MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS
PRIMARY INDUSTRY - FISH - OFFENCES - TAKING PROHIBITED TYPE OF FISH
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - STATUTORY OFFENCES - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PRESUMPTIONS AS TO LEGISLATIVE INTENTION - NOT TO ALTER COMMON LAW RIGHT, PRIVILEGE OR DOCTRINE
MAGISTRATES - COMMENCEMENT OF PROCEEDINGS - DUPLICITY, AMBIGUITY AND UNCERTAINTY - PARTICULAR CASES - OTHER CASES
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
Section 71 of the Fisheries Management Act 2007 creates offences concerning protected species, including Southern Rock lobsters carrying external eggs. Section 71(3) is a reverse onus defence provision. 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.
The appellant is a professional fisherman and the registered owner of the registered boat the Coral Raider. Very early one morning, fisheries officers raised seven of his 98 lobster pots, micro-chipped nine lobsters which were carrying external eggs, and left them in situ. The appellant, with his crew member McElroy, later raised his pots. In addition to the lobsters returned because they were undersized or carrying external eggs, the appellant’s total catch for the day was 152 lobsters. Fisheries officers later inspected them and found one only of the nine micro-chipped lobsters, which was no longer carrying any external eggs. Expert evidence at trial supported the allegation that the eggs had been manually scrubbed from the lobster.
The appellant (but not McElroy) was charged with taking a lobster carrying external eggs (count 1), and removing its eggs (count 3). As alternative counts, he was charged with two offences against s 120(3), the respective underlying principal offences being 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 either he or McElroy, committed the underlying charges.
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 this Court.
Held, allowing the appeal, and dismissing the complaint:
1. The Magistrate did not err in finding beyond reasonable doubt that the lobster was carrying external eggs when aboard the Coral Raider and therefore that someone had removed its eggs.
2. Liability under s 120(3) is secondary to, and dependent upon,…
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.
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AGLC
Dietman v Feast [2015] SASC 148
Case
[2015] SASC 148
Decision Date
CaseChat Overview and Summary
In the case of Feast v Dietman, the appellant, Mr Feast, a professional fisherman, was charged with offences under the Fisheries Management Act 2007 for taking a lobster carrying external eggs and for removing the eggs from the lobster. The legal issues before the court were whether the appellant had removed the eggs from the lobster and if the charge was valid in the context of the statutory defence provided under section 71(3) of the Fisheries Management Act. The court had to decide if the prosecution had proven beyond a reasonable doubt that the appellant removed the eggs from the lobster. The court also needed to determine if the statutory defence was available to the appellant and if the charge was properly framed.
The court considered the evidence presented by the prosecution, including expert testimony from Dr Bremner, who concluded that the eggs on the lobster had been manually scrubbed off. The court also took into account the appellant's evidence and interview with fisheries officers, in which he denied any wrongdoing. The court found that the combination of factors presented by the prosecution, while individually insufficient, collectively excluded the possibility that the eggs were removed by other means. The court concluded that the appellant or his deckhand had removed the eggs from the lobster and that the charges were proven beyond a reasonable doubt.
The court also examined the statutory defence available under section 71(3) of the Fisheries Management Act. The court found that the defence was available to the appellant, but since it was not considered by the Magistrate at trial, the court did not make a finding on the matter. The court acknowledged that it was likely the appellant would have made out the defence if a re-trial were ordered before a different Magistrate. The court also noted the prosecution's tactical decision to proceed with a duplicitous disjunctive pleading and rejected the contention that the statutory defence was not available to the appellant at trial.
