on nothing but the form in which legislation may be cast and not upon its substantial meaning or effect.	The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon cu1rniclera.tluns of substc:uwe a.11<.l not of form.	A qualification or exception to a general principl:e of liability may express-an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind.	If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it."

Fullagar and Kitto JJ concurred with Dixon CJ while Williams and Taylor JJ, in a separate judgment during the course of which they approved the passage from Barritt v Baker quoted above, reached the same result.

/

Lastly, I wish to refer to what the High Court said in Vines v Djordjevitch (1955) 91 C.L.R. 512 at 519:

"When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible  that in defining the elements  forming  the title to the right or the basis of the liability the provision may rely upon qualifications exceptions  or  provisoes and it may employ negative as well as positive  expressions.	Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody  obtains  a right or incurs a liability  under the provision.	In other words it may embody the principle which the legislature seeks to apply generally.		On the other hand it may be the purpose of the enactment to lay down some principle of liability  which  it means to apply generally· and then to provide  for some special grounds of excuse, justification or exculpation uevencll11<J	uvon new ur ac1ditional facts.
In the same way where conditions of
general application giving rise to a right are laid down, additional facts of a special nature may be.made a ground for defeating or excluding the right."

·''

Applying those principles to the Fisheries Act and the Wildlife Conservation Act, it is apparent that in relation to the Fisheries Act it could have been argued that the burden of proving facts amounting to compliance with the provision providing exculpation or justification rested upon the appellant.	On the other hand, in relation to the offences against the Wildlife Conservation Act, it could have been argued that the burden of proving facts amounting

/

to exclusion of provisions of exculpation or justification lay upon the prosecution.	All those difficulties were, however, removed, by the very proper concession by counsel for the prosecution that any onus which the appellant bore was an evidentiary one only and that, at the end of the day, in relation to all offences the prosecution bore the onus of proof beyond reasonable doubt.	He referred to "modern y authority", namely He Kaw Teh v R. {1984) 60 ALR 449.

The adoption of the burden of proof in that respect removed any construction arguments and allowed focus upon  the more substantial issue in the case, namely, whether even if the appellant did not commit the acts charged for the purposes of scientific research, there was an honest and reasonable belief on his part that he was doing so.

There has developed a principle that an hones Rnrl reasonable mistake of fact will be a ground of exculpation  in cases in which actual knowledge is not required as an element of an offence.	The principle is founded on what was said in R. v Tolson (1829) 23 Q.B.D. 168, particularly per Cave J. at 181:

"At common law an honest and reasonable belief in the existence of circumstances which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence."

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In Bank of New South Wales v Piper (1897) A.C. 383 at 389-90 the Privy Council said:

"The absence of mens rea really consists in an honest and reasonable belief entertained by the accused of the existence of facts which, if true, would make the act charged against him innocent."
,.,

These dicta were reviewed by Gibbs CJ in He Kaw Teh v R. supra.	The Chief Justice went on to say (at p.456):

"It may be that little turns on the question whether honest and reasonable mistake should be regarded as a special defence available only in cases not requiring m ns rea, or as something the absence of which constitutes mens rea. The matter is largely one of words.	On either view the words of the statute and the nature of the offence must be considered in deciding what mental state is required, and wh ther an objective test of reasonableness is to be applied together with the subjective test of whether there was a mistaken belief."

The Chief Justice said:

"It has now become more generally recognised, consistently with principle, that provided that there is evidence which raises the question the jury cannot convict unless they are satisfied that the accused did not act under the honest and reasonable mistake:	see Iannella v French 119 C.L.R. at pp.110-111; Kidd v Reeves [1972) V.R. 563 at 565; Mayer v
Marchant (1973) 5 S.A.S.R. 567; but cf R. v Bonner [1957) V.R. 227.	This view has also been accepted in New Zealand:
R. v Strawbridge [1970] N.Z.L.R. 909.	As I h ve said, it is in my opinion the correct view."
/

See also per Wilson J. at 476.	In the same case the dicta of Brennan J. are particularly instructive for the purposes of the present case.	He said:

"But since Woolmington v DPP [1935] A.C.
462 it has come to be recognised that the prosecution bears the ultimate onus of negativing 'defences' under the Codes: see Packett v R. (1937) 58 C.L.R. 190 at
212; Brimblecombe v Duncan; Ex parte	"
Duncan [1958] Qd.R. 8.	In Bank of New South Wales v Piper, supra, the absence of mens rea was said to consist in the existence of the exculpating belief.
Conversely, the absence of the exculpating belief should be regarded as a form of mens rea.		It is no more appropriate for the common law than it is for the Codes to regard the defence of an honest and reasonable but mistaken belief merely as an excuse for committing an offence that is fully constituted by its external elements.	In principle, the absence of such a belief must also be treated as a form of mens rea at common law and an element of the offence which the Crown must prove.	The golden  threat of which Viscount Sankey LC spoke in Woolmington has been woven through the material of all criminal offences."

