Evans v Strachan (No 2)
[1999] TASSC 129
•26 November 1999
[1999] TASSC 129
CITATION: Evans v Strachan (No 2) [1999] TASSC 129
PARTIES: EVANS, Kim Ronald
v
STRACHAN, David Campbell (No 2)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: M305/1998
DELIVERED ON: 26 November 1999
DELIVERED AT: Hobart
HEARING DATES: 6, 8 October, 19, 22 November 1999
JUDGMENT OF: Slicer J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: F C Neasey
Respondent: G Wendler
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Baker Tierney & Wilson
Judgment Number: [1999] TASSC 129
Number of Paragraphs: 17
Serial No 129/1999
File No 305/1998
KIM RONALD EVANS v DAVID CAMPBELL STRACHAN (No 2)
REASONS FOR JUDGMENT SLICER J
26 November 1999
The application for the making of a control order against the respondent, pursuant to the Living Resources Management Act 1995 ("the Act"), has involved two issues. The first, whether the legislation was within power, has already been determined by the Court. The second is whether, in the exercise of discretion, such an order ought be made. The scheme of the Act has been considered in the judgment relating to constitutional power (Evans v Strachan [1999] TASSC 115), and does not require repetition.
Preconditions
The Court is satisfied that the Secretary has properly exercised his discretion in the making of the application. The preconditions to that decision are:
(1)the application is made against a person in respect of whom 200 demerit points are in force;
(2)that person has been convicted of a relevant offence contrary to a law of Tasmania or another State;
(3)that the Secretary believed, on reasonable grounds, that the respondent is a person likely to commit further offences contrary to the Act.
It is not necessary to express a concluded view on the extent to which a court, exercising power pursuant to the Act, s253, is required to consider the reasonableness of the decision of the Secretary's belief as to the likelihood of future conduct. Presumably if the Court itself was not satisfied on the evidence placed before it that it was reasonable to believe that a person was likely to commit further offences, then any view it formed as to the reasonableness or otherwise of the belief of the Secretary would be academic. Conversely, the Secretary might have paid regard to relevant material which was not admissible on the hearing held pursuant to the Act, s253 and had greater reason for holding the requisite belief. The material might persuade the Secretary, but not persuade the Court. The questions are interconnected, but not necessarily identical. Had the Act, s253(1)(a) required the Court to issue a control order upon satisfaction that the preconditions had been met, then the reasonableness or otherwise of the belief of the Secretary would become central to the determination. In this case, the Court is satisfied that the Secretary had, at the time of the making of the application, a belief, which was reasonable, that the respondent was likely to commit further offences against the Act.
Evidence
The respondent was a professional fisherman. The following convictions have been recorded in Victorian courts for fishing offences:
| 23 December 1970 | Orbost Court | Take abalone for sale without a licence Possess male crayfish during close season Possess female crayfish during close season | $100 $10 $10 | |||||
| 28 April 1971 | Orbost Court | Take more than 10 abalone on one day Take undersized abalone | $50 $50 | |||||
| 13 December 1971 | Dromana Court | Take undersize scallops Take more than 10 abalone on one day | $50 $50 | |||||
| 26 April 1972 | Orbost Court | Control undersized abalone for sale Take abalone for sale without a licence | $500 1 month imprisonment | |||||
| 21 July 1972 | Bairnsdale County Court | Control undersize abalone for sale Take abalone for sale without a licence | $500 $200 in default imprisonment for 2 months | |||||
| 12 November 1976 | Yarram Court | Land from a boat the meat of abalone removed from shell | $100 $38 Costs | |||||
| 2 December or 30 November 1977 | Sale Court | Take abalone for sale without a licence Obstruct Officer P O'Riley Use an unregistered boat | $1000 $300 $50 $100 Costs | |||||
| 30 November or 2 December 1977 | Sale Court | Possess more than 10 abalone on one day Control female crayfish in berry Have on board a boat meat of abalone removed from shell Land from a boat the meat of abalone removed from shell | $100 $100 | |||||
