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Mayes v Tasmania

Mayes v Tasmania

Case [2005] TASSC 126 19 December 2005

Regulatory Compliance

Unlawful Possession

Administrative Penalties

Regulatory Interpretation

Environmental Law

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[2005] TASSC 126

CITATION: Mayes v Tasmania [2005] TASSC 126

PARTIES:  MAYES, Nigel Joseph
  v
  TASMANIA, STATE OF

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 89/2004
DELIVERED ON:  19 December 2005
DELIVERED AT:  Hobart
HEARING DATE:  25 – 26 August 2005
JUDGMENT OF:  Crawford and Blow JJ, Hill AJ

CATCHWORDS:

Primary Industry – Fish – Offences – Other cases – Possession of fish with value exceeding $5,000 without lawful excuse – Whether holding of licence constitutes lawful excuse – Validity and meaning of regulation prohibiting possession of more than 20 abalone.

Living Marine Resources Management Act1995 (Tas), s264(1).
Living Marine Resources Management Amendment Act 2000 (Tas), s13(1)(a).
Fisheries (Abalone) Rules 2000 (Tas), rr17(1)(c), 20(3)(b), 35.
Aust Dig Primary Industry [35]

REPRESENTATION:

Counsel:
             Appellant:  D J Porter QC
             Respondent:  D G Coates SC
Solicitors:
             Appellant:  Chris Boland
             Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 126
Number of paragraphs: 121

Serial No 126/2005
File No CCA 89/2004

NIGEL JOSEPH MAYES v STATE OFTASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
BLOW J
HILL AJ
19 December 2005

Order of the Court:

Appeal dismissed.

Serial No 126/2005
File No CCA 89/2004

NIGEL JOSEPH MAYES v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  19 December 2005

For the reasons for judgment of Blow J, I agree that the appeal should be dismissed. However, I wish to make some remarks concerning the third ground of appeal.

It is the appellant's argument that the Fisheries (Abalone) Rules 2000, r29(3)(b) was ultra vires because of uncertainty and unreasonableness. It purported to require that the holder of a fishing licence (abalone dive) complete Part A of a diver's docket "before the abalone leave the landing area" if the processing premises, to which the abalone were to be delivered, were not located within the landing area. It was submitted for the appellant that the meaning of "landing area", as provided by r35(1), was so vague and imprecise as to make the requirement of r29(3)(b) uncertain and unreasonable. The only landing area as defined in that rule, which could conceivably apply to the circumstances of this case, was in par35(l) in terms "at any other place, the area within a radius of 50 metres on the landward side from the high tide mark closest to the point of landing".

Many examples can be found of the use of either high or low water marks as boundaries in statutes, delegated legislation and the common law. No authority was cited in support of the proposition that the expressions are uncertain or unreasonable. In Smart & Co v Town Board of Suva [1893] AC 301 the Judicial Committee was concerned with a proclamation made pursuant to the powers given by an ordinance, that defined some of the boundaries of Suva by reference to the high water mark. The western boundary, which was so defined, was held to vary from time to time as the high water mark…

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 Mayes v Tasmania

Details

AGLC: Mayes v Tasmania [2005] TASSC 126
Case: [2005] TASSC 126
Decision Date: 19 December 2005

CaseChat Overview and Summary

In the case of Mayes v Tasmania, the defendant, Mayes, was charged with possession of abalone exceeding a certain value without a lawful excuse. The dispute arose from Mayes' possession of abalone in excess of the allowable quantity under Tasmanian regulations. The matter was heard by the Supreme Court of Tasmania. The central legal issue before the court was whether the possession of abalone, despite holding a relevant licence, constituted a lawful excuse under the statutory provisions. Furthermore, the court had to determine the validity and interpretation of the regulation prohibiting possession of more than 20 abalone.

The court examined the statutory provisions and regulatory framework governing the possession of abalone. It considered the argument that holding a licence provided a lawful excuse for possessing abalone in excess of the regulated quantity. The court found that the statutory language did not explicitly provide for such an excuse, and therefore, holding a licence did not exempt one from the regulatory limit. Additionally, the court addressed the interpretation of the regulation prohibiting possession of more than 20 abalone, concluding that the regulation was valid and unambiguous in its restriction. Consequently, the court determined that the defendant's possession of abalone without lawful excuse was in breach of the statutory provisions.

The Supreme Court of Tasmania upheld the charges against Mayes, finding that the possession of abalone in excess of the regulatory limit was not justified by holding a relevant licence. The court's decision reinforced the importance of adhering to regulatory restrictions on the possession of protected marine species, regardless of the holder's licence status. The final orders of the court included the conviction of Mayes for the possession of abalone without lawful excuse and any other consequential orders as deemed appropriate by the court.

Orders