Currie v Kim
[2005] NSWSC 188
•17 February 2005
CITATION: CURRIE v. KIM [2005] NSWSC 188
HEARING DATE(S): Thursday 17 February 2005
JUDGMENT DATE :
17 February 2005JURISDICTION: Common Law
JUDGMENT OF: Greg James J at 1
DECISION: In matters 11755/04 and 11760/04, I dismiss the summons and make no order as to costs. The defendant is convicted on eight charges of illegal fishing and fined and ordered to pay $20,000, the costs of the prosecution. In the case of each fine, I direct that one half be paid to the prosecution by way of moiety.
CATCHWORDS: Two alternative charges dismissed - defendant convicted on eight charges of illegal fishing - fined - prosecutor to receive moiety - defendant to pay costs - summary prosecution - illegal fishing - proceedings in absence of defendant - meaning of "fish" - bag limits - shucking - obstructing officers.
LEGISLATION CITED: Fisheries Management (General) Regulation 2002
Fisheries Management Act 1994PARTIES: Wayne James CURRIE v. Kyuong Chang KIM
FILE NUMBER(S): SC 11753/04; 11754/04; 11755/04; 11756/04; 11757/04; 11758/04; 11759/04; 11760/04; 11761/04; 11762/04
COUNSEL: Plaintiff: D. Buchanan, SC.
Defendant: N/ASOLICITORS: Plaintiff: Mr. Laurie Derwent, NSW Fisheries
Defendant: N/A
LOWER COURT JURISDICTION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONGREG JAMES, J.
THURSDAY 17 FEBRUARY 2005
11753 of 2004
11754 of 2004
11755 of 2004
11756 of 2004
11757 of 2004
11758 of 2004
11759 of 2004
11760 of 2004
11761 of 2004
11762 of 2004JUDGMENTWAYNE JAMES CURRIE v. KYUOG CHANG KIM
1 HIS HONOUR: I am satisfied beyond reasonable doubt on the evidence that has been put before me of the elements of the offence provided for by clause 130 of the Fisheries Management (General) Regulation 2002 being an offence of shucking abalone in or adjacent to any waters, that being the offence charged in proceedings in this court 11762/04, that the defendant is charged that he did commit that offence on 17 May 2004 in the vicinity of Horseshoe Bay. The defendant is convicted of that offence.
2 In proceedings 17753/04 and 17758/04, the defendant is charged with the crime provided for by s.16(1) of the Fisheries Management Act 1994. Section 16(1) provides that a person who has prohibited size fish in the person’s possession is guilty of an offence.
3 Fish under the Act is defined by s.5. That definition includes (a) oysters and other aquatic molluscs; (b) crustaceans; (c) echinoderms; and (d) beachworms and other aquatic polychaetes. There is evidence that abalone, in this case the black lipped haliotis rubra of which the defendant was found to have in his possession both on 1 May, the occasion to which the offence in proceedings 11753/04 relates, and 17 May the occasion to which the offence in proceedings 11758/04 relate, were such aquatic molluscs, were fish for the purposes of the definition under the Act, were undersized and therefore were of a prohibited size, prohibited size meaning a fish declared by the regulations under Division 2 of Part 2 to be a prohibited size. Clause 9 Part 25 of the print of the regulations Division 2 Part 2 provides for a table of the size of marine or estuary invertebrates and abalone haliotis rubra is shown to have a minimum measurement of 11.5 centimetres.
4 The evidence satisfies me that all the abalone, except for the one abalone that is referred to, which was above the size or at least not shown to be established beyond reasonable doubt as below the size limit, were below the size limit and were fish to which s.16(1) applies.
5 I am satisfied beyond reasonable doubt of the elements of those two offences. The defendant is convicted on each of those offences.
6 The defendant is also charged with exceeding the bag limit for the possession of fish. Such offence is provided for by s.18 of the Fisheries Management Act 1994. The section provides that the regulations pursuant to s.18(1) may specify the maximum quantity of fish of a specified species, or of a specified class, that a person may have in possession in any specified circumstances (the “possession limit”). The offence is created by s.18(2) which provides that to have in one’s possession in any such circumstances more than the possession limit of such fish is an offence. The regulations specify the bag limits and clause 12(1) refers to the relevant table. The relevant bag limit, in the table for abalone haliotis rubra, the possession limit is 10. The evidence plainly establishes that in the possession of the defendant on 1 May there were 101 abalone and on 17 May, 160, which included five shucked abalone.
7 I am satisfied beyond reasonable doubt of the elements of the offences alleged to have been committed by this defendant in proceedings 11754/04 of possessing more than the prescribed limit, on 1 May, and in proceedings 17759/04 an offence on 17 May and the defendant is convicted in respect of each of those matters.
8 There remains the offences under s.34J said to have been committed in proceedings 11756/04 on 1 May and 17761/04 on 17 May.
