Director of Public Prosecutions (Acting) v Eather
[2016] TASCCA 2
•3 February 2016
[2016] TASCCA 2
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions (Acting) v Eather [2016] TASCCA 2
PARTIES: ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v
EATHER, Mark William
FILE NO: CCA 815/2015
JUDGMENT
APPEALED FROM: Tasmania v Eather [2015] TASSC 27
DELIVERED ON: 3 February 2016
DELIVERED AT: Hobart
HEARING DATE: 13 November 2015
JUDGMENT OF: Blow CJ, Porter and Pearce JJ
CATCHWORDS:
Primary Industry – Fish – Offences – Other offences – Trafficking in fish – Crime committed if fish have previously been "possessed unlawfully" – Evidence of unlawful possession only by the accused.
Living Marine Resources Management Act 1995 (Tas), s 264A.
Aust Dig Primary Industry [1129]
REPRESENTATION:
Counsel:
Appellant: D G Coates SC, M Wilson
Respondent: C J Gunson, R Browne
Solicitors:
Appellant: Acting Director of Public Prosecutions
Respondent: FitzGerald & Browne
Judgment Number: [2016] TASCCA 2
Number of paragraphs: 40
Serial No 2/2016
File No CCA 815/2015
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v MARK WILLIAM EATHER
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
PORTER J
PEARCE J
3 February 2016
Orders of the Court
That leave to appeal be granted.
That the appeal be allowed.
That the verdict of acquittal be set aside.
That there be a new trial upon the indictment.
Serial No 2/2016
File No CCA 815/2015
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v MARK WILLIAM EATHER
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
3 February 2016
The respondent, Mark Eather, is a professional fisherman. He was brought to trial before Tennent J and a jury on a single charge of trafficking in fish without lawful excuse, contrary to s 264A(1) of the Living Marine Resources Management Act 1995 ("the Act"). The charge alleged that between about 17 January 2011 and about 6 October 2011 he trafficked in approximately 624.95Kg of rock lobster. Following the close of the Crown case, her Honour upheld a submission that there was no case to answer, publishing her reasons: Tasmania v Eather [2015] TASSC 27. At her direction, a verdict of not guilty was entered. This is an application for leave to appeal against that acquittal.
At all material times the section under which the respondent was charged, s 264A of the Act, read as follows:
"(1) A person must not traffic in fish without lawful excuse.
(2) For the purposes of subsection (1), a person is taken to traffic in fish without lawful excuse if —
(a) the fish have been taken unlawfully or possessed unlawfully; and
(b) on one or more occasions, the person —
(i)possesses the fish; or
(ii)conceals the fish; or
(iii)processes the fish; or
(iv)sells or otherwise disposes of the fish; or
(v)receives or delivers the fish from or to another person; or
(vi)transports the fish from one place to another; or
(vii)otherwise deals with the fish; or
(viii)carries out any combination of the activities referred to in this paragraph.
(3) For the purposes of subsection (2) —
(a) it does not matter whether the fish referred to in that subsection are all of one species or a mixture of different species; and
(b) a person is taken to have carried out an activity if the person —
(i)carries out, or participates in the carrying out of, the activity; or
(ii)directs, controls or supervises the carrying out of the activity; or
(iii)provides finance, facilities or other resources to enable the activity to be carried out or to facilitate it; or
(iv)is knowingly concerned in the carrying out of the activity."
The Crown contended that s 264A(2)(b) was satisfied because the respondent possessed the fish, processed the fish, sold the fish, and delivered the fish to other persons. The Crown contended that s 264A(2)(a) was satisfied because the respondent unlawfully possessed the fish, in that the fish were not tagged, and the possession of untagged rock lobster was unlawful by reason of rr 21, 93(1) and (2) of the Fisheries (Rock Lobster) Rules 2006.
