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 limit, for those fish contrary to s 50(3) of the FRMA.[1]
[1] Prosecution Notice - Charge number 2800/2015 lodged 15 April 2015.
On 17 December 2016, the hearing was conducted before the magistrate. Both the appellant and the respondent were represented by counsel.
At the hearing there were two principal issues in dispute. The first issue concerned which fisherman actually snared and placed the rock lobsters into the blue catch bag that the respondent had possession of at the time he completed his dive and boarded the dive vessel, the Tupperware Tubb.
The second issue in dispute was, if the number of rock lobster within the blue catch bag exceeded the statutory bag limit, at what point in time were the rock lobsters 'taken' pursuant to s 4 and s 50 of the FRMA. The prosecution case was that the respondent had 'taken' the rock lobsters at the time he had snared the rock lobsters. The respondent's position was that to 'take' embraces a process that was not complete at the point of time of the snaring and further, even at the time of boarding the dive vessel with the rock lobsters, the process of 'taking' was not complete. On the respondent's case, the fisheries officers intervened and commenced the investigation on board the dive vessel before the 'taking' process was complete. Hence, the offence was not complete.
Evidence was received in respect to both principal issues. The magistrate found that to 'take' is a process and that the offence contrary to s 51 of the FRMA had not been completed at the time the respondent boarded the dive vessel with a catch bag containing 17 rock lobsters in excess of the daily bag limit. Given that the magistrate dismissed the charge for that reason, her Honour did not make a finding as to whether the respondent's colleagues, Mr Anderson and Mr Debonie, had placed rock lobsters into the blue catch bag that was in the possession of the respondent.
It is necessary that the evidence be outlined in some detail. This will ensure that the issues at trial are fully illuminated and therefore, the reasoning of her Honour in respect to the construction of the relevant provisions of the statute is properly understood.

Relevant evidence

The appellant relied on evidence from two fisheries officers, Ms Demir and Mr Gogoll. The respondent gave evidence on his own behalf and called evidence from four other witnesses. Two of the witnesses were the respondent's fishing companions, Mr Debonie and Mr Anderson. Three others witnesses called on behalf of the respondent at trial, being Mr Gillett, Mr Wadingham and Mr Parker, were not present at the relevant time, but purported to express opinions regarding their experience of fishing for rock lobsters.
The magistrate correctly observed, in her reasons for decision, that much of the evidence regarding the events was consistent and not in dispute.[2] Her Honour outlined a succinct summary of findings identifying any factual questions arising.
[2] ts 3 (3/2/2016).
There was no dispute between the parties that the respondent, Mr Anderson and Mr Debonie were fishing for rock lobster by scuba diving in the waters of the Shoalwater Marine Park. Mr Debonie was the master of the dive vessel. The respondent and his two fishing companions were fishing for rock lobsters using snares whilst diving.