9 Section 34J provides that a recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher fails to pay the fishing fee. It is further provided that a recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher does not have an official receipt for the payment of the fishing fee in his or her possession when taking fish from any waters.
10 For the purposes of these proceedings s.34J(3) provides that a person in possession of fishing gear on, in or adjacent to any waters is presumed conclusively to be taking fish from those waters (even though the person takes or proposes to take fish only from other waters outside the State). The regulations may provide exemptions from this subsection. Section 34D(i) provides that fishing fee is payable for any period during which a recreational fisher takes fish from any waters otherwise than for sale. It is plain that both on 1 May and 17 May the defendant was taking fish and I am satisfied having regard to the certificate tendered in evidence beyond reasonable doubt that he had failed to pay the fishing fee. Although he is not charged with the offence under s.34J(2) of failing to have an official receipt, having regard to the questions asked of him by the fisheries officers his reply and his failure to produce a receipt in circumstances in which he might otherwise would have been liable to an offence, it is entirely clear that he had committed the offence under s.34J(i). The defendant is convicted of the offence charged in 11756/04 on 1 May 2004 and that under 11761/04 on 17 May 2004 I being satisfied beyond reasonable doubt on all the evidence of the offence.
11 The offence under s.247 is an offence of obstruct fisheries officer. In this case the particulars of that offence are that the defendant, after the fisheries officers had said to him “Do not empty the bag”, they having seen him with diving gear and a bag that appeared to contain what might well have been suspected to be, and if so, would have been reasonably suspected and rightly suspected of being fish, and fish taken in circumstances of illegality or which themselves were undersized such as to produce an illegality, emptied the bag. The officer said to him “Do not empty the bag” whereupon the evidence establishes beyond reasonable doubt he emptied the bag into an adjacent rock pool, he emptied the abalones on to the rocks and kicked them in to the pool.
12 Subsequently he was entirely co-operative with the officers, as was his son.
13 The offence occurs when a person without reasonable excuse resists or obstructs a fisheries officer in the exercise of his duties under the Act. Plainly the officers were pursuing their duties under the Act and plainly there had been an obstruction. I find beyond reasonable doubt that the elements of the offence have been made out. The defendant is convicted of that offence also. That latter offence was the offence charged on 1 May in 11757/04.
14 I note that the prosecutor does not wish to offer evidence in respect of 11755/04 and 11760/04, in which cases I dismiss the summons and I make no order as to costs.
15 The defendant has a lengthy record dating back to 1991 in respect of the illegal taking of abalone. On 6 September 1991 at Gosford Local Court he was convicted of taking 35 undersized abalone and fined $1,000 and ordered to pay $45 court costs. He was also convicted of exceeding the bag limit in that he possessed 100 when the limit was 10 with $45 court costs. He was also convicted on that occasion of shucking 23 abalone adjacent to waters and was fined $150 and $45 court costs.
16 At the Bega Local Court on 11 November 1997 the defendant was again fined for possession of 129 undersized abalone the sum of $1,000 with $51 court courts and for the offences of possess more than the maximum quantity of abalone he was fined of possession of 154 abalone and fined $1,000 and $51 court costs.
17 Although these offences are committed over more than a decade and although there was more than five years between bouts of offences, it is plain enough that the defendant was aware of the relevant provisions not only from the fact of his prior convictions but also from what he said in response to the fishery officers. It is plain that the offender is aware of the law and is not deterred when he wishes to flout a law plainly passed for the protection of the biological mass and New South Wales fisheries. This being said, nothing more is known of the defendant except that his visa having apparently been revoked, he has gone back to Korea.
18 In the two offences committed each on 1 May and 17 May of possess prohibited sized fish the amount of the maximum fine is $11,000. The defendant will be ordered to pay a fine of $2,000. In each case he will be ordered to pay a fine of $2,000. In relation to possess more than the limit of fish again in each case I impose a fine of $2,000. In relation to fail to pay the fisheries fee I impose a $1,000 fine. In relation to obstruct fisheries officers I impose a maximum penalty of $5,000 and in the case of the offence shuck abalone, $1,000.
19 I order the defendant to pay the costs of the prosecutor in respect of the eight matters to which I have referred in the sum of $20,000. I have already ordered that there be no costs of the two alternative charges. It is plain that considering the number of charges and the history in this court that the costs are well in excess of that sum.
20 In the case of each fine I direct that one half be paid to the prosecutor by way of moiety.
21 I stand the matter over for mention until Thursday 3 March 2005 at 9.30 am. I direct that the solicitor give written notice to Mrs. Myoung Ja Lee of that date and that it be suggested to her she should obtain the services of a legal adviser and that if she doesn’t obtain the services of a legal adviser she will have to conduct her own case herself and that she will need to put on evidence, in particular showing her unawareness of her husband’s use of the car for the purposes of the illegal fishing. In those words I encompass unlawful fishing and possession of fish.
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