Later in his judgment Brennan J. summarised the general principles as follows:

"(l) There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind.

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There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved.	It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either -

know the circumstances which make the doing of the act an offence; or

does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.

The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of statute.	Prima facie, knowledge is that state of mind.

The prosecution bears the onus of proving the elements referred to in
(1) and (2) beyond reasonable doubt except in the case of insanity and except whsrs statute othcrwioc provides.11

Dawson J. put the matter somewhat differently at p.499 where he said:

"There is, however, no justification since Woolmington v DPP for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it.	No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused.	But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and

/

reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal.	The governing principle must be that which applies generally in the criminal law.
There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities.	The prosecution must prove his guilt and the accused is not bound to establish his innocence.		It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake.	If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.

.,.

There is an abundance of evidence which raises the question whether in relation to all four offences the appellant w_as acting under an honest and reasonable belief that he was taking fish for the purposes of scientific research and killing magpie geese under the umbrella and authority of the licences issued to him.	To exclude that belief beyond reasonable doubt is a very heavy onus for the prosecution to discharge.	The appellant's conviction cannot be upheld unless I am satisfied beyond reasonable doubt that the appellant did not act under an honest and reasonable belief.

The principles apply equally to the Fisheries Act charge as to the three offences under the Territory Parks  and Wildlife Conservation Act.	In respect of the offence of using in a protected area a weapon that discharges a projectile contrary to s.24(2), the prosecution has to

/

u

establish beyond reasonable doubt that the appellant did so without the written authority of the Director i.e. that the act charged was outside the scope of that authority.	Even if the prosecution has discharged that onus, the appellant will still be entitled to be acquitted on the basis of an honest and reasonable belief that what he did was within the authority of the Director.	Here again, the appellant's conviction cannot be upheld, provided there is evidence which raises the question, unless I am satisfied that the appellant did not act under an honest and reasonable belief.

The same applies in relation to the offence against s.29{1) of the Territory Parks and Wildlife Conservation Act of killing a protected animal.		Section 29{1) provides within its terms a fact of exculpation, namely that the act is done under the authority of and in accordance with the terms, conditions and limitations of a permit issued under the Act.	If the appellant killed a protected animal, and I am not satisfied beyond reasonable doubt that the act was not done under the authority of and in accordance with the terms, conditions and limitations of a permit, the appellant is entitled to be acquitted.	Even if I am satisfied beyond reasonable doubt that the act was not done under the authority of and in accordance with the terms, conditions and limitations of a permit, the appellant is still entitled to be acquitted on the basis of an honest and reasonable belief, namely, that the act was done under the authority of

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and in accordance with the terms, conditions and limitations of such a permit.	Here again, I cannot uphold the appellant's conviction unless I am satisfied beyond reasonable doubt that he did not act under an honest and reasonable belief.

The same applies in relation to the offence a1ainst s.31(1) of the Territory Parks and Wildlife Conservation Act of having under his control the flesh of a protected animal. Section 31(1) provides the same type of exculpation within its terms, namely, that the offence is not committed if the act done was under the authority of and in accordance with the terms, conditions and limitations of the Regulations or of the permit issued under this Act.	The appellant is entitled to be acquitted if the prosecution has not discharged the onus beyond reasonable doubt of excluding the fact of exculpation, namely that the having in possession was not under the authority of and in accordance with the terms, conditions and limitations of a permit issued under the Act.	The appellant will also be entitled to be acquitted on the basis of an honest and reasonable belief.
In other words, the appellant's conviction cannot be upheld unless I am satisfied beyond reasonable doubt that the appellant did not act under an honest and reasonable belief.

Having accepted the onus of proof in relation to each matter as outlined above, following the principles

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enunciated by	the High Court in He Kaw Teh (supra), counsel for the prosecution submitted at the conclusion of the evidence that the evidence by and on behalf of the appellant in respect of all offences should not be accepted and that the events on Andranangoo Creek on 14, 15 and 16 October 1979 were no more nor less than a hunting and shooting expedition from the start.	.,.