In conclusion, the court found that the appellant had removed the eggs from the lobster and that the charges were proven beyond a reasonable doubt. The court did not make a finding on the statutory defence, but acknowledged that it was likely the appellant would have made out the defence if a re-trial were ordered before a different Magistrate. The court also considered the objects and practical enforcement of the Fisheries Management Act and the importance of private and public deterrence in the context of fisheries industries.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
When lobsters carrying external eggs are found in fishermen’s pots, they must by law be returned to the sea immediately. In this case, the prosecution alleges that one such pregnant lobster was not.Summary of the facts The appellant, Mr Feast, is a professional fisherman and the registered owner of the registered boat, the Coral Raider. In October 2012, fisheries officers were investigating whether professional fishermen in the south east of South Australia were unlawfully removing external eggs from lobsters and retaining and selling the lobsters.[1] In the very early hours of 14 October 2012, (unknown to the appellant and well before he checked his pots), fisheries officers raised seven of his pots from the seabed and inspected their contents.[2] Of the lobsters found in those pots, nine were carrying external eggs; these nine were all micro-chipped by the officers and were then left, with all of the other lobsters in the pots, in situ. [1] Contrary to s 71 of the Fisheries Management Act 2007 (“the Act”).[2] Agreed fact No 6 states that “The officers inspected 7 of 31 lobster pots belonging to the defendant.” The appellant during his interview on 14 October 2012 stated that he was licensed for 100 pots and had pulled about 98 that day, the pots being set at various locations and varying depths of water. In his evidence he repeated that 98 pots had been pulled that day. There is no inconsistency here. The officers checked 7 of 31 pots belonging to the appellant that they noticed; they did not claim to have checked all of his pots at all of their various locations that day. Later that morning, the appellant, in company with one crew member, Mr McElroy, began checking his 98 pots, including the seven pots that had been interfered with by the fisheries officers. In addition to the lobsters that were returned because they were undersized or carrying external eggs, the appellant’s total catch for the day was 152 lobsters which were immediately sold to commercial buyers in the normal way. Fisheries officers later inspected those 152 lobsters and found one only of the original nine micro-chipped lobsters (“the subject lobster”); at this time it was no longer carrying any external eggs.[3] Dr Bremner, an expert on the subject of lobsters, gave evidence at trial that lobsters breed only once a year and that the females carry their eggs externally, quite firmly attached in a “basket” formed by the lobster’s curled up tail and its underside. He examined the subject lobster and was of the opinion that eggs had been recently manually[4] scrubbed from it.[3] The prosecution conceded that the other eight lobsters carrying external eggs were unlikely to have escaped from the pots and that the most likely explanation is that they were properly released back into the sea from the Coral Raider.[4] As distinct from chemical scrubbing which is sometimes employed. It is to be noted that at the time of the seizure of the subject lobster, the other 151 lobsters in the appellant’s catch were all examined when searching for any lobsters having implanted microchips. No sign of tampering was reported on any of those 151 lobsters and none were undersized.
Evidence
Evidence Before The Court
His Honour proceeded to apply that approach to the evidence thus: [38] The defendant was interviewed by fisheries officers Tarr and Henwood on 14 October at about 3.40pm outside his property at Pelican Point. He answered questions put by fisheries officers. He said it was not correct that a lobster had eggs removed on the boat as they were protected and the industry relies upon the pregnant females being returned for its continuation. He said any spawning lobster were returned to the water. He guessed there may have been 150 spawning lobster returned to the water. He said there should be no lobster eggs on the boat unless they had fallen off when the pots were brought in. He said the scrubbing brush on the boat was used to scrub the decks. He said that he was not going to “fuck my industry for the sake of one lobster … one lobster amongst all of the fish … handled during the day.” He thought he had landed 150 lobster that day.