Dietman v Feast

Case [2016] SASCFC 108

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

DIETMAN v FEAST

[2016] SASCFC 108

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)

27 September 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT

PRIMARY INDUSTRY - FISH - OFFENCES - TAKING PROHIBITED TYPE OF FISH

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTATION - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY

Appeal against a decision of a Judge of this Court, who allowed an appeal against a conviction in the Magistrates Court.

The respondent is a professional fisherman and the registered owner of the boat the Coral Raider. He was found guilty in the Magistrates Court of two offences against s 120(3) of the Fisheries Management Act 2007 (SA) (the Act). Section 120(3) deems a registered owner of a registered boat guilty of an offence if the boat is used in or in connection with the commission of an offence against the Act.

In October 2012, fisheries officers were conducting ‘Operation Banquet’ into the suspected scrubbing of southern rock lobsters, which are protected species under the Act. In the early hours of 14 October 2012, fisheries officers raised seven of the respondent’s pots. They found nine berried lobsters carrying external eggs. They microchipped these lobsters and returned all the pots to their original position in the water. Later, the respondent and his crewmember Mr McElroy raised the pots. The fisheries officers inspected the catch and found one of the micro-chipped lobsters was no longer carrying eggs.

The respondent was initially charged with taking a lobster carrying external eggs, contrary to s 71(1) of the Act (count 1); and with removing a lobster’s eggs, contrary to s 72(2) of the Act (count 3). Two alternative charges contrary to s 120(3) of the Act were laid: that ‘he or McElroy’ took a lobster carrying external eggs (count 2) and that ‘he or McElroy’ removed a lobster’s eggs (count 4). At trial, the prosecutor withdrew counts 1 and 3 because he could not prove beyond reasonable doubt that the appellant, as opposed to McElroy, committed the offence.

The trial proceeded on the basis that an offence against s 120(3) could be made out if any person aboard the boat intentionally removed eggs from the lobster, and that the s 71(3) defence did not apply. The appellant was found guilty of counts 2 and 4. The appellant appealed to a Judge of this Court.

The Judge held that the Magistrate did not err in finding that the eggs had been manually scrubbed from the lobster. The Judge however held that the charges were against both ss 120(3) and 71 and that the Magistrate erred in not considering whether the defence in s 71(3) applied. The Judge further held that counts 2 and 4 were bad for disjunctive duplicity and dismissed the complaint.

The appellant, the complainant at trial, appealed to this Court on…

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Dietman v Feast [2016] SASCFC 108
Case
[2016] SASCFC 108
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal concerning charges brought against a commercial fisherman, Mr Dietman, under the Fisheries Management Act 2007. The dispute arose from the discovery of nine Southern Rock lobsters carrying external eggs in Mr Dietman's lobster pots. Fisheries officers later found one of these micro-chipped lobsters, identified as lobster A, in a bin of lobsters sold by Mr Dietman, with its external eggs apparently removed. Mr Dietman was charged with taking an aquatic resource of a protected species, and with being the owner of a boat used in the commission of an offence.

The legal issues before the Full Court included whether the charges were validly laid, specifically concerning uncertainty and duplicity, and whether a defence under s 71(3) of the Act was available to Mr Dietman in relation to the charges laid under s 120(3). The court was also required to determine the factual question of whether lobster A was scrubbed while bearing external eggs.

The Full Court overturned the decision of a single judge who had found the charges to be bad in law and dismissed the complaint. The Full Court reasoned that the charges were not uncertain or duplicitous, and that the defence under s 71(3) was not available to a charge under s 120(3) of the Act. The court found that the single judge's interpretation of the legislation would render s 120(3) largely ineffectual.

The Full Court allowed the appeal, set aside the judgment of the single judge, and affirmed the convictions recorded in the Magistrates Court.