Evidence concerning the number of rock lobsters snared by the respondent

The evidence regarding the observations of the fisheries officers in respect to when the divers surfaced was not in dispute at the hearing. The fisheries officers gave evidence that on 18 November 2014, they approached a vessel named the Tupperware Tub that was anchored in Warnbro Sound. There were no persons on‑board. The first diver, Mr Debonie, surfaced at 9.01 am and boarded the Tupperware Tubb at 9.04 am. The second diver, Mr Anderson, surfaced and boarded the vessel at 9.07 am.
The first diver, Mr Debonie, was observed after boarding the vessel retrieving a green mesh catch bag from the water on the port side of the vessel.[3] Mr Debonie was observed measuring rock lobsters retrieved from the green mesh catch bag. The rock lobsters were placed in two tubs and the catch was sorted which resulted in some rock lobsters being returned.[4] Fisheries Officer Demir then observed Mr Debonie tip the contents of the blue tub into the ocean. A red tub remained.
[3] ts 8 - 9 (17/12/15).
[4] ts 10 (17/12/15).
Fisheries Officer Demir recalls that Mr Anderson held up an empty catch bag and observed that he had a couple of rock lobsters in his wetsuit.[5]
[5] ts 11 (17/12/15).
A third diver, the respondent, surfaced with a blue catch bag and boarded at 9.11 am. The respondent, upon surfacing, placed his blue catch bag on the port gunnel side of the vessel. At 9.16 am the respondent was observed by Fisheries Officer Demir[6] and Fisheries Officer Gogoll[7] pulling the blue catch bag, with which he surfaced, onto the vessel Tupperware Tub. Fisheries Officer Demir gave evidence that he observed the respondent tipping the catch from the blue catch bag into a blue tub.[8] The fisheries officers then intervened and commenced an investigation into the contents of the blue catch bag.
The fisheries officers' examination of the respondent's blue tub determined that the tub contained 25 rock lobster. The examination of the red tub determined that the tub contained 14 rock lobsters.[9] Mr Debonie accepted, during his evidence, that his green catch bag contained 14 rock lobsters.[10]
[6] ts 11 (17/12/15).
[7] ts 45 - 46 (17/12/15).
[8] ts 11 (17/12/15).
[9] ts 13 (17/12/13).
[10] ts 103 (17/12/15).
Evidence was received from the two fisheries officers concerning conversations held with the respondent. That evidence was contradicted by the respondent.
Upon boarding the respondent's vessel, Fisheries Officer Demir asked the respondent 'are all those crayfish in that blue tub yours?' to which the respondent answered 'yes'.[11] Again he asked the respondent 'all those crays you just tipped into that blue tub, are they yours?' To that question, Fisheries Officer Demir heard the respondent give the answer 'yes'.[12] When the questions were asked of the respondent, Fisheries Officer Demir stated that all three fishermen were together.[13]
Fisheries Officer Demir gave evidence that he asked the first diver (Mr Debonie) and the second diver (Mr Anderson) 'are the crayfish in that tub, in your tub, your and yours.' The answer given was 'yes'.[14] The same question was asked of the first and second diver concerning the contents of the red tub. The first diver answered 'yes' to the question whether the contents 'was yours and yours'.
[11] ts 11 (17/12/15).
[12] ts 11 (17/12/15).
[13] ts 11 - 12 (17/12/15).
[14] ts 12 (17/12/15).
The respondent then departed his vessel and boarded the fisheries vessel. He was then interviewed by the fisheries officers in the absence of Mr Anderson and Mr Debonie. The evidence of Fisheries Officer Demir was that during that interview, when asked whether he caught all the crayfish in the blue catch bag, the respondent answered 'yes' but 'normally we fish as a team.'[15] A further question asked of the respondent was whether 'anyone put crayfish into your catch bag today?' to which the respondent confirmed 'no', but acknowledged again, that he normally worked as team.[16] The respondent confirmed that he snared the rock lobsters and that he intended to examine the rock lobster and 'sort them', which embraced determining whether they were totally protected upon returning to the vessel after the dive.[17]
[15] ts 14 (17/12/15).
[16] ts 14 (17/12/15).
[17] ts 15 (17/12/15).
Fisheries Officer Demir then asked a further question regarding whether either of the respondent's fishing companions could have placed rock lobster in his blue bag. To that question the respondent answered 'the other guy didn't. I don't know whether Steve did or not. If he did, it would have been only one or two.'[18] The respondent stated that he intended to sort the rock lobsters and select eight to keep. The interview was recorded in Fisheries Officer Demir's notebook. The respondent declined to sign that record at that time.[19]
[18] ts 15 (17/12/15).
[19] ts 16 (17/12/15).
The respondent gave evidence on his own behalf and adduced evidence from four other witnesses. The respondent is an experienced fisherman who has been undertaking cray fishing for over 40 years.[20] The respondent stated that the other two fishermen may have put rock lobster that they had snared into his blue bag. During the time in which the respondent was diving, and not watching the other two divers the whole time, the respondent was aware that the other divers were placing lobsters in his bag.[21] In respect to the questioning by the fisheries officers, the respondent stated that when asked whether the lobsters in the blue catch bag were snared or taken by him, his understanding was that his answer meant to convey 'yes, we, we caught them'.[22] That is, the blue catch bag comprised the collective catch of the three divers.[23] In cross examination the following was asked of the respondent:[24]
So when Officer Gogoll took your blue container, he asked you whether you took all the crays in that blue bucket, didn't he? --- He -Yes, I believe he did.
And you said yes, didn't you? --- As in 'us', yes.
Did you say 'us'? --- No, I didn't say 'us' but that's what I meant.
Did you hear - but you would have heard Officer Demir asking Steve and Greg if the catch in the red tub was theirs, wouldn't you? --- No. No, I don't ---
You didn't hear that?--- Well, I don't recall that, no.
[20] ts 65 (17/12/15).
[21] ts 70 (17/12/15).
[22] ts 70 (17/12/15).
[23] ts 71 (17/12/15).
[24] ts 81 (17/12/15).
Under further examination the respondent accepted that he told Fisheries Officer Gogoll in his interview that sometimes he fished as a team 'but not today'.[25] The respondent stated that he later corrected that statement and maintained that he was working as a team.
[25] ts 82 (17/12/15.
Mr Anderson's evidence was that he was working as a team with the other two divers. Mr Anderson stated that he did not have a bag so he placed his catch in the bags held by Mr Debonie and the respondent.[26] His evidence was that he placed 'at least half a dozen – six or seven' in the respondent's bag.[27] Upon surfacing, he assisted Mr Debonie to check his catch bag, which involved measuring the lobsters and returning some to the sea. Mr Anderson stated that they retained 14 lobsters and returned, likely, half a dozen.[28] Mr Anderson was unable to recall any conversations between the fisheries officers and the respondent or Mr Debonie.[29]
[26] ts 94 (17/12/15).
[27] ts 94 (17/12/15).
[28] ts 95 - 96 (17/12/15).
[29] ts 97 - 98 (17/12/15).
Mr Debonie recalled informing the fisheries officers that he had put some of his lobsters in the respondent's catch bag for the reason that he was working as a team.[30] Mr Debonie did not expressly state how many lobsters he placed in the respondent's blue catch bag. In cross‑examination, Mr Debonie stated that he did not hear the fisheries officer ask the respondent whether the blue catch bag contained lobsters that the respondent had snared.[31] Mr Debonie accepted that he did not tell the fisheries officers, at that time, that he had placed lobsters in the respondent's blue catch bag.[32] Mr Debonie said that by the time he discussed this issue with the respondent, the fisheries officers had departed.[33] Mr Debonie gave evidence that he considered that he was working as a team with the respondent and Mr Anderson. His evidence was that 'if we had 24 crays it would be eight per person.'[34]

Evidence relevant to the examination and taking of rock lobster

[30] ts 104 (17/12/15).

[31] ts 108 (17/12/15).

[32] ts 108 (17/12/15).

[33] ts 109 (17/12/15).

[34] ts 100 (17/12/15).

