Costa v Lewis and Department of Primary INDUSTRIES-FISHERIES - [2006] SASC 242

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
COSTA v LEWIS AND DEPARTMENT OF PRIMARY INDUSTRIES-FISHERIES
[2006] SASC 242
Judgment of The Honourable Justice Perry (ex tempore)
15 August 2006
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - CONVICTION ON EX PARTE HEARING
Appeal against a conviction in the Magistrates Court on a charge laid under the Fisheries Act 1982 for breaching the terms of a condition attached to a ministerial exemption granted to the appellant to take a specified number of Murray cod, on condition that any native species taken were to be returned to the water immediately – the appellant took a quantity of native fish, namely golden perch, in a drum net – rather than remove the perch from the net he simply returned the net, with the fish in it, to the water – the trial proceeded ex parte in the absence of the appellant following the refusal by the trial magistrate to grant an adjournment – the appellant contended that the magistrate erred in refusing the adjournment and that a miscarriage of justice had resulted, in that he had not been given an opportunity to advance an arguable defence – held on appeal that the magistrate did not err in refusing the adjournment and that in any event there was no miscarriage of justice in that the appellant did not have an arguable defence – the condition that native fish were to be returned to the water immediately could not be satisfied if they were returned in the net in which they had been caught – appeal dismissed.
Fisheries Act 1982 s 5(1) and s 59(1), referred to.

COSTA v LEWIS AND DEPARTMENT OF PRIMARY INDUSTRIES-FISHERIES
[2006] SASC 242
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the conviction recorded against him on 2 March 2006 in the Magistrates Court sitting at Berri, on four counts alleging offences against s 59(4) of the Fisheries Act 1982 (“the Act”).
The hearing in the Magistrates Court proceeded ex parte, in the absence of the appellant.
The magistrate imposed one penalty for the four offences, namely a fine of $4,000 plus costs.
In his notice of appeal the appellant raises two grounds.
1.The learned magistrate should not have allowed the hearing to proceed in my absence.
2.I have a valid defence to the charges.
Before dealing with the substantive issues which arise with respect to the appeal, I should mention that there was a failure to serve the notice of appeal properly in accordance with the rules.
In compliance with SCR r 96C.02 the notice of appeal was served upon the Registry of the court in which the judgment the subject of the appeal was recorded, within the time provided in that rule, namely 14 days.
However, there was a non-compliance with SCR r 96C.04, in that the appellant failed to serve the Registrar of the Supreme Court with a copy of the notice of appeal within seven days of serving the notice of appeal upon the Registrar of the court below. The notice of appeal was not served on the Registrar of this Court until 1 June 2006.
On drawing counsel’s attention to the matter, and without any further formality, I extended the time for the service of the notice of appeal on the Registrar of the Supreme Court and on the respondent to 1 June 2006. However, I refer to the matter as it seems to me that there are many appeals in which appellants do not comply with the obligation to serve both the respondent and the Registrar of the Supreme Court within the time provided by the rules. Practitioners should be aware of the rules and comply with them.
I return to the substantive issues raised by the appeal.
Under s 59 of the Act, the Minister may, by notice published in the Gazette, exempt any person from any specified provisions of the Act.
The appellant was at the relevant time the holder of a River Fishery Licence issued under the Act. By notice published in the Gazette on 30 September 2003, the appellant was exempted from certain Fisheries (General) Regulations 2000:
But only insofar as [the appellant] ... shall not be guilty of an offence when taking up to 60 Murray Cod ... from the waters of the state.
That exemption was subject to conditions. One of the conditions provided:
Any native species other than Murray cod that are taken in the course of the exempted activity or that interact with the gear used in accordance with this notice, must be returned to the water immediately. (my emphasis)
The substantive allegation with respect to the four counts in the complaint upon which the appellant was convicted, is that in breach of the condition to which I have referred, on four separate occasions while fishing with a drum net, the appellant failed to return to the water a quantity of fish of a native species, namely golden perch, which was in the net.
The matter had a lengthy and somewhat chequered history as it made its way through the Magistrates Court.
The complaint and summons was initially returnable on 8 June 2004.
Following a pre-trial conference, the matter was listed for trial in the Magistrates Court sitting at Berri on 8 December 2005.
On 21 November 2005, a facsimile was sent by solicitors then acting for the appellant to Ms Riddle of the Crown Solicitor’s Office who was handling the prosecution, to the effect that counsel, Mr Boucaut, was unavailable for the trial on 8 December. In view of that, the appellant sought the complainant’s consent to an adjournment.
