Kakura & Anor v The Queen

[1990] HCATrans 301

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl30 of 1990

B e t w e e n -

HIROYUKI KAKURA and TOMOYUKI

SATO

Applicants

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

GAUDRON J

Kakura 1 7/12/90

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 DECEMBER 1990, AT 11.45 AM

Copyright in the High Court of Australia

MR B. OSLINGTON, OC:  May it please the Court, I appear with

my learned friend, MR P. JACOBSON, for the

applicants. (instructed by Michell Sillar McPhee

Meyer)

SIR M. BYERS, OC: If Your Honours please, I appear with my

learned friend, MR L.S. KATZ, for the Crown.

(instructed by the Commonwealth Director of Public

Prosecutions)

BRENNAN J:	Mr Oslington.
MR OSLINGTON:	Your Honours, this application concerns the proper construction of the forfeiture provisions in
the Fisheries Act, section 13C(l) and (2). The
applicant was charged with four offences under section 13(l)(h) of the Act, as:

being a person acting on behalf of the holder
of a licence under this Act in respect of a
boat, contravene or fail to comply with a
condition of the licence.

Relevantly there were two licences and the licence conditions are set forth at page 10 of the

application book. Essentially in each licence
there was a condition requiring the licensee to get

master of the boat to make regular reports as to

the number of fish caught, and the second relevant
condition was an obligation to maintain a catch

record. In the instant case, Kakura, although he

sent radio messages, did not make reports as

required by that licence, because the messages

which he sent inaccurately stated the number of

fish which were caught.

Our submission, therefore, is that no report

at all was made and that was the relevant breach of

the licence condition. Secondly, Kakura did not
maintain, at all, the "AFZ catch record", and

accordingly in that respect the licence condition

was breached and thus he was guilty of the offence
under section 13(l)(h).	He is not charged under

section 13(l)(h) with making a false statement, and

the licence conditions which were breached were not

licence conditions, for instance, requiring an

accurate statement to be made. He was, in fact,

charged with an offence of making a false
statement, and that was an offence under

section 14(2)(ba), an offence of making information

which is false. But, on any view of the

construction of the forfeiture provisions,

forfeiture is not attracted for the offence under

section 14.

BRENNAN J:  He is convicted of offences under 13(l)(h), is

he not?

Kakura 2 7/12/90

MR OSLINGTON: 13(l)(h), yes, and it was for the conviction

of the offences under 13(l)(h) that the learned

trial judge concluded attracted the forfeiture

provisions.

DAWSON J:  What happened to the charges under section

14 ( 2) ( ba)?

MR OSLINGTON:  A fine of $2000 was imposed, but that is not before Your Honours. I only draw Your Honours'

attention to it to illustrate the false statement

charge, whereas we say the charges under section

13(l)(h) are not charges of making a false

statement, but simply failing to make a report.

If Your Honours then go to the forfeiture

provisions - - -

DAWSON J: Well, failing to make the required report.

MR OSLINGTON: Failing to make the required report, yes.

Well, the radio messages which was sent, in our submission, simply were not a report, thus the

licence condition was breached.

If Your Honours go to the forfeiture

provisions, section 13C(l), that provides that:

Where a court convicts a person of an offence against section 13 (not being an offence against that section referred to in sub-

section (2) of this section), 13AA or 13B the

court may order the forfeiture of -

(a) a boat, net, trap or equipment used in the

commission of the offence;

(b) fish on board such a boat ..... ;or

(c) the proceeds of the sale of any such fish.

Subsection (2) provides that:

Where a Court convicts a person of an offence

against section 13, being an offence arising

out of his having in his possession or in his

charge a boat for taking fish, or of an

offence against section 13AB, 13BA, 13BB

or 13BC, the Court may order the forfeiture

of -

(a) the boat in relation to which the offence

is committed.

Our first submission is that the legislature,

by including the words "used" in subsection (1),

and the words "having in his possession or in his

Kakura 3 7/12/90

charge" in subsection (2), intended to relate those

words to the offences under section 13, in respect

of which an element of those offences is either the
use of a boat, or an element of the offence is
"having in his possession or in his charge a boat

for taking fish".

If Your Honours will go to the offences under

section 13, Your Honours will see subsection (l)(a)

is an offence in which the words "used" or "be in

charge" are embraced. Subsection (b) are all "use"
offences, with the exception of paragraph (iv)

which is a "possession or charge" offence.

