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

1. 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).

1. 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.

1. 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. 

1. 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 vessel, 50 rock lobster pots were authorised to be used.

1. There is no dispute that at the relevant time the vessel was carrying 54 pots, 50 of which were capable of being used for fishing, but the four in question were in a state of disrepair.  Evidence was given by Mr Gilbert Pearce, who had 30 years experience in the fishing industry, including many years as a rock lobster fisherman, that the four pots were damaged, adding that "they are squashed and the necks are squashed down, the sticks are loose in them, there are large holes in the pots, and which would most certainly lead to crayfish escaping so if someone was to use them they would certainly warrant some repair work before".  To make them serviceable he considered that they required major re-construction.  His opinion was that they certainly could be repaired.  He expressed the opinion that they were capable of catching fish in limited circumstances.  Constable Steven Patterson gave evidence that on the day of the offence he boarded the vessel to inspect it at the Strahan main wharf.  He counted 54 pots.  The applicant explained that he had put to sea some days earlier on a particular fishing voyage with four of the pots in an unusable condition and stored in the dinghy area of the vessel.  He said that he had simply put to sea with them and returned with them unused.  He claimed to have brought the four pots back from a previous trip and had simply left them on the vessel while he went  home to the East Coast.  Subsequently he put to sea with the four pots still on the vessel.  He claimed not to have had an opportunity to remove the pots from the vessel prior to putting to sea. 

1. In a signed statement made by the applicant to the police, he said that on a previous fishing trip that ended on 29 July 1999, and on prior occasions, he had a total of 15 rock lobster pots that were unusable.  He had discarded 11 of them at sea, prior to unloading on 29 July, but retained four of them on board, placing them in the tender dinghy, because they were repairable.  He had gone home to Bicheno and returned to Strahan on 2 August and put to sea.  While he had been away the owner of the vessel had put 15 new rock lobster pots on deck for him.  He did not remove the four damaged pots because he did not have anywhere to put them, explaining that he had come to Strahan in his Nissan sedan, into which they would not fit.  He therefore put to sea with 50 rock lobster pots on deck together with the four damaged pots in the dinghy.  He did not use those four pots during the trip.

1. In his evidence, the applicant contradicted his prior statement when he said that two of the four pots were repairable but the other two were not.  He said that one of the repairable pots, a steel pot, would have had to be taken home to repair it and the other, a stick pot, would have needed hydraulic jacks to lift the neck to enable repairs to be carried out.  He added: "At the present stage two of them are completely unusable and the other two if I'd have taken them home I could have repaired them".  He said that the only reason he kept the two that were completely unusable was because of the wire in the bottom of each, which he described as good wire that could be cut out.  He said that the escape gaps could be cut out and used for another pot.  He agreed, in other words, that the two pots which he maintained were unusable, and not worth repairing, could be used for salvage purposes.  He accepted that in the case of three of the four pots, rock lobster could enter them but asserted that they would be able to escape out the side.  The fourth pot, a steel one, he maintained was "highly incapable" of taking rock lobster. 

1. The applicant called evidence from Michael Stacey, a professional fisherman, who described the four pots as horrible, a heap of rubbish and good for nothing.  He would not have expected them to be capable of catching rock lobster in their condition.  He compared them to a fishing line without a hook, "I mean, that won't just catch anything".  He accepted that rock lobster could get into the pots but could not be retained in them. 

1. On the evidence there was no doubt that the four pots had been designed and constructed for the purpose of catching rock lobster.  It may be presumed that originally they were capable of doing so. 

1. In his reasons for finding the complaint proved, the learned magistrate said the following:

"It is a situation where the definition of 'rock lobster pot' becomes all important.  The position under this Act is one of strict liability.  The defendant must not exceed his fifty pots pursuant to his licence, so do these four become rock lobster pots?  Mr Crisp and I seem to be at odds of our interpretation of Parliament’s definition of rock lobster pot which, under the rules that apply as at that date, meant

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.