After being advised that the complainant would not consent to an adjournment, on 29 November 2005 the appellant’s solicitor advised Ms Riddle that the appellant’s wife had been diagnosed with breast cancer, that she required an operation, and that the appellant needed to be with her. A further request was made to vacate the trial date.
The complainant agreed to do so and the trial date was vacated.
The matter was then listed for mention only on 12 January 2006, the purpose of the mention being to set another trial date.
On that date a solicitor Ms Dale appeared on behalf of the appellant and raised no objection to the matter being listed for trial on a date which was then fixed, namely 2 March 2006.
On 28 February 2006 a barrister, Mr Tellefson, practising in Mildura, contacted Ms Riddle to say he had taken over as counsel for the appellant, that he had no knowledge of the charge and of the circumstances, and that he sought a further adjournment in order to familiarise himself with the case.
The complainant declined to agree to a further adjournment. On 2 March 2006 the matter came on for hearing. Ms Dale appeared on the instructions of Mr Tellefson and sought an adjournment of the trial. The submission in support of the adjournment was based on her assertion that the appellant’s wife was in ill-health and that the appellant had recently defended fisheries offences in New South Wales and had “run out of money”.
After considering the matter, the trial magistrate refused the application for the adjournment. In doing so he delivered short reasons.
He acknowledged that there were two competing interests, the first being the interest of the defendant having an opportunity to defend himself on the charges, the second being the general public interest in seeing what he described as:
A timely completion of matters, particularly matters that are listed for trial where four witnesses have come today for the matter to be completed.
He referred to the exercise of his discretion as a “balancing act”.
After the magistrate had made the order refusing the application for an adjournment, Ms Dale was then excused from further attendance, and the prosecutor applied for leave to proceed ex parte. The magistrate granted leave accordingly.
On the hearing of the appeal there has been no challenge to the propriety of the order giving leave to proceed ex parte.
On the afternoon of the same day, the case proceeded to trial. After hearing oral evidence from the witnesses called by the complainant, the trial magistrate gave judgment supported by short ex tempore reasons.
In the course of his reasons he acknowledged that the evidence showed that the fish the subject of the charges, had been taken in a drum net operated by the appellant, and that after it was lifted, the drum net containing the fish was immediately returned to the water.
Even though the defendant was not present, the magistrate proceeded to address the question whether in those circumstances, the condition in the exemption that any native species “must be returned to the water immediately” had been satisfied.
In addressing that question, he had regard to an earlier provision of the Act which related to the definition of the word “take” when it appears in the Act.
The word “take” is defined in s 5(1) to mean, in relation to fish:
… catch, take or obtain fish (whether alive or dead) from any waters or kill or destroy fish in any waters.
Under s 5(4):
… a fish will not be regarded as having been taken if it is taken but forthwith returned to the water unencumbered in any way and with as little injury as possible.
Implicitly the magistrate accepted that s 5(4) was not of direct application. However, he clearly regarded it as analogous.
He referred to the objects of the Act as set out at its commencement:
An Act to provide the conservation, enhancement and management of fisheries, the regulation of fishing and the protection of certain fish; to provide for the protection of marine mammals and the aquatic habitat; to provide for the control of exotic fish and disease in fish, and the regulation of fish processing; and for other purposes.
He went on to observe:
I am satisfied that the only way to give proper effect to the term “return”, when viewed against the object of the Act and the purpose for which the exemption was granted is to read the word “return” as returning to the water, unencumbered by any fishing net, trap or other device.
Having regard to what had clearly been proved by the evidence, namely the return of the fish to the water in the net in which they had been caught by the appellant, he reached the conclusion that the charges were proved.
In support of the appeal, the appellant filed an affidavit in which he has sworn that he made a decision to brief Mr Tellefson because the latter was familiar with the appellant’s “background”, and the appellant thought it wise that he should represent him in the Berri Magistrates Court. He gave no explanation as to why he briefed Mr Tellefson so late in the day.
He said that he had forwarded to Mr Tellefson a letter from Dr Samer Khalil, who was the appellant’s wife’s treating practitioner. But Ms Dale, for some reason, did not tender the letter in court in support of the application to adjourn.
The appellant exhibited Dr Khalil’s letter to his affidavit. In his letter, Dr Khalil confirms that the appellant’s wife was unwell and that she was refusing treatment in hospital. He stated:
It is extremely important for her husband, who is her carer, to stay with her until we decide what should we do next.
The report is dated 1 March 2006, the day before the trial date in the Berri Magistrates Court.