Orders

Orders of the court

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Background

Background to the litigation

In the reasons which follow I will deal first with the factual issue of whether the lobster was scrubbed whilst bearing external eggs. I will then turn to the legal questions of the significance of the uncertainty as to whether the respondent, or his crew member, or both, were criminally culpable for the scrubbing of the lobster and the availability of the s 71(3) defence.Background In October 2012 the respondent was a licenced commercial fisherman and the Coral Raider was registered for use under his licence.[2] At this time the respondent had one crew member, Mr Daron McElroy. [2] The respondent held a Southern Zone Rock Lobster Licence issued pursuant to Part 6, Division 1 of the Act. In the early hours of 14 October 2012 fisheries officers raised seven lobster pots belonging to the respondent near Nene Valley and inspected them as part of ‘Operation Banquet’, for the purpose of investigating suspected taking of southern rock lobsters carrying external eggs, and the removal of eggs. Fisheries officers identified nine southern rock lobsters which were carrying external eggs, or were ‘berried’ to use the industry expression, in the respondent’s lobster pots. They inserted micro-chips into those lobsters’ left antennal horns. All of the pots, including those with micro-chipped lobsters, were returned to their original location in the water. Neither the respondent nor Mr McElroy were informed that any lobsters had been inspected or micro-chipped. Early in the afternoon of 14 October 2014 the respondent and Mr McElroy returned from the sea with the day’s catch comprising 152 lobsters. They were sold to two different commercial buyers in the normal way and placed into sealed bins. Fisheries officers conducted a search of the bins and also the Coral Raider. One of the nine lobsters that had been micro-chipped earlier that day was located inside the bins. I shall refer to this lobster as lobster A. When lobster A was located inside the bin it did not appear to be carrying any external eggs. When earlier photographed and micro-chipped, lobster A had been carrying approximately half her eggs. A number of pieces of clothing were seized from the boat, along with a scrubbing brush and suspected lobster egg matter scraped from the deck. A number of photographs were taken of lobster A and the Coral Raider. Later that afternoon the respondent was interviewed by fisheries officers. He told them that he and Mr McElroy had undertaken a normal day of fishing. They had pulled up 98 pots (the respondent was licenced to operate 100) and estimated that they had thrown back 150 lobsters carrying external eggs. He had not taken any berried lobsters and had no reason to think that Mr McElroy had failed to throw any berried lobster back into the ocean. On 10 April 2013, the respondent was charged with four offences as follows:1.On 14 October 2012, near Nene Valley in the waters of the State of South Australia, took an aquatic resource of a protected species.Contrary to Section 71(1)(1) (sic) of the Fisheries Management Act, 2007 and clause 6 of the Fisheries Management (General) Regulations, 2007.1.1 On 14 October 2012 the defendant, near Nene Valley, in the waters of the State of South Australia, took a Southern Rock lobster carrying external eggs.AND the complainant alleges that the wholesale value of the aquatic resources at the time of the commission of the offence was $26.50.IN THE ALTERNATIVE TO COUNT 12.On 14 October 2012, the defendant was the registered owner of the registered boat which was used in or in connection with the commission of an offence against the Fisheries Management Act, 2007.Contrary to Section 120 (3) of the Fisheries Management Act, 2007.2.1 On 14 October 2012 the defendant was the holder of licence S157.2.2 The Coral Raider was a registered boat for the purpose of licence S157.2.3 The Coral Raiser (sic) was used in or in connection with the commission of the offence of taking an aquatic resource of a protected species contrary to s.71(1)(a) of the Fisheries Management Act, 2007.2.4 The offence referred to at particular 2.3 is that on 14 October 2012 a Southern Rock lobster carrying external eggs was taken by the defendant or Daron George McElroy near Nene Valley, in the waters of the State of South Australia.AND the complainant alleges that the wholesale value of the aquatic resources at the time of the commission of the offence was $26.50.3.On 14 October 2012, near Nene Valley in the waters of the State of South Australia, interfered with, harassed or molested an aquatic resource of a protected species.Contrary to Section 72(2)(a) (sic) of the Fisheries Management Act, 2007 and clause 6 of the Fisheries Management (General) Regulations, 2007.3.1 On 14 October 2012 the defendant, near Nene Valley in the waters of the State of South Australia, interfered with, harassed or molested a Southern Rock lobster carrying eggs by removing its eggs.IN THE ALTERNATIVE TO COUNT 34.On 14 October 2012, the defendant was the registered owner of the registered boat which was used in or in connection with the commission of an offence against the Fisheries Management Act, 2007.Contrary to Section 120 (3) of the Fisheries Management Act, 2007.4.1 On 14 October 2012 the defendant was the holder of licence S157.4.2 The Coral Raider was a registered boat for the purpose of licence S157.4.3 The Coral Raiser (sic) was used in or in connection with the commission of the offence of interfering with, harassing or molesting an aquatic resource of a protected species contrary to s.71(2)(a)[3] of the Fisheries Management Act, 2007.4.4 The offence referred to at particular 4.3 is that on 14 October 2012 the defendant or Daron George McElroy, near Nene Valley in the waters of the State of South Australia, removed a Southern Rock lobster’s eggs.[3] Section 72(2)(a) was originally erroneously stated and was amended by consent at trial.