Facts relevant to an exculpatory belief

From a factual point of view it is appropriat to start with the correspondence between the appellant and the Territory Parks and Wildlife Commission commencing with the letter of 22 March 1978 setting out the aims of the Joint Crocodile Project (Exhibit 5) referred to earlier in these reasons, and culminating in the issue of the subject licence on 5 July 1979.	As mentioned ear]jer	he fishPriPR	licence was issued on 8 May 1979.	The next relevant event in the chronology is the conversation between the appellant and Elliott, who was at the relevant time the officer in charge of the Parks and Wildlife Unit of the Northern Territory Parks and Wildlife Conservation Commission.	The appellant's evidence was that he knew Elliott well and that Elliott had participated in the Crocodile Research Program prior to September 1979.	He was a co-author of some of the publications issued under the Program.		On 25 September 1979 Elliott informed the appellant that he would be unable to

/

accompany the Research Unit to Andranangoo Creek.	The appellant said he immediately  became concerned, as he thought that there would be no question of anybody questioning  any  licence if he was operating with Elliott. He immediately went and procured his copy of his Territory Parks and Wildlife licence (Exhibit B), showed it to Elliott and said:		,.

"Murray, I have got to be absolutely that this covers me for my test or experiment.	Does this cover me for geese?"

sure

The appellant said in evidence that Elliott replied plainly and distinctly:

"This covers you for everything except buffalo, as far as I am aware."

The appellant said to Elliotti

"Murray, it is very important that I know.	I want to be sure."

or words to that effect.

Sandra Gay Green (nee Bourne) gave evidence on behalf of the appellant.	She said that she overheard that very conversation between the appellant and Elliott on board the vessel.	She said that there was mention of geese and

/

that the appellant, having said that he would go and get something, reappeared with a piece of paper in his hand. Elliott looked at the paper and the appellant said 11 So this covers me for everything?11	and Elliott said very clearly, "'This covers you for everything but buffalo".	The appellant

then said, "Good, because I want to be sure Murrayn. was as much as she heard.

That

"

She then gave evidence about the actual events at Andranangoo Creek on 14, 15 and 16 October 1979.	It is unnecessary  to set out all of that evidence.	She said that on 16 October 1979, although she was not involved in any of the scientific work, she was aware that Wells and the appellant were checking the barramundi for hatchlings, feeling the contents of the stomach to see if there were any hatchlings actually .in their stomachs.	The geese were placed on the bank by the appellant and other member of the team.	She witnessed the occasion when a crocodile was seen and carcasses tossed to it.

Elliott, who gave evidence on behalf of the prosecution, denied that the conversation took place in the form given by the appellant and Mrs. Green.	He agreed that the appellant had told him that he wanted to continue looking at the suitability of magpie geese as bait.	His recollection was that they were discussing the future program, that there would be a need in the subsequent survey

/

to catch a number of sub-adult animals and that they would have to find a suitable bait to do that.	Geese would have been one of the baits they had discussed.		He said that the appellant specifically asked him whether his licence covered geese and that he replied that his existing licence did not cover the taking of geese.	He agreed that he had told the appellant that the licence did not cover buffalo.	The ,.fact
was that Elliott did not have any authority to issue a
licence covering buffalo.	Elliott said that the appellant produced the licence to him at the time of this conversation, that he had told the appellant that he would need an additional licence, or an amendment, to enable the appellant to take geese, that there would have been nothing to have prevented Elliott from issuing a new licence to replaced the existing licence and that he made it quite plain.that, when the need arose to take other species for the testing of bait, a new licence could be issued for that purpose.

It is not easy to reconcile the versions of the appellant and Mrs. Green with that given by Elliott.	The appellant was very positive about what happened.	He was clearly anxious to clarify the scope of his licence for scientific research and in particular whether it covered him for taking magpie geese.	Elliott was the appropriate officer to give a ruling on the matter.	The appellant produced his licence at the time and asked the specific

/

questions.	So much is common ground.	If Elliott told him that he would need an additional licence, or an amendment, the appellant either misunderstood what Elliott told him, or he is being deliberately untruthful in his evidence.	I think it is unlikely in the circumstances that the appellant would have misunderstood what Elliott told him.	According to the appellant, he sought a specific ruling, not onl¥ because he wished to operate within the law, but also because he was apprehensive that someone might challenge the conduct of his scientific research in the way proposed.	He sought that specific ruling for the purposes of the intended survey of Andranangoo Creek.	It is possible that Elliott did not appreciate that that was the appellant's purpose and understood the request for a ruling to be more general so far as bait tests for crocodiles were concerned.
Accordingly he may not have realised that new or amended licences would have had to be issued before the appe]lan left for Andranangoo Creek.	So far as the appellant is concerned, however, I am satisfied that at the conclusion of the conversation with Elliott, he though his licences covered the sort of activities which he proposed to carry out in Andranangoo Creek.

In my judgment, based upon his demeanour in the witness box and all the surrounding circumstances, Elliott was nowhere near as reliable as a witness in a criminal matter as the appellant and Mrs. Green.	He was not

/

questioned at all about the subject in his evidence in chief.	His evidence of what transpired was elicited in cross-examination.	By his demeanour and his answers, he did not, in my assessment of him, exclude some room for faulty recollection.	It seems likely that if Elliott told the appellant that the licence did not cover magpie geese and that a new or amended licence would be necessary, the M appellant would have asked for one there and then.