In his affidavit the appellant says:
In all the circumstances I was simply unable to attend at Berri Court on 2 March 2006. This was not because I underestimated the importance of the hearing. My wife is terminally ill. She is on regular oxygen support and has breast cancer, I have to make a decision with very little notice whether to attend or not. In the end I believe I had no alternative but to remain at Boundary Bend with my wife.
The appellant’s affidavit gives no indication as to why he found it necessary to make a decision “with very little notice”. His wife’s illness had been present for some time. Neither is there any satisfactory explanation in the papers as to why his presence caring for his wife was necessary, as opposed to someone else who might, on a temporary basis, have looked after her while he attended in court.
Furthermore, the late briefing of alternative counsel shortly before the commencement of any matter is bound to raise some scepticism as to the genuineness of the decision to do so.
Even so, and even bearing in mind those matters, it is necessary, in cases such as this, to determine whether there has been a miscarriage of justice by reason of the failure to grant an adjournment. However unconvincing the explanation given by the appellant as to the reasons which led up to the late application to adjourn and his failure to have representation at the hearing of the trial, it is always necessary to have regard to the question whether there was, in the result, a miscarriage of justice.
There is no miscarriage of justice if there is no reasonably arguable defence. The question then is whether or not there is a reasonably arguable defence. It was towards that aspect of the matter that the submissions made by Mr Warren, counsel for the appellant, were mainly directed.
There was ample evidence before the trial magistrate that the appellant had set nets and after lifting them and finding fish in them, returned them to the water with the native fish still in the nets. Indeed, that conclusion has not been challenged by Mr Warren. However, in his affidavit the appellant said that before returning the drum nets to the water, he reset them, and having regard to the particular kind of net which he used, which he infers was different from other drum nets, once the net was returned to the water, the native species could swim in and out of the net without harm. Given those circumstances, he suggests that this was the “appropriate way to release such fish”.
This version of events was contrary to the evidence given before the magistrate by a recreational fisherman, Mr Schultz. He had been a fisherman on the River Murray for some 40 years and had observed the defendant in his fishing boat on the occasions in question. Mr Schultz had used this type of net before and had experience with it. He observed the appellant lift his net from the Murray River and observed callop, also known as golden perch, which were in it. He spoke to the appellant who said he was after cod but it only caught callop. The net was returned by the appellant to the water while under observation by Mr Schultz, still containing its golden perch.
Part of Mr Schultz’s evidence was as follows:[1]
[1] Several pages of the transcript of Mr Schultz’s evidence was incorrectly marked as evidence of another witness, Mr Haycock. This caused some confusion while the ex tempore judgment was being delivered. I have corrected this, having reserved the right to edit the ex tempore reasons.
Q.I just want to ask you in relation to your fishing experience have you used a drum net before.
A.Yes.
Q.Can you just briefly explain how a drum net is used.
A.You set it with the funnel against coming the flow – it’s going that way and the funnel is here and it’s got wings and then there’s a big funnel for the net and then there’s a funnel type of thing that goes inside it, a tunnel, where they come in and they work along and they just keep swimming forward and work into and once there in they are there.
Q.From your experience once a fish was in that net what’s the likelihood of it getting out again.
A.Not much.
Q.You yourself have always found it to be a successful way of fishing.
A.It used to be a good fishing tool for us.
…
Q.You mentioned you saw one of those Callup stuck in the net, that was back in the water. What in your experience as a fisherman would happen to that particular fish if it was stuck in the net.
A.He would move around, he’d get out of the mesh again in a drum net like that and just keep swimming around inside there.
Q.He would not be able to get out, back out, of the net itself.
A.The funnel part of it is designed that he comes up against it and he’s got to swim back against the flow and fish are noted to swim against the flow and they very rarely go back and swim with it. Especially in a bit of flow, you know, type of thing.
Q.Can you recall that day what the flow was like.
A.There is usually quite a reasonable flow there at the lock because the lock is only probably not even 200 – the lock itself is probably only 200 metres from there if that.
Q.You mentioned that you spoke with Mr Costa at the time. Did he say why he didn’t take the fish out.
A.He said he didn’t have measuring gear with him at the time, he’s supposed to record it and he was coming back and do it the next day.
Q.What fish did he tell you he was looking for.
A.He was supposed to be catching cod for breeding purposes and he said all that he was catching was Callup.
Another witness, Gregory John Hancock, gave evidence. He is a senior Fisheries Officer from Loxton. He had surreptitiously kept the appellant under observation on the occasions in question from a concealed position nearby.
