Murfet v Visser - [2000] TASSC 35

[2000] TASSC 35

CITATION: Murfet v Visser [2000] TASSC 35

PARTIES:  MURFET, Ricardo Thomas
  v
  VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 33/1998
DELIVERED ON:  7 April 2000
DELIVERED AT:  Burnie
HEARING DATES:  7 April 2000
JUDGMENT OF:  Evans J
CATCHWORDS:

Primary Industry - Fish - Offences - Other cases - Special penalty for offence of possessing abalone - Calculation by weight or number of abalone above the prescribed maximum.
Fisheries Rules (1996) (Tas) r29(1)(b).
Living Marine Resources Management Act 1995 (Tas), ss4, 267, 269.
Fisheries (Value of Fish) Order (1996), r4.
Blake v Richardson [2000] TASSC 15, followed.
Aust Dig Primary Industry [35]

REPRESENTATION:

Counsel:
           Applicant:  S J N Brown
           Respondent:  F C Neasey
Solicitors:
           Applicant:  Clarke & Gee
           Respondent:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 35
Number of Paragraphs: 9

Serial No 35/2000
File No LCA 33/1998

RICARDO THOMAS MURFET
v
CLAAS VISSER

REASONS FOR JUDGMENT EVANS J
(DELIVERED ORALLY) 7 April 2000

The applicant seeks a review of a special penalty of $80,730 imposed on him upon his plea of guilty to a charge that in breach of the Fisheries Rules 1996, r29(1)(b), on 24 July 1996, at Eddystone Point in Tasmania, he was in possession of more than 20 abalone of the genus Haliotis, namely 631 abalone, and he did not have a receipt relating to the purchase of the said abalone from a fish merchant. Rule 29(1)(b)provides:

"(1)     A person must not:
(a)      ….
(b)      have possession of more than 20 abalone unless the person -
(i)has the third copy of a diver's docket which relates to the abalone; or
(ii)has a receipt relating to the purchase of the abalone from a fish merchant; or
(iii)is the holder of a fishing licence (abalone dive) who has taken the abalone under that licence and the abalone have not been landed."

At the time of the offence, the Living Marine Resources Management Act 1995 ("the Act") s267 provided that:
"(1) In addition to imposing a penalty on a person for an offence under this Act or regulations or rules made under this Act relating to the taking or possession of fish a court must impose a special penalty equal to 10 times the value of the fish.
(2)A court must not reduce a special penalty for any reason."
The Act, s267, applied to the applicant's conviction as the Fisheries Rules 1996 were made pursuant to the Act and the offence expressly related to the possession of fish. The definition of "fish" includes abalone. Whilst the abalone which were the subject of the charge had been shucked, the definition of "abalone" encompasses dismembered abalone, (the Act, s4(2)(h) and (3)(c)). Pursuant to the Act, s267(1), the learned magistrate was obliged to impose a special penalty equal to 10 times the value of the fish. As to the value of the fish, the Act, s269, provides:
"(1) For the purpose of this Division, a court must determine the value…

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 Murfet v Visser

Details

AGLC: Murfet v Visser [2000] TASSC 35
Case: [2000] TASSC 35
Decision Date: 7 April 2000

CaseChat Overview and Summary

The case of Murfet v Visser involved a legal challenge by Ricardo Thomas Murfet against a special penalty imposed on him by the Supreme Court of Tasmania. The case centred on a charge of possessing more than the allowable limit of abalone in breach of the Fisheries Rules 1996. The court was tasked with determining the appropriate penalty for the offence and whether the method used to calculate the penalty was correct.

The primary legal issue was the proper method for calculating the special penalty under the Living Marine Resources Management Act 1995. Specifically, the court needed to decide whether the penalty should be calculated based on the number of abalone or their weight. The relevant sections of the Act and the Fisheries (Value of Fish) Order 1996 provided for the penalty to be determined either by weight or by number, depending on the circumstances. The court also had to consider whether the penalty should be calculated on the total number of abalone in possession or just the excess number over the allowable limit.

The court found that the magistrate had incorrectly calculated the penalty based on 621 abalone instead of 611, which was the number in excess of the allowable limit. Although the Act allowed for the penalty to be calculated by weight or number, in this case, it was not possible to determine the weight of the abalone in excess of the limit. Therefore, the penalty had to be calculated based on the number of abalone. The court reduced the penalty from $80,730 to $79,430, reflecting the correct number of abalone.

The court's judgment clarified the method for calculating the special penalty in cases involving the possession of more than the allowable limit of abalone. It highlighted the importance of accurately determining the number of abalone in excess of the limit when calculating the penalty. The final orders of the court reduced the penalty imposed on Murfet, reflecting the correct calculation based on the number of abalone.

Orders