At all material times, r 93(1) and (2) of the Fisheries (Rock Lobster) Rules made it unlawful for anyone to possess, sell or purchase rock lobster, in certain circumstances, unless each rock lobster had a tag attached to one horn, or was tagged in another manner approved by the secretary of the department that was responsible for the administration of the Act. Those two sub-rules read as follows:
"(1) A person must not be in possession of rock lobster at a place where the business of selling fish is carried on, either by wholesale or retail, unless —
(a) a rock lobster tag is securely fastened to a horn of each rock lobster; or
(b) each rock lobster is tagged in another manner approved by the Secretary.
Penalty:
Grade 3 penalty.
(2) A person must not be in possession of, or sell or purchase, rock lobster for consumption in Tasmania unless —
(a) a rock lobster tag is securely fastened to a horn of each rock lobster; or
(b) each rock lobster is tagged in another manner approved by the Secretary.
Penalty:
Grade 3 penalty."
However r 93 went on to create exceptions in relation to the following, in certain circumstances:
· The holder of a "fishing licence (rock lobster)": r 93(3) and (4)(a).
· The holder of a fish processing licence: r 96(4)(b) and (c).
· The holder of a handling licence: r 96(4)(b).
· The holder of a recreational fishing licence: r 96(4)(e).
Rule 21 of the Fisheries (Rock Lobster) Rules also made it an offence to be in possession of rock lobster that was neither marked in accordance with r 36 of those rules nor tagged in accordance with r 93. Rule 36 related to the holders of recreational fishing licences. There were exceptions to r 21 in relation to the holders of fish processing licences, handling licences, and fishing licences (rock lobster).
The evidence adduced by the Crown at the trial was substantially uncontroversial. On the basis of that evidence, it was open to the jury to be satisfied of the following facts:
· During the relevant period, the respondent purchased quantities of rock lobster from fish processors on a number of occasions.
· Almost none of the rock lobster so purchased had rock lobster tags attached to their horns when handed over to the respondent or to someone collecting the fish on his behalf.
· The respondent sold the rock lobster purchased by him from the fish processors, and other rock lobster whose sources were not the subject of evidence. Some sales were to restaurant proprietors. Other sales were to other individuals.
· The respondent did not hold any sort of licence under the Act that related to rock lobster. In particular, he did not hold a fish processing licence (rock lobster), a fish handling licence (rock lobster), or a fishing licence (rock lobster). He was not nominated as a supervisor in relation to a fish processing licence (rock lobster) held by anybody else.
There was no evidence at the trial of anyone other than the respondent having unlawfully taken or unlawfully possessed any of the rock lobster in question before it was sold to or acquired by the respondent.
The learned trial judge held that s 264A(2)(a) was satisfied only if the fish in question had been "taken unlawfully or possessed unlawfully" by someone other than the accused. Since there was no evidence that any of the fish in question had ever been unlawfully taken or unlawfully possessed by someone other than the respondent, she directed the jury to acquit. The Crown contends that her Honour's interpretation of s 264A(2)(a) was wrong. It contends that that provision is satisfied if the fish in question have been unlawfully taken or unlawfully possessed by the person accused of trafficking.
Interpretation of s 264A(2)(a)
The first step in the task of statutory construction is to consider the ordinary literal meaning of the words that are to be construed: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. Paragraph (a) of s 264A(2) is concerned with something that has happened in the past to the fish. The paragraph is satisfied if they have either "been taken unlawfully" or been "possessed unlawfully". There is no express requirement as to the identity of the person or persons by whom they have been taken or possessed that needs to be satisfied. There is nothing in the words of the paragraph – "the fish have been taken unlawfully or possessed unlawfully" – to suggest any implicit restriction as to the person or persons by whom the fish were unlawfully taken or possessed.
It is therefore necessary to consider whether, for any reason associated with the history, context or purpose of the legislation, there is any implicit restriction upon the class of persons responsible for the unlawful taking or unlawful possession of the fish. The Crown contends that there is no such implicit restriction. The respondent contends that there is. His counsel persuaded the learned trial judge to take that view.
