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 – Fisheries Management Act 1994 (NSW), ss 18, 35

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5B
Fisheries Management (General) Regulation 2010 (NSW), cll 18, 48; Pt 3
Fisheries Management (Lobster Share Management Plan) Regulation 2000 (NSW), cll 14, 15, 22, 23, 25, 35, 40A, 44, 46A; Sch 1
Fisheries Management Act 1994 (NSW), ss 4, 5, 6, 18, 21-25, 35, 60, 78, 107, 201, 241, 248; Pt 2, Div 2; Pt 4, Divs 1, 2
Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55
Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61
The King v Adams (1935) 53 CLR 563; [1935] HCA 62
Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12
Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53

Texts Cited:

Oxford English Dictionary

Category:

Principal judgment

Parties:

James Prodanovski (Applicant)
Anthony Hugh Andrews (Respondent)

Representation:

Counsel:
Mr G McGrath (Applicant)
Mr K Averre (Respondent)

  Solicitors:
Morrisons Law (Applicant)
Hunt & Hunt (Respondent)

File Number(s):

2017/203047

 Referred questions 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2017] NSWDC 43

Date of Decision:

10 March 2017

Before:

Haesler SC DCJ

File Number(s):

2015/143424

judgment

1. BASTEN JA: The applicant, James Prodanovski, was convicted in the Local Court at Wollongong of two offences of possessing eastern rock lobster in contravention of the Fisheries Management Act 1994 (NSW) (“the Act”). Fines were imposed in respect of each matter.

2. The applicant appealed to the District Court. His appeal was heard in February 2017. On 10 March 2017 the primary judge (Haesler SC DCJ) dismissed the appeals and ordered that the applicant pay the costs of the appeal. [1] The judge acceded to the applicant’s request that he state a case to this Court pursuant to s 5B of the Criminal Appeal Act 1912 (NSW).

   1. Prodanovski v Department of Trade and Investment, Regional Infrastructure and Services [2017] NSWDC 43.

The offences and the statutory scheme

3. Because this case was concerned with taking eastern rock lobster it is convenient to note the extended definition of “fish” in s 5 of the Act, which includes “(a) oysters and other aquatic molluscs, and (b) crustaceans, and (c) echinoderms, and (d) beach worms and other aquatic polychaetes.” This required that the ordinary meaning of “fishing” could not readily apply; rather, the Act speaks of taking fish and provides in s 4(1) the following extended definition of that term:

take fish includes:

(a)   catch or kill fish, or

(b)   gather or collect fish, or

(c)   remove fish from any rock or other matter,

or attempt to do so.

4. The first offence involved a contravention of s 18 of the Act, which relevantly provided, at the time of the offence:

18   Bag limits—possession of fish

(1)   The regulations may specify the maximum quantity of fish of a specified species, or of a specified class, that a person may have in possession in any specified circumstances (the possession limit).

(2)   A person who has in the person’s possession more than the possession limit of those fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken.

…

(2A)   A person who has in the person’s possession, in circumstances of aggravation, more than the possession limit of any fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken.

…

(2B)   For the purposes of subsection (2A), a person has possession of fish in circumstances of aggravation if:

(a)   the fish in the person’s possession are a priority species of fish, and

(b)   the quantity of fish in the person’s possession is a commercial quantity of that species of fish.

(3)   The regulations may specify different possession limits for commercial fishers or other classes of fishers or in any other circumstances specified in the regulations. The regulations may also include restrictions as to size or otherwise in respect of any possession limit of fish.

…

5. The charge had asserted that the applicant was, on 14 March 2014, at Wollongong Harbour in possession of fish, namely 100kg of eastern rock lobsters, being an amount in excess of the “possession limit” for that fish, in circumstances of aggravation, contrary to s 18(2A) of the Act. The circumstances of aggravation were not in dispute, namely that the eastern rock lobster is a “priority species of fish” and that the quantity of fish in his possession (namely 123 lobsters) was a “commercial quantity of that species of fish”, as provided in s 18(2B).

