Director of Public Prosecutions (Acting) v Eather

The Director of Public Prosecutions (Acting) appealed to the Supreme Court of New South Wales (Court of Criminal Appeal) against an acquittal of the respondent, Eather, on charges of trafficking in fish. The prosecution's case was that the trafficking offence required proof that the fish had previously been "possessed unlawfully," and the only evidence of such unlawful possession related to the respondent.

The central legal issue before the Court was whether the offence of trafficking in fish, as defined by the relevant legislation, required proof that the accused had unlawfully possessed the fish prior to trafficking. Specifically, the Court had to determine if the prosecution needed to prove the accused's unlawful possession of the fish, or if proof of unlawful possession by any person would suffice.

The Court reasoned that the wording of the legislation indicated that the unlawful possession must be attributable to the accused. The phrase "possessed unlawfully" was interpreted to mean that the person trafficking the fish must have been the one who possessed it unlawfully. Therefore, the prosecution was required to prove that Eather had unlawfully possessed the fish before trafficking them. As the evidence only pointed to Eather's unlawful possession, this element of the offence was satisfied.

Consequently, the Court granted leave to appeal, allowed the appeal, set aside the verdict of acquittal, and ordered a new trial upon the indictment.