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  • Writer's pictureJarrod Carter

Injustice: Relying on Government Advice Can Make You a Criminal

Updated: Jan 25, 2023

Did you know that if you obtain incorrect advice from a government agency, and act on that advice in good faith, you have no defence if relying on the advice directly causes you to break the law?


Ostrowski v Palmer [2004] HCA 30


In February 1999, Mr Palmer, a commercial fisherman, was charged by a Fisheries WA officer, Mr Ostrowski, with illegally fishing for rock lobster in a marine life protection zone near Carnarvon. In the months leading up to the incident, Mr Palmer had twice visited the Fremantle office of Fisheries WA to obtain regulations for Zone B of the WA fishing grounds, in preparation for switching from line fishing to lobster fishing. On the second visit, when the regulations for the 1998-1999 lobster season were not yet available, a staff member provided him with a photocopy of the office's documentation, but it did not include the relevant regulations. Mr Palmer, believing that his licence entitled him to do so, set 54 lobster pots in the exclusion zone near Point Quobba, without being alerted to his error by the observing Fisheries officers.


A Carnarvon Magistrate ruled that any error made by Mr Palmer was a mistake of law, not a mistake of fact, and therefore he could not use the defence provided by section 24 of the WA Criminal Code. Section 24 states that a person who acts under an honest and reasonable but mistaken belief in the existence of certain factual circumstances, is not criminally responsible. However, Section 22 of the code states that ignorance of the law is not an excuse for an act or omission that constitutes an offence.


In this case, the offence of fishing for rock lobsters in the prohibited waters around Quobba Point required holding a commercial fishing licence, fishing for rock lobsters, and doing so in the specified waters. Mr. Palmer met all three requirements and held no mistaken belief about any of these elements. He was not aware of the regulation prohibiting his conduct. His conviction carried a mandatory penalty of $26,700, a $500 fine and $2,000 in costs.


Mr Palmer appealed the decision made by the Magistrate in the Supreme Court of Western Australia. The appeal was decided in a split decision, with two Justices (Malcolm CJ and Olsson AUJ) determining that Mr Palmer could use the defence of honest and reasonable mistake of fact because his mistake regarding the law was based on misleading information provided to him by the fisheries department. In other words, he honestly and reasonably believed that he had all of the relevant information to be able to comply with the law. He wasn’t “ignorant” of the law because he knew that some areas were forbidden. He was factually mistaken regarding those locations based on the advice he received from Fisheries WA. The dissenting Justice, Steylter J, believed the mistake was only regarding the law and not a mistake of fact. Quite simply, he was fishing in an illegal area thereby being mistaken as to the legal status of the area.


The Crown was given leave to appeal the ruling by the Supreme Court to the High Court of Australia. The Crown was concerned that the ruling had misunderstood a crucial aspect of the Criminal Code and established a legal precedent that would excuse individuals who broke the law due to misinformation or inaccuracies provided by a government agency. The Court examined the extent of the defence outlined in section 24 (mistake of fact) and determined that it only applies to errors regarding the actions constituting the offence. It does not extend to errors about the existence of the law that established the offence, as this would negate section 22 (ignorance of law).


Despite prevailing in the appeal, the Crown faced severe criticism from the High Court for its handling of the case. Justices Callinan and Heydon considered it extraordinary that the Crown pursued prosecution despite Mr. Palmer's reliance on incorrect government advice and the imposition of a severe mandatory penalty.


They stated that it was:


“impossible not to sympathise with the respondent. On any fair and objective view he was not

culpable in any way. To the contrary – he was most diligent. He went to the office of the

administering authority twice in order to ascertain what his obligations were. Entirely openly and strictly in accordance with his licence he sought to comply with his understanding of what he could do based on official information personally provided by officials.”


However, they found it necessary to allow the appeal because:


“mockery would be made of the criminal law if accused persons could rely on, eg, erroneous

legal advice, or their own often self-serving understanding of the law as an excuse for breaking it.”


