Davis v Cole

[1987] TASSC 91

Serial No B21/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Davis v Cole [1987] TASSC 91; B21/1987

PARTIES:  DAVIS
  v
  COLE

FILE NO/S:  LCA 142/1986
DELIVERED ON:  13 May 1987
JUDGMENT OF:  Wright J

Judgment Number:  B21/1987
Number of paragraphs:  14

Serial No B21/1987
List "B"
File No LCA 142/1986

DAVIS v COLE

REASONS FOR JUDGMENT  WRIGHT J

13 May 1987

1. On 10 November 1986, the applicant was convicted on a complaint which then contained allegations of two offences against the Fisheries Act 1959. The second of three charges in the complaint had been dismissed at an earlier stage of proceedings on a "no case" submission. The first charge in the complaint was:

"On the 20th day of March, 1985 in the area of Mainwaring Inlet on the West Coast of Tasmania did unlawfully obstruct Fisheries Inspector Gilbert Dudley Pearce an officer acting in the execution of the powers or authorities conferred on him by the provisions of the Fisheries Act 1959, in that during the course of an inspection on board the fishing–boat 'Hendrika' when Inspector Pearce took hold of a net bag of abalone from its deck, the said Arthur Davis struggled with Inspector Pearce whilst that officer was seeking to detain a net–bag of abalone pursuant to s56 of the Fisheries Act, CONTRARY to Section 24(1)(d) of the Fisheries Act 1959."

Upon this charge, the applicant was fined $60.00 and ordered to pay costs of $15.10.

1. The third charge in the complaint was:

"At the time and in the area as aforesaid did unlawfully assault District Inspector Charles Sutherland Farquhar, an officer acting in the execution of the powers or authorities conferred on him by the provisions of the Fisheries Act 1959, in that during the course of the aforesaid inspection whilst both were aboard the dinghy 'Sorass' after Arthur Davis had refused to leave the dinghy, as Inspector Farquhar attempted to untie the stern clip Arthur Davis grabbed the inspectors wrist and physically forced him away from the stern clip then continued to block him from that stern clip, CONTRARY to Section 24(1)(d) of the Fisheries Act 1959."

Upon this charge, the applicant was fined $60.00.

1. The applicant filed a Motion to Review these two convictions on the following grounds:

"1The Learned Magistrate was wrong in law in finding that on charges numbers 1 and 3 on complaint No. 08643 of 1985 the Applicant (Defendant) had a case to answer; and

2The Learned Magistrate was wrong in fact and in law in finding the Applicant (Defendant) guilty of charges 1 and 3 on complaint No. 08643 of 1985."

1. Ground 1, in my view, was plainly misconceived (See Cowen v Estcourt [1976] Tas SR 113) and was abandoned. The motion proceeded upon Ground 2 and a further ground which was added during the course of the hearing in the following terms:

"3Alternatively it would be unsafe for the Magistrate's decision to stand if those decisions are supportable only on the grounds that it could be inferred that the appellant overheard a conversation between Fisheries Officers and Mr Johnston to seize (sic) abalone and to use (sic) the 'Sorass' for purposes of transporting goods to Fisheries vessel 'Freycinet'."

1. After hearing argument from both counsel, I dismissed the motion insofar as it related to the first charge in the complaint. I was, and am, of the view that there was adequate evidence to support the learned magistrate's decision and, on the assumption that it was a necessary finding to support that decision that the applicant had overheard a conversation between the Fisheries officers and Mr Johnston, there was ample evidence to support such a finding.

1. The challenge to the conviction on the second charge proceeded along the following lines. The Fisheries officers (of whom Inspector Farquhar was one) had conferred about the seizure of a dinghy from which the applicant had been observed diving illegally sometime earlier. Their power to make such a seizure may have been sustainable on the basis that it was a boat used by a person "contrary to the provisions of this Act" as provided for by s57 of the Fisheries Act 1959 or that it was a boat, part of the crew of which had been found fishing or preparing to fish as provided for by s58 of the Act.

1. Sections 59 and 61 of the Act indicate that the forfeiture of an article under ss57 and 58 may occur in one of two ways. Under s59 an article may be seized "as forfeited" by Fisheries officers and such seizure may put in train a series of steps resulting in proceedings to determine the validity of the forfeiture. Under s61 a conviction of a person for an offence may result in an article being condemned as forfeited without further proceedings. So if the provisions of s57 or s58 are to have effect, they can only do so as consequence of seizure or conviction.

1. It follows from this that a Fisheries officer is not entitled to take possession of a boat or other article unless he is seizing it as forfeited or has some other statutory power or entitlement to do so. In the circumstances of the present case, though aware of their power to seize the dinghy as forfeited, the Fisheries officers took a conscious decision not to do so for the very sound and laudable reason that by taking the dinghy, they would be leaving the "Hendrika" without a tender or lifeboat in the notoriously stormy waters of the Tasmanian West Coast.

1. It is my view that, having taken this decision and having disclaimed an intention to seize the dinghy as forfeited, the Fisheries officers must be able to point to some justification other than s57 or s58 for their attempt to remove the dinghy from the "Hendrika".

1. It was submitted by counsel for the respondent that the Fisheries officers would have been acting in the course of their duty, if, as they claimed, an attempt had been made to take the dinghy for the purpose of carrying confiscated items from the dinghy to the Fisheries patrol vessel "Freycinet" which was at anchor some appreciable distance from the "Hendrika". Reliance was placed upon Goddard v Collins [1984] VR 919, but I do not regard that decision as having any bearing upon the present problem.

1. Unless inspector Farquhar was acting lawfully in untying the stern clip and attempting to remove the dinghy, an assault perpetrated by the applicant could not be regarded as an assault upon "an officer … in the execution of the powers or authorities conferred on him by this Act" as provided in s24(1)(d) of the Fisheries Act under which the applicant was charged. The fact that Inspector Farquhar's desire to use the dinghy may have been bona fide and reasonable, is nothing to the point in my opinion. Nor is it relevant that the applicant's actions in laying hands upon the Inspector may have constituted an assault or some other offence under the Police Offences Act 1935 or other legislation. It was also submitted that Inspector Farquhar's attempt to remove the dinghy was necessarily incidental to his seizure of equipment which was in the dinghy at the time. D'Emden v Pedder (1904) 1 CLR 91 was cited in support. In that case the High Court said:

"… where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective.

This is, in truth, not a doctrine of any special system of law, but a statement of a necessary rule of construction of all grants of power, whether by unwritten constitution, formal written instrument, or other delegation of authority, and applies from the necessity of the case, to all to whom is committed the exercise of powers of government."

1. I can see nothing in the facts or circumstances of the present case which would enable it to be said that the seizure of equipment in the dinghy would have been impossible or ineffective without the dinghy itself being removed from alongside the "Hendrika".

1. On the evidence before the learned magistrate, the applicant was in my view not guilty of an offence against s24(1)(d) of the Fisheries Act 1959 and consequently, the motion will be allowed insofar as it relates to the third charge in the complaint.

1. Accordingly the conviction in respect of that charge will be quashed.