The accuracy of Elliott's recollection of the conversation on 25 September 1979 should be measured in the light of his evidence about what happened when the appellant returned from Andranangoo Creek.	He agreed in cross­ examination that the appellant had telephoned him on 17 October 1979 in a very excited state and told him that he had observed a crocodile at Andranangoo Creek taking magpie goose after magpie goose i: lsh L UJ! close Lu Ll1e Ludt "o.t' something along those lines".	Elliott agreed that the appellant had also told him that magpie geese left as bait on the bank had been taken by crocodiles as well, and that he was convinced that magpie goose was the bait that ought to be used in trapping 100 or so sub-adult crocodiles in the next season.

At that point in his evidence Elliott conceded that his recollection about precise words may have been faulty but agreed with the general thrust of the questions put.

/

Having been informed of those events by	the appellant Elliott never told the appellant in any terms whatever, either then or later, that the appellant's licence did not cover him for magpie geese.	If that was Elliott's belief as at 17 October 1979, I think he might have been expected to say so when he was informed by the appellant that he had
gone beyond the authority granted by his licence.
V

Elliott also had another opportunity to say something to that effect about a week later.		On or about 23 or 24 October 1979 the appellant came to Elliott1 s office  and appeared to be very upset.	Elliott agreed that the appellant left a statement at the office and that he had witnessed the appellant's signature to the statement, having read it and being aware of its contents.	It was not produced in evidence but Elliott agreed that it plainly stated that thP RppPllRnt hArl shnt gppse And caught barramundi at Andranangoo Creek.	He agreed that he did not say anything to the appellant then about breaching the terms of his licence.	Furthermore, Elliott had another opportunity on 25 October 1979 when the appellant telephoned him from Sydney to discuss the complaints that had been made against him by the investigating officers.		All these matters were given by the appellant in his evidence.

The appellant was corroborated in his account of the conversation with Elliott on 25 September 1979 by Mrs.

/

Green.	I though Mrs. Green was a credible and reliable witness who did not try by reconstruction or otherwise to expand upon her recollection of the conversation between the appellant and Elliott.	She had been asked in late 1979 to recall the conversation and seemed to me to have a good recollection of what she had actually seen and heard.

There is, however, other support for the  appellant's evidence in the evidence of Dr. Wells.	In speaking of his conversation with Elliott on 8 October 1979, admittedly two weeks or so after the conversation  between the appellant and Elliott, Dr. Wells had stressed to Elliott that he did not want to go to Melville Island to carry out the appellant's goose and bait tests.	Elliott did not remember that conversation.	He maintained that he did not know before the ship sailed to Andranangoo Creek that the SnffiP qnnsP nna fish tPsts nS hna hPPn annp in 7975 WPrP tn

be carried out. subject.

I accept the evidence of Dr. Wells on this

I conclude that even if Elliott did not know on 25 September 1979 that the appellant intended to shoot geese in connection with his bait tests in Andranangoo Creek he certainly knew it on 8 October 1979.	At all times he knew that the appellant was very anxious to ensure that he was legally covered for all aspects of his research.	Having received and assurance from Elliott, the appellant acted

/

from that time on in the belief that his licence covered him for the taking of magpie geese for scientific research.

y

This finding does not, of course, concluded  the matter in the appellantrs favour.	The licence for scientific research would avail the appellant nothing if he was not conducting scientific research in taking fish and shooting magpie  geese, but was doing so purely for sport and pleasure.

Another important indicator of the appellant's care to ensure that he acted within the law at all times is his letter of 11 April 1979 addressed to the Chief Fisheries Officer (Exhibit D).	I set the letter out in full:

"11 April, 1979

Mr R.J. Slack-Smith, Chief Fisheries Officer, Fisheries Division,
Department of Industrial Development, Government of the Northern Territory,
P.O. Box 5169, DARWIN.	N.T.	5794
Dear Dick,
re:	Care of nets for catching bait for crocodiles, catching crocodiles and catching large barramundi and catfish -
in our research programme.
You are aware that we use nets of various sizes in certain parts of our research programme.	For instance, we have reason to believe that large barramundi are predators on hatchling crocodiles, but need to catch a few large barramundi (25lbs plus) in areas of high hatchling density, to check this out.	We also use nets for catching fish for bait for our crocodile traps and nets for catching crocodiles.

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I am anxious that whatever we do in our programme is within the law.	In view of this I hereby request that any necessary licence required for this be issued to us.
Many thanks,

Yours sincerely, Harry Messel11

In response to his letter I find that the appellant received a letter dated 4 May 1979 enclosing the fisheries licence (Exhibit A).	It is also significant in my view that when the appellant was first questioned by	Davern and Mitchell about taking fish and magpie geese in Andranangoo Creek he claimed that he was authorised to do so under the licences which he held and maintained his entitlement to do so in the subsequent conversations at 2.30 pm on 22 October 1979 and 7.12 am on 23 October 1979.