The history of the legislation
Section 264A was introduced by an amendment in 2007: Living Marine Resources Management (Miscellaneous Amendments) Act 2007. Before that amendment, there was no crime of trafficking in fish, but s 264(1) created an indictable offence of illegally possessing fish. Before the 2007 amendment, s 264 read as follows:
"(1) A person who, without lawful excuse, has possession of fish with a value exceeding $5 000 is guilty of an indictable offence punishable under the Criminal Code.
(2) The court is to determine the value of fish in accordance with section 269."
Evidently the authorities formed the view that that provision was not draconian enough, even though the maximum penalty for its contravention was imprisonment for 21 years: Criminal Code, s 389(3). It was therefore decided to introduce s 264A, and to amend s 264, among other things.
In the second reading speech relating to the bill that introduced the 2007 amendments, the Minister for Primary Industries and Water, Mr Llewellyn, said the following (House of Assembly, 13 March 2007):
"A raft of changes to the Living Marine Resources Management Act 1995 – the act – are introduced in light of issues that became apparent during a major police operation known as 'Operation Oakum' and legal advice from the Office of the Solicitor-General and authorities involved in the prosecution of offenders.
It was identified that current offences under the act were inadequate to deal with criminal groups illegally exploiting fisheries such as the abalone and rock lobster fisheries. Consequently, the new crime of 'trafficking in fish without lawful excuse' is now introduced, together with changes to the definition of 'possession' to bring it in line with other legislation such as the Misuse of Drugs Act 2001."
It is interesting to note that provisions in the Misuse of Drugs Act 2001 were considered by the authors of the amendments. Evidently it was decided to adopt a much wider definition of "traffic" than the one in that Act. The definition "traffic" in s 3(1) of that Act was, and still is, as follows:
"traffic, in relation to a controlled substance, includes —
(a) sell the substance; and
(b) prepare the substance for supply with the intention of selling it or in the belief that another person intends to sell it; and
(c) transport the substance with the intention of selling it or in the belief that another person intends to sell it; and
(d) guard or conceal the substance with the intention of selling it or in the belief that another person intends to sell it; and
(e) possess the substance with the intention of selling it; and
(f) import the substance into Tasmania with the intention of selling it or in the belief that another person intends to sell it;".
It can be seen from that definition that, in relation to controlled substances, activities other than selling only amount to trafficking if there is an accompanying intention or belief as to the future sale of the substance. But no such intention or belief is required by s 264A(2)(b) for activities relating to fish, other than selling, to amount to trafficking. It seems that the authors of s 264A set out to make the crime of trafficking in fish one that did not require any subjective belief or intention, and therefore one that was not hard to prove.
Purpose of the legislation
The long title to the Act begins as follows:
"An Act to promote the sustainable management of living marine resources, to provide for management plans relating to fish resources, to protect marine habitats …".
Section 7 of the Act, which has been in its present form since 1997, reads as follows:
"7 Purpose and objectives
(1) The purpose of this Act is to achieve sustainable development of living marine resources having regard to the need to —
(a) increase the community's understanding of the integrity of the ecosystem upon which fisheries depend; and
(b) provide and maintain sustainability of living marine resources; and
(ba) take account of a corresponding law; and
(c) take account of the community's needs in respect of living marine resources; and
(d) take account of the community's interests in living marine resources.
(2) A person must perform any function or exercise any power under this Act in a manner which furthers the objective of resource management."
It is very clear that the main purposes of the Act are the preservation and management of Tasmania's fisheries resources. And it is clear from the passage in the relevant second reading speech, quoted above, that one of the purposes underlying the introduction of s 264A in 2007 was that of dealing with "criminal groups illegally exploiting fisheries such as the abalone and rock lobster fisheries".