6. Section 18 is contained within Div 2 of Pt 2 of the Act. Section 21, also within that Division, provides a number of defences to a prosecution under Div 2, including that “the person charged satisfies the court that … (d) the person has any other defence that is prescribed by the regulations.” The relevant defence relied upon by the applicant was provided by the Fisheries Management (General) Regulation 2010 (NSW) (“General Regulation”), cl 18(3). It will be necessary to refer to the whole of cl 18, which reads as follows:

18   Possession limits do not apply to fish lawfully taken for sale

(1)   It is lawful for a commercial fisher to be in possession of fish in excess of a possession limit specified in this Division if the commercial fisher lawfully took the fish for sale.

(2)   It is lawful for a person to be in possession of fish in excess of a possession limit specified in this Division if the person purchased or otherwise acquired the fish from another person whose possession of the fish was lawful (whether as a result of subclause (1) or as a result of one or more applications of this subclause).

(3) It is a defence to a prosecution for an offence against section 18 of the Act constituted by being in possession of fish in excess of a possession limit specified in this Division if the person charged proves:

(a)   that he or she purchased or otherwise acquired the fish from another person, and

(b)   that the other person’s possession of the fish was lawful or that there were no reasonable grounds to suspect that the other person’s possession of the fish was unlawful.

7. The applicant was not a “commercial fisher” to whom cl 18(1) applied. However, he obtained the lobster from a Mr Brancatisano who was a commercial fisher. The applicant relied upon subcl (3). It will be necessary to return to the proper construction of cl 18 shortly; however, before doing so, it is convenient to note the form which the applicant’s defence of the proceedings took in the Court below, which was rejected by the magistrate and by the primary judge on appeal. It was that, if Mr Brancatisano “lawfully took the fish for sale”, pursuant to cl 18(1), the applicant had a defence pursuant to cl 18(3). In the alternative, even if Mr Brancatisano was not in lawful possession of the fish, the applicant argued that he had no reasonable grounds to suspect that his possession of the fish was unlawful, for the purposes of the second limb in cl 18(3)(b). Reliance on the second limb was rejected on the facts and is not in issue.

8. The second offence involved a breach of s 35 of the Act, which provides:

35   Possessing fish illegally taken

(1)   A person who is in possession of fish which were illegally taken is guilty of an offence.

…

(2)   It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the person could not reasonably have known that the fish had been illegally taken.

(3)   In this section:

illegally taken means taken in contravention of a provision of or made under:

(a)   this Act, or

(b)   a law of another State or Territory, or of the Commonwealth, relating to fisheries.

9. The prosecution case was that the eastern rock lobsters were “illegally taken” because they had not been tagged by Mr Brancatisano, “in contravention of a provision … made under” the Act, namely cl 22 of the Lobster Share Management Plan, which forms the Appendix to the Fisheries Management (Lobster Share Management Plan) Regulation 2000 (NSW) (“Management Regulation”). The Management Regulation was made under s 60(1) of the Act.

10. The Management Regulation establishes a scheme by which the number of lobster to be taken in a specified 12 month period (“total allowable catch”) is determined by the Minister. [2] Those entitled to take rock lobster are described as “shareholders” in the fishery. Each shareholder is allocated a “quota” in accordance with s 78 of the Act and cl 15 of the Management Regulation. The entitlement is evidenced by an endorsement on the commercial fishing licence of a commercial fisher. The “endorsement holder” is then provided with consecutively numbered yellow tags capable of single use only, if properly used, up to the limit of the holder’s quota. The use of the tags is provided for in cl 22 of the Management Regulation which reads as follows:

    2. Management Regulation, cl 14. A determination has been made only for eastern rock lobster.

22   Rock lobster to have tag attached

(1)   An endorsement holder who takes rock lobster in the fishery must attach a tag to the rock lobster as follows:

(a)   if, before landing the rock lobster, the endorsement holder transfers the rock lobster from the boat used by the endorsement holder to another boat or transfers the rock lobster to a holding pen, before the rock lobster is so transferred,

(b)   if paragraph (a) does not apply, immediately after the rock lobster is landed, but in any case no more than 25 metres from the point of landing (that is, the place where the rock lobster is brought ashore) and before entering any premises.

