Konestabo v Brown
[2001] TASSC 152
•20 December 2001
[2001] TASSC 152
CITATION: Konestabo v Brown [2001] TASSC 152
PARTIES: KONESTABO, Eric Steven
v
BROWN, Maxwell Graeme
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 92/2001
DELIVERED ON: 20 December 2001
DELIVERED AT: Hobart
HEARING DATES: 3 December 2001
JUDGMENT OF: Evans J
CATCHWORDS:
Statutes - Acts of Parliament - Interpretation - Rules of construction - Particular rules - Maxim expressum facit cessare tacitum.
Fisheries (Abalone) Rules 2000, rr17(1)(c), 20(1)(a) and 21(a).
Living Marine Resources Management Act 1995, s264(1) and Pt 3, Div 1.
Aust Dig Statutes [16].
REPRESENTATION:
Counsel:
Applicant: T L McDermott
Respondent: M P Shirley
Solicitors:
Applicant: T L McDermott
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 152
Number of Paragraphs: 9
Serial No 152/2001
File No LCA 92/2001
ERIC STEVEN KONESTABO v GRAEME MAXWELL BROWN
REASONS FOR JUDGMENT EVANS J
20 December 2001
The applicant faces the following charges:
"CHARGE: Unlawfully possess more than 20 abalone.
BREACH OF: Rule 17(1)(c) Fisheries (Abalone) Rules, 2000.
PARTICULARS: You are charged with, on or about the 12th March, 2000 at Deal Island in Tasmania, having possession of more than 20 abalone, namely 2,436 abalone of the species Haliotis, at a time when you did not have the third copy of the completed divers docket relating to the abalone with the abalone to which the docket relates, or have a receipt relating to the purchase of the abalone from a fish merchant with the abalone to which the receipt relates.
AND FURTHER: 2 -
CHARGE: Possess detached abalone on a vessel.
BREACH OF: Rule 20(1)(a) Fisheries (Abalone) Rules, 2000.
PARTICULARS: You are charged with, on the 12th March, 2000 in State waters at Deal Island in Tasmania on a vessel, having possession of 2,433 abalone of the genus Haliotis each had been detached from their shells.
AND FURTHER: 3 -
CHARGE:Possess abalone meat, other than greenlip abalone meat, less than 90 grams in weight.
BREACH OF: Rule 21(a) Fisheries (Abalone) Rules, 2000.
PARTICULARS: You are charged with, on the 12th March, 2000 in State waters at Deal Island in Tasmania, having possession of 704 abalone meats of the genus Haliotis, such not being greenlip abalone meat, when each of those abalone meats were less than 90 grams in weight."
When the applicant appeared in the Court of Petty Sessions to plead to the charges, his counsel submitted that, by reason of the Living Marine Resources Management Act 1995 ("the Act"), s264(1), the Court was without jurisdiction. The learned magistrate rejected the submission, and the applicant has appealed against that decision.
I set out below the Act, Pt 9, Div 9, which contains the section relied upon by counsel for the applicant:
"Division 9 - Criminal Offences
Illegal possession of fish
264 (1) A person who, without lawful excuse, has possession of fish with a value exceeding $5000 is guilty of an indictable offence punishable under the Criminal Code.
(2) The court is to determine the value of fish in accordance with section 269.
False or misleading records
265 A person is guilty of an indictable offence punishable under the Criminal Code if that person, in keeping any records, accounts or other information under this Act –
(a) makes a statement knowing it to be false or misleading; or
(b)omits any matter from a statement knowing that without that matter the statement is false or misleading.
Application of certain Act
266 The provisions of the Crime (Confiscation of Profits) Act 1993 apply to an indictable offence under this Division as if fish were property within the meaning of that Act."
It is common ground that the value of the abalone, which are the subject of each of the three charges against the applicant, exceeds $5,000. Abalone are fish for the purposes of the Act, s264(1). Accordingly, it would have been open to the prosecutor to charge the applicant with a breach of that section in respect of the conduct which is the basis of the charges he faces for breaches of the Fisheries (Abalone) Rules 2000 ("the Rules"), rr17(1)(c), 20(1)(a) and 21(a).
Counsel for the applicant, in substance, submits that the Act, s264(1), is a procedural provision which requires that where an offender is to be prosecuted for an offence which includes as an element the possession of fish, if the value of the fish exceeds $5,000, the offender must be prosecuted for a breach of that section. The corollary to this submission is that in those circumstances the offender cannot be charged in relation to the conduct with a breach of the Rules. It is of relevance to this submission that the Rules are made pursuant to the rule making provisions contained in the Act, Pt 3, Div 1. In developing this submission, counsel for the applicant sought to equate the Act, s264(1), with the Justices Act 1959, Pt VIII, which sets out the circumstances in which charges of breaching certain sections of the Criminal Code Act 1924 ("the Code"), may be dealt with as simple offences. The heading and first section of that part are:
"Part VIII ¾ Crimes Triable Summarily
71 (1) Where a person is brought before justices upon a complaint for an offence under –
(a)one of the sections of the Criminal Code referred to in Schedule 2 in respect of property the value of which does not exceed $500; or
(b)section 278 or 279 of the Criminal Code in respect of a document, seal, or die which relates to an amount not exceeding $500, whether as the consideration for a transaction or dealing or otherwise –
the section creating that offence shall, unless the justices think that the offence should be dealt with in the Supreme Court, be deemed, subject to subsection (2), to have created a simple offence, and the complaint shall be dealt with accordingly.