The prosecution sought, by the evidence of a number of scientific experts, to discharge the dual onus of proving that the taking of fish was not done for the purposes of scientific research and the appellant did not hold an honest and reasonable belief to that effect, and further, that the killing of magpie geese together with the related offences of discharging a weapon and having possession of the flesh of magpie geese, were not done for scientific research, and that the appellant did not hold an honest and reasonable belief to that effect.

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The first witness was Dr. Graeme John Warren Webb, a wildlife consultant and biologist engaged by the Conservation Commission of the Northern Territory in crocodile research.	He was qualified as an expert in crocodile research and in fact he worked in the appellant's crocodile research program from 1973 until 1977.	He gave evidence about the growth patterns and age of maturityyof male and female crocodiles, methods of trapping crocodiles and their preferred prey.	He was then asked to express his opinion about scientific research on the basis of a number  of factual assumptions commencing with the assumption that a party went out on the "Harry Messel" equipped with two 17 foot motor boats manned by three people in each boat.	The critical factual assumption was put as follows:

"Assume though that instead of surveying crocodiles,·the activity being carried on in one boat was catc ing fich by	way of line and hook, and assume in the second boat some fishing is carried out, but also the activity of shooting magpie geese.	Assume that at least one member of the people manning these boats was not advised as to any use which was going to be made of fish caught, or geese shot.
Assume that at the conclusion of the fishing and shooting activity on one day, that a number of magpie geese having been shot and collected were then cut, so that the breasts of the geese were removed and the carcasses piled in a heap, and secondly as far as the fish caught, and assume the fish caught were barramundi, that they were filleted and the carcasses
,		once filleted were again piled in a heap. Assume that prior to the party departing the area in which the cutting and filleting operations had taken.place, the barramundi carcasses were thrown into the stream.	Assume that the next day it was

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observed that the geese carcasses had vanished.	Assume that all this was happening at an area on Melville Island which I find easier to pronounce as Goose Creek, an area known to you,
doctor?---Yes."

Dr. Webb was asked to express his opinion whether any scientific method was demonstrated by the assumed state

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of facts.	He said that he did not think that there was any scientific method or any hint of science involved in it.

Counsel for the prosecution then added a further assumption that the geese carcasses which had been left on the bank had vanished the next day and asked whether, in the absence of actually Ob$erving how the geese were taken from the bank, there was any way of determining what may have removed the geese.	Dr. Webb said that the most logical thing would be that they probably got washed away in the  tide as there are very big tides in those areas.

Counsel for the prosecution _then continued the hypothetical state of facts by taking the scenario to the next day.	The relevant portion of the transcript reads:

Assume that once more the filleting and cutting operation is carried out on the bank with the breasts of the magpie geese being removed, and the barramundi being filleted.	Assume, also, that on the day before the fillets were taken away by the use of the great Australian instrument, the esky.	Assume that a similar type of process was going on on the second day.
Assume that during the course of that

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operation being carried out, a crocodile was observed in the stream; and assume, then, that one of the boats then - assume that from the boat some 4 magpie geese carcasses were thrown near the crocodile. Assume that the crocodile ate each of the carcasses; again, what scientific method is demonstrated by that operation?---Just an opportunistic observation.	I mean, if that crocodile came up opportunistically, you had carcasses available; opportunistically the crocodile came up
and you threw one to it and the croc	,.
opportunistically ate it; it doesn't tell
you too much, it's just - - -
What use would that exercise be in trying to scientifically determine if crocodiles had a preference for geese as against any other food?---With only goose thrown to it (inaudible)?

Yes, only geese thrown to it?---It would have none; none.

Assume that photographs were taken of the crocodile devouring the geese; assume that after that the fillets and breasts were again removed from the scene by the use of an esky, and assume that the carcasses, both of barramundi and geese - and assume on the second day there were about 70 barramundi and 20 geese were left on the shore - what scientific use would that demonstrate?---I can't see any, its just that - - -
Assume that on the next day nobody came back to see what had happened to the carcasses?---No, it's just - hunting and fishing you can go down the Mary River and see that same thing every day."

Dr. Webb said that having caught the fish, to palpate the fish without carrying out an examination of the stomach-would  be of no use whatever.	According to him you would have to open the stomach and have a look at its contents.

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Lastly Dr. Webb said that the breasts of magpie geese and fillets of barramundi would be no good for bait for crocodiles.

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In cross-examination Dr. Webb agreed that in a paper which he wrote with the appellant entitled "Injuries and Abnormalities in Crocodiles" it was certainly implied that perhaps barramundi are predators on crocodiles.	He also agreed that the food preference of crocodiles is an open question and that generally chance observations can be sometimes quite significant in scientific research.

