Peter John Russell v Edward Richard Trippe - [2004] NTMC 11

[Back to Main List] [Back to NTMC 2004 List] CITATION: Peter John Russell v Edward Richard Trippe [2004] NTMC 011

PARTIES: Peter John Russell
(Complainant)

Edward Richard Trippe
(Defendant)

TITLE OF COURT: Court of Summary Jurisdiction

JURISDICTION: Criminal

FILE NO(s): 20306050

DELIVERED ON: 23 February 2004

DELIVERED AT: Darwin

HEARING DATE(s): 10 February 2004

DECISION OF: Jenny Blokland SM

CATCHWORDS:

FISHERY OFFENCES :Fisheries Regulations (NT) s 8; meaning of tether; Gleeson v Billock [2002] NSWCA1; Daniel v Weissenburger [2002] WASCA 289; Daniele v Pritchard WA SJA 1053 of 1998; Beckwith v R (1976) 12 ALR 333; Interpretation Act (NT); Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR1; Lori Gruen, "Animals" in A Companion to Ethics, ed Peter Singer at 343, Blackwell Publishing; Animal Welfare Act (NT).

REPRESENTATION:

Counsel:
Prosecutor: Mr Woodcock
Defendant: Mr Rowbottam

Solicitors:
Prosecutor: ODPP (Summary Prosecutions)
Defendant: Withnall Maley

Judgment category classification: B
Judgment ID number: [2004] NTMC 011
Number of paragraphs: 13

IN THE COURT OF SUMMARY JURISTICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20306050

BETWEEN:

PETER JOHN RUSSELL
Complainant

AND:

EDWARD RICHARD TRIPPE
Defendant

REASONS FOR DECISION

(Delivered 23 February 2004)

Jenny Blokland SM:

Introduction
1. The defendant is charged with an offence against regulation 8, Fisheries Regulations (NT), namely, taking and tethering three fish. Count two on the complaint has been withdrawn. The relevant heading and regulation read as follows:
"8. No tethering of live fish
A person shall not, after a fish has been taken, place or retain it on a tether line."
2. The relevant facts are before the court in Exhibit P1 and photos of the three fish are before the court in Exhibit P2. The facts are as follows: At 7 am on Monday 14 th of April 2003, the defendant now before the court, (known as Rick Trippe), boarded the "Sea Cat 1" Ferry from the Cullen Bay Ferry Terminal to travel to the Mandorah Jetty. On arrival at the Mandorah Jetty the Defendant alighted from the ferry. He placed tub and diving gear on one of the lower central metal platforms just above the water line. He then put his "stinger" diving suit, gloves and other diving equipment on. When suited up he took his speargun into the waters under the jetty and swam around. During that time he speared 2 fish with his spear gun and tied these fish he had dangling in the water by passing the rope through the gills and out of the mouth of the fish. The fish were killed before being placed on the line. He then continued to swim around and during this time he shot another fish with his spear gun. He took the fish of the shaft and tied it to the line, which at some stage had been untied and readjusted, so that it stayed deeper under the waters surface. At this stage he had three fish in total tied onto this line. A short time later he…

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.

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Details

Case: [2004] NTMC 11
Decision Date: 23 February 2004

CaseChat Overview and Summary

Peter John Russell brought a complaint against Edward Richard Trippe, who was charged with an offence under the Fisheries Regulations (NT). The defendant was accused of tethering three fish after taking them, which is prohibited by regulation 8. Count two of the complaint was withdrawn, leaving only Count 1 to be determined. The central legal issue was whether the prohibition on tethering fish applies to fish that are already deceased when placed on the line. Both parties agreed that there was no direct authority on this point. The court considered the ordinary meaning of the word 'tethering' and whether it applies only to live animals. The defendant argued that the regulation was intended to prevent fishers from tethering live fish to avoid bag limits or mistreat them, and that tethering dead fish does not fall under the same concerns. The prosecution argued that tethering dead fish could still be considered a form of mistreatment and should be prohibited by the regulation.

The court found that the ordinary meaning of 'tethering' involves confinement, which is irrelevant to dead animals. The court also noted that the regulation creates a criminal offence and should not be interpreted to extend the category of culpable conduct beyond what is plainly stated. The word'retain' was found not to be broad enough to include tethering of deceased fish. The court considered the context of the legislation, which includes provisions for the humane treatment of fish and a defence for taking prohibited fish if returned with minimal injury. The court concluded that tethering dead fish is not prohibited by the regulation unless the fish were alive at the time of being taken and tethered. The court dismissed Count 1, finding no prima facie case against the defendant.

Orders