Maher v Paul

[1991] TASSC 117

Serial No B3/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Maher v Paul [1991] TASSC 117; B3/1991

PARTIES:  MAHER
  v
  PAUL, Wayne Emerson

FILE NO/S:  LCA 128/1990
DELIVERED ON:  18 February 1991
JUDGMENT OF:  Wright J

Judgment Number:  B3/1991
Number of paragraphs:  15

Serial No B3/1991
List "B"
File No LCA 128/1990

MAHER v WAYNE EMERSON PAUL

REASONS FOR JUDGMENT  WRIGHT J

19 February 1991

1. Complaints were laid against the respondent; firstly, that on 29 January 1989 he unlawfully took three undersized crayfish, secondly, that on the same date he was unlawfully in possession of three undersized crayfish and thirdly, that on the same date he used from a boat, three crayfish pots in excess of the number of crayfish pots to which he was entitled pursuant to a non–commercial crayfish licence. The complaints were heard in the Court of Petty Sessions at Hobart on 10 December 1990.

1. At the completion of the prosecution evidence the learned magistrate upheld a "no case" submission in respect of the first and second complaints and dismissed them. He rejected a "no case" submission on the third complaint but upon the respondent electing to call no evidence, he dismissed that complaint also. The complainant now moves this Court to review the decisions of the learned magistrate on the basis that he erred in fact or law in coming to the conclusions that he did.

1. During the course of argument, much was made by counsel for the respondent of alleged inadequacies, contradictions and inconsistencies in the prosecution evidence. However these matters are irrelevant in considering the question of whether or not the respondent had a case to answer. Unless the contradictions or inconsistencies are of such a nature or degree that no reasonable jury, properly instructed, could have convicted on the basis of the evidence given, considerations of this kind can have no bearing upon such a question. There is no need to refer in detail to the principles which must be borne in mind by a court when a "no case" submission is made. Such a submission is a submission in law and does not call for the exercise of discretion. See Lowe v Goodluck 91/985 per Underwood J.

1. It is my opinion that upon the evidence given at the trial the respondent had a case to answer in respect of the complaints alleging that he took and was in possession of undersized crayfish. The complaints alleged that he took and was in possession of three crayfish, whereas it is plain that the evidence of the Fisheries officers would only justify a finding that he took two such fish. However a discrepancy of this kind between the complaint and the evidence does not of itself justify the dismissal of the complaint.

1. The respondent was seen by Fisheries officers to remove two crayfish from a crayfish pot and place them in the boat in which he was travelling with three other people. When subsequently intercepted after he and his son had pulled and inspected other crayfish pots in the vicinity, it was found that there were three undersized crayfish in the boat, two females and one male. Adverting to the fact that the respondent was only seen to take two crayfish from a crayfish pot, and that there were three crayfish in the boat when it was apprehended, the learned magistrate said:

"Now if the case were to stop here how could I say – how could I convict the man of taking three crays? He was only seen to take two and I can't pick one out and put it aside and said 'well forget about that one and make these two' because you wouldn't know whether you were taking out the right crayfish or not. So as I say, the prosecution here has a problem of identification, which of these three crays were the two that he took from the pot? And so quite clearly it would not only be unjust and indeed dangerous to convict the defendant on the evidence as it stands of taking three crayfish ...".

1. Plainly however, this is an erroneous process of reasoning. There were three undersized crayfish in the boat. The respondent had been seen to take two crayfish from a crayfish pot and put them in the boat. Where the third crayfish came from is of course a matter of speculation. The respondent may have taken it from any of the crayfish pots unnoticed by the watching Fisheries officers. His son may have taken it from one of the pots. The crayfish may have been in the dinghy before it left shore. There are no doubt other possibilities. However, there were three undersized crayfish in the boat. It is therefore immaterial which two of the three were placed there by the respondent. Whichever two they were, it can safely be said that the two crayfish taken by the respondent were undersized.

1. Counsel for the respondent submitted that there was no evidence that the three crayfish in question were the only crayfish in the boat at the time, and he therefore argued that it could not safely be inferred that any of the three undersized crayfish had been placed there by the respondent or were under his control. However, in my opinion, having regard to the whole of the evidence, including Sergeant Cole's conversation with the respondent as to his intention to measure the fish coupled with the absence of any cross–examination of prosecution witnesses to suggest that there were in fact other crayfish in the boat, it is my opinion that it would be a completely permissible inference for a tribunal of fact to draw that the three crayfish in question were the only crayfish in the boat at the time it was intercepted.