I now turn to the evidence concerning the second principal issue at trial, namely whether the respondent had 'taken' the rock lobsters at the time of snaring. That evidence concerned the respondent's experience regarding the practical difficulties 'taking' rock lobsters when diving and further, his understanding of the time available to undertake a sorting of the rock lobsters snared.
Both fisheries officers gave evidence regarding this issue. Fisheries Officer Demir stated that her understanding of the legal obligation was that a fisherman must only 'take' eight rock lobsters daily. The officer confirmed in her opinion, the rock lobster is 'taken' when 'you have captured the animal underwater and placed it into the catch bag'.[35] The separate assessment, in respect to whether the rock lobster is totally protected, must be made within five minutes of being 'taken'. That is, a diver who snares a rock lobster and places the rock lobster in his bag has five minutes to make that determination under the terms of r 16 of the Fish Resources Management Regulations 1995 (WA) (FRM Regulations).[36]
[35] ts 24 (17/12/15).
[36] ts 22 - 35 (17/12/15).
Fisheries Officer Demir was asked whether it was possible for a fisherman who is diving to undertake the necessary examination of the rock lobster whilst in the sea. The officer, who is a recreational diver, expressed the opinion that the diving fisherman is able to undertake the examination under water.[37]
[37] ts 28 - 29 (17/12/15).
Fisheries Officer Demir was asked in cross‑examination about fishing for rock lobsters by pot. Her evidence was that with the use of pots, the rock lobster is able to escape after being attracted to entering the pot by the bait.[38] In contrast, a dive bag does not have any exit.[39] The fisherman checks the rock lobster once the pot is pulled to determine whether the rock lobster is a totally protected species.[40]
[38] ts 39 (17/12/15).
[39] ts 40 (17/12/15).
[40] ts 39 - 40 (17/12/15).
Fisheries Officer Gogoll gave similar evidence. That officer accepted that the most common snare is piping with a loop and toggle at the end so that when pulled the loop contracts around the carapace of the rock lobster. Fisheries Officer Gogoll appeared to consider that there was a 'taking' at the time the rock lobster is snared (captured) and that also the placing of a rock lobster in a catch bag constitutes a 'taking' (enclosing).[41] The fisheries officer stated that a diver who captures the rock lobster with a snare has five minutes to determine whether the rock lobster is totally protected.[42]
[41] ts 51 (177/12/15).
[42] ts 51 - 52 (17/12/15).
Fisheries Officer Gogoll stated that the tail clipping is a distinct requirement or action undertaken by the fisherman.[43] In cross‑examination, the defence position (that a person may board with rock lobsters in excess of the daily bag limit, then determine which of the rock lobsters were totally protected, decide which to retain, tail clip and put the other ones back in the ocean) was rejected. Fisheries Officer Gogoll confirmed that a person is not permitted to 'take' more than eight rock lobsters in one day. The five minute rule was applicable only to assessing whether the rock lobsters 'taken' were totally protected.[44]
[43] ts 62 (17/12/15).
[44] ts 62 (17/12/15).
Fisheries Officer Gogoll stated that the process of determining whether a rock lobster was totally protected involved inverting the rock lobster and viewing the underside of the tail to determine if it was setose, with males having a tar spot. That process would take 10 to 20 seconds. Following that process, the diver gauges the rock lobster to ensure that the rock lobster is within the minimum size.[45]
[45] ts 52 (17/12/15).
As a matter of practical application, Fisheries Officer Gogoll confirmed that whilst a fisherman is required to undertake the check to determine whether the rock lobster is a totally protected fish within five minutes of snaring, it is not possible as a matter of evidence, to know the actual point of snaring. Consequently, fisheries officers will ordinarily commence the time period upon the diver boarding the vessel. Whilst there is a recognised evidentiary difficulty, the legislation requires that the rock lobster should have been assessed upon snaring and, if totally protected, released. The practical consequence is that the fisheries officers are unable to prove at what time in the dive the rock lobsters were snared. Therefore, the five minutes commences upon boarding.[46]
[46] ts 52 - 53 (17/12/15).
Fisheries Officer Gogoll explained 'totally protected fish' as meaning 'less than 76 millimetres, a berried female, a setose animal, or a tar spot animal'.[47]
[47] ts 41 - 42 (17/12/15).
Fisheries Officer Gogoll drew a comparison with the process for fishing for rock lobsters with a pot. Fisheries Officer Gogoll stated that a fisherman is permitted to use two pots which are set at sea. The fisherman is permitted five minutes upon pulling the pot to undertake the examination of the rock lobsters that have entered the pot. Fisheries Officer Gogoll stated that: [48]
It's not uncommon to get 30 to 40 animals in a pot, so the five minute rule could be considered unreasonable and, as such, the department or the Fish Resources Management Regulations, I believe its around reg 32, specifies that the five minute rule or before the next pot is pulled.
[48] ts 42 (17/12/15).

Fisheries Officer Demir confirmed that a fisherman is unable 'to control' the number of rock lobsters that are present in the pot until the pot is pulled.[49]
[49] ts 40 (17/12/15).
The respondent gave evidence that his understanding of the law was that he was permitted to return his catch of rock lobster to the vessel and then had five minutes to sort the catch to determine which rock lobsters are totally protected and to determine which rock lobsters shall be taken. The remainder, which may be in excess of the limit or totally protected, are returned to the sea.[50] The respondent stated that he did not know how many he had in his catch bag. Rather, upon surfacing he intended to select eight and return the rest to the sea.[51]
[50] ts 73, 86 (17/12/15).
[51] ts 73 - 74 (17/12/15).
The respondent also relied upon evidence from Mr Gillett, Regional Policy Officer at Recfishwest, which is the peak body for recreational fishing.[52] Mr Gillett expressed the opinion that fishermen who dive for rock lobster undertake the examination to determine whether the rock lobster is totally protected upon returning to their vessel.[53] Mr Gillett stated that view has been disseminated to fishermen by Recfishwest for five years.[54] In Mr Gillett's opinion it is difficult to undertake the examination under water and that 'it's fair and reasonable' to allow a diver to come to the surface to undertake the checks in respect to totally protected fish.[55]
[52] ts 87 - 89 (17/12/15).
[53] ts 87 (1/12/15).
[54] ts 87 (17/12/15).
[55] ts 88 (17/12/15).
The respondent also led evidence, over objection, from Mr Wadingham, a recreational fisherman. Mr Wadingham gave opinion evidence that his understanding was that a fisherman does not 'take' rock lobster until the fisherman decides to clip the tail of the rock lobster.[56] According to Mr Wadingham, the examination of the rock lobster to determine whether it is totally protected may occur when the fisherman boards the vessel.
[56] ts 92 (17/12/15).
Further evidence was led from another recreational fisherman, Mr Parker, who gave testimony that he counts the rock lobsters and determines if they are totally protected upon returning to the vessel given that five minutes is allowed upon the return to the vessel.[57] Mr Parker expressed the opinion that in his experience there are visibility limitations in carrying out the examination when diving under the water.[58] In addition, Mr Parker gave character evidence on behalf of the respondent.
[57] ts 111 - 114 (17/12/15).
[58] ts 114 (17/12/15).
Mr Anderson expressed the opinion that he had five minutes upon boarding the vessel to examine the rock lobster to determine which rock lobsters to retain. For Mr Anderson, the underwater visibility of two metres meant that in order to assess the rock lobsters properly, it was necessary to complete the assessment on the vessel.[59]
[59] ts 96 - 97 (17/12/15).
Mr Debonie stated that visibility was five to ten feet and that he would be unable to properly assess whether a rock lobster is a protected fish while underwater.[60] Further, he stated that he never bothers to gauge rock lobsters under water. Mr Debonie surfaced with his catch bag and commenced to sort the catch with Mr Anderson.[61] Mr Debonie recalls that he threw back a number of smaller rock lobsters and retained 14 rock lobsters.[62]