Now, as indicated, there would seem to be several avenues down which one could go whereby either contrivances or component parts may by definition, be a rock lobster pot and if I find that any of those component parts come within the definition, then it is very clear that this man has exceeded the quota of fifty pots he was allowed to take on the vessel.  ...  I think it is very clear, despite the fact as Mr Crisp points out, there is a hundred years almost of crayfish experience between the three of the witnesses we have heard today that these items were obviously designed as lobster pots, had been used as lobster pots - but to the four in the Court, I accept are in need of repairs.  Does that fact mean, they are no longer lobster pots.  I believe not, I think the definition of rock lobster pot is so wide that it would still regard these as rock lobster pots for the purposes of the Act."

1. The grounds of review, as amended, are as follows:

"1The learned magistrate erred in fact and in law in holding that the four items the subject of the complaint were rock lobster pots within the meaning of the Fisheries (Rock Lobster) Rules 1997, and in particular erred in finding:

(a)that they were component parts of a basket, trap, cage or contrivance, and:

(b)that they were designed for use, or were capable of being used, for or in connection with the taking of rock lobster.

2The learned magistrate erred in fact and in law in holding that the four items the subject of the complaint were rock lobster pots within the meaning of the Fisheries (Rock Lobster) Rules 1997, to the extent that he found that they were a basket, trap, cage or other contrivance, or component parts thereof that were designed for use, or were capable of being used, for or in connection with the taking of rock lobster.

3The learned magistrate erred in fact and in law in holding that the four items the subject of the complaint were rock lobster pots within the meaning of the Fisheries (Rock Lobster) Rules 1997, in that:

(i)there was no evidence upon which such a finding could reasonably have been made;

(ii)to the extent there was such evidence the magistrate failed to resolve conflicting evidence and to make relevant findings of fact.

4The learned magistrate failed to address, properly or at all, the issues raised for consideration by the definition of 'rock lobster pot' in the Fisheries (Rock Lobster) Rules 1997, s3."

1. I am of the opinion that there is no substance in par(a) of ground 1.  Although in his reasons, the learned magistrate mentioned the question whether each of the four pots fell within the definition of a rock lobster pot because of their component parts, his Worship did not conclude the issue on that basis.  His reasons for finding that the four pots were rock lobster pots were that they "were obviously designed as lobster pots" and "had been used as lobster pots", and that although they were in need of repair, they fell within the definition.  With respect, I agree. 

1. Counsel for the applicant referred to a number of cases in which courts considered statutory provisions that included the word "designed".  See Tysoe v Bucknall [1933] VLR 341; South Sydney Municipal Council v James (1977) 35 LGRA 107; Wilson v West Sussex County Council [1963] 2 WLR 669; Colyer v State of Victoria unreported Supreme Court of Victoria, Court of Appeal, 12 September 1997.  Because the interpretation of a statutory provision depends on its own terms and context, they have not been of great assistance.  However, I note that in Tysoe at 343 - 344, Gavan Duffy J pointed out that "designed" was capable of meaning manufactured, or made, or of a design, or intended. Applying those possible meanings to the definition of rock lobster pot, the four pots central to this case were manufactured for use for or in connection with the taking of rock lobster, they were made for that use, they were of a design for that use and they were intended for that use, although not by the applicant at the relevant time, it would appear. I would, however, reject any notion that the definition of a rock lobster pot depends on the use intended for it at the relevant time by the person who is in possession of it, for that would strain the language of the definition.

1. There are alternative limbs to the definition.  One is that the item is designed for use for or in connection with the taking of rock lobster and another is that the item is capable of being used for or in connection with the taking of rock lobster.  I agree with counsel for the respondent that the second limb was intended by the rule maker to include items that were not designed to be rock lobster pots, but which are capable of being used for or in connection with taking rock lobster.  Even if it could be said that the four pots in question were not capable of taking rock lobster at the relevant time, I am satisfied that they had been designed for that use and that they fell within the definition. 

1. In my view it would be straining the language of the definition to hold that the expression "designed for use" means "designed for use and capable of being used".  If that was the meaning, the words "designed for use" in the definition would be unnecessary.

1. For these reasons the motion will be dismissed.