1. Constables Edmonds and Allen both described the respondent's boat as a "white aluminium runabout". Sergeant Cole described it as a "white aluminium dinghy with a stripe along the side fitted with a forward windscreen". Sergeant Cole also said that the respondent was seated in the rear of the vessel and was steering the outboard motor. Constables Edmonds and Allen also described the way in which they observed the respondent pull three crayfish pots, including the first pot from which two crayfish were taken and his son, Christopher, pull two other crayfish pots. The other occupants of the boat, Miss Dean and Mr Cushion, were seated in the forward part of the boat and did not participate in any fishing activities whilst it was under observation by Fisheries inspectors.

1. Evidence was also given that two of the five crayfish pots which were pulled that morning were subsequently found to be licensed in the names of the respondent and his son and were accordingly returned to them later during the day.

1. During the course of Sergeant Cole's evidence he said:

"Edmonds asked the defendant (respondent) why the crayfish were in the vessel and he said he and his son had been setting nets and had lost their crayfish measure while doing so. He said he was proceeding ashore to measure the crayfish. He asked the defendant why he used five crayfish pots – he said they had only used two and pulled both on one occasion to get the fish out and again later to rebait them. Edmonds then asked the defendant his full name and address which was given as Wayne Emerson Paul, 20 Alwyn Avenue, Lenah Valley. 'I have seen you in possession of three undersized crayfish here at Eaglehawk Neck this morning'. Formally cautioned, asked did he understand and he said 'yes'. 'I've seen you use five crayfish pots this morning' and again cautioned him and asked did he understand. He said, 'get on with it'. Asked defendant did he agree that he had been crayfishing north of Clyde's Island that morning and he said, 'I won't answer no more of your questions'. Edmonds then asked, 'Do you agree that you have three undersized crayfish in your possession'. He said, 'they are not in my possession, how many times do I have to tell you we were setting nets and my son lost his measure and knife, we were going to measure the fish'."

1. In my opinion a tribunal of fact which concluded that the respondent had taken two of the three undersized crayfish could readily conclude that he, the respondent, was also in possession of those two crayfish at the time he was apprehended by the Fisheries patrol vessel. Indeed, irrespective of the evidence that the respondent had been seen to take two of these fish, I think a reasonable tribunal of fact could conclude beyond reasonable doubt, that the respondent was in joint or sole possession of all three of the undersized fish at the relevant time. They were in a small boat of which he had control and he claims that he was going ashore with a view to measuring them. Accordingly, I am of the opinion that in respect of the first complaint there was a case to answer and the learned magistrate was in error in upholding the respondent's submission of no case, at least in respect of two of the crayfish. I am of the same view in respect of the second complaint, but here, in my opinion, there was a case to answer in respect of all three crayfish.

1. I turn now to consider the third complaint. Here however, the learned magistrate held that there was a case to answer, but dismissed the complaint on its merits. In other words, he was not satisfied as a tribunal of fact beyond reasonable doubt of the respondent's guilt. To succeed on the motion to review in respect of this complaint the prosecution must show that the learned magistrate fell into error. In my opinion the applicant has been unable to demonstrate error on the part of the learned magistrate. Whilst on the evidence it may be said that the respondent pulled at least one pot other than the pots for which he or his son held a licence, it is not an inevitable conclusion that in doing so he was "using" that pot. See Bennison v Scott [1967] Tas SR, p193.

1. There was no evidence that the respondent had set or baited any of these pots. He was seen to take two crayfish from only one pot. This may have been his own pot. It is possible that the other pots were empty. As counsel suggested, it is possible that he had been requested by the owners and licence holders of the other pots, to inspect the pots on their behalf but not to take the fish from the pots. In such circumstances it would be difficult to conclude that he was "using" the pots in question. Of course if he pulled the pots intending to take fish from them, whether with or without the authority of the licensed pot holders, he would plainly be "using" the pots within the meaning of the relevant regulations. It was, I think, open to the learned magistrate to conclude that the prosecution had not shown beyond reasonable doubt that the respondent's intention at the relevant time was to take fish from the pots. It is unnecessary to say whether I would have come to the same conclusion. It is a question of whether such a conclusion was a legitimate conclusion for the learned magistrate to reach on the evidence before him. In my opinion it was. Consequently the motion to review in respect of the third complaint must fail.

1. The motion to review will be allowed in respect of the first and second complaints and those complaints will be remitted to the Court of Petty Sessions for retrial before another magistrate.

1. The motion to review will be dismissed in respect of the third complaint.