| 27 February 1978 | Hobart Court of Petty Sessions | Use fishing boat in connection with taking of fish while unlicensed Take abalone whilst being unlicensed | $100 $12 Costs $130 | |||||
| 17 October 1978 | Brighton Court | Obstruct Officer B Austin | $150 $8 Costs | |||||
| 17 August 1978 | Eden Court of Petty Sessions | Being unlicensed did take more than 15 abalone on one day Being unlicensed did take fish for sale | $20 $10 Costs $20 $10 Costs | |||||
| 13 October 1978 | Yarram Court | Take abalone for sale without a licence Possess more than 10 abalone on one day | $1000 $200 | |||||
| 17 October 1978 | Brighton Court | Take more than 10 abalone on one day Use unregistered boat Use commercial fishing equipment without a licence Take abalone for sale without a licence | $200 $1000 | |||||
| 29 October 1979 | Dromana Court | Take abalone for sale without licence Use an unregistered boat (27/6/79) Possess more than 10 abalone on one day Take abalone for sale without being licensed | $500 $300 $300 $1000 $42 Costs | |||||
| Ordered forfeiture of all equipment but return of boat | ||||||||
| Take undersize abalone for sale Have on board a boat the meat of abalone removed from shell Use an unregistered boat (4/7/79) Possess more than 10 abalone on one day | $1000 $300 | |||||||
| 15 January 1980 | Hobart Court of Petty Sessions | Unlicensed fishing vessel Take abalone without a licence | Conviction Recorded $250 $8 Costs Adjourned Sine Die $202 | |||||
Equipment and boat forfeited to the Crown
| 4 August 1980 | Melbourne County Court |
[Appeal by Attorney-General against penalty imposed under the two section 17(1) charges imposed at Dromana on 29 October 1979, see item 14]
| 15 December 1980 | Yarram Court | Obstruct Fisheries Inspector O'Riley Aid and abet unknown persons obstruct O'Riley | $400 $400 $500 $176.22 Costs $250 $250 |
| 28 June 1983 | Frankston Court | Take abalone for sale without licence (Boat and Equipment Forfeited) Take more than 10 abalone on one day Use unregistered boat to take fish for sale Have on board boat meat of abalone removed from shell | 1 month imprisonment $500 $400 $100 |
Note: - Appeals before judge dixon on 30 April, 1985, appeals against convictions dismissed. Appeals against sentence varied only in respect to [take abalone for sale without licence] - released on common law bond for 3 years in the sum of $2000 with special conditions that appellant does not dispose or part with possession of the boat and engine during the period of the bond.
All Other Equipment Ordered to be Forfeited.
Note: - on 15/6/87 strachan re-appeared before judge dixon for breach of bond. At this time penalties imposed by the magistrates court were restored. Strachan was sentenced to 1 month imprisonment with the boat and engine forfeited to her majesty. The bond recognisance of $2000 within 1 week in default 5 days imprisonment.
| 5 August 1983 | Dandenong Court | Aid and abet Miklos Hadju to take abalone for sale without licence Aid and abet Louis Hadju to take abalone for sale without licence Aid and abet George Ross Symons to take abalone for sale without licence Possess more than 10 abalone on one day Have on board meat of abalone removed from shell Take abalone for sale without licence | 3 months 3 months |
Note: - Appeal Heard Before Judge McNab on 2 May 1985
appeals against all convictions - dismissed
appeals against sentence for 1-3 charges allowed. released on a $1000 bond to be of good behaviour for a period of 3 years and to come up for sentence when and if called upon to do so
appeal against sentence for charges 4 and 5 - dismissed, sentences confirmed
appeal against sentence for charge 6 allowed
convicted and fined $500 in default one month imprisonment
order that the boat a 25' haines and equipment seized be forfeited. Otherwise the order of the magistrate be confirmed
Note: - on 17/8/87 strachan re-appeared before Judge McNab for breach of bond. At this time the magistrates original sentences were imposed (in respect only to the 3 aid and abet charges or the charges for which the bond was issued - ie, 1, 2 and 3 above).
strachan was sentenced to 3 months imprisonment on each of the 3 charges with no order re cumulative sentence ie, 3 x 3 months to be served concurrently. The recognisance of $1000 was forfeited and strachan ordered to pay $1000 within 7 days in default 5 days imprisonment.
| 16 April 1986 | Bairnsadale Court | Possess more than 10 abalone on one day Control undersize abalone for sale Take more than 10 abalone on one day | P/G P/G P/G |
all charges found proven and defendant placed on a 12 month good behaviour bond with a $2000 surety.
