Hibble v Cannon - [2001] TASSC 1

[2001] TASSC 1

CITATION: Hibble v Cannon [2001] TASSC 1

PARTIES:  HIBBLE, Kim
  v
  CANNON, Peter James
  PEARTON, Kim David

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 24/2000
DELIVERED ON:  1 February 2001
DELIVERED AT:  Launceston
HEARING DATE/S:  25 October 2000
JUDGMENT OF:  Crawford J

CATCHWORDS:

Primary Industry - Fish - Offences - Other cases - Taking more than five rock lobster a day - Diver catching and placing in boat more than five - Intention to measure and return to water all undersize and all except the five largest - Whether more than five taken - Meaning of "take".
Fisheries (Rock Lobster) Rules 1997 (Tas), r 11(1)(d).
Wells v Hardy [1964] 2 QB 447; Browning v Barrett [1987] Tas R 122, referred to.
Aus Dig Primary Industry [35]

REPRESENTATION:

Counsel:
             Applicant:  J P Ransom
             Respondent:  D G Grey
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Zeeman Kable & Page

Judgment ID Number: [2001] TASSC 1
Number of paragraphs: 32

Serial No 1/2001
File No LCA 24/2000

KIM HIBBLE v PETER JAMES CANNON and KIM DAVID PEARTON

REASONS FOR JUDGMENT CRAWFORD J 1 February 2001

The respondents were charged with taking more than five rock lobster a day, when they were not the holders of a fishing licence (rock lobster), contrary to the Fisheries (Rock Lobster) Rules 1997, r11(1)(d). Particulars in the complaint included that on 21 March 1999 they took 18 rock lobster, of the genus Jasus, from State waters at George's Rocks. Following a defended hearing, a magistrate dismissed the complaint. The complainant moved to review the dismissal.

Findings of fact made by the learned magistrate included the following. Each of the respondents held a fishing licence (recreational rock lobster dive). On the day in question they went out in a boat, along with Mr Pearton's father, Mr Alf Pearton. The respondents dived for rock lobster in mirror calm conditions. While diving, they kept apart to avoid tangling their lines. After about three hours they returned to the surface and the boat with their catch, Mr Cannon a minute or two before Mr Pearton. Mr Cannon climbed into the boat with his catchbag containing lobster. Mr Pearton climbed into the boat leaving his catchbag, containing lobster, hooked outside in the water. They intended to sort out what they had caught, dealing first with Mr Cannon's catch. They had each collected a bag full of fish and had not measured them before they left the water.

I have difficulty understanding all of the findings of fact which were made by the learned magistrate. However, it appears that he preferred the evidence of the respondents to that of the police officers, so I will relate what some of the respondents' evidence was.

As already stated, Mr Pearton left his catchbag containing lobster, hanging outside the boat in the water, while they sorted through the lobster in Mr Cannon's catchbag. There were eight lobster in it. Five of the really big ones were passed to…

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 Hibble v Cannon

Details

AGLC: Hibble v Cannon [2001] TASSC 1
Case: [2001] TASSC 1
Decision Date: 1 February 2001

CaseChat Overview and Summary

The respondents, Peter James Cannon and Kim David Pearton, were charged with taking more than the permitted number of rock lobster in a day, in contravention of the Fisheries (Rock Lobster) Rules 1997. The case was initially heard by a magistrate, who dismissed the complaint, leading to a subsequent review by the Supreme Court of Tasmania. The primary legal issues revolved around the interpretation of the word "take" within the context of the rules, and whether the offence required a specific intent to keep the lobster beyond the legal limit. Additionally, the court examined whether the respondents' belief, based on an information brochure, that they were acting within the law could serve as a defence.

The court concluded that the word "take" in the Fisheries (Rock Lobster) Rules 1997 encompassed any physical act of seizing or capturing lobster, regardless of any subsequent intention to release them. This interpretation led to the conclusion that the respondents were indeed guilty of taking more than five lobster, as they had caught and placed more than five lobster in their boats. The court also determined that the offence was one of strict liability, meaning intent to keep the lobster was not required to establish guilt. Furthermore, the court clarified that a mistake concerning the law, as opposed to factual circumstances, did not constitute a valid defence.

Ultimately, the Supreme Court of Tasmania set aside the magistrate's dismissal of the complaint and found the respondents guilty of the offence. The court held that the respondents had taken more than the permitted number of lobster, irrespective of their intentions to return some to the water, thereby violating the Fisheries (Rock Lobster) Rules 1997.

Orders