Paragraph (c) is a "use" offence. Paragraph (h) is

capable of including as an element of the offence

the use of a boat, or being in charge of a boat,

depending on the terms of the particular licence

condition. If the licence condition, for instance,
prohibits the use of a boat for a particular
purpose, or in a particular area, an element of the
offence under paragraph (h) would therefore include

the use of a boat.

Subsection (e) creates offences with reference

to regulations made under section 8 of the Act, and

section 8 likewise in the offences adopts the words

"possession or charge" or "use"; for instance,

section 8 ( 1) ( daa) , ( da) , ( e) , ( f) and ( g) .

Accordingly, in our submission, or as our first submission, there is demonstrated a legislative

intent that the forfeiture provisions will only be

attracted to those offences in respect of which

either an element of the offence is the use of a
boat under subsection (1), or an element of the
offence is an offence arising out of "having in his

possession, or in his charge" a boat for taking

fish.

Indeed, there are two legs to subsection (2):

firstly it has to arise out of the offender having

"in his possession or in his charge" a boat "for

taking fish", the second leg being that that boat

is a boat in relation to which the offence is

committed. If we are wrong in that submission, we

put an alternative argument. As a matter of logic,

we would respectively submit that for an offence of

omission, as relevantly the offences under under

section 13(l)(h) were in this case, a boat simply

could not be used as a matter of fact.

DAWSON J:	I am sorry, could you say that again?
MR OSLINGTON:	The offence is one of omission; it is a

failure to make a report. Accordingly, even if

contrary to our submission, one simply looks at the

facts of the offence and determines whether a boat

was used in the commission of the offence. Being

an offence of omission, as a matter of logic, in

Kakura 4 7/12/90

our submission, a boat simply could not be used;

nothing could be used. We did not make a report,

we did not maintain a log. Nothing active was

done. When one turns to subsection (2) the

offence, in our submission, does not arise out

of - - -

DAWSON J: Could I just take you back to that?

MR OSLINGTON:	Yes.
DAWSON J:	If the obligation which your client omitted to

perform arose out of having in his possession a

boat for taking fish, why can you not say that the

omission arose out of that circumstance?

MR OSLINGTON:  The offence, with respect, Your Honour, does

not arise out of the offender having "in his

possession or in his charge" a boat for taking

fish, the offence arises out of the fact, as stated

in paragraph 13(l)(h), that Kakura was a:

person acting on behalf of the holder of a

licence.

DAWSON J: 

He failed to comply with the condition of the

licence which imposed an obligation upon him as the
user of the boat.

MR OSLINGTON: With respect, not, Your Honour. The

obligation imposed on him, to which he pleaded

guilty, was an obligation on him as a:

person, acting on behalf of the holder of the

licence.

They are the words in the paragraph of the section

that the charge is brought under, section 13(l)(h).

But we say, in any event, as to subsection (2),

Your Honour, that the -

BRENNAN J:  How was he acting on behalf of the holder of the

licence? What amounted to his acting on behalf of?

MR OSLINGTON:  He was acting on behalf of the holder of the

licence - - -

BRENNAN J: In doing what?

MR OSLINGTON: Well, he did not do anything, Your Honour, in

failing to make a report.

BRENNAN J:	How was that acting on behalf of the holder of the licence?
Kakura	7/12/90

MR OSLINGTON: Relevantly to the charge or the offence, we

would respectfully submit that it has nothing to do

with acting on behalf of the holder of the licence.

BRENNAN J: But the assumption is that that element of the

offence was established in some way?

MR OSLINGTON: Yes, Your Honour.

BRENNAN J:  How could it have been established against

Mr Kakura?

MR OSLINGTON:  We respectfully submit it should not have

been established against him.

BRENNAN J:  Why was it not established by reference to his

having in possession the boat of the licensee?

MR OSLINGTON:	Your Honour, it may be correct, as a matter of fact, that he had "in his possession or in his
charge a boat for taking fish".
BRENNAN J:	And would that not amount to his acting on

behalf of the holder of the licence?

MR OSLINGTON:  No, Your Honour, because the offence has to

arise out of his having "in his possession or in

his charge a boat for taking fish".

BRENNAN J: 

I appreciate that, but if the element of the

offence to which I am directing your attention
consists of his having possession of the boat, that

element being the element necessary to establish

that he was acting on behalf of the holder of the

licence, then cadit quaestio.

DAWSON J: 

Can I just add to that, the licence is in respect of the boat, is it not?

MR OSLINGTON:  Yes, it is, Your Honour. The licence is

issued to the owner and is in respect of the boat.