Note: - on 27/5/87 strachan appeared at bairnsdale magistrate court before mr maher sm for breach of bond. The $2000 recognisance was forfeited and strachan convicted and fined:-
| Possess more than 10 abalone Take more than 10 abalone Control undersize abalone for sale | $500 $500 $2000 | ||
| 24 April 1987 | Yarram Court | Use an unregistered boat Possess more than 10 abalone | $500 $250 Costs $500 |
| 28 September 1989 | Launceston Court | Take abalone for sale | $350 $159.10 Costs |
$2000 special penalty wholly suspended on condition that Strachan commit no breach of Fisheries Act (Tas) or Regulations thereunder, or Commonwealth Fisheries Act 1952 for two (2) years.
| 2 November 1989 | Korumburra Court | Take abalone without an abalone licence Take undersize fish by commercial fishing equipment | 6 months $500 |
Note: - At the Morewell County Court on 1/2/90 the appeal was allowed and sentences varied as follows:
a Section 17(1) (take abalone without a licence). Sentence was reduced from 6 months gaol to 5 months and 2 weeks gaol.
b Section 61(1) of Fisheries Act (take undersized abalone by use of commercial fishing equipment) - fine increased from $1500 to $1750, with a 9 month stay on payment.
c Fishing (General) Regulations 1981 reg8(a) (using registered boat to take fish for sale) - penalty reduced from $500 to $450, with a 9 month stay on payment.
d Fishing (Abalone) Regulations 1988 reg7(c) (land from a boat shucked abalone) penalty increased from $1500 to $1750 with a 12 months stay on payment.
e Fishing (Abalone) Regulations 8(3) (transporting more than 10 abalone not accompanied by a docket) - penalty increased from $1500 to $1750 with a 15 month stay on payment.
| 27 October 1989 | Frankston Court | Take abalone for sale without a licence Use commercial fishing equipment to take abalone without a licence Use unregistered boat to take fish for sale Land from a boat shucked abalone | 4 months $1000 |
| 19 January 1990 | Oakleigh Court | Transport more than 10 abalone not accompanied by an abalone docket | $2000 $19 Costs |
| 7 March 1990 | Melbourne Magistrates Court | Take abalone for sale without an abalone licence | 6 months imprisonment cumulative with any sentence currently being served |
Boat and Equipment Forfeited
| Take more than 10 abalone on one day Have on board a boat shucked abalone Use an unregistered boat | $2000 $500 |
In addition, the respondent was dealt with for breaches of bonds imposed on six occasions with respect to penalties already imposed. In Tasmania, the respondent possessed, prior to the enactment of the Act, the following convictions:
| 9 December 1977 | Hobart CPS | Unlicensed fishing boat Unlicensed fishing | $100 $100 |
| 15 January 1980 | Hobart CPS | Taking abalone without licence | $200 |
The following are relevant convictions imposed by Tasmanian Courts for offences against the Act:
| 12 March 1997 | Hobart CPS | Four offences involving obstruction, taking undersized abalone, unlawful possession and unlicensed fishing of abalone and crayfish at Hunter Island on 15 January 1995 | 6 months' imprisonment Fine $2,000 Special Penalty $2,100 |
| 19 June 1997 | Hobart CPS | Taking of undersized abalone at Albatross Island on 21 January 1997 | Fine $200 Special Penalty $1,820 |
| 24 April 1998 | Hobart CPS | Take fish without a licence at Albatross Island on 21 January 1997 | 4 months' imprisonment Fine $2,000 Special Penalty $32,500 |
| 15 October 1998 | Hobart CPS | Possession of underweight abalone at Hunters Island on 15 January 1995 | Fine $1,000 Special Penalty $1,600 |
On 3 October 1997, the respondent was convicted in the Magistrates' Court, Frankston, Victoria, for an offence of obstruction of an authorised officer in Victorian waters. The conviction arose from a seven hour, unsuccessful, pursuit of the respondent by Victorian police, commencing in Tasmanian waters near West Moncoeur Island and ending at Cape Ottway. The respondent was fined the sum of $1,000 and ordered to pay costs of $6,091.