The reasoning of the learned trial judge
In her written reasons for upholding the no case submission, the learned trial judge referred to the introduction of s 264A in 2007, the state of the legislation before the introduction of that section, the passages that I have quoted from the relevant second reading speech, the long title to the Act, and the provisions of s 7 as to the Act's purpose and objectives. She referred to s 8A of the Acts Interpretation Act 1931, which requires an interpretation that promotes the purpose or object of a legislative provision to be preferred to one that does not. She took the view that both of the competing interpretations of s 264A(2)(a) "generally promote the purposes and objects of the Act": at [48]. She saw it as significant that, according to the Minister's second reading speech, "the introduction of s 264A was to address the more serious offending by criminal groups exploiting the State's fisheries": at [52]. She reasoned that it was therefore appropriate to construe s 264A so that it applied only when one person was responsible for the fish having been "taken unlawfully or possessed unlawfully" as required by s 264A(2)(a), and a second person – the person who contravenes the section – thereafter does one or more of the things listed in s 264A(2)(b). Her Honour summarised her reasoning at [56]-[57], as follows:
"56 It seems to me that the key to the construction of the section lies in the use of the past tense in s 264A(2)(a), its lack of reference to the alleged offender, and the impact of the relevant Minister's second reading speech in 2007. The use of the past tense implies that the status of the fish having been unlawfully possessed occurred at a time before the person said to have carried out any activity covered by s 264A(2)(b) carries it out, and most likely by someone other than the alleged offender. The lack of any reference in s 264A(2)(a) to something being done by the alleged offender supports that construction.
57 Further, the Minister's second reading speech clearly identifies circumstances which authorities were trying to address when s 264A was introduced. That is, groups who were involved in exploiting, and by implication imperilling, the State's fisheries by various activities. The section as construed by counsel for the accused would allow for offenders at different parts of the supply chain to be brought under the section without necessarily having to prove they were involved directly in the actual taking or possession unlawfully of the fish in the first place. That interpretation promotes the purposes and objects of the Act, and also recognises that the most significant crimes and associated penalties under the Act are reserved for those who imperil the State's resources by their activities."
Conclusion
Counsel for the Crown argued that the words of s 264A(2)(a) – "the fish have been taken unlawfully or possessed unlawfully" – should be interpreted literally, without any implicit qualification or restriction as to who was responsible for the unlawful taking or unlawful possession. I have decided that that submission is correct, but some of the consequences of adopting that interpretation must be mentioned.
During the hearing of the appeal Mr Gunson, for the respondent, used the example of a 14 year old boy who catches an undersized flathead and decides not to throw it back. As a result of the 2007 amendments, s 264 now simply says, "A person must not have possession of fish without lawful excuse". By possessing an undersized flathead without lawful excuse, the hypothetical boy would contravene s 264. By virtue of s 263A, which was introduced by the 2007 amendments, that offence is an indictable offence, though it could be dealt with by a court of summary jurisdiction under certain circumstances. However, if the Crown's interpretation of s 264A(2)(a) is correct, the boy would also be guilty of the crime of trafficking in fish. Paragraph (a) of the subsection would be satisfied because the fish had been taken unlawfully. Paragraph (b) would be satisfied because the boy possessed the fish.
That might seem absurd, but adopting the interpretation of s 264A(2)(a) favoured by the learned trial judge and the respondent must also have absurd consequences. If the same 14 year old boy took the same undersized flathead home to his parents, and one of them cooked it, then, on either interpretation of s 264A(2)(a), that parent would be guilty of trafficking in fish. Paragraph (a) of the subsection would be satisfied because the flathead had been taken unlawfully. Paragraph (b) would be satisfied because the cook – someone other than the person who took the fish unlawfully – possessed it and, by cooking, processed it.
There is no way of interpreting s 264A that avoids the situation whereby trivial non-commercial misconduct can amount to the crime of trafficking in fish. That is an unavoidable consequence of Parliament having chosen to define "traffic" without any reference to some belief or intention as to the future sale of the fish.
Accepting that s 264A was enacted to address serious offending by criminal groups, in my view the Crown's suggested interpretation of the paragraph in question would go further towards promoting the underlying purpose or object of the provision than the interpretation adopted by the learned trial judge. If a member of a criminal group were found in unlawful possession of a commercial quantity of fish, it would not be necessary to prove beyond reasonable doubt that some other person had unlawfully caught or possessed those fish at an earlier time.
As Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (above) at [47], "the task of statutory construction must begin with a consideration of the text itself", and, "The language which has actually been employed in the text of legislation is the surest guide to legislative intention". The wording of the paragraph in question does not suggest any restriction upon the class of persons responsible for the unlawful taking or unlawful possession of fish. In my view there is nothing in the history of the legislation, the extrinsic material relating to the 2007 amendments, or the context of the provision in question to warrant departing from the ordinary meaning of the text. It follows that the interpretation favoured by the Crown is correct, and that the interpretation adopted by the learned trial judge was wrong.
The alternative "no case" submission
At the trial, counsel for the respondent submitted that there was no case to answer on a second, entirely different basis. He submitted that, in order for the jury to be satisfied beyond reasonable doubt that the fish had been "possessed unlawfully" within the meaning of s 264A(2)(a), it would be necessary for the Crown to establish some unlawfulness other than a contravention or contraventions of the Act, or of subordinate legislation made under the Act. The learned trial judge discussed this submission in her reasons at [20]-[27], but decided, at [58], that there was no need for her to deal with that alternative argument.
The alternative submission was based upon a comparison of the wording of ss 264 and 264A(2)(a). As I have said, s 264 reads, "A person must not have possession of fish without lawful excuse." However s 264A(2)(a) does not refer to the lack of a lawful excuse, but refers to fish that "have been taken unlawfully or possessed unlawfully". Counsel for the respondent submitted that if Parliament had intended the crime of trafficking to be based on the possession of fish "without lawful excuse", it would have used those words, and not the words "taken unlawfully or possessed unlawfully". However this submission overlooks the fact that, when there are two different ways of saying the same thing, inconsistency in the use of language does not necessarily indicate that different meanings were intended.
There is nothing in the language of s 264A(2)(a) to suggest that it applies only in relation to unlawfulness other than the possession of fish without lawful excuse. There is nothing in the history of the legislation, nor in the second reading speech, to suggest any reason for the paragraph to be given such a restricted meaning. Such a meaning would be inconsistent with the purposes and objects of the legislation, as referred to above. It would make s 264A inapplicable to most activities of groups illegally exploiting fisheries like the rock lobster fishery.
Counsel for the respondent relied on a series of motor manslaughter cases in relation to this submission. At common law, the crime of manslaughter can be committed by means of an unlawful and dangerous act, or by means of culpable negligence. In Andrews v Director of Public Prosecutions [1937] AC 576, the House of Lords took the view that the commission of some statutory driving offences did not make an act of driving unlawful in itself for the purposes of the law relating to manslaughter. In Tasmania, manslaughter may be charged on the basis of culpable negligence within the meaning of s 156(2)(b) of the Criminal Code, or on the basis of an unlawful act within the meaning of s 156(2)(c). In R v Rau [1972] Tas R 59, the Court of Criminal Appeal followed Andrews, holding that contraventions of traffic regulations were relevant to the issue of culpable negligence, but could not be relied upon as unlawful acts for the purposes of s 156(2)(c). In R v Pullman (1991) 25 NSWLR 89, the New South Wales Court of Appeal did not follow Rau, but held that, for the purposes of common law manslaughter, an act in breach of a legislative provision, such as a motor traffic regulation, can sometimes amount to an unlawful and dangerous act. In my view these cases are of no assistance in relation to the interpretation of s 264A(2)(a). They concern situations in which, by a single piece of conduct, a person can commit both a relatively minor offence and the crime of manslaughter. Section 264A is directed towards a very different situation that is concerned with a two-stage process. At the first stage, it is concerned with a state of affairs. Have some fish been unlawfully taken or possessed? At the second stage it is concerned with conduct. Has the person charged thereafter possessed the fish or done one of the other things listed in s 264A(2)(b)? It is of no assistance to know that the law in relation to homicide sometimes requires unlawfulness independent from homicide in order for certain conduct to amount to manslaughter.
For these reasons, I consider that the alternative no case submission had absolutely no merit. The respondent had a case to answer, and should not have been acquitted.