(2)   The tag that is attached must be a tag that was issued by the Director-General for use in the fishing period in which the rock lobster is taken.

(3)   The tag must be attached in such a manner that it cannot be removed without being broken.

(4)   The endorsement holder must, immediately after attaching the tag to the rock lobster, trim the tail of the tag so that it is flush with the locking mechanism.

(5) For the purposes of section 65 of the Act, contravention of this clause is an offence.

(6)   A contravention of this clause is also an endorsement holder offence.

11. On the facts found by the primary judge, when Mr Brancatisano transferred some 123 lobster to the applicant, the tail of the tag on each had not been trimmed so that it was flush with the locking mechanism in accordance with cl 22(4). The failure to take that step may have allowed the tag to be removed without being broken, or otherwise allowed for possible (illegal) re-use (the facts did not disclose precisely how trimming the tail operated).

Reasoning in District Court

12. The primary judge construed the term “taking” so that the process of taking the lobster was not complete until the lobster was brought ashore within the meaning of cl 22(1)(b). On that reading, because the tails were not trimmed at the point at which the lobster was brought ashore and before being handed over to the applicant, the lobster was not lawfully taken for the purposes of the defence under cl 18(1) of the General Regulation, with the result that the applicant could not rely upon a defence under cl 18(3) based on the lawful possession of the lobster by Mr Brancatisano. Further, because the untrimmed tails were obvious to even an untrained eye, the applicant failed to establish that he had no reasonable grounds to think that Mr Brancatisano’s possession was unlawful.

13. The applicant resisted that construction of the legislative scheme, contending that lobsters were “taken” no later than the point at which they were landed on the fishing vessel which brought them to shore. Accordingly, Mr Brancatisano’s taking of the lobster was entirely lawful. His failure to trim the tails of each tag in accordance with cl 22 of the Management Regulation may have been an offence, but did not retrospectively render the taking unlawful. The applicant was therefore entitled to be acquitted.

14. The primary judge held that the taking extended to removal of the fish from a “fishery”. That language was inapposite. Section 6 provides a definition of “fishery” as “a class of fishing activity”, which may be identified by reference to a species or class of fish, an area of waters or seabed, a method of fishing, a class of boat or persons and a purpose of activities. Thus, while a fishery may be identified by reference to an area of waters or seabed, it is not a place but an activity. The rock lobster fishery was identified by reference to four species of lobster and not by reference to any geographical area. [3]

    3. Fisheries Management Act, Sch 1 [6].

Procedural steps

15. There is no appeal from a decision of the District Court in its criminal jurisdiction determining an appeal from a judgment in the Local Court. Apart from review in the supervisory jurisdiction of this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW), the only available means of challenge to the judgment in the District Court is to invite the judge to state a case for determination by this Court, pursuant to s 5B of the Criminal Appeal Act. [4] That course was taken in this matter. Although the case was not stated within the period of 28 days provided by s 5B(2), there is power to extend time and an extension, not being opposed by the respondent, should be granted.

    4. See generally, Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [5].

16. Two questions of law were identified in the following terms for the determination of this Court:

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?

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?

17. Neither the questions of law, nor the submissions of the parties, paid close attention to the language of the two provisions creating the relevant offences. However, in oral submissions counsel for the applicant accepted that there should be a consistent approach to both questions, so that a fish “illegally taken” for the purposes of s 35 would be a fish which had not been lawfully taken for the purposes of cl 18(1). That may be accepted, although it does not exhaust the operation of cl 18. Further, that approach implies that a fish cannot be in the possession of the fisher (or anyone else) until it is taken. Both concepts involve the exercise of physical control. [5] It is not necessary to identify a precise point at which control is first exercised; it is sufficient for the applicant’s argument that, while possession may continue until the fish is disposed of, taking is not a continuing activity.

    5. Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53, 69 at [69] (Gummow J).