Conduct subsequent to conviction
The respondent has been observed in Tasmanian waters on three occasions since his last conviction for a fisheries offence in this State. In November 1998, he was observed on a 40' black planing vessel equipped with an inflatable tender, travelling south near Couta Rocks and later at Sandy Cape where the tender was retrieved. Both are isolated areas off the western coast of Tasmania. On 5 January 1999, he was observed on a similar vessel near Albatross Island off the north-west coast of this State. Albatross Island is the same place where the respondent had conducted illegal fishing operations in January 1997 which resulted in his conviction, recorded on 24 April 1998. The respondent was identified and, in the words of the officer of the Marine Resource Division, Tasmania Police:
"7As I neared the vessel it immediately gained power and headed off in a south westerly direction. I skirted down the south side of Albatross Island in an effort to intercept the vessel. I estimate our vessel came within 50 metres of the vessel Strachan was on. Our tender vessel had the word 'Police' written clearly on the sides and the crew were wearing blue thermofloats and police caps. Both Constables Stacey and Bidgood waved their arms and shouted for the other vessel to stop.
8As we were chasing the other vessel, it came to a halt once and it appeared the crew were moving equipment around in the rear of the vessel. I then continued south west at about 30 knots, but due to the state of the sea I terminated the pursuit."
On 22 September 1999, the respondent was observed clad in a wet suit on a vessel near Hunter Island, a place near Albatross Island and an area near where he engaged in illegal activity in January 1995. The evidence of the circumstances of his presence and his conduct permits the inference that he was either preparing to engage in illegal fishing activity or was at least in a position to conduct an illegal operation.
The evidence was not disputed and the respondent adduced no evidence or explanation which showed a purpose other than that claimed by the applicant (Jones v Dunkel (1959) 101 CLR 298). The areas were isolated, known to be suitable for fishing and not readily accessible. As the onlooker observed on Easter Sunday 1917 when he saw a body of men marching to the Dublin Post Office, "I didn't know what they were about but I sure knew they weren't going there to buy stamps".
It is a reasonable inference that on the three occasions the respondent was engaged, directly or indirectly, in a fishing operation. The conduct of the vessel in November 1998 and January 1999 suggests that the operation was unlawful. The respondent has had the opportunity to present material to the effect that his presence was simply that of a guide or mentor and, absent such explanation, the Court can have more confidence in reaching a conclusion adverse to him (Jones v Dunkel (supra); Weissensteiner v R (1993) 178 CLR 217). The conduct of the respondent supports the conclusion that he is a person likely to continue with illegal predation of a natural resource.
Likelihood of further offences
The purpose of the legislation is to promote a sustainable management of living marine resources. That purpose is difficult to achieve. It is impossible to monitor every vessel or licensed fisherman. History teaches that the pursuit of self-interest has destroyed the viability of resources for future generations. The evidence of the Senior Management Officer of the Department of Primary Industries Water and Environment claims:
"10 Tasmania's major managed fisheries are under severe pressure. Improvements in fishing technology have lead [sic] to greater fishing capacity causing unknown impacts on fish stocks and marine ecosystems. Wild stocks are limited and future yields from these fisheries depend upon management controls, including the quota management system in the case of the abalone fishery, which protect adult breeding stocks, allow adequate recruitment of juvenile fish and simultaneously allow for an ecologically sustainable catch to be taken by industry. Obviously, the poaching of abalone in large commercial quantities is totally inconsistent with, and works against, these goals."
To prevent over-exploitation, a quota system has been introduced. Its effectiveness depends on the integrity of those harvesting the resource. As the Senior Management Officer stated:
"7 The total allowable catch is set in tonnes of live wet weight of abalone. Requiring diver's dockets to be promptly completed after landing allows for accurate measurement by live net weight. It also simplifies enforcement as it is one of the ways of preventing abalone being transported around the state unaccompanied by the correct documentation. There is a danger that the Total Allowable Catch will be exceeded at the end of the season if divers fail to correctly enter information on their diver's dockets and/or fail to submit their dockets to the Minister within the required time, or at all.