…[41] In relation to the defendant’s evidence there was nothing about the way he gave his evidence or interview that caused me concern nor was there any aspect of his account that on the face of it was implausible. I accept that in a catch of 150 rock lobster to scrub one while returning a significant number of other spawning females has only a small commercial advantage to the defendant or McElroy (the latter’s pay including 10% of the value of the catch according to the defendant’s evidence). It does raise the question ‘why bother’. While I accept that this issue (raised in submissions by Mr Nugent) has to be considered when I assess all the evidence the ultimate question for me remains whether I am satisfied beyond a reasonable doubt that lobster A was scrubbed.…[44] I have already set out the factors put forward by Dr Bremner leading to his conclusion that the absence of the eggs on lobster A when he inspected it was as a result of scrubbing. I have also indicated that I found him to be a careful witness whose evidence I accepted. I have also set out in summary the concessions made by Dr Bremner when cross examined about each of the individual circumstances relied upon by the prosecution. However, while each individual circumstance would not itself support a finding beyond reasonable doubt it is my view that the combination of factors previously outlined excludes as a reasonable possibility that the eggs seen in exhibit P2 photo 14 and absent when lobster A was recovered by fisheries officers 12 hours or thereabouts later were removed or became detached by means other than scrubbing and I am therefore satisfied beyond reasonable doubt that the defendant or his deckhand scrubbed lobster A removing the eggs depicted in P2 photo 14.[45] It follows that in relation to count 2 I am satisfied beyond a reasonable doubt that lobster A was carrying external eggs when taken by the defendant or McElroy on 14 October 2012.[46] It also follows in relation to count 4 that I am satisfied beyond a reasonable doubt that either the defendant or McElroy removed lobster A’s eggs by manual scrubbing. I am therefore satisfied the prosecution has established both counts 2 and 4 to the requisite standard and I find the charges proven. (Emphasis added)
Decision
Reasons for decision
PEEK J
Thus the defence case was relegated to the contention that the prosecution could not disprove the hypothesis (equally applicable to counts 2 and 4) that the subject lobster may have shed its eggs between the time that it was micro-chipped and the time it was taken from the pot on the Coral Raider, and therefore it was not proven that anyone on the Coral Raider removed the eggs.The Magistrate’s judgment In his judgment, the Magistrate accepted the above prosecution submissions as to the approach to be taken to the case and made no reference whatsoever to the s 71(3) defence. The respondent accepts that this is because his Honour considered, consonant with the prosecution position taken at trial, that that defence was unavailable as a matter of law. His Honour stated:[3] To establish count 2 the prosecution must prove beyond a reasonable doubt:1. The defendant was the registered owner of a registered boat on 14 October 2012.2. On that date the boat was used in or in connection with the commission of an offence against the Fisheries Management Act, 2007 (the Act).3. Either the defendant or Mr McElroy took a Southern Rock Lobster carrying external eggs near Nene Valley in the waters of South Australia. …[12] Consequently the factual issue I need to make a finding on is whether lobster A was carrying external eggs when taken by the defendant or his deck hand. The prosecution submits that from all the evidence in particular that of Dr Bremner I can be satisfied beyond reasonable doubt that it did. The prosecution submits that I can be satisfied beyond reasonable doubt that the eggs depicted in P2 photo 14 and absent in P3 were removed by one or other of those on board by mechanically scrubbing lobster A so as to remove the visible eggs. (Emphasis added) His Honour proceeded to apply that approach to the evidence thus: [38] The defendant was interviewed by fisheries officers Tarr and Henwood on 14 October at about 3.40pm outside his property at Pelican Point. He answered questions put by fisheries officers. He said it was not correct that a lobster had eggs removed on the boat as they were protected and the industry relies upon the pregnant females being returned for its continuation. He said any spawning lobster were returned to the water. He guessed there may have been 150 spawning lobster returned to the water. He said there should be no lobster eggs on the boat unless they had fallen off when the pots were brought in. He said the scrubbing brush on the boat was used to scrub the decks. He said that he was not going to “fuck my industry for the sake of one lobster … one lobster amongst all of the fish … handled during the day.” He thought he had landed 150 lobster that day.