18. Nevertheless, the answers to the two questions need not be the same. Question 1 treated the defence to the charge laid under s 18(2A) as dependent on whether the fish had been “lawfully taken for sale”, pursuant to cl 18(1) of the General Regulation. As will be explained below, the assumption is incorrect; the defence, which is provided by cl 18(3) of the General Regulation, depended upon whether Mr Brancatisano’s possession of the fish was lawful at the time the applicant acquired the fish. The possession may have been unlawful, even though, accepting the applicant’s submission, the fish were not unlawfully taken. This point may be explained by reference to the elements of the offences and the defence.

Elements of offences and defence

19. It is convenient to start with the first offence under s 18(2A). There was no dispute that the terms of s 18(2A) had been satisfied by the prosecution. The question was whether the applicant had a defence pursuant to s 21 and cl 18(3) of the General Regulation. Accordingly, it is convenient to turn directly to the language and structure of cl 18.

20. Clause 18(1) is not formulated in terms of a defence to a prosecution, but rather provides an exception for a commercial fisher from the offences under s 18 of the Act. (It may be accepted that the regulation is valid in accordance with s 18(3), as no party argued otherwise.) However, cl 18(1) says nothing about the lawfulness of the possession of fish by the commercial fisher, except by reference to the quantity and the relevant possession limit for that fish. The effect is to exempt the commercial fisher from an offence, but only an offence under s 18. If the possession of the fish was otherwise unlawful at the relevant time, for example because it had not been properly tagged in accordance with cl 22 of the Management Regulation, cl 18(1) would not render the possession lawful.

19. Clause 18(2) is concerned with any person who purchased or acquired fish from another person (and therefore applied to the applicant), but not the fisher who takes the fish from the ocean or other waters. By parity of reasoning, whether the person from whom the fish are acquired was in lawful possession of the fish at the time of acquisition is not determined by asking whether the latter person was a commercial fisher who was entitled to be in possession of fish in excess of a possession limit. Rather, it is to be asked by reference to any possible basis upon which the possession may have been unlawful, including pursuant to cl 22 of the Management Regulation, if otherwise engaged.

20. The reasoning of the primary judge turned on the operation of cl 18(3), which provided a person in the position of the applicant with a defence to a prosecution under s 18 of the Act. That is, the applicant had a defence if he proved that he had purchased or otherwise acquired the fish from another person (not relevantly in dispute for present purposes) and that the other person’s possession of the fish was either lawful, or there were no reasonable grounds to suspect otherwise. Thus, if the only basis for thinking that Mr Brancatisano’s possession of the fish might be unlawful was because they were in excess of the possession limit, then cl 18(1) might provide a proper basis for a defence under cl 18(3). However, that was not the issue; the question for the Court had been whether Mr Brancatisano’s possession was unlawful because the tags on the lobsters provided to the applicant had not been trimmed. That depended on whether Mr Brancatisano’s contravention of cl 22, which was an offence for the purposes of s 65 of the Act, either (i) rendered the taking unlawful, or (ii) rendered his possession unlawful at the time the lobster were acquired by the applicant. Unfortunately, although the prosecutor relied upon cl 22, its interrelationship with cl 18(3) appears not to have been clearly articulated.

21. Question 2 involves the simpler proposition that to be guilty of an offence, the fish which were in the applicant’s possession must have been “illegally taken”. That phrase is defined in s 35(3), but in terms which do not permit of an answer based simply upon the inclusive definition of “take” in s 4 of the Act. In fact, it is necessary to identify the limited purposes of the definition in s 4 of the Act.

Nature of “taking” fish

24. The applicant argued that because a fish was taken once it was in the control of the fisher, and at least as soon as it was on the boat, nothing that occurred thereafter could form part of the taking of that fish; the taking was complete at that point. In other words, although counsel did not put it in these terms, taking was best understood, not as an activity, but as an event.

25. That submission cannot be accepted. First, it assumes its conclusion. That the Act imposes controls which may be breached at the point at which the fish is brought on to the boat does not mean that the taking is complete at that point, but only that one can say that the fisher then has possession of the fish and that possession may be lawful or unlawful. It does not follow that controls which operate at a later point in time may not thereafter render the possession unlawful and may not themselves involve controls on the taking of fish.

