Ostrowski v Starling - [2000] WASCA 33

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: OSTROWSKI -v- STARLING [2000] WASCA 33

CORAM: TEMPLEMAN J

HEARD: 3 FEBRUARY 2000

DELIVERED : 3 FEBRUARY 2000

FILE NO/S: SJA 1188 of 1999

BETWEEN: GEORGE PETER OSTROWSKI
Appellant
AND
BRUCE GERALD STARLING
Respondent

Catchwords:

Primary industry - Fish and shellfish - Conservation provisions - Appeal from the decision of a Magistrate finding that a charge under the Fish Resources Management Act 1994 did not disclose an offence according to law - Whether "pulling" a crayfish pot establishes "use" of the pot for fishing; or is synonymous with "fishing" - Whether the word "pulling" in this context is sufficiently similar to "fishing" to properly make out an offence known to law under s 45 Justices Act

Legislation:

Fish Resources Management Act 1994 (WA), s 201

Interpretation Act 1984

Justices Act 1902 (WA), s 45

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr J A Thomson
Respondent: Mr G I Macnish

Solicitors:

Appellant: State Crown Solicitor
Respondent: Cocks Macnish

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

Kalgoorlie Regional Traffic Council v Fostinelli [1974] WAR 3

Case(s) also cited:

Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd and Aldous & Ors (1987) 36 A Crim R 418
Bateman v McCutcheon, unreported; SCt of WA (Smith J); Library No 6828; 13 August 1987
Broome v Chenoweth (1946) 73 CLR 583
Esther Investment Pty Ltd v Dawson (1985) 62 LGRA 53
Farnworth v Henry Walker Contracting Pty Ltd [1999] WASCA 234
Fred Wakefield Pty Ltd v Dowd [1979] 20 SASR 328
Higgon v O'Dea [1962] WAR 140
Meiklejohn v Norseman Gold Corporation (1996) 89 A Crim R
Meiklejohn v Norseman Gold Corporation (1998) 19 WAR 298
Mitchell v Myers (1955) 57 WALR 49
Reedy v O'Sullivan [1953] SASR 114
Romeyko v Samuels (1972) 2 SASR 529
W Thomas & Co (WA) Ltd v Martin [1967] WAR 66