Evidence

Evidence Before The Court

The respondent appealed against his convictions to a single Judge of this Court. His Honour determined that the charges were bad in law and that the respondent ought to have been acquitted. The appeal was allowed and the complaint against the respondent was dismissed. His Honour reasoned that the charges against the respondent were bad for uncertainty and disjunctive duplicity and also that, as a matter of construction, the defence contained in s 71(3)(a) of the Act was available to the respondent facing charges under s 120(3) of the Act, and the Magistrate therefore erred by failing to have regard to that defence. Further, the Judge considered that the defence was established on the evidence. Evidence of Dr Bremner At trial the appellant called evidence from Dr Allan Bremner, an expert in lobsters. Dr Bremner examined lobster A in November 2012 and gave evidence about the condition of lobster A and also about lobster anatomy and spawning generally. It is necessary to set out in some detail Dr Bremner’s evidence. Female lobsters carry eggs externally. These eggs are visible as a red/orange mass on the underside of the lobster. Eggs are laid into a protected space underneath the lobster which is created when she curls her tail to create a basket. The surface of the eggs becomes sticky upon contact with seawater and the lobster beats her pleopods (leafy, limb-like structures underneath her) which stirs the eggs and causes them to attach to the pleopods. This attachment takes place as the sticky exteriors of the eggs harden to form small stalks which then wrap around thin hairs on the pleopods. These hairs are called setae, are about the size and strength of human hair and attach the eggs quite firmly to the pleopods. The lobster also carries her eggs with her tail curled underneath to further protect them. As such, normal handling of a lobster or the process of hauling pots out of the water is not sufficient to dislodge eggs from the pleopods. Dr Bremner testified that it would be difficult to handle a lobster in such a way as to dislodge the eggs without also damaging the remainder of the lobster. When the eggs are mature and ready to hatch a lobster goes at sunrise to an area with plant life, arches her tail and beats her pleopods vigorously to create a current, but not dislodge the eggs. The larvae hatch themselves from the eggs and are carried away by the current. This behaviour is repeated for up to a week until all fertile eggs have hatched. Eggs reach maturity at slightly different rates, because their access to oxygen varies when clumped together. The empty eggshells remain attached to the setae after the larvae hatch. When a lobster is certain that there are no more eggs to hatch, she begins to clean herself by using her claws to clip off the setae and attached eggshells. The result of this cleaning process is a ragged, haphazard appearance underneath the lobster with some spiky longer setae remaining as the lobster is not able to see the setae. It is not certain how long this cleaning process takes. This aspect of Dr Bremner’s evidence is discussed further below.

Decision

Reasons for decision

KOURAKIS CJ (dissent)
The effect of the Judge’s construction deprives s 120(3) of the Act of much of its practical utility. For textual, contextual and purposive reasons, it must be rejected.Conclusion I would allow the appeal, set aside the judgment and affirm the convictions recorded in the Magistrates Court. BLUE J: I agree. STANLEY J: I agree.

Ratio Decidendi

Legal Principle Established

Established by:

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