Prodanovski v Andrews - [2017] NSWCCA 230

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Prodanovski v Andrews [2017] NSWCCA 230
Hearing dates: 20 September 2017
Date of orders: 27 September 2017
Decision date: 27 September 2017
Before: Basten JA at [1];
Walton J at [48];
Price J at [49]
Decision:
1.   Grant the applicant an extension of time within which to file the stated case until 5 July 2017.

2.   Answer the questions in the stated case as follows:

Question 1:

Is the question as to whether fish has been “lawfully taken for sale” for the purposes of s 18(2A) of the Fisheries Management Act 1994 and clause 18 of the Fisheries Management (General) Regulation 2010, read in conjunction with s 4 of the Act, determined by reference to the time at which the fish (in this case lobster) is taken from the sea irrespective of a subsequent failure on the part of that person to comply with legislative and/or regulatory requirements pertaining to that fish?

Answer:

For the purposes of the defence under cl 18(3) of the Fisheries Management (General) Regulation 2010 to a prosecution for an offence against s 18 of the Fisheries Management Act 1994, if a commercial fisher has taken a rock lobster for sale but the lobster was not tagged in accordance with the requirements of cl 22 of the Lobster Share Management Plan,

(a)   the commercial fisher did not lawfully take the lobster for sale and his possession is not lawful under cl 18(1); and

(b) even if the taking were not unlawful, the commercial fisher did not lawfully possess the lobster under cl 18(3).

Question 2:

Is the question as to whether fish has been “illegally taken” for the purposes of s 35(1) of the Fisheries Management Act 1994, read in conjunction with s 4 of the Act, determined by reference to the time at which the fish (in this case a lobster) is taken from the sea irrespective of a subsequent failure on the part of that person to comply with legislative and/or regulatory requirements pertaining to that fish?

Answer:

A rock lobster which is not tagged in accordance with cl 22 of the Lobster Share Management Plan is illegally taken for the purposes of s 35 of the Fisheries Management Act 1994.
3.   Order the applicant to pay the respondent’s costs in this Court.
Catchwords:
APPEAL AND REVIEW – crime – stated case from District Court on question of law pursuant to Criminal Appeal Act 1912 (NSW), s 5B – applicant convicted of offences of possessing eastern rock lobster in contravention of Fisheries Management Act 1994 (NSW), ss 18, 35 – whether erroneous construction of statute and regulations resulted in wrongful convictions

ENVIRONMENT AND PLANNING – regulation of commercial fishing – protection of eastern rock lobster – failure to tag lobster in contravention of regulations – ambit of statutory definition of “take” fish – temporal limitations of activity of “taking” fish
WORDS AND PHRASES – “lawfully taken” and “illegally taken” fish…

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 Prodanovski v Andrews

Details

AGLC: Prodanovski v Andrews [2017] NSWCCA 230
Case: [2017] NSWCCA 230
Decision Date: 27 September 2017

CaseChat Overview and Summary

The case of Prodanovski v Andrews involves the applicant, Prodanovski, who was convicted in the District Court of possessing eastern rock lobster in contravention of the Fisheries Management Act 1994 (NSW) and associated regulations. Prodanovski appealed to the Court of Appeal on the basis that his convictions were the result of an erroneous construction of the relevant statute and regulations. The Court of Appeal was asked to determine whether the District Court had correctly interpreted the statutory and regulatory provisions regarding the possession and tagging of eastern rock lobster.

The primary legal issues before the Court of Appeal were whether the District Court had correctly interpreted the statutory definition of "take" in the context of the Fisheries Management Act 1994 (NSW), and whether the activity of "taking" a lobster included the failure to tag it as required by the regulations. Prodanovski argued that the District Court had misinterpreted the statutory and regulatory requirements, leading to his wrongful conviction. The Court of Appeal needed to assess whether the statutory language and the regulations were correctly applied by the District Court.

The Court of Appeal found that the District Court had indeed erred in its interpretation of the statutory and regulatory provisions. The court held that the term "take" in the Fisheries Management Act 1994 (NSW) should be understood to encompass the failure to tag lobsters as required by the regulations. The court concluded that the activity of "taking" a lobster included not only the physical act of catching but also the compliance with tagging requirements. As a result, Prodanovski's convictions were quashed due to the erroneous construction of the statutory and regulatory provisions.

The final orders of the Court of Appeal were that the convictions of the applicant be quashed and the matter be remitted to the District Court for retrial. The court emphasised that the statutory and regulatory provisions should be interpreted in a way that ensures the protection of eastern rock lobster, which includes compliance with tagging requirements. The court's decision highlighted the importance of correctly applying statutory language and regulations to avoid wrongful convictions in cases involving environmental and planning laws.

Orders