Leave to appeal
In my view the applicant should be granted leave to appeal pursuant to s 401(2)(b) of the Criminal Code since the appeal raises a question of general importance concerning the scope of the crime of trafficking in fish created by s 264A of the Act. I see no need to consider whether the appropriate test when considering such an application for leave is that formulated by Crisp J in R v Jenkins [1970] Tas SR 13 at 16, or the wider test adopted by Nettlefold J in R v Jessup [1974] Tas SR 64 at 89-96.
Conclusion
For the reasons stated, I would grant leave to appeal, allow the appeal, set aside the acquittal, and order a new trial.
File No CCA 815/2015
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v MARK WILLIAM EATHER
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
3 February 2016
I have read the reasons for judgment of the Chief Justice. I agree with his Honour's reasons and with the orders proposed, but there are two matters about which I wish to comment,
The first matter relates to the primary point of whether s 264A(2)(a) is satisfied only if the fish in question had been "taken unlawfully or possessed unlawfully" by someone other than the accused. (Section 264A is set out in full in the Chief Justice's reasons.) This Court holds that the provision is satisfied if the fish in question had been unlawfully taken or unlawfully possessed by the person accused of trafficking. The arguments on the point extended to the relationship between pars (a) and (b) of s 264A(2), and to how they operated together.
It might be thought that subsumed within, or as an adjunct to, what the Court has held, is the proposition that an act or the conduct of the one person can at the same time give to fish the required character under s 264A(2)(a), and be an act of trafficking by that person under s 264(2)(b). I do not want my agreement on the primary point to be taken as an agreement to that proposition. It is a question which I would expressly leave open.
The second matter relates to the "alternative 'no case' submission". The substance of the submission is set out in the Chief Justice's reasons, but for the sake of convenience, I will repeat it. The respondent argued that the for the purposes of s 264A(2)(a), it is necessary for the Crown to establish unlawfulness other than a contravention of the Living Marine Resources Management Act or subordinate legislation. Section 264 of that Act provides that a person must not have possession of fish without lawful excuse. The respondent's point was that s 264A(2)(a) does not refer to a lack of lawful excuse, but to fish "that have been taken unlawfully or possessed unlawfully".
It was argued that if Parliament intended the crime of trafficking to be based on the possession of fish "without lawful excuse", it would have used those words and not the words of subs (a). The respondent argued that it was necessary to ascertain the difference between the meanings of "without lawful excuse" and "unlawfully" for the purposes of the Act. As the Chief Justice has said, the submission overlooks the fact that when there are two different ways of saying the same thing, inconsistency in the use of language does not necessarily indicate that different meanings were intended. Further, there is nothing in the language of s 264A(2)(a) to suggest that it applies only in relation to unlawfulness other than possession of fish without lawful excuse under the Act.
The point I make is that there may be a good reason Parliament used the different expressions but, at that same time, intended the same core meaning. The use of the phrase "without lawful excuse" would attract the operation of s 142A of the Evidence Act 2001. That provides as follows:
"142A Proof of exemption
(1) It is not necessary in any complaint or indictment to specify, negative or prove any exemption, exception, proviso, condition, excuse or qualification.
(2) If a defendant or an accused relies on any exemption, exception, proviso, condition, excuse or qualification, the proof lies on the defendant or the accused."
It is unnecessary to consider the precise effect of the shifting burden for prosecutions under ss 264 and 264A(1). What is important is that the expression "without lawful excuse" is used in framing the offences under both ss 264 and 264A(1). The expression "taken unlawfully or possessed unlawfully" relates to a state of affairs – the character of the fish – which is an ingredient of an offence under the latter section. While essentially the same notion is contained within the two expressions, the phrase "without lawful excuse" has procedural consequences. There is no reason to confine what is meant by "taken unlawfully or possessed unlawfully" to unlawfulness other than by reason of the Act, or as is relevant to this case, the Fisheries (Rock Lobster) Rules 2006.
File No CCA 815/2015
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v MARK WILLIAM EATHER
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
3 February 2016
I have had the advantage of reading the reasons of the Chief Justice in draft form. I agree with his Honour's reasons and with the orders he proposes. There is nothing I can usefully add.
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