The next witness for the prosecution was Dr.
Timothy Lionel Ormandy Davis, a senior research scientist with CSIRO Fisheries Research in Hobart, Tasmania.	From 1977 until 1983 he conducted a project into the study of barramundi within the Northern Territory and the Gulf of Carpentaria.		Approximately 3,600 barramundi were used in the experiment.	They were collected from commercial fishermen and caught by themselves.	They were dissected, the stomach was removed and stomach contents examined and identified.	In none of the stomach contents examined was any crocodile discovered.	He said that it would not be possible by palpating the stomach of the barrarnundi to determine what was in the stomach.

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In cross-examination Dr. Davis did not agree that by feeling the stomach of a barramundi one could rapidly determine whether there was a crocodile hatchling in it.	He said, not knowing how big a crocodile hatchling is, that it would depend on the size of what was in the stomach and the size of the barramundi.	He agreed that the fact that he did not find any evidence of crocodiles in the 3,600 barra undi tested did not exclude the possibility of barramundi being predators on crocodiles.

The next witness for the prosecufion was Dr.
Richard Dennis King.	He is a research officer with the Agricultural Protection Board of Western Australia.	His particular speciality is in the ecology of vertebrate animals, particularly related to the management of species which may or may not be pest animals.	At.the time of giving evidence he was involved in research on feral goats, camels, rabbits and native animals.	He gave evidence about his methods in determining an animal's preference for food.
Shortly put, that method involves the presentation of a smorgasbord to the animal.	He mentioned the keeping of records.	He was then given a set of assumptions by counsel for the prosecution and asked whether any scientific method was demonstrated by the technique involved.	The relevant transcript reads:

"Assume that these boats were involved during a day of catching fish, and in particular the species barramundi.

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Assume that no set amount of barramundi was stated at the start to be caught; in other words, just fish at will until you stop.	Assume that on this day in one of the boats, a number of magpie geese were shot, and again assume that no particular set number of magpie geese were set out to be shot.	Assume that at least one member of the party had no idea that anything else were happening than the catching of fish and the shooting of geese.		Assume that at the conclusion of the fishing and shooting activities on that day, that the geese which had been shot and the fish which had been caught, were taken to a bank on the river.
Assume then further, that the barramundi fish were filleted.	Assume that the carcasses of the filleted fish were thrown into a heap.	Assume also that the breasts of the geese were removed, and again the carcasses of the geese were piled on a heap.	Assume that this was all on the river bank.	Assume that prior to the party departing the bank that the barramundi carcasses were thrown into the stream.	Assume that the next day when the party returned, the carcasses - the goose carcasses which had been on the bank, had gone, and assume also that no record was made at the time as to how may carcasses :were - either of geese or barrarnundi - h.:i.d been kept.	Making those assumptions, how does that accord - and assume that it is said that the purpose of this exercise was to try and ascertain if the geese were an appropriate bait for an animal, and you may assume a crocodile
making all those assumptions, doctor, is there any scientific method demonstrated by the technique involved?---None that I can see.

As far as scientific use is concerned, again adverting to those assumptions I have put to you, what do you say?---Again none.	The disappearance of the carcasses
the goose carcasses - is a fact that has occurred but with no real explanation or value.

I want you to assume that on the next day once more similar activities were carried out, namely, fish were caught and again without any number being stated to the

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people on the expedition as to those required, and equally, geese were shot.

Jl.ssurne that once more the shot geese and caught fish were taken to the river bank. Assume that once again the fish were filleted and the breasts of the magpie geese were removed.	Assume again that they were piled into a heap on to the bank.	Assume though that roughly there were 20 magpie geese carcasses, and assume there were roughly 70 barramundi fish carcasses.		Assume they were left overnight, again, could you see any scientific use in that - again, no record was kept?---No, unless umbers or a measurement of some kind of the amount of material which was kept - which was put there, was used, there would be no value to start with.	Having one pile of geese and/or carcasses of fish, would present no real choice or any animal which was selecting bait material, or for more than one animal, presents no sort of choice situation.	There is no replication; one couldn't really surmise anything from apparent results, because you wouldn1 t know what they were precisely by not having measured what the material - the volume of the material.

Again I want you to assume that on this second day during the course of the operations being performed on the bank, namely the filleting and mastectomy of the wild geese, a crocodile was observed in the stream.	Assume that from the boat
one of the boats, firstly one of the geese carcasses is thrown near the crocodile, and assume the crocodile ate it.	Assume that that performance was repeated on 3 other occasions; each time the crocodile coming closer to the boat, and each time the crocodile ate the magpie goose carcass thrown to it.
Firstly, in terms of ascertaining the use of magpie geese as the bait on a preferential basis, what do you say is the scientific use of that particular exercise?

