Dillon v Carrick

[1989] TASSC 20

Serial No 13/1989
List “A”

CITATION:              Dillon v Carrick [1989] TASSC 20; A13/1989

PARTIES:  DILLON
  v
  CARRICK

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 139/1988
DELIVERED ON:  2 March 1989
JUDGMENT OF:  Wright J

Judgment Number:  A13/1989
Number of paragraphs:  10

Serial No 13/1989
List "A"
File No LCA 139/1988

DILLON v CARRICK

REASONS FOR JUDGMENT  WRIGHT J

2 March 1989

1. On 21 November 1988 the applicant was convicted in the Court of Petty Sessions at Hobart on a complaint alleging that on 5 November 1987 at Moonah in Tasmania he had in his possession 1,283 abalone of less size than 132 millimetres in diameter as prescribed by the Sea Fisheries Regulations 1962. The applicant now moves to review that conviction on the sole ground that the learned magistrate erred in law in holding that the words "an abalone (commonly known as a mutton fish) that is less than 132 millimetres at its widest diameter whether the shell thereof is broken or chipped in any way or not" appearing in Reg31(1)(c) of the Sea Fisheries Regulations refer to or include the meat or flesh of an abalone in the absence of its shell.

1. The prosecution case against the applicant was that he attended the Hobart offices of Ipec for the purpose of consigning 22 cartons of abalone to the mainland. At some time prior to this the abalone had been "shucked", ie removed from their shells. No linear measurement was made of the fish but they were individually weighed and expert evidence was called from a technical officer of the Department of Sea Fisheries as to the correlation between weight and shell diameter of abalone. The effect of her evidence was that any fish weighing less than 90 grams must have come from a shell measuring less than 132 millimetres across. The Regulation under which the applicant was convicted reads as follows:

"31 — (1)   No person (...c) shall take, buy, sell, offer or expose for sale, or have in his possession, or under his control, an abalone, (commonly known as a 'mutton fish') that is less than 132 millimetres in its widest diameter, whether the shell thereof is broken or chipped in any way or not."

1. The argument presented by counsel for the applicant was that for the purposes of Reg31 an abalone could not properly be regarded as an abalone unless it was attached to its shell or some part thereof. It was not argued that the evidence of the technical officer concerning the correlation between weight and linear measurement was inadmissible or irrelevant. I mention this because it occurs to me that if the prosecution's contention is correct, it may be unnecessary for it to invite the court to infer the size of an abalone shell from the weight of the meat portion. In short, in an appropriate case it could prove a breach of the Regulation by showing that the meat portion itself was less than 132 millimetres across. What practical difficulties this would lead to I cannot say, but as the meat obviously fits within the shell, it is no doubt fairer to a suspected person for the measurement to be related to the shell rather than the meat, because unless the meat is stretched out of shape by some means, it will obviously be a lesser measurement across the meat than across the widest diameter of the shell.

1. Mr Sealy, counsel for the applicant, directed me to a number of provisions in the Sea Fisheries Regulations 1962 in which the word "abalone" appears to take on different meanings according to the context. The term abalone is not generally defined for the purposes of the Regulations although the phrase "unprocessed abalone" is. Unfortunately that definition does not assist with the present problem because it is as follows:

"Unprocessed abalone includes:

(a)       any abalone not detached from the shell;

and

(b)       any shucked abalone that may not have been frozen, canned, or dried."

1. Thus, an abalone may comply with this definition whether it is still in the shell or has had the shell removed. I find it quite impossible to detect any pattern of use of the word within the Regulations which would assist me to determine the present motion to review. Nor am I assisted by considering that in October 1988, Reg44(1)(z) was added to the Sea Fisheries Regulations by SR 189 of 1988. Pursuant to that Regulation it is now an offence for any person to "buy, sell, or offer for sale or have in his possession or under his control any abalone meat that is less than 90 grams in weight".

1. Mr Sealy argued that the inclusion of this Regulation in the Sea Fisheries Regulations was an indication that the relevant authorities were attempting to fill an obvious lacuna in the legislation. However, Crown Counsel, Miss Lambert pointed out, correctly in my opinion, that under the new Regulation it will no longer be necessary for the prosecution to call expert evidence as to the relationship between weight and linear measurement. Apart from this consideration, however, little weight can be attached to Mr Sealy's submission as I do not see that my task of interpretation can in any way be aided by considering whether or not the Minister or a departmental officer has concluded that the Regulation needs strengthening in some way. Conversely it is difficult to see how I can be aided in the task of interpretation by considering the general policy of the Fisheries Act 1959 and the Sea Fisheries Regulations 1962 to (inter alia) prevent the unauthorised depletion of juvenile fish stocks.