The magistrate's reasons

[60] ts 101 (17/12/15).

[61] ts 102 (17/12/15).

[62] ts 103 (17/12/15).

The magistrate correctly observed that much of the evidence regarding the events was consistent and not in dispute.[63] Her Honour outlined a succinct summary of findings identifying any factual questions arising.[64] Further, her Honour outlined without error the applicable statutory provisions.[65]
[63] ts 3 (3/2/16).
[64] ts 2 - 4 (3/2/16)
[65] ts 4 - 6 (3/3/16).
The magistrate considered that the 'taking' of rock lobster was not complete at the time the rock lobster was snared and bagged by the respondent. The snaring occurred whilst the respondent was diving in the sea. Her Honour considered that to 'take' was a process.[66] The reasoning was that the snaring of a rock lobster by hand is part of a process of 'taking' rock lobster. Her Honour considered that the process involves a subsequent determination (after the snaring), by the fisherman, as to whether the rock lobster is totally protected and, if so, whether it comes within the bag limit.[67] The magistrate's reasoning was based on a finding of fact that the checking of the rock lobster to determine whether it is protected 'cannot properly be done on the seabed in many instances.'[68] That is because such an assessment can only be undertaken accurately 'if carried out with care and with good visibility.'[69] Her Honour, by reference to r 12 and r 31 of the FRM Regulations, considered that a person has five minutes to undertake the acts of checking whether the rock lobster is totally protected, undertake tailing and then 'taking' the rock lobsters.
[66] ts 9 (3/3/16).
[67] ts 9 (3/3/16).
[68] ts 10 (3/3/16).
[69] ts 10 (3/3/16).
Her Honour considered the text of the statute and the purpose or object of the legislation. The magistrate concluded that her preferred interpretation and construction was consistent with the purpose or object of the FRMA.[70]
[70] ts 9 (3/3/16).
Accordingly, the magistrate found that the respondent was not afforded the opportunity by the fisheries officers to check for totally protected rock lobsters and further to check the count of his rock lobsters against his bag limit.[71] The alleged offence was not complete for the reason that whilst the respondent boarded the vessel with possession of rock lobsters, that exceeded in number the statutory daily limit by 17, the respondent had not 'taken' the rock lobster under the terms of the statute.
[71] ts 10 (3/3/16).

The appeal

The appellant has one ground of appeal in the following terms.
The learned magistrate erred in applying the '5 minute rule' in regulation 12 and/or regulation 31 of the Fish Resources Management Regulations1995 (WA) to the offence in s 50(3) of the Fish Resources Management Act 1994 (WA).
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[72]
[72] Criminal Appeals Act 2004, s 9(1).
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[73]
[73] Criminal Appeals Act 2004, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
An appeal hearing is not a retrial of the issues that were before the primary court. The appellants must demonstrate that the primary court fell into error in a manner specified in a ground of appeal.[74] The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[75] On appeal, the court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[76]
[74] Asvar v Binning [2009] WASCA 219 [37].
[75] Criminal Appeals Act 2004, s 8(1).
[76] Criminal Appeals Act 2004, s 14(1).
I will outline the legislative provisions and then turn to considering the sole ground of appeal.

