Moloney v Ostrowski

[1999] WASCA 259

MOLONEY -v- OSTROWSKI [1999] WASCA 259

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 259
Case No:	SJA:1148/1999	Heard:	11 NOVEMBER 1999
Coram:	HEENAN J	Delivered:	11/11/99
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	DAVID MICHAEL MOLONEY GEORGE PETER OSTROWSKI
Catchwords:	Criminal law Fisheries Abalone Taking for purpose of barter Not authorised commercial purpose Appeal against conviction
Legislation:	Fish Resources Management Act 1994 s 50(3)(4)(a)
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MOLONEY -v- OSTROWSKI [1999] WASCA 259 CORAM : HEENAN J HEARD : 11 NOVEMBER 1999 DELIVERED : 11 NOVEMBER 1999 FILE NO/S : SJA 1148 of 1999 BETWEEN : DAVID MICHAEL MOLONEY

Appellant

AND

GEORGE PETER OSTROWSKI
Respondent

Catchwords:

Criminal law - Fisheries - Abalone - Taking for purpose of barter - Not authorised commercial purpose - Appeal against conviction

Legislation:

Fish Resources Management Act 1994 s 50(3)(4)(a)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Mr P J Ward
Respondent : Mr A J Sefton

(Page 2)

Solicitors:

Appellant : Peter Ward
Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):
Nil

Case(s) also cited:

Nil

(Page 3)

1 HEENAN J: This is an appeal from the decision of Mr R M Glynn SM in the Court of Petty Sessions at Esperance on 4 August 1999 whereby he convicted the appellant on the charge of taking more than the specified daily bag limit of abalone, contrary to the provisions of the Fish Resources Management Act 1994.

2 Section 50(3) of the Act prohibits the taking on any one day of more fish than the bag limit of those fish. The bag limit is set by regulations. For abalone the limit is 10. Subsection (4)(a) provides that it is a defence in proceedings for an offence against subsection (3) for the person charged to prove that "the fish were taken for a commercial purpose by a person in accordance with an authorization."

3 The appellant is a professional fisherman operating from Hopetoun, a port on the southern coast of Western Australia. Subject to certain restrictions he is authorised to take abalone from the waters of the Southern Ocean west of Shoal Cape, which is situated about 100 kilometres east of Hopetoun and 65 kilometres west of Esperance. His authority is derived from a licence granted in accordance with the provisions of the Abalone Limited Entry Fishery Notice 1992 published in the Government Gazette WA on 14 August 1992 at pp 4030 - 4036 and issued by the Minister under s 32 of the Fisheries Act 1905. The licensee now resides in Tasmania and the appellant operates the licence as his approved nominated diver pursuant to cl 10 of the Notice. One of the restrictions is that the person operating the licence "shall retain both the shell and the shucked meat of all abalone taken until the meat is consigned to" a specified processing establishment (cl 15(2)(b) of the Notice).

4 On 31 July 1997 the appellant took a total of 247 abalone. He consigned 131 of them to a specified processing establishment but retained possession of the balance. On the following day fisheries officers questioned him about the 116 abalone in his possession, pointing out that he had retained 106 in excess of the daily bag limit of 10. The appellant told them that he had arranged some days earlier to exchange the abalone for meat to be provided for guests at his engagement party which was to be held a week later.

5 At the hearing before the learned Magistrate counsel for the appellant based his defence on the provisions of s 50(4)(a) of the Fish Resources Management Act 1994. In the course of the reasons which he delivered at the end of the hearing his Worship acknowledged that taking abalone for the purpose of barter would be taking it for a commercial purpose. Then his Worship went on to consider whether the taking in this case was "in

(Page 4)

accordance with an authorization". Having referred to the licence granted pursuant to the Notice he said:

"Where's the authorization contained in there for him to do anything other than take abalone and consign them to a nominated fish processing establishment? Where is that authorization? … The only authorization he has to take abalone is the … licence and (it) requires him to take fish in accordance with its conditions or in accordance with the provisions of the Fish Resources Management Regulations. …. The man is not authorised. The defence cannot apply to him."

6 On the appeal counsel submitted that, as the offence was one of "taking" abalone - an act which was complete by the time the appellant had landed his catch for the day - a subsequent contravention of the licence conditions, the regulations or the Notice could not have the effect of depriving him of any defence in relation to the taking. However, as his Worship pointed out, the licence was the appellant's only authority to take abalone in excess of the bag limit and the Notice restricted him then to retaining the abalone until he consigned them to a specified processing establishment. At the time of his taking the abalone the appellant had intended to barter them for meat. Thus he had not taken them "for a commercial purpose … in accordance with an authorization". He had taken them for an entirely different purpose. That being so, I conclude that the learned Magistrate was correct in finding that the defence did not apply.

7 The appeal fails.