1. It is important to realise that the applicant does not complain that the abalone, the subject of this prosecution, were never the subject of a linear measurement. The complaint is rather that the seized fish were not "abalone" within the meaning of Reg31(1)(c), because they were totally devoid of shell. It is plain that the Regulation refers to the shell but not in my opinion in such a way as to include the shell as an integral and indispensable part of the fish. The qualifying clause, "whether the shell thereof is broken or chipped in any way or not", simply suggests to me that the condition of the shell is to be regarded as irrelevant for the purpose of considering the Regulation. As the learned magistrate dealing with the complaint observed when ruling upon this point in the Court of Petty Sessions:

"And I think to try and confine it to an abalone that does have a shell can lead to a possibly absurd result. Are we going to be left in a situation of saying that an abalone is not an abalone where there is no shell left to it, but is an abalone where there is a tiny speck of shell still adhering to the meat. I think that would be taking the interpretation of the regulation to as I say absurd lengths I think I must strictly interpret the regulations but not so strictly as to bring about an absurdity."

1. Mr Sealy contrasted Reg31(1)(c) with Reg31(1)(ca) in relation to shark. He drew attention to the fact that that Regulation specifically constitutes it an offence to buy, sell, offer or expose for sale (inter alia) "any portion" of snapper shark or gummy shark. However, a shark is a vastly different kind of fish from an abalone and, interesting though I find the comparison I do not believe it is conclusive. Whilst the point appears to be without authority within this State, there are two decisions of Supreme Courts of other States which are of assistance. The first I refer to is Lynch v Freestone [1956] VLR 422, a decision of Lowe J. who was called upon to determine whether a magistrate was correct in dismissing a case against a defendant who was found in possession of a number of decapitated fish. The relevant section under which he was charged is set forth in the following passage at p423:

   "So far as relevant the section reads:–

   41(1)    Every person who –

   (a)takes attempts to take or consigns or has in his possession house or shop or under his control any fish of any of the species mentioned in the Second Schedule to this Act of a less weight or length than the weight or length set out after the name of such fish in such Schedule or than any weight or length which may by proclamation be substituted for such weight or length ... shall be liable to a penalty of not less that Two nor more than Fifty pounds.

   The word 'fish' is used in its normal English use and in its full meaning but it should be remembered that it may in that use indicate a single fish or a collection of fish. Normally there is no difference in the form of the word to indicate one or more fish. In some part of the section it may well be that the collective sense of the word is intended while in another part the section is satisfied if used in the singular sense. The problem created by the present case however is mainly one of proof.

   In my opinion the offence created by this section may be proved even if no fish are produced in Court, if the Court is satisfied that the fish in question were undersize; for example, if there was credible evidence as to the size of the fish at the time when they were 'taken', that would be sufficient though at the hearing of the information no fish in fact were produced. Indeed, if the charge is an attempt, the fish in all probability would not be produced. The evidence in this case shows that the inspectors found a number of boxes which contained decapitated fish. The magistrate appears to have thought that since the heads were not available, it was not possible to measure and determine the length of the fish. I think that is a wrong view. An undersized fish does not cease to be undersized when its head is removed. In my opinion, 'fish' means, in the context in which it appears in sec 41, what a person would consider would be 'fish' in the normal use of language. And I think what the inspectors found in this case were 'fish' within the normal use of language. Where the whole fish are not produced, the magistrate must be satisfied by other evidence as to weight, length etc. This may be done in various ways, e.g., by a witness who has seen the fish and testifies to the fact needing to be proved or by evidence of experts who can say from a part produced that the size or weight must show that the fish were of the prohibited class. This disposes of the main point in the case."

1. In Munro v Lombardo [1964] WAR the Full Court of Western Australia was dealing with an appeal in which the respondent had been charged under the State Fisheries Act with having had in his control female crayfish having eggs or spawn attached beneath the body. He was found in possession of crayfish tails only. These tails exhibited evidence of having been interfered with so as to remove the spawn. At p.67 Wolff CJ said:

   "Another question is whether an entire tail of a female crayfish in berry minus the head and claws, comes within the expression 'female crayfish in berry'. Mr Burt, QC, argues that the very nature of the words used precludes such a construction, while Mr Wilson insists that all that is necessary is a substantial portion of the fish: in this case the entire tail with eggs attached. The expression 'crayfish' is admittedly capable of a number of interpretations; eg an entire live fish of the species; an entire dead fish of the species or the flesh contained in the tail. The words used in the section are applicable either to the live or to the inanimate fish, and in deciding whether the alleged corpus delicti answers the description there should be evidence that a substantial part of the body is in the possession of the person charged and that part clearly points to it having been a female. The possession of the whole of the tail with signs of berry fulfils these conditions beyond any reasonable doubt."

2. It is my respectful opinion that the approach taken in each of these cases was appropriate and correct and I see no reason for concluding that Reg31(1)(c) relates only to abalone actually within the shell. In my opinion therefore, the learned magistrate was correct in the view he took of the law and in convicting the applicant. There is no appeal in respect of sentence and consequently the motion to review will be dismissed with costs.