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Doctor, in your opinion, was there any sci ntific value in terms of ascertaining

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whether magpie geese were a preferred bait for crocodiles in carrying out that exercise in throwing geese carcasses to the crocodiles?---There's no test of preference at all, there's no other food item which was offered.	In addition, it's an observation of one crocodile eating a particular type of food, and the observation of one animal of any species eating an item of food, which is the sole type of food that's offered to it, gives you no indication of its preference.	It simply shows that on that occasion that species would eat that food.

Turning to the question of scientific method, in your opinion was there any scientific method employed?---No, because there is no comparison being made between that and any other food, or non food item.	If the crocodile had been thrown something else - some other food item which was thought to be more or less preferable to it for a bait, or a non food item to see if it would swallow whatever was thrown towards it, then this might have some merit as an observation on that crocodile taking those food items.		That would provide an observation, but in order for that to have scientific merit it would have to be replicated on a number of occasions.
Assuming that following the episode of the crocodile eating the full geese­ thrown to it, and the party departed from the scene and did not return the next day to make any observation relating to the geese carcasses and the barramundi carcasses on the bank, in your opinion is there any scientific use in carrying out the exercise in that way?---None tha I can see.

What about scientific method?---Well, if there was no recording of the material that was there it would be of little value if any, in returning to observe it anyway.	If that wasn't done there is no apparent scientific method involved.

Assume that on both days the fillets of barramundi fish and the magpie geese breasts were returned to the mother
ve sel to be placed in the freezers, and

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transported by an esky.	Is there any scientific use or method you can see in that?--- ... If there is a trial or experiment being carried out at the site where the filleting has occurred, and the muscle tissue is being removed to another site, I can't see how it would be involved in anything related to that particular occasion.	If there is something for which it is being used elsewhere, it could conceivably be for some other scientific purpose, but I can see no value in a scientific sense, of removing that tissue from the site."

e next witness for the prosecution was Dr.
Frederick Robert Harden Jones, Chief of the Division of Fisheries Research, CSIRO.	He was qualified as an expert scientist in fisheries research.	He has had experience in research into baits.	He recognised that in the conduct of scientific experiments pilot studies may be carried out as a springboard for further investigations.	Any experiment should proceed on the basis of an extremely clear definition of the exercise.	According to Dr. Harden Jones recording is one of the most essential features of any experiment.	There should be a proper record book fully maintained.

Counsel for the prosecution then put_to Dr. Harden Jones the same set of assumptions which he had put to Dr.
Webb, those assumptions being based upon the prosecution version given by Wilkinson in respect of the events at Andranangoo Creek between 14 and 16 October 1979.	In short the witness's opinion was that there was no scientific method nor scientific objective in the set of assumed facts.

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The next witness for the prosecution was	Dr. Peter Robert Haverstock, Director of the Evolutionary Biology Unit at the South Australian Museum.	He was qualified as an expert scientist and the author or co-author of at least 74 published works relating to natural sciences.	The same set of assumptions was put to Dr. Haverstock by counsel for the prosecution.	He expressed the opinion that he did not consider the assumed set of facts in relation to 15 October as a scientific experiment nor did he consider the assumed events of 16 October to be a scientific experiment.

As the High Court said in Paric v John Holland (Constructions) Pty. Ltd. (1985) 62 ALR 85 at 87, (citing its own decision in Ramsey v Watson (1961) 108 C.L.R. 642), for an expert opinion to be of any value the facts upon which it is based must be proved by admissible evidence.
The facts proved do not have to correspond with complete precision to the proposition on which the opinion is based. The failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect (Wigmore on Evidence, Third Edition, Vol.2, p.800, Chadbourn Rev. 1979, p.942).

In my view the assumed propositions upon which the prosecution witnesses expressed ·their respective opinions relating to scientific method and scientific research, differed from the true circumstances which prevailed in

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Andranangoo Creek on 14, 15 and 16 October 1979.	Some of the basic assumptions were contrary to the facts which I have found to have prevailed at the relevant time and there are some omissions from the assumed set of facts.		The basic omission is, as I have found, that the survey team went to Andranangoo Creek to conduct a survey of crocodiles and, in particular, to conduct bait tests.	The assumption put to the witnesses was that the survey team was not conducting a survey of crocodiles.

The witnesses were also asked to assume that at least one member of the team was not advised as to any use which was going to be made of any fish caught or geese shot. I have already found that the nature of the bait tests was not particularly discussed by the appellant with Wilkinson but it is implicit in my view of the facts that Wilkinson
·would have }:nown that the otomu.ch contents of the:, fille Le<1 barramundi were being examined and that the carcasses of both fish and magpie geese were put in the shallow water and on the bank respectively so that their fate could be observed the next day.	Wilkinson knew that the appellant was interested to know what happened to the carcasses and did not want them disposed of.