DAWSON J: Yes.
MR OSLINGTON:	Your Honour, in any event, in our submission,

it was not the boat in relation to which the offence was committed; it was the licence in respect of which the offence was committed. There

are two legs in subsection (2). Even if it be

concluded that it need not be an element of the

offence, that the offence arose out of his having
"in his possession or in his charge a boat for
taking fish", as a matter of fact, the offence was

not committed in relation to the boat, the offence

was committed in relation to the licence.

Kakura 6 7/12/90

BRENNAN J: That depends on the connection that is imported

by the words "in relation to", does it not?

MR OSLINGTON:  Yes, Your Honour. Your Honour, it really is

a short construction point.

BRENNAN J: Yes.

MR OSLINGTON:  It probably is not improved by saying it

twice.	We rely on Murphy v Farmer and that line of
authority.	We would respectfully submit that the

section certainly is not clear in its meaning and,

if Your Honours conclude that it is open to two

constructions, one of those constructions being a construction which does not result if forfeiture,

Your Honours ought to adopt that construction.

GAUDRON J:  Mr Oslington, can I ask this? I note that the

application is to appeal against the forfeiture

order; I am just wondering how that can be,

particularly when regard is had to the statement of

the judge at first instance, that the amount of the
fines was influenced by the forfeiture, and if it

must be the whole order that is the subject of

appeal, and I am wondering why the supreme court,

in one or other of its divisions, did not have

jurisdiction.

MR OSLINGTON:  I should say, Your Honour, one of the reasons

we are seeking special leave is that because of a
quirk in the New South Wales legislation and the

rules neither the Court of Appeal nor the Court of

Criminal Appeal has jurisdiction to entertain an

appeal against the forfeiture order in this case.

The Court of Criminal Appeal, of course, may have

had jurisdiction to entertain an appeal as to the

penalties imposed, but we did not appeal against

those penalties.

GAUDRON J: Yes, but I am wondering is an appeal is

competent other than in terms of the entirety of

the order?

MR OSLINGTON: 

If it is necessary, and if we are granted

leave, we would not be opposed to - well, we do not
complain about the fines, Your Honour. If we are

entitled to keep the boat, we would not want to

upset the fines and trouble Your Honours with that
question.

BRENNAN J: Yes, that is understandable, Mr Oslington.

MR OSLINGTON: Those are our submissions, Your Honour.

BRENNAN J: Sir Maurice.

Kakura 7 SIR M. BYERS, QC 7/12/90

SIR MAURICE:  Your Honours, we submit that the words in

section 13C(2):

being an offence arising out of his having in
his possession or in his charge a boat for

taking fish.

direct attention to the facts that have been proved

in the establishment of the offence under

section 13(1). By hypothesis, section 13(1)

applies - not because my learned friends have

pleaded guilty and they do not dispute that. So

what section 13C is doing is to set two regimes:

one regime is where you have an offence against

section 13 relevantly, then you:

may order forfeiture of -

(a) a boat, net, trap of equipment used in the

commission of the offence -

fish and boats and so on, and the other is, where a

court convicts a person of an offence against

section 13, of a particular character in the sense

that the facts show that that person committed that

offence because he had in his charge the

possession or control of a boat. Now, Your

Honours, Mr Kakura was the master, and if

Your Honours looks to section 4 of the Act,

Your Honours will observe that "master" means:

the master or other person in charge of the

boat.

So that, in our submission, what the relevant words

are using are not the constituent elements of the
offence but facts that may be established in the

conviction which the anterior words of the section

refers to because Your Honours see where a court

convicts a person of an offence against

section 13, it begins. So the hypothesis is that a

man has been convicted of an offence against

section 13, and then, it then isolates it and they

say, "Well, it is an offence, Not an offence of

having in possession or charge a boat but an

offence arising out of this possession or charge",

which are totally different notions.

So that, in our submission, takes one to an

inquiry into what were the facts established. If

you discovered that the facts established were: he

committed an offence - any offence - against

section 13(1) because he was the master and thus

had charge of the boat and thus could use the boat;

or could use the boat for taking fish and so on;

or commit offences against paragraph (c);

committed offence against paragraph (d); or have

Kakura 8 SIR M. BYERS, QC 7/12/90

in his possession or under his control under

paragraph (e); or being the holder of a licence -

that does not matter here; or being the holder of

a licence in respect of a boat, of course that

would not apply here; being a person acting on

behalf, that would apply.