Following the decision, there was substantial public outcry. The Editorial in The West Australian was particularly scathing:


“Jeffrey Ryder Palmer is a human sacrifice to the law. He is also a scapegoat for bureaucratic incompetence and political failings. The High Court's decision to reinstate a conviction against Mr Palmer, a former crayfisherman, for fishing in a prohibited area, was based on legal technicalities. But it failed to deliver justice.”


'Justice Denied in Crayman's Legal Nightmare' The West Australian 18 June 2004


Canada: Officially Induced Error


It is worth noting that during the appeal in the Supreme Court of Western Australia, Mr. Palmer attempted to use an alternate defence. He cited Canadian cases to argue that there could be a defence of "officially induced error". However, the Supreme Court ruled (and the High Court later concurred) that the defence could not be taken into account because it had not been raised in the initial trial in the Magistrates Court. Yet another legal technicality preventing a fair outcome. Canadian cases are in no way binding on any Court in Australia. However, as a common-law country (based on the English system) the legal reasoning in their decisions can be persuasive if the decision refers to universally agreed legal principles.


Had Mr Palmer made the same mistake in Canada, he would have certainly been able to rely on the defence of “Officially Induced Error”. This is how it works: A valid excuse for violating the law is on the basis of an officially induced error of law. The defence arises where the accused is given advice in error that the accused relies upon in doing the criminal act. An officially induced error is available as a defence to prevent morally blameless individuals, who believe they are acting in a lawful manner, from being convicted. This is an exception to the principle that ignorance of the law is no excuse.


In Canada, the following elements must be proven for the defence to apply. Mr Palmer's defence clearly established all of the elements. (R v Jorgensen, 1995 CanLII 85 (SCC))


  • The error was one of law or mixed law and fact

Mr Palmer was mistaken as to where it was legally appropriate to fish for Rock Lobster which is likely to be considered a mistake of law and fact, or only law. This element is proven, and agreed by the Crown.


  • The accused considered the legal consequences of his/her actions

There is undisputed evidence of My Palmer twice attending the WA Fisheries department thereby demonstrating his understanding of the legal consequences. By attending twice, he demonstrated that he took the law seriously.


  • The advice obtained came from an appropriate official

Advice from a Fisheries WA representative is the only appropriate official, and/or governing body.


  • The advice was reasonable in the circumstances

To determine this element, the court would apply the “reasonable person test” and consider that any reasonable person would rely on a map provided by Fisheries WA. A map indicates locations in a pictographic form as is not subject to misinterpretation, or the notion that a “reasonable person” would consider the advice provided “unreasonable”.


  • The advice obtained must be erroneous

The map provided did not include the necessary information. However, Mr Palmer was advised that it did.


  • The accused must demonstrate reliance on the official advice

Mr Palmer was able to demonstrate that the positioning of his pots complied with the map he was given by the Fisheries official.


  • Each element must be proven on a balance of probabilities by the accused

Each of the elements are established by uncontested facts.


Conclusion


The Palmer case remains valid at law, and has not been addressed by legislation to protect individuals under similar circumstances. We still don’t have an “officially induced error” defence in WA. Most recently the Palmer case was cited in a decision of the Court of Appeal of Western Australia in December of 2022.


The Palmer case was handed down by the High Court in 2004. The High Court justices in applying the law agreed that the current state of the law fostered this injustice. We believe that the last 18 years has allowed plenty of time for the lawmakers to address this potential for future injustices. We need an “officially induced error” defence added to the Criminal Code whereby someone acting on information obtained from an official source should be able to claim a mistake of law as a valid exculpatory defence.


The “Officially Induced Error” defence has been available in Canada since 2006. Since that time, the law has been consistently applied. Therefore, making this defence available in Western Australia would, in no way, be experimental. It has worked well in Canada to prevent injustices. Sadly, it will probably take another horrible injustice like the Palmer case to motivate the lawmakers to catch up to Canada.

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