Legislative provisions

The appeal turns on the interpretation of the relevant provisions of the FRMA. There are three parts of the regulatory framework that are relevant to the determination of this appeal:
1.The legislative proscriptions concerning daily bag limits;
2.The prohibition against the 'taking' of a rock lobster that is prescribed as a totally protected fish; and
3.The proscriptions concerning the obligation of fishermen to tail mark rock lobsters.
The FRMA read with the FRM Regulations sets bag limits for fishing in Western Australia. Relevantly, s 50 of the FRMA provides the following in respect to bag limits:
(1)In this section, one day means a period of 24 hours commencing at midnight or, in relation to a bag limit for which a different period is provided by the regulations under subsection (6), such period as is provided.
(2)The regulations may specify the maximum quantity of fish of a specified class that a person may take, or bring onto land or into WA waters, in one day (the bag limit).
(3)A person must not take, or bring onto land or into WA waters, on any one day more fish than the bag limit of those fish.
Penalty: As provided in sections 52 and 222.
(4)It is a defence in proceedings for an offence against subsection (3) for the person charged to prove that -
(a)the fish were taken for a commercial purpose in accordance with an authorisation; or
(b)the fish were kept, bred, hatched, cultured or harvested in accordance with an aquaculture licence; or
(c)the person has any other defence prescribed in the regulations.
(5)The regulations may specify different bag limits in relation to -
(a)different areas of the State; or
(b)different classes of persons; or
(c)different circumstances.
(6)The regulations may provide that a bag limit applies to a period of 24 hours commencing at a time other than midnight.
(7)This section does not authorise the taking of fish or the bringing of fish onto land or into WA waters in contravention of any other provision of this Act.
Regulation 65G, read with sch 3, pt 5 of the FRM Regulations provides that the daily bag limit for rock lobster is eight.
The respondent did not rely upon s 50(4)(a) and s 50(4)(b) of the FRMA given that the fish taken were neither taken for a commercial purpose nor harvested in accordance with an aquaculture licence.
Subsection 50(4)(c) of the FRMA provides that a person has any other defence prescribed by the regulations. Regulation 64W prescribes defences to a charge under s 50 of the FRMA. The respondent did not raise nor rely upon any of the prescribed defences at the hearing. Regulation 64W provides:
It is a defence in proceedings for an offence against section 50(3) of the Act -
(a)for the person charged to prove that the person was acting in accordance with an authority to fish for fish for scientific purposes issued under regulation 178; or
(b)where the person is charged with bringing onto land on any one day more fish than the bag limit of those fish, for the person to prove that he or she -
(i)was in possession of the fish in accordance with regulation 16D(1); and
(ii)was bringing those fish onto land;
or
(c)for a person charged with bringing onto land on any one day more fish than the bag limit of those fish to prove that regulation 16E(3A) or (3B) applied in respect of the fish immediately before the fish were brought onto land.
Regulation 16E(3A) is applicable if a person is charged under s 51(1) of the FRMA with bringing onto land and has possession of a quantity of fish. Regulation 16E(3A) provides:
(3A)For the purposes of section 51(1) of the Act, the maximum quantity of fish of the species referred to in this subregulation that a person on a boat may be in possession of, whether the fish is on or attached to the boat or any tender or other vessel operating with or attached to the boat, is –
…
(c)if there are 3 or more persons on the boat -
…
(iv)3 days' bag limit of rock lobster;
Regulation 16E(3A) was not relied upon as a defence in this case. That was understandable given that it could not afford a defence to the respondent. The respondent was charged with 'taking' in excess of his bag limit being eight rock lobsters. Given the intervention of the fisheries officers at sea, no issue arises regarding the master of the dive vessel bringing onto land in excess of 24 rock lobsters (which was permitted given that there were three fishermen on‑board the vessel).
As outlined above s 50(3) of the FRMA relevantly provides that a person must not 'take' on any one day more fish than the bag limit of those fish. Section 4 of the FRMA provides that, unless the contrary intention appears, the word 'take':
in relation to fish, includes catch, capture, entrap, enclose, gather, remove, poison, stun, kill or destroy fish by any means;
I now turn to the legislative framework concerning 'totally protected fish'. 'Protected fish' is defined as meaning 'totally protected fish, commercially protected fish and recreationally protected fish'.[77] Section 46 of the FRMA relevantly provides that a person must not 'take' or have in the person's possession any totally protected fish. The penalty provisions are s 52 and s 222 of the FRMA.
[77] Fish Resources Management Act 1994 (WA), s 4.
Schedule 2, pt 2, div 1 of the FRM Regulations defines 'totally protected fish' as including:
Female rock lobster with eggs or spawn attached beneath its body.
Setose or tarspot western rock lobster -
(a)taken from; or
(b)in the possession of, or consigned by, a person on a boat on; or
(c)brought onto land from,
waters south of 21° 44′ south latitude and west of 116° east longitude.
In this Division -
setose means a female rock lobster that has fine hair‑like filaments (ovigerous setae) -
(a)for the attachment of eggs on the branched structures (biramous endopodites) forming part of the swimmerets (pleopods) underneath its tail; or
(b)that, although not capable of the attachment of eggs as described in paragraph (a), are in the process of lengthening as part of the development of the rock lobster to sexual maturity;
tarspot means a female rock lobster that has a black putty‑like mass (spermatophoric mass) attached to the underside of the carapace (ventral sternal plate) between its hindmost (5^th) pair of walking legs.
Further, sch 2, pt 2, div 5 of the FRM Regulations provides that a rock lobster under the minimum size is also a 'totally protected fish'.
Regulation 12(1) of the FRM Regulations provides:
(1)Any person who takes from the sea any totally protected fish that is a rock lobster must ensure that the rock lobster is -
(a)released to the sea within 5 minutes of being taken; and
(b)if taken by means of a rock lobster pot, is released to the sea before any other rock lobster pot is pulled.
Penalty: In the case of an individual, $3 000 or, in the case of a body corporate, $6 000.
(2)The master of a boat must ensure that any totally protected fish that is a rock lobster taken from the sea and brought on board the boat -
(a)is released to the sea within 5 minutes of being taken; and
(b)if taken by means of a rock lobster pot, is released to the sea before any other rock lobster pot is pulled.
Penalty: In the case of an individual, $3,000 or, in the case of a body corporate, $6,000.
(3)A person, other than the holder of a commercial fishing licence, who takes any totally protected fish that is a crab must not, by any means, take any further crab until the crab is released into the water from which it was taken.
Penalty: In the case of an individual, $3,000 or, in the case of a body corporate, $6,000.
Section 48 of the FRMA provides defences to the 'taking' of a totally protected fish:
(1)It is a defence in proceedings for an offence against section 46 or 47 for the person charged to prove -
(a)in the case of an offence relating to the taking of fish, that on becoming aware of the taking of the fish, the person took immediate steps to return the fish to its natural environment with the least possible injury; or
(ba)that the fish were collected for broodstock or other aquaculture purposes in accordance with an authorisation; or
(b)that the fish were of a prescribed class and were being, or had been, kept, bred, hatched, cultured or harvested in accordance with an aquaculture licence; or
(c)that the person has any other defence prescribed in the regulations.
Turning to the third regulatory proscription concerning tail marking, r 31(3) of the FRM Regulations provides that a person who 'takes' and keeps rock lobster must tail clip or tail punch the rock lobster within the allowed time. Regulation 31(1) defines allowed time, in relation to a rock lobster, as meaning:
(a)Where a boat is used in connection with the taking of the rock lobster, within 5 minutes of bringing the rock lobster to the boat; or
(b)Where a boat is not used in connection with the taking of the rock lobster, within 5 minutes of bringing the rock lobster onto land.