The assumed set of facts also omit a very fundamental matter i.e. that the carcass of each filleted barramundi was examined for stomach contents by Dr. Wells..

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Furthermore, the assumed set of facts include that the geese carcasses had vanished the next day, whereas on the evidence I am satisfied that the geese carcasses had been placed on the bank by the appellant as prospective bait for crocodiles.	They did not just vanish.	They were thrown into the water by Wilkinson and Wells contrary to the appellant's wishes.		,.

I am therefore of the view that the opinions expressed by the various prosecution witnesses are of virtually no value.

Character

The appellant has raised his own good character.
He.has been the Head of the School of Physics in the U11lver lty of Sydney for the past .JJ		years.	He is the author of a substantial number of publications, a list of which was in evidence (Exhibit 1).	He developed his interest in crocodiles in 1970 while research telemetry. Over the next 15 years he produced a number of scientific papers on crocodiles in the form of Monographs,·which were in evidence (Exhibit 2).	The study of crocodiles in Northern Australia has been his major scientific work over the last 15 years.

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He has become a   world authority on crocodiles.	He enjoys a high reputation for integrity and personal commitment in the scientific community of the world.
According to the evidence of Professor Frederick Wayne King, Curator of Herpetology at the Florida State Museum, Professor of Zoology, Affiliated Professor of the School of
Forest Resources and Conservation, and Affiliated Professor
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of Latin-American Studies at the University of Florida, the appellant's reputation for honesty is absolutely impeccable. His work is of the very highest order and is recognised as such internationally.	So much was conceded by the prosecution and there was no evidence to the contrary.	I am also satisfied on the evidence that the appellant's research into crocodiles in Northern Australia is internationally recognised to be of very high scientific value.

Of course, I ctl.!l.!eJ? L Ll1e ev ldern.:e of the appellant's good character,  honest and integrity.	The primary significance of this evidence is that it is relevant to the unlikelihood of his having committed the offences charged.
The principles are clearly laid down by the High Court in Atwood v The Queen (1960) 102 C.L.R. 353 at 359:

"The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce.	He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged.	The

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limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg. v Rowton (1865) Le. &    Ca. 520 [169 E.R. 1497].		Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here.	What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt.	As Cockburn C.J. said:	'The fact
that a man has an unblemished reputation	·"
leads to the presumption that he is incapable of committing the crime for which he is being tried' (1865) -Le. & Ca., at p.530 [169 E.R., at p.1502]. 11

See also R. v Deathe (1962) V.R. 650 per Sholl J.at 652.

Evidence of good character may be used with reference to the credibility  of the appellant as a witness in his denial of the charges and hence the unlikelihood of his guilt R. v Murphy (1986) 63 ALR 53.	The appellant's credibility is of primary importance in these appeals.	He has steadfastly maintained throughout that the activities of his team in Andranangoo Creek were for scientific purposes. He first made that assertion when interrogated by Davern and Mitchell and has reiterated the assertion in his evidence on the hearing of these appeals.	The prosecution case is that the appellant just should not be believed.	It is alleged that the appellant knew at all times that taking fish and magpie geese in Andranangoo Creek could not possibly fall within the scope of his licences for scientific purposes.
Accordingly I have had to consider carefully the appellant's
evidence and credibility.
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The charge under the Fisheries Act stands or fails according to whether the prosecution has proved beyond reasonable doubt that the fish were not taken for the purposes of scientific research and that the appellant had  no honest and reasonable belief that he was taking fish for such purposes.	I am satisfied on the evidence that science embraces very simple experiments or observations, as well as
elaborately planned and recorded tests or experiments. "Research" means an endeavour to discover new facts by the study of a subject or a course of critical investigation (the Concise Oxford Dictionary).

On the whole of the evidence I am not satisfied beyond reasonable doubt that the fish were not taken for the purposes of scientific research, nor am I satisfied that the appellant had no honest and reasonable belief that he was taking fich for ouch purpooco.

The charges under the Territory Parks and Wildlife Conservation Act stand or fall according to whether the prosecution has proved beyond reasonable doubt that the actus reus of each offence was not done in the conduct of scientific research and that the appellant had no honest and reasonable belief that what he was doing was in the conduct of scientific research.	Likewise, on the whole of the evidence, I am not satisfied beyond reasonable doubt that the acts charged were not done in the conduct of scientific

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research, nor am I satisfied beyond reasonable doubt that the appellant had no honest and reasonable belief that what he was doing was in the conduct of scientific research.

I allow each appeal and quash the convictions and orders made by	the Court of Summary Jurisdiction, Darwin.	I
shall hear counsel on the question of costs and any other
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consequential order.

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