TEMPLEMAN J: The respondent in this matter, Mr Bruce Gerald Starling, is or was in 1997, the holder of a commercial fishing licence issued under the Fish Resources Management Act 1994. He was therefore subject to the Fish Resources Management Regulations 1995. One of those regulations, reg 32, is in the following terms in subpar (1):
"A person must not use a rock lobster pot to fish for rock lobster unless the rock lobster pot is attached to a surface float that - "
and then there are set out three criteria which must be satisfied by the surface float. They are in subpars (a), (b) and (c). Subparagraph (b) requires the float to be marked by branding or stamping with legible characters not less than 60 millimetres high and not less than 10 millimetres wide showing, in the case of a pot used by the holder of a commercial fishing licence, the licensed fishing boat number of the boat that is used to set or pull the pot. The penalty for infringement of that regulation is $5000.
On 18 June 1999, Mr Starling was charged with an offence contrary to reg 32(1)(b)(i) of those regulations. It was alleged that, "being the holder of a commercial fishing licence issued under the Fish Resources Management Act 1994 [he] pulled 12 rock lobster pots which were not attached to surface floats" bearing the appropriate markings. The charge went on to refer to the criteria set out in subparagraph (b) and then went on to allege a contravention of reg 32(1)(b)(i).
The charge included a notice that at the hearing of the complaint, the complainant intended to produce a certificate of the Registrar issued under the Act that Mr Starling was a person having day-to-day control of a specified boat and was authorised to use that boat for commercial fishing.
When the matter came on before a Stipendiary Magistrate in Geraldton, the point was taken on Mr Starling's behalf that the charge so formulated did not disclose an offence known to the law. It was said, rightly, of course, that the charge did not expressly allege use of the rock lobster pots to fish for rock lobster: it alleged only that the pots had been pulled by Mr Starling.
That argument found favour with the learned Stipendiary Magistrate. In his reasons he said:
"I have come to the conclusion that the nub of the offence is to use the pots to fish and that pulling them might well be one element, but mere pulling does not necessarily establish use. It is one element that may help to prove use. I would have thought that it would need more than simply pulling of the pots to establish the offence. I believe it creates one offence.
There is a missing basis in the complaint. The basis of the offence is not pleaded and I find that the word 'use' should be there and also it should allege 'to fish' so an essential ingredient so far as I am concerned is missing from the complaint."
His Worship then concluded that the charge was defective and did not show an offence according to law. He was then asked to permit an amendment to the charge so as to supply the words which he had found were missing. He declined, in the exercise of his discretion, to allow an amendment. It is from that decision that the appellant, who is a fisheries officer, now appeals.
The first ground of appeal is that the charge was not defective and that it did disclose an offence known to the law.
The principal submission, in short, is that the word "pull" in the context in which it is used in the charge is synonymous with "fishing" and that the allegation of pulling the 12 rock lobster pots is therefore sufficient to inform the defendant that he was engaged in the prescribed activity which it is common ground, I think, is use of the relevant pots to fish unless the pot is attached to the floats identified in the specified manner.
It is then submitted that even if that is not the case, the charge is saved by s 45 of the Justices Act, which provides that the description of an offence in the words of (in this case) a regulation, or similar words, shall be sufficient in law. It is said, in short, that if pulling in this context is not synonymous with fishing, then it is a sufficiently similar word to achieve the desired result.
Against that, it is submitted that pulling a pot is only one element in the process of fishing: that there is no offence committed as a result of merely pulling the pots. And that if the Crown were to charge in the terms of the section but were then to prove only pulling, the inevitable result would be that the charge would be dismissed on a no-case submission.
It is said also for the respondent that reg 32 involves the intentional use of a rock lobster pot to fish and that mere proof of pulling does not prove the intention necessary to sustain the charge.
It seems to me that in the context in which this charge is formulated, the allegation of pulling pots is synonymous with fishing. This is a charge laid by a fisheries officer against a commercial fisherman who makes his living from fishing by taking lobsters from the seabed, by pulling the pots from the seabed: by setting them and then by pulling them. It seems to me, from the context in which the word "pull" is used in the charge to be clear that the offence with which the respondent is being charged is that of using the pots for fishing.
Indeed, the charge goes on to refer specifically to reg 32(1)(b)(i) of the regulations which, in my view, makes it plain that the offence charged is that of using the pot to fish for lobster. It is, I think, common ground that the regulation creates only one offence.
In reaching that view, I am encouraged by the passage in the judgment of Hale J, as he then was, in Kalgoorlie Regional Traffic Council v Fostinelli [1974] WAR 3. At 5 his Honour said:
"It was recognised by Dwyer J in Egan v Kevin (1941) 44 WALR 14 that the citation in the charge of the section or regulation alleged to have been infringed can help to explain the charge."
In the present case, it seems to me, as I have said, that the defendant, a professional fisherman, being accused of pulling 12 rock lobster pots contrary to reg 32(1)(b)(i) would have no doubt that he was being charged with using the pots to fish.
The point taken by the respondent that mere proof of pulling would not be sufficient to prove the charge is, I think, answered by the definition of fishing contained in the Act itself. That is a definition which, by s 44 of the Interpretation Act 1984, is to have the same meaning in the regulations.
Fishing or fishing activity is defined in the Act in four ways. The first three are "searching for fish", "attempting to take fish" and "taking fish", all of which activities, I think, would involve some actual intention (or may involve some actual intention) on the part of the relevant person. However, the fourth definition is as follows:
"Engaging in any other activity that can reasonably be expected to result in the taking of fish."
That seems to me to import an objective element into the regulation. In other words, if a person engaged in an activity in relation to a rock lobster pot that might reasonably be expected to result in the taking of fish, then he would be using the rock lobster pot in the relevant sense.
It seems to me that when a commercial fisherman pulls 12 rock lobster pots, he is prima facie engaging in an activity that could reasonably be expected to result in the taking of fish. In those circumstances, again, it seems to me that the charge is sufficient in alleging pulling as a contravention of reg 32(1).
If, of course, the fisherman had engaged in that activity for some purpose other than fishing, it may afford him a defence: or at least provide a basis for a plea in mitigation. But that is a different point.
That seems to me to answer the submission that if only pulling was alleged and only pulling was proved, the necessary result would be dismissal of the charge. I would point to the objective definition of fishing in the terms that I have recited. Put another way, if evidence was given that the defendant had pulled 12 rock lobster pots and evidence was given (if it were necessary) that that was an activity which could reasonably be expected to result in the taking of fish, then prima facie the offence would be proved.
For those reasons, it seems to me that the charge as formulated is sufficient for its purpose and does not require amendment. That being so, it is not necessary to consider the subsequent question whether the Magistrate erred in the exercise of his discretion and the further question, if so, how that discretion should be exercised today.
It seems to me in the circumstances, the appropriate course is to remit this matter to the Court of Petty Sessions in Geraldton with a direction to try the case on the basis that the charge is to be construed as charging the offence of using the relevant pots to fish. For those reasons, the appeal should be allowed.