Consideration of the ground of appeal

The appeal turns on the proper construction of the word 'take' in the context of the offence creating provision being s 51 of the FRMA. The word is defined by the statute. I will first outline the applicable principles of statutory construction.

Principles of statutory construction

The rules of statutory construction require primary attention to be directed to the text of the relevant provisions[78] having regard to the language of the statutory instrument viewed as a whole, considered in context.[79] The language of the statute must be interpreted having regard to context and the legislative purpose.
[78] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27. [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].
[79] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
In Alcan (NT) Alumna Pty Ltd v Commissioner of Northern Territory the High Court stated that:[80]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[80][2009] HCA 41; (2009) 239 CLR 27 [47].
The specific provisions of the FRMA that arise for interpretation must be construed consistently with the language and purpose of all the provisions of the statute.[81]
[81] Project Blue Sky Inc v Australian BroadcastingAuthority [69].
Section 18 of the Interpretation Act 1984 (WA) provides that a construction that would promote the purpose of the underlying written law (whether that purpose is expressly stated in a written law or not) shall be preferred to a construction that would not promote the purpose or object.
The purpose of the definition section is to aid the construction process. The definition serves to elucidate. In respect to the interpretation of definitions provided in a statute, McHugh J in Kelly v The Queen stated: [82]
[T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.

The magistrate's construction

[82] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103].

It appears that the magistrate held that the definition of 'take' provided by s 4 of the FRMA did not apply to s 50 of the FRMA in the way contended by the appellant, for the reason that the legislation manifested a contrary intention.[83] The magistrate interpreted the word 'take' in the context of s 50 of the FRMA as meaning a process.[84] Her Honour's reasoning was that the snaring of the rock lobster was not to 'take' but the commencement of the process to 'take'. That process was not complete upon the snaring. That process comprised a number of steps. Her Honour considered that the process involves a subsequent determination (after the snaring) by the person as to whether the rock lobster was totally protected.[85] For her Honour the word 'take' refers to the process of catching lobsters, which includes the important steps of determining whether a lobster is totally protected.'[86]
[83] ts 5 (3/3/16).
[84] ts 9 - 10 (3/3/16).
[85] ts 9 (3/3/16).
[86] ts 10 (3/3/16).
It also appears that her Honour considered that the process included assessing whether the number of the rock lobsters came within the bag limit[87] and finally, tail marking the rock lobsters that are to be retained. At that time, any other rock lobsters that are snared must be returned to the sea by the person. Her Honour considered that only then the process of 'taking' was complete.
[87] ts 10 (3/3/16).
Accordingly, her Honour concluded that 'the description of take in s 4 is a reference to part of the process involved in the taking of fish'.[88]
[88] ts 10 (3/3/16).
It appears that her Honour's construction is based upon the following:
(1)That the use of the word 'includes' rather than 'means' in the definition of 'take' in s 4 of the FRMA is supportive of the construction that to 'take' in the context of s 50 of the FRMA means a process.
(2)The fishermen were not able to meet the regulatory requirement to determine whether a rock lobster is a totally protected rock lobster if the rock lobster is captured by the diver in the sea. That is, it is not practically possible to undertake the necessary examination.
(3)If the meaning of the word 'take' was interpreted in the way stated by the appellant, then the purpose or object of the FRMA would not be promoted but defeated.
(4)If the meaning of the word 'take' in s 50 of the FRMA was interpreted in the way stated by the appellant, then if rock lobsters were captured by the use of a lobster pot, an absurd result would arise.
I respectfully disagree with the construction preferred by her Honour and with her Honour's reasoning. In my view, the word 'take' in s 50 of the FRMA has the meaning given in the definition in s 4 of the FRMA. In the context of this offence, the respondent took the rock lobster when he snared the rock lobster. At that point in time the rock lobster was 'taken'. The 'taking' of a rock lobster for the purposes of s 50 of the FRMA may occur when the rock lobster is 'caught' or 'entrapped' in a snare, or 'enclosed' or 'captured' in a catch bag.
The construction preferred by the magistrate is not supported by the text of s 50 and other provisions of the FRMA.
The statutory definition of 'take' provides an expansionary meaning that proscribes the 'taking' of a rock lobster (or any fish) at the moment that the rock lobster (or any fish) is 'caught' or 'entrapped' in a snare or bag. The definition of 'take' does not refer to the subsequent reviewing or sorting of the catch to determine whether the bag limit has been exceeded or that totally protected species have been 'taken'. Nor is there any regulation permitting a time period for this subsequent sorting. In contrast, five minutes is provided to tail mark and examine the rock lobster to determine if the rock lobster is totally protected.
The construction preferred by the magistrate is discordant with the defence provisions that apply in respect to the 'taking' of totally protected fish. As outlined, s 46 of the FRMA prohibits the 'taking' of any totally protected fish. Section 48 provides a defence if the person proves that on becoming aware of the 'taking' of the fish, the person took immediate steps to return the fish to its natural environment, with the least possible injury. If the 'taking' of a fish includes the process of reviewing the catch, then it would not have been necessary for the legislature to create the defence under s 48(1)(a) of the FRMA, given that a fish could not be 'taken' for the purposes of s 46 of the FRMA until the process of checking is completed. The word 'take' in s 46 and s 48 of the FRMA is necessarily defined by s 4 of the FRMA. It must be presumed that the legislature intended that the word 'take' would be given that same meaning.[89]
[89] Saad v Baron [2012] WASC 507 [53]; Pearce D.C and Geddes R.S, Statutory Interpretation in Australia (8^th ed, 2014) [4.6] ‑ [4.7].
I wish to further outline my reasoning by reference to her Honour's reasoning.

