Freeman v Brown - [2002] TASSC 47

[2002] TASSC 47

CITATION: Freeman v Brown [2002] TASSC 47

PARTIES:  FREEMAN, Derek Wallace
  v
  BROWN, Graeme Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 82/2001
DELIVERED ON:  12 July 2002
DELIVERED AT:  Launceston
HEARING DATE/S:  15 April 2002
JUDGMENT OF:  Crawford J

CATCHWORDS:

Primary Industry - Fish - Offences - Other cases - Possession of excessive number of rock lobster pots - "Rock lobster pot" - Damaged condition.
Fisheries (Rock Lobster) Rules 1997 (Tas), r3(1).
Aust Dig Primary Industry [35]

REPRESENTATION:

Counsel:
           Applicant:  D J Porter QC
           Respondent:  F C Neasey
Solicitors:
           Applicant:  Creese, Crisp & Fay
           Respondent:  Director of Public Prosecutions

Judgment ID Number: [2002] TASSC 47
Number of paragraphs: 16

Serial No 47/2002
File No LCA 82/2001

DEREK WALLACE FREEMAN v GRAEME MAXWELL BROWN

REASONS FOR JUDGMENT CRAWFORD J
12 July 2002

The applicant was charged on a complaint with being a supervisor of an activity carried out under a fishing licence (rock lobster) held by another, on the fishing vessel "Leigh Anne" and failing to ensure that the activity complied with the Living Marine Resources Management Act 1995 in that, on 10 August 1999, in State waters at Strahan, he was in possession of 54 rock lobster pots, which exceeded the 50 rock lobster pots specified in the licence, contrary to the Fisheries (Rock Lobster) Rules 1997, r35(1), and in breach of the Act, s89(4).

After a hearing the complaint was found to have been proved. The learned magistrate proceeded under the Sentencing Act 1997, s7(f), and without recording a conviction, adjourned the proceedings for a period of 12 months upon the applicant giving an undertaking that he would commit no offences under the Act during that time. However, special penalties totalling $4,000, being $1,000 for each pot in excess of 50, were imposed. A confiscation order was made with respect to the four "pots" that had been tendered in evidence. I have used inverted commas only to emphasise that the issue before the learned magistrate and this Court has been whether the items in question were in fact or in law rock lobster pots. I will refer to them as pots.

Rule 35(1) prohibited the holder of a fishing licence (rock lobster) in State waters, from using, carrying or having possession of, or causing any other person to do so, rock lobster pots exceeding the number specified in the licence. By the Act, s89(4), a supervisor was required to ensure that any activity carried out under a licence complied with the Act. The applicant was a supervisor. He was the skipper of the vessel.

The expression "rock lobster pot" was defined by r3(1) as meaning "any basket, trap, cage or other contrivance, or any of its component parts, (other than a rock lobster ring) that is designed for use, or is capable of being used, for or in connection with the taking of rock lobster". Under the fishing licence (rock lobster), by virtue of which the applicant was working the…

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.

Continue reading Freeman v Brown

Details

AGLC: Freeman v Brown [2002] TASSC 47
Case: [2002] TASSC 47
Decision Date: 12 July 2002

CaseChat Overview and Summary

Derek Wallace Freeman appealed against his conviction for contravening the Fisheries (Rock Lobster) Rules 1997 by exceeding the number of rock lobster pots specified in his fishing licence. The case involved a dispute over whether the four damaged pots in question qualified as "rock lobster pots" under the rules, and thus contributed to the violation of the licence. The Supreme Court of Tasmania heard the appeal and assessed the evidence provided by both parties. The primary legal issue was whether the damaged pots in question qualified as "rock lobster pots" under the Fisheries (Rock Lobster) Rules 1997, which could contribute to the violation of the fishing licence. The court examined the definition of "rock lobster pot" and considered whether the damaged pots met the criteria of being designed or capable of being used for or in connection with the taking of rock lobster.

The court found that the damaged pots did indeed qualify as "rock lobster pots" under the rules, as they were designed for use in catching rock lobster, even if they were in a state of disrepair. The court concluded that the definition of "rock lobster pot" was broad enough to include damaged pots that were originally designed for that purpose. The court also noted that the second limb of the definition, which included items that were capable of being used for or in connection with taking rock lobster, was intended to cover items that were not specifically designed as rock lobster pots. In this case, the damaged pots met the criteria of being designed for use in catching rock lobster, and therefore fell within the definition.

The court dismissed the appeal and upheld the conviction, stating that there was no substance in the argument that the damaged pots did not qualify as rock lobster pots under the rules. The court emphasised that the definition of "rock lobster pot" was broad enough to include damaged pots that were designed for use in catching rock lobster, and that the second limb of the definition was intended to cover items that were not specifically designed as rock lobster pots but were still capable of being used for that purpose.

Orders