…[41] In relation to the defendant’s evidence there was nothing about the way he gave his evidence or interview that caused me concern nor was there any aspect of his account that on the face of it was implausible. I accept that in a catch of 150 rock lobster to scrub one while returning a significant number of other spawning females has only a small commercial advantage to the defendant or McElroy (the latter’s pay including 10% of the value of the catch according to the defendant’s evidence). It does raise the question ‘why bother’. While I accept that this issue (raised in submissions by Mr Nugent) has to be considered when I assess all the evidence the ultimate question for me remains whether I am satisfied beyond a reasonable doubt that lobster A was scrubbed.…[44] I have already set out the factors put forward by Dr Bremner leading to his conclusion that the absence of the eggs on lobster A when he inspected it was as a result of scrubbing. I have also indicated that I found him to be a careful witness whose evidence I accepted. I have also set out in summary the concessions made by Dr Bremner when cross examined about each of the individual circumstances relied upon by the prosecution. However, while each individual circumstance would not itself support a finding beyond reasonable doubt it is my view that the combination of factors previously outlined excludes as a reasonable possibility that the eggs seen in exhibit P2 photo 14 and absent when lobster A was recovered by fisheries officers 12 hours or thereabouts later were removed or became detached by means other than scrubbing and I am therefore satisfied beyond reasonable doubt that the defendant or his deckhand scrubbed lobster A removing the eggs depicted in P2 photo 14.[45] It follows that in relation to count 2 I am satisfied beyond a reasonable doubt that lobster A was carrying external eggs when taken by the defendant or McElroy on 14 October 2012.[46] It also follows in relation to count 4 that I am satisfied beyond a reasonable doubt that either the defendant or McElroy removed lobster A’s eggs by manual scrubbing. I am therefore satisfied the prosecution has established both counts 2 and 4 to the requisite standard and I find the charges proven. (Emphasis added)
Ratio Decidendi
Legal Principle Established
Established by:
PEEK J
Matters of speculation are to some extent involved here, but the point is that the prosecution have made a number of considered forensic decisions. They have decided to take the risk of an adverse finding as to the validity of these charges (or the convictions dependent thereon) in a trial in which they neither charged McElroy nor called him as a witness. These risks were specifically drawn to the attention of the prosecutor at the beginning of the hearing of the appeal but the prosecution persisted in seeking to justify the course that had been taken; there is no reason to believe that if attention had been drawn to these matters at trial any different course would have been adopted by the prosecution.Consideration of the exercise of the discretion I place heavy weight on the objects and practical enforcement of the Act. It is important that infringements be detected and punished even though individual cases may only involve a relatively small amount or value of produce. The perceived possibility, or likelihood, of detection and prosecution is very important for both private and public deterrence, and particularly so in the case of persons employed in fisheries industries. This is even the more so in the context of matters having direct relevance to the sustainability of a particular fishery, such as in the present case. It is against that background that it is to be recognised that an excuse that “only one” fish or lobster was involved is no excuse at all. However, giving full weight to those important considerations, it does remain the fact that some offences will be more serious than others by reference to such factors as a great amount of produce being involved or a systematic and planned flouting of the law. As already noted, the subject of the charges here was one lobster (of the wholesale value of $26.50) from a catch of 152 lobsters in circumstances where it appears that a large number of lobsters carrying external eggs were properly returned to the sea. Furthermore, no undersize lobsters were found in the catch. Clearly no practice of taking lobsters carrying external eggs was established here; rather, a practice of returning such lobsters is demonstrated. I have noted that it is likely that, if the Magistrate had adverted to the matter, he would have found that the s 71(3) defence was proven by the appellant and that, if it were necessary for me to follow the course of making a finding on the matter, I would find that the appellant did make out the s 71(3) defence. I further consider that if a re-trial before a different Magistrate were ordered, the likely result would be that the appellant would make out the s 71(3) defence. There is also a strong argument that the prosecution should not be given a further opportunity to present a further case having regard to first, the prosecution contention at trial (accepted by the Magistrate but rejected by me) that the s 71(3) defence was not available to the appellant at trial and second, the deliberate tactical decision of the prosecution to proceed with a duplicitous disjunctive pleading.