Use of the word 'includes' rather than 'means' in the definition of 'take' in s 4 of the FRMA

The magistrate considered that the definition was an inclusive and not an exclusive definition of the word 'take'.[90] I agree. Parliament has given the word 'take' the widest scope, with the language of s 4 of the FRMA providing that take 'includes catch, capture, entrap, enclose, gather, remove, poison, stun, kill or destroy by any means'.
[90] ts 5 (3/3/16).
The magistrate made a number of observations concerning the interpretation of s 4 of the FRMA. Her Honour found that the use of the word 'includes' in s 4 of the FRMA rather than the word 'means' is supportive of the interpretation that to 'take' involves a process. Her Honour observed that in respect to most defined terms in s 4 of the FRMA the word 'means' is used rather than 'includes'. Her Honour then concluded:[91]
The dictionary definition of includes is to, and I quote 'comprise or contain as part of a whole', whereas the dictionary definition of mean is to intend to convey or referred to. In my view catching a lobster by hand with an instrument is part of a process of taking rock lobster. That process involves a subsequent determination of whether the lobster is totally protected and, if so, whether it comes within the bag limit.
[91] ts 9 (3/3/16).
I do not accept that the word 'includes' is supportive of the contention that the word 'take' is to be understood as meaning a process in s 50 of the FRMA. The word 'includes' is intended to be expansionary of the word 'take', which has an ordinary meaning. The word 'includes' serves to give the word 'take' the widest scope. That scope includes the act of killing or destroying by any means. Similarly, the legislature has used the word 'includes' when providing an interpretation of the other words that necessarily must be understood as having an expansionary meaning such as 'document' and 'aquatic resources'.[92]

Not possible to undertake the necessary examinations to determine if rock lobster was totally protected and to sort the catch
[92] Fish Resources Management Act 1994 (WA), s 4.

Her Honour considered that if the definition were to be applied as the appellant contended the regulatory framework would not work as intended for the reason that a person would not be able to meet the regulatory proscription of determining whether the snared rock lobster is totally protected. Therefore, if the meaning of 'take' was interpreted in the way stated by the appellant then the purpose or object of the FRMA would not be promoted but defeated.
The magistrate considered that r 12 and r 31 of the FRM Regulations was part of the process of 'taking'. The magistrate reasoned that:[93]
The crucial issue is this case is whether a diver fishing for rock lobster on the sea bed by hand using an instrument which is not capable of piercing a rock lobster is required to check whether a rock lobster is snared with the hand instrument is totally protected or not within five minutes of that snare.
…
Regulations 12 and 31 also, in my view, envisage and provide for a fisherperson who has obtained rock lobsters by hand while diving to return to the boat and take from the sea his catch before determining whether the rock lobster is totally protected. If the rock lobster is totally protected or beyond the diver's bag limit then it must be released to the sea within five minutes of being taken.
[93] ts 7 (3/3/16).
Her Honour in the preceding paragraphs refers to both r 12 and r 31 of the FRM Regulations. Both impose distinct regulatory requirements. As outlined above, s 46 of the FRMA provides that a person must not 'take' any protected fish and r 12 provides that 'any person who takes from the sea any totally protected fish' that is a rock lobster must ensure that the rock lobster is released within five minutes of being taken and if taken by a lobster pot, is released to the sea before any other rock lobster is pulled'.
Regulation 31 of the FRM Regulations relevantly provides that 'a person who takes and keeps any rock lobster must tail clip or tail punch the rock lobster within the allowed time' with a sanction imposed for a failure to do so.[94] The allowed time where a boat is used in connection with the 'taking' of the rock lobster is within five minutes of bringing the rock lobster to the boat.
[94] Fish Resources Management Regulations 1995 (WA), r 31(3).
In my respectful opinion, her Honour conflates three distinct requirements.
First, the fisherman has a prescribed bag limit which is the number of rock lobsters that may be 'taken'.
Second, that when a boat is used in connection with the 'taking' of the rock lobster, within five minutes of bringing the rock lobster to the boat the fisherman must undertake the tail marking of rock lobster.
Third, the fisherman must not 'take' totally protected fish (whether or not within the bag limit) and has five minutes from the 'taking' in which to make the assessment as to whether the rock lobster is totally protected.
The magistrate considered that the nature of the inquiries necessary to be made by the fisherman snaring rock lobster were unable to be undertaken when diving. Therefore, the five minute period should not be understood as commencing when the fisherman snares the rock lobster, but at the time the fisherman returns to the boat. The magistrate considered that the evidence of the respondent provided an evidentiary basis for concluding that the examination of the rock lobster to determine whether it is a 'totally protected fish' could not be properly undertaken whilst diving.
As I have outlined above the evidence of Fisheries Officer Demir and Fisheries Officer Gogoll was to the contrary. In particular, Fisheries Officer Gogoll, an experienced diver, gave evidence that the examination is able to be conducted under water. I consider that evidence of Fisheries Officer Gogoll to be cogent and reliable. Further, Fisheries Officer Gogoll confirmed that it is not possible for investigating officers to know precisely when the rock lobster was 'taken'. Consequently, fisheries officers commence the five minute period upon boarding. However, that does not permit a person to 'take' in excess of eight rock lobsters.
The five minute rule provided under r 12 of the FRM Regulations has application only in respect to the regulatory requirement that the fisherman determine whether the rock lobster 'taken' is a totally protected fish. It does not permit the same period for the sorting of the fish and determining whether the bag limit has been exceeded.
In respect to the tail‑marking requirement, it is clear that the five minute rule applies, when a boat is used in connection with the 'taking', within five minutes of the bringing the rock lobster to the boat. That is a separate process. Regulation 31 of the FRM Regulations does not afford any support to the magistrate's reasoning that 'taking' under s 50 of the FRMA is a process.
The FRM Regulations offer no assistance in determining whether a rock lobster has been 'taken' in excess of the prescribed bag limit contrary to s 50 of the FRMA. Section 46 of the FRMA and r 12 and r 31 of the FRM Regulations impose distinct further regulatory requirements upon persons who fish for rock lobster.