Mr Haycock said in evidence:
A drum net is in fact a trap, a fish trap. The wings which extend from the front of the trap face down river, so the back which is the conical end faces up river. Native fish naturally swim against the current so they will swim upstream. They will be channelled into the drum net via those wings into a small cone. That cone bundles the fish into the actual drum itself. Once they are within the drum they are effectively trapped and they will continue to swim up against the current to the head of the drum net where they cannot escape. The natural tendency of native fish will congregate up the top end and they will not be able to find the opening that they swam through to get out.
The only defence which the appellant seeks to raise and which he says he was denied the opportunity to raise by reason of the refusal of the adjournment, was that having regard to the manner in which he dealt with golden perch and his use of the particular drum net in question, he had complied with the requirement in the condition attached to his exemption, in that the fish were “returned to the water immediately”.
He maintains in an affidavit filed in this Court that the particular type of drum net used by him, and his manner of setting it, meant that fish were freely able to swim in and out of the drum. He foreshadows in his affidavit that if the matter had proceeded to trial in circumstances in which he had had an opportunity to be present, he would have called other persons or witnesses to support that view. He did not say who they were or give any detail of what they could say, and he did not in any way identify them.
No other affidavit evidence was put forward by anybody who might have supported that view of the matter.
I must say, as a matter of ordinary commonsense, it seems somewhat incredible to suggest, given that the object of using a drum net is to trap fish, that a drum net would be an effective fishing device if it provided unrestrained opportunities for fish to swim in and out of it. They could not swim, for example, against the sides of the net, and it is hard to believe that anybody could catch fish using a drum net if it was, as it were, completely open-ended in that respect.
In any event, Mr Haycock and Mr Schultz witnessed the activities of the appellant on the occasions in question and observed the net which he was using and the manner in which he operated it. Furthermore, they had the benefit of viewing a video of the operation taken surreptitiously of the activities of the appellant during the course of the alleged commission of the offences in question. Various still photographs were also tendered during the course of evidence. In those circumstances, the evidence of both witnesses as to the operation of drum nets in general could hardly have been offered without qualification if the net in fact used operated in such a different way. I think it highly unlikely that the witnesses would have failed to draw attention to any relevant differences, if they existed, as to the extent of impediment to fish going in and out of the net actually used by the appellant being that which they observed.

Another matter which has not escaped my attention is that in the passage from the evidence of Mr Schultz which I have quoted above, Mr Schultz refers to a statement by the appellant that he did not take the fish out as “he didn’t have his measuring gear with him at the time, he’s supposed to record it and he was coming back and do it the next day” (my emphasis).
The appellant could hardly be likely to be able to measure the fish the next day, if they could simply swim out of the net on its return to the water.
I do not, however, rely on that passage of evidence in disposing of the appeal, as it was not referred to in argument.
Even if the appellant’s evidence was accepted, in the sense that the drum net he used and the manner in which he used it gave a greater opportunity for fish to swim out of the net once it was returned to the water than otherwise would be the case, commonsense would suggest that there must have been some degree of impediment in them doing so.
All in all, in my view, it simply could not be a sensible construction of the condition attached to the exemption to think that the condition was satisfied if fish were simply returned to the water in the net in which they had been caught.
However the matter is approached, there is no reason to fault the conclusion by the magistrate as to that aspect of the matter. Simply putting the net back into the water with the golden perch in it was not, in my view, proper compliance with the condition.
I do not overlook the argument which was put by Mr Warren that the appellant also contends that his method of returning the fishing to the water posed less risk of injury to them. That may or may not be the case. It might depend on whether their gills were tangled up with the net, or whether other eventualities might occur. But, in my view, that is nothing to the point. It is clearly contemplated in s 5 of the Act that returning fish to the water, albeit in other circumstances, may cause some injury.
Neither do I think that the magistrate erred in the exercise of his discretion to refuse the adjournment. That must be judged in accordance with the material which was before him at the time. He properly considered that material, and there is no reason to overturn the conclusion to which he came.
Of course, on the hearing of the appeal I have allowed evidence to be tendered of other matters, on the basis that it is relevant to consider them in order to determine whether there had been a miscarriage of justice.
For the reasons which I have given, in my view, there was no miscarriage of justice in this case, as there was no reasonable prospect of the appellant successfully defending the charges if the adjournment had been allowed.
I would dismiss the appeal. I so order.
[AFTER HEARING THE PARTIES AS TO COSTS]
I order that the appellant pay the respondent’s costs of and incidental to the appeal in the lump sum of $150.