Police v Taing - [2009] NTMC 15

CITATION: Police v Chea Mey Taing [2009] NTMC 015

PARTIES: PETER JOHN RUSSELL

CHEA MEY TAING

TITLE OF COURT: Court of Summary Jurisdiction

JURISDICTION: Criminal

FILE NO(s): 20814598

DELIVERED ON: 8 May 2009

DELIVERED AT: Darwin

HEARING DATE(s): 3 September 2008 & 27 March 2009

JUDGMENT OF: Ms Sue Oliver SM

CATCHWORDS:

CRIMINAL LAW – Fisheries Act – Possession of commercially unsuitable mud crabs – obstruction of Fisheries Officers – knowledge for the purpose of possession

Fisheries Act ss 11, 37, 42
Justices Act ss 182 and 183

He Kaw Teh v The Queen (1985) 157 CLR 523
Tabe v R (2005) 225 CLR 418

REPRESENTATION:

Counsel:
Complainant: Ms McMaster
Defendant: Mr Abayasekara

Solicitors:
Complainant: ODPP
Defendant: NTLAC

Judgment category classification: B
Judgment ID number: [2009] NTMC 015
Number of paragraphs: 26

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

No. 20814598
[2009] NTMC 015

BETWEEN:

PETER JOHN RUSSELL
Complainant

AND:

CHEA MEY TAING
Defendant

REASONS FOR DECISION

(Delivered 8 May 2009)

Ms Sue Oliver SM:
1. The defendant, Chea Mey Taing, is charged with two offences under the Fisheries Act. The first charge alleges that being the holder of a particular Fish Retailer License she possessed 55 mud crabs which were commercially unsuitable. The second count is that she obstructed Fisheries Officers in the execution of their duties. The latter is an offence contrary to s 39(1)(a) of the Fisheries Act. The offences are alleged to have occurred on 9 May 2008.
Count 1- Possession of commercially unsuitable mud crabs
2. With respect to count 1, the complaint alleges that the offence was contrary to “clause 11(10) of the Fisheries Act”. Clearly the reference to a “clause” of the Fisheries Act is incorrect, there being no clauses only sections of an Act. However, neither does it appear to be a reference to an offence under s 11 of the Act. Section 11 of the Act refers to the granting of licenses by the Director of Fisheries. Section 11(10) provides that the Director may from time to time, by written notice to a license holder, amend or revoke the conditions of the license or add new conditions. This is not an offence provision.
3. I raised with the parties the adequacy of the charge when it came to my notice. The Prosecution submitted that the complaint was adequate by reference to s 55 of the Justices Act which provides that in any complaint and in any proceedings thereon, the description of any offence in the words of the special Act or other document creating the offence or in similar words shall be sufficient in law. The Prosecution suggests that the sufficiency exists either because of s 37 or s 42 of the Fisheries Act. These provisions are as follows:
37. General offences and penalties
(1) Every person commits an offence who acts in contravention of or fails to comply with any provision of this Act, or of an instrument of a legislative or…

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 Police v Taing

Details

AGLC: Police v Taing [2009] NTMC 15
Case: [2009] NTMC 15
Decision Date: 8 May 2009

CaseChat Overview and Summary

The case of Police v Chea Mey Taing, delivered on 8 May 2009 by Ms Sue Oliver SM in the Court of Summary Jurisdiction in Darwin, involved the defendant, Chea Mey Taing, facing two charges under the Fisheries Act. The first charge was for the possession of 55 commercially unsuitable mud crabs, in contravention of her Fish Retailer License, while the second charge was for obstructing Fisheries Officers in the execution of their duties. The court was tasked with determining the adequacy of the charges and whether the prosecution had proven the elements of the offences beyond a reasonable doubt.

Regarding the first charge, the court found that the complaint did not correctly reference the relevant sections of the Fisheries Act. However, it was determined that the charge could be sufficient under either section 37 or section 42 of the Fisheries Act. Section 37 makes it an offence to contravene or fail to comply with any provision of the Act, while section 42 criminalises the possession of fish taken in contravention of the Act or any related instrument. The court concluded that the offence could be characterised as arising under either provision. The court granted leave to amend the charge to correctly reference section 37 of the Fisheries Act.

As for the knowledge requirement for the possession charge, the court found that the prosecution needed to prove beyond a reasonable doubt that the defendant knew she had commercially unsuitable crabs in her possession. The court accepted the defendant's evidence that she was unaware of the presence of unsuitable crabs and found her not guilty of the first charge. Regarding the second charge, the court found that the evidence did not sufficiently establish that the defendant obstructed the Fisheries Officers, and thus, she was also found not guilty of the second charge.

In conclusion, the court dismissed both charges against the defendant, Chea Mey Taing, finding her not guilty on both counts.

Orders