Purpose or object of the FRMA

Her Honour considered that the construction that the appellant contends would not promote the purpose or object of the FRMA. The meaning of 'take' in s 4 of the FRMA must be interpreted reasonably to promote, and not to defeat, the purpose or object of the FRMA. The objects of the FRMA are:[95]
(a)to develop and manage fisheries and aquaculture in a sustainable way; and
(b)to share and conserve the State's fish and other aquatic resources and their habitats for the benefit of present and future generations.
[95] Fish Resources Management Act 1994 (WA), s 3(1).
Her Honour considered that there 'has been no evidence put before the court that the protection and conservation of rock lobster was enhanced by carrying out such checks under the water'.[96] Her Honour referred, in her reasons, to the evidence of a fisheries officer stating that 'a rock lobster could lose some legs in being placed in the catch bag and brought to the surface.'[97] Her Honour then referred to photographs tendered at the hearing of the rock lobsters on board the vessel which showed rock lobsters with numerous legs. Accordingly, the magistrate concluded that there was insufficient evidence to support a contention that the snaring of rock lobster resulted in any real damage to the rock lobster.
[96] ts 8 (3/3/16).
[97] ts 8 (3/3/16).
With respect to her Honour, the evidence of Fisheries Officer Gogoll outlined with clarity the possible damage that is done to rock lobsters if snared and placed in catch bags. Evidence was received from Fisheries Officer Gogoll concerning damage to rock lobster during the process of being snared and placed in the bag. The witness confirmed that rock lobsters that are in the white part of their lifecycle are very delicate. The process of catching rock lobsters by snare can kill them instantly.[98] In addition, the fisheries officer confirmed that 'rock lobster has the ability to drop appendages at any time.'[99] Further, Fisheries Officer Gogoll stated that if the rock lobster is placed in a container the rock lobster tend to kick quite vigorously and this action can aggravate other rock lobsters causing stress resulting in the rock lobsters dropping legs or damaging other rock lobsters.[100]
[98] ts 42 - 43 (17/12/15).
[99] ts 42 (17/12/15).
[100] ts 42, 56 (17/12/15).
Contrary to the magistrate's finding, the interpretation preferred by the appellant does promote, and not defeat, the purpose or object of the FRMA. The magistrate's interpretation, which permits a fisherman to snare and place an unlimited number of rock lobsters in the catch bag for an extended period, so long as the examination occurs within five minutes of boarding, does not promote conservation. A team of fishermen diving from a boat on that interpretation could do damage to a great number of rock lobsters.
In short, if the magistrate's preferred construction were accepted then there would be no statutory limitation on the number of rock lobsters that could be snared and brought on board on a vessel. In this case alone, the three fishermen had 39 rock lobsters in two bags and further, there was evidence from the fisheries officer that Mr Anderson had further rock lobsters on his person. It is not difficult to envisage cases involving the capture of many more rock lobsters than the number in this case. That would lead to the result that on her Honour's preferred construction the legislature was envisaging that fishermen could snare a significantly greater number than the daily bag limit, with the intention, sometime later, of sorting the rock lobsters. That would defeat the purpose or object of the FRMA.

Using pots to take rock lobsters

Her Honour relied upon one practical consequence of the construction preferred by the appellant. Her Honour considered that a practical consequence was that in circumstances where a person uses a lobster pot to entrap rock lobsters, an offence would be committed where the pot entraps rock lobsters in excess of the bag limit. Her Honour described the practical consequence as being nonsensical given that a person would have to observe their pot and assess a rock lobster caught in their pot within five minutes of the catch.[101]
[101] ts 10 (3/3/16).
I have some reservations regarding that consequence. The first question is whether a rock lobster is 'taken' when entering the pot. The evidence of Fisheries Officer Demir was that a lobster pot has escape gaps that are big enough for a rock lobster to escape from the pot.[102] The fisheries officer drew a distinction between snaring and the use of a bag with lids that prevent escape.[103] It was accepted by Fisheries Office Demir that a fisherman is unable to control the number of rock lobsters that venture into the pot. It is questionable whether a rock lobster that ventures into the pot is 'taken' given the evidence that supports finding that a rock lobster may leave the pot, unlike the bag in which a rock lobster is placed when snared by a fisherman. Her Honour considered this issue and observed that a rock lobster could also escape from a catch bag.[104] However, her Honour did not make that finding on the basis of the distinction between a catch bag and a pot but rather on the basis that a snared rock lobster could fall from the bag.
[102] ts 39 (17/12/15).
[103] ts 40 (17/12/15).
[104] ts 9 (3/3/16).
The appellant accepted that a practical consequence of the construction of s 50(3) of the FRMA contended for by the appellant may be that in circumstances where a lobster pot is used to entrap rock lobsters, an offence may be committed if the number of rock lobsters entrapped are in excess of the prescribed bag limit. The appellant submits that this anomaly in the operation of the legislation cannot be cured by applying the magistrate's preferred construction. That is because there is nothing in the text of s 50(3) or s 4 of the FRMA that supports the magistrate's construction that to 'take' is a process that includes sorting the catch. I agree. There was evidence, to which I have referred, that lobsters may leave the pot. If that is not the position then the anomaly must be left to the legislature to consider. The answer is not found in the construction preferred by her Honour, which is not to be accepted.

Conclusion

Therefore, I respectfully disagree with the magistrate's construction of s 4 of the FRMA in the context of s 50 of the FRMA. In my view the word 'take' in s 50 of the FRMA has the meaning given in the definition in s 4 of the FRMA. In the context of this offence the respondent took the rock lobster when he snared the rock lobster. At that point in time, the rock lobster was 'taken'.
Accordingly, I have determined that leave to appeal should be granted and that the appeal should be allowed.
The matter should be remitted to the Magistrates Court to determine the charge in the Prosecution Notice according to law and these reasons. That will require a finding as to whether the respondent had 'taken' rock lobster in excess of the daily bag limit (being eight) or whether another fisherman had snared the rock lobster and placed the rock lobster into the blue catch bag which was in his possession.