Demir v Carter - [2017] WASC 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DEMIR -v- CARTER [2017] WASC 182

CORAM: MCGRATH J

HEARD: 28 FEBRUARY 2017

DELIVERED : 30 JUNE 2017

FILE NO/S: SJA 1021 of 2016

BETWEEN: NATASHA DEMIR
Appellant
AND
BRET ANTHONY CARTER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S RICHARDSON
File No  :PE 2800 of 2015

Catchwords:

Western rock lobster prosecution - Totally protected fish - Statutory interpretation - Definition of 'take' under s 50 of the Fish Resources Management Act 1994 (WA) - Five minute rule - Snaring rock lobster - Inclusive and not exclusive definition of the word 'take' - Object and purpose of the Fish Resources Management Act 1994 (WA) - Leave to appeal granted - Appeal allowed - Matter remitted to learned magistrate to determine prosecution

Legislation:

Criminal Appeals Act 2004 (WA)
Fish Resources Management Act 1994 (WA), s 3, s 4, s 46, s 48, s 50, s 51
Fish Resources Management Regulations 1995 (WA), r 12, r 31, r 64W, r 64G
Interpretation Act 1984 (WA), s 18

Result:

Leave to appeal granted
Appeal allowed
Matter remitted to the Magistrates Court to determine the charge on the Prosecution Notice according to law

Category: B

Representation:

Counsel:

Appellant: Mr J M Misso
Respondent: In person

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: In person

Case(s) referred to in judgment(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Asvar v Binning [2009] WASCA 219
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Saad v Baron [2012] WASC 507
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

MCGRATH J:

Introduction

The respondent was charged with one offence of 'taking' Western Rock Lobster in excess of the daily bag limit contrary to s 50(3) of the Fish Resources Management Act 1994 (WA) (FRMA). After a one day hearing the learned magistrate dismissed that charge. This is an appeal against that decision.
The appeal turns on the meaning of the word 'take' in the context of s 50 of the FRMA. For the reasons that follow, I have decided that the magistrate's interpretation of the word 'take' was erroneous and that the appeal, consequently, should be allowed. Given that factual findings are required to be made concerning whether other fishermen may have contributed to the catch bag of the appellant, I will order that the matter be remitted to the magistrate, to make the necessary findings of fact and determine the matter according to law.

The Magistrates Court hearing

The Prosecution Notice alleged that the respondent took in the West Coast Region fish, being 17 Western Rock Lobster in excess of the daily bag…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Demir v Carter

Details

AGLC: Demir v Carter [2017] WASC 182
Case: [2017] WASC 182
Decision Date: 30 JUNE 2017

CaseChat Overview and Summary

The case of Demir v Carter involved the appellant, who was prosecuted for allegedly contravening the Fish Resources Management Act 1994 (WA) by taking western rock lobsters. The specific charge was that the appellant had caught lobsters using a snaring device, which is prohibited under the Act. The dispute centred on the interpretation of the term 'take' as defined in section 50 of the Act and whether the method of catching the lobsters fell within the scope of the prohibition. The case was heard in the Supreme Court of Western Australia.

The primary legal issue the court had to resolve was the interpretation of the word 'take' in section 50 of the Act. The appellant argued that the term should be interpreted narrowly, specifically excluding methods that involve the use of a snaring device. The prosecution, on the other hand, contended that the term should be interpreted broadly, thereby encompassing any method of capturing lobsters, including snaring. The court had to determine whether the 'five-minute rule' applied to the snaring method, which exempts the taking of lobsters if they are released within five minutes of being caught.

The court examined the legislative framework and the purpose of the Fish Resources Management Act 1994 (WA), which is to protect and conserve fish resources. It concluded that the definition of 'take' should be interpreted inclusively rather than exclusively. The court found that the object and purpose of the Act were best achieved by a broad interpretation of 'take', thereby encompassing the snaring method used by the appellant. As a result, the court allowed the appeal and remitted the matter to the magistrate to determine the prosecution afresh. The court also granted leave to appeal to the Court of Appeal, which would review the case further.

Orders