(2) An offence mentioned in subsection (1) may be dealt with in the Supreme Court unless –
(a) the person arraigned therefor has been convicted therefor;
(b)a complaint against him therefor has been dismissed upon summary trial by virtue of that subsection; or
(c) a complaint against him therefor has been dismissed under the Sentencing Act 1997 or he has been released on probation under that Act on the hearing of proceedings relating to such an offence."
Neither the above section nor any of the other sections contained in Pt VIII create new offences. The clear purposes of Pt VIII is to detail the circumstances in which a breach of a particular section of the Code is to be dealt with as a simple offence and tried summarily. In contrast, the Act, s264(1), is contained in a division headed "Criminal Offences" which includes two sections creating offences and a further section which provides that the provisions of the Crime (Confiscation of Profits) Act 1993, apply to these offences as if fish were property within the meaning of that Act. There is no basis for equating the Act, s264(1), with the Justices Act, Pt VIII. I am unable to construe the Act, s264(1), in the way contended for by counsel for the applicant.
A further submission advanced on behalf of the applicant is that, the Rules are ultra vires, insofar as they create offences which may result in a person being prosecuted for being in possession of abalone which have a value in excess of $5,000. In support of this contention, counsel relies upon the maxim expressum facit cessare tacitum, which broadly means that when there is an express mention of certain things in a statute, then anything not mentioned is excluded. In substance, counsel for the applicant argues that the Act, s264(1), specifies a course to be followed when a person is prosecuted for being in possession of fish with a value exceeding $5,000 without lawful excuse, and that the existence of this provision in the Act should be understood to mean that no other provision in the Act covers the same field. Counsel referred to the following passage from D C Pearce and R S Geddes Statutory Interpretation in Australia, 4th ed, Butterworths, 1996 at 108:
"However, there are some particular uses of expressum facit to which attention should be paid.
First, where a particular procedure is designated to achieve something, other procedures are thereby excluded. There are two principal authorities. In Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, Gavan Duffy CJ and Dixon J said at 7:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
The second case is R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529. At 550 Dixon J said: 'an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not be done according to some other course'. In that case, a section that indicated the manner in which an arbitrator was to deal with a particular issue precluded the arbitrator dealing with that mater in accordance with more general procedures provided for in the Act."
It is well recognised that the principle of construction encompassed by the maxim expressum facit cessare tacitum is to be applied with caution: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 575. In Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 632, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said, with reference to the maxim:
"However, that maxim, whilst a valuable servant, is apt to be a dangerous master …".
The maxim is no more than a guide to ascertaining the intention of the legislature. To that end, the section under consideration must be viewed in the context of the whole of the enactment in which it is contained. The sections contained in the Act, Pt 3, Div 1, set out in considerable detail powers to make rules under the Act in relation to fisheries. Relevantly, they include powers to makes rules as to:
· the quantity of fish that may be taken, (s35(a));
· the possession of fish taken in a fishery, (s39(b));
· the possession of a greater quantity, weight or volume of fish of a specified species than the quantity, weight or volume specified in a management plan in respect of that species of fish, (s39(l)); and
· the size, weight or any other characteristics of fish which may be possessed, (s40C(f)).
Significantly, the Act, s42, authorises the making of rules which provide that a contravention of, or a failure to comply with, any of the Rules is an offence. In my view, this section, coupled with the sections authorising the making of rules governing a wide variety of matters, including the possession of fish, strongly indicate that the legislature did not intend the Act, s264(1) to have the confining effect for which counsel for the applicant contends. Ordinarily there is no reason for concluding that the inclusion in a statute of a section which creates an offence indicates an intention that another section in the statute which authorises the making of rules which create offences, does not authorise the creation of offences touching or concerning the same subject matter as that dealt with by the section creating the offence. I am unable to discern from the Act, s264(1), any intention that because of its presence the authority granted by the rule-making provisions in the Act should be read down. On occasions, different statutes create similar offences. Instances include the offences of assaulting a police officer in the due execution of his duty, assault and unlawfully destroying or injuring property which are catered for by the Criminal Code Act 1924, ss114, 184 and 273, as well as the Police Offences Act 1935, ss34B(1)(a)(i), 35(1) and 37(1). It is not unknown for a statute to create similar offences in different sections and provide that a breach of one of the sections should be dealt with summarily, whilst a breach of the other section should be dealt with as an indictable offence. The Poisons Act 1971, ss47(3) and 55(1)(b), both proscribe the sale and supply of a prohibited substance, with a breach of the former being an indictable offence and a breach of the latter being a summary offence.
I reject the submission that the Rules are ultra vires. I am satisfied that the Court of Petty Sessions has a jurisdiction to deal with the charges which the applicant faces. The appeal is dismissed.
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