8 The failure of licensed commercial divers to comply with the requirements concerning completion and submission of divers' dockets threatens to undermine the successful operation of the abalone quota management system, adversely affecting the future of the participants in the abalone industry, the enjoyment of recreational fishermen and the long term sustainability of the resource. Needless to say the poaching of abalone by unlicensed divers in commercial quantities threatens to do the same things.
9 This is particularly so if the abalone poached are undersize. Size limits play a vital role in sustaining abalone fisheries. Their purpose is to ensure that abalone have a chance to breed several times before they may be legally caught, so that future generations of abalone continue to be produced. If the size limits are ignored, the number of breeding adults declines to such an extent that the number of young abalone produced also declines, and the population dwindles. In such areas depleted by illegal fishing, recovery is often slow."
The integrity of the respondent and his regard for any supervision of or interference with his conduct can be tested by reference to his conduct, upon detection, on 15 January 1995, 21 January 1997, 2 February 1997, 25 March 1997 and 13 July 1997. His presence in Tasmanian waters in 1998 - 1999 reinforces the conclusion that he has disdain for the purpose of the legislation and is concerned only with economic benefit. Deterrence by means of the imposition of sanction has had no effect on his conduct. The Court has no reservation in concluding, on the material placed before it, that the respondent, unchecked by a control order, is likely to commit further offences under the Act.
Delay
Counsel for the respondent contended that it was open to the Secretary to make the application at an earlier date and that his failure to do so is prejudicial and, by implication, a misuse of power. The evidence shows that the respondent lodged some eight appeals, seven of which were dismissed or abandoned. In Tasmanian Courts, a similar course has been taken. It was appropriate for the Secretary to await the disposition of appeals before making the application. Had he done otherwise, complaint would have been made that he acted without regard to the rights of the respondent. The respondent might be entitled to make use of rights of appeal, but a claim of delay because the Secretary respected those rights in delaying the commencement of these proceedings, is devoid of merit.
Harsh and unjust
The respondent is prohibited from obtaining a commercial fishing licence until 21 January 2002. He has advanced no commercial reasons which warrant his presence in Tasmanian waters other than his conduct of business in Victoria and that the applicant seeks him "to be prevented from conducting business in Tasmania in accordance with my rights including my constitutional rights." It is not incumbent on the respondent to adduce evidence of harsh and unjust consequence, but the evidence as a whole must support such a conclusion. There is no such evidence. The respondent contends that his right of movement recognised by the International Covenant on Civil and Political Rights, Article 12, ratified on 30 August 1980 by Australia, (referred to by the High Court in Dietrich v R (1992) 177 CLR 331) if restricted, would constitute an unreasonable and unjust consequence. Accepting that courts ought pay regard to the import of international covenants entered into by Australia, there remains the right of Parliament to restrict the activities of citizens and corporations in order to preserve the integrity of a resource. The applicant seeks to restrain the illegal commercial activity of the respondent, not withdraw his social or political rights. The order sought attempts to inhibit his capacity to engage in unlawful predation of a resource in an area difficult to supervise, not his presence or conduct at places of everyday congregation (see Director of Public Prosecutions v Jones & Anor [1999] 2 All ER 257). His lawful employment is not removed by the making of the order sought.
Orders
The applicant is required to attach to the application, a draft order of the control order sought. During the course of the hearing, it became apparent that the terms of the order might have had unintended consequences. Accordingly, the applicant sought to amend the order to the advantage of the respondent. There remains a possibility that the terms of the control order might enable the Secretary to decline to consider the issue of a licence to the respondent at the conclusion of the period of disqualification. The order will be varied so as to permit the Secretary to properly consider any re-issue of licence at the conclusion of the period of disqualification. In accordance with the Act, s153(1)(b)(i), the order sought will be varied. The following orders are made:
(1)That David Campbell Strachan is not to be captain of, a crew member of, or a passenger upon, a vessel as defined by the Living Marine Resources Act 1995, s3, less than 90 metres in length, in State Waters of Tasmania without the consent in writing of the Secretary of the Living Marine Resources Act 1995 for a period of five years.
(2)That David Campbell Strachan is not to be in possession or control of in State Waters of Tasmania, any apparatus, as defined by the Living Marine Resources Act 1995, s3, except when upon a vessel of 90 metres in length or more, without the consent in writing of the Secretary of the Living Marine Resources Act 1995 for a period of five years.
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