Now he acts on behalf because he is the master

and he is the person who is employed as master by

the owner of the boat; and so he acts on behalf of

the holder of the licence and he uses the boat to

catch fish and therefore, being obliged by

section 9 and 2 both to hold a licence, 9(1)

and 9(2) of the Act, to be licensed as a master

fisherman and for the owner to have a licence of

the boat. And then the licence of the boat has the

conditions in it which say - you have got it in

substance, my learned friend has referred to them,

and Your Honours will see them at page 10, but it

says:

The master of the boat ..... shall report -

looking at the top one at line 5 -

to the Federal Sea Safety Centre the floating longline catch in the Australian fishing zone for each two day period.

Now obviously he is doing that from the boat because the licence extends over a period of time,

and clearly, in our respectful submission, making a

false statement as to what you have caught, saying,

"I caught five fish," instead of "twenty-five fish"

is a breach, in our submission, of the obligation

to truly report, which obviously is what it means,

and the same also is the obligation to keep a

record; that does not mean a fanciful record, it

means a true record.

DAWSON J:  The argument is that if the obligations arises

out of having possession, or having in charge a

boat, then the omission - that is the failure to

comply with the obligation - also must necessarily

arise out of the same -

SIR MAURICE:  Yes, Your Honour.

DAWSON J: That is a simple - - -

SIR MAURICE:  We would submit, Your Honour, it is quite

obvious that it does, because all these things must

take place on the boat; you must make your reports

on the boat, you must keep your records on the

boat.

Kakura 9 SIR M. BYERS, QC 7/12/90

DAWSON J:  He would not have had to do it if he did

not - - -

SIR MAURICE:  If he did not have the conditions in the

licence, and you would not have the conditions in

the licence unless someone held a licence and you were acting for that person in not complying with the conditions of the licence. Indeed, on the

facts of this case, the master, Mr Kakura, who was
master of the owner, of course, and Mr Sato, who
was the executive managing director of the owner,

put their heads together and decided they would

make false reports, because one type of fish, the

Southern Blue Fin Tuna was, on any view, immensely

more valuable than the other type of tuna,
Albacore Tuna: one selling at $48 a kilo, the other

selling at $3, and so they understated the $48 and

overstated the $3, so the effect of what they did

was to fish out the scarce species. So we would

respectfully submit that the whole circumstances

arose in relation to the boat and arose in relation to the licence and that the Court of Appeal and the learned judge below were correct in making the

orders they did.

I do not want to say anything about whether

there was any jurisdiction or not, Your Honours, in

the Court of Criminal Appeal. That is all I

would wish to say on the question of application

for special leave, Your Honours.

BRENNAN J:	Mr Oslington?
MR OSLINGTON:	Your Honour, with respect, my learned

friend's analysis of the facts and the route by

which he arrives at a conclusion that the offence

arose out of Kakura having in his possession or in
his charge, a boat, is really, when analyzed, an
application of the "but for" test, which abounded

at some stage in the law of tort. In our

submission, the use of such a test in the

construction of criminal or forfeiture provisions

in a statute is inappropriate and the statute ought

to be construed strictly, and when one sees the

offence charged namely, an offence of:

a person acting on behalf of the holder of a

licence -

that is the offence with which he is charged, and

it is impermissible, in our submission, to say,

"Well, even though the offence is an offence of him

being a person acting on behalf of the holder of
the licence, and he also happens to have in his
possession or in his charge, the boat", that is not

a permissible way, in our submission, in which the

Kakura 10 7/12/90

statute ought to be construed so as to result in

forfeiture.

BRENNAN J:  The argument put against you though,

Mr Oslington, is this, as I understand it, that,

"arising out of" directs the Court to look at the

circumstances of the instant case, and if one sees

that in some real or substantial or tangible sense,

the offence, that is, the constituent elements of
fact of the offence, arise out of the use of the

boat, then that is sufficient.

MR OSLINGTON:  We would respectfully submit that the better

course is to look at the terms of the section under

which the offence was committed in order to

determine whether that offence arose out of a

particular set of facts.

BRENNAN J: Yes.

MR OSLINGTON:  And it is immaterial that it might also be

concluded, as a matter of fact, that he happened to

have possession or charge of the boat. What the

relevant inquiry is, did this offence arise out of

his having in his possession, or in his charge, a

boat? And when one looks at the section under

which he is charged, it is quite plain: no, it did

not; it arose out of him being a person acting on
behalf of the holder of the licence, and as our
second leg, in any event, this offence - or the

boat was not used in relation to the offence.

BRENNAN J: Having regard to the facts of the offences of

which the appellant was convicted, the validity of attended with sufficient doubt to warrant the grant of special leave. Special leave is accordingly refused.

the order of forfeiture under section 13C(2) of

AT 12.14 PM THE MATTER WAS ADJOURNED SINE DIE.

Kakura 11 7/12/90