26. There is no doubt that the definition of “take” is not exhaustive. As is commonly the case, the use of the term “includes” indicates that the word is being used in a sense which extends beyond its ordinary meaning. Its purpose in that regard is reasonably clear: taking fish must have an expansionary meaning because the term “fish” is given an expansionary meaning so as to include many aquatic organisms which are not, in ordinary parlance or biological classification, fish. At least, the statutory definition extends well beyond the category of cold-blooded vertebrates with gills and fins living wholly in water. [6]

    6.    Oxford English Dictionary, fish, first definition.

27. The definition is best understood as encompassing an activity rather than an event; that is because the taking of fish includes an attempt to do so. The definition provides little indication as to when the activity commences and when it finishes. It may be accepted that taking will not extend beyond the period in which the fisher retains possession of the fish; however, if there is a period during which the fish are stored before being sold, controls at that time may not be referrable to “taking” the fish. Whether or not that is so requires consideration of the legislative scheme and the particular controls in issue.

28. In broad terms, it may be seen that all the provisions of the Act are directed to three objects, of which the first is “to conserve fish stocks and key fish habitats”. [7] That sufficiently provides a purpose for the scheme and content of the management provisions which follow.

    7. Fisheries Management Act, s 3(2)(a).

29. There are numerous provisions regulating commercial fishing. Thus, a person “must not take fish for sale” without a commercial fishing licence. [8] The master of a boat must not use the boat “to take fish for sale” unless the boat is licensed. [9] Thus, immediately a fish is caught or taken for the purposes of sale by a person who does not hold a commercial fishing licence, or using a boat which is not licensed, it can be said that the fish is “illegally taken” and an offence will have been committed under s 35.

    8. Fisheries Management Act, Pt 4, Div 1, s 102(1).

    9. Fisheries Management Act, Pt 4, Div 2, s 107(1).

30. There are other forms of regulation which do not prohibit relevant fishing activities before they commence. These include regulations as to the fishing gear which can be used for commercial fishing, breach of which will render the taking of fish illegal. [10] Such regulations extend to the taking of “rocklobster”. [11] There are controls over the waters in which lobster traps may be used. [12] There are daily bag limits for certain species. [13]

    10. Fisheries Management Act, ss 22-25 and General Regulation, Pt 3.

    11. General Regulation, cl 48; Management Regulation, Pt 7.

    12. Management Regulation, cl 40A and Sch 1.

    13. Management Regulation, cl 46A.

31. There can be no doubt that the failure on the part of the person taking fish to obtain the necessary permissions and authorisations will render the taking unlawful.

32. The enforcement provisions in Pt 9 provide various circumstances in which a person is presumed to be engaged in “commercial fishing activities”, including being in any waters on a licensed fishing boat, being in possession of a quantity of fish in excess of the quantity that a person who is not a commercial fisher is entitled to possess, and being in possession of fishing gear that can only lawfully be used by a commercial fisher. [14] In this sense, fishing activities can arise before any fish are caught and continue after fish are caught and brought on to the boat. Further, a fisheries officer has powers to stop and detain boats and search them for “fish, fishing gear or any record relating to the fishing activities of the boat”. [15]

    14. Fisheries Management Act, s 241.

    15. Fisheries Management Act, s 248(1).

33. Against this background it is convenient to turn to the requirements of cl 22, pursuant to which a rock lobster which is transferred from one boat to another, or to a holding pen, must be tagged before being so transferred. [16] If that is part of taking the fish, it should be accepted that bringing the rock lobster ashore is also part of the same activity.

    16. Management Regulation, cl 22(1)(a).

34. The applicant submitted that, to the extent that cl 22 might be seen to involve regulation of the taking of rock lobster, that construction should not be adopted, because, in the case of uncertain operation, a penal provision should not be read expansively unless such an intention is clearly expressed. [17] However, there is no question as to the intention to create an offence, nor as to the conduct which is subject to the offence. The only question is how the conduct is to be characterised for the purposes of the regulatory scheme. Such a principle of statutory interpretation can have limited application in dealing with a comprehensive, detailed and tightly constraining regulatory scheme.

    17. The King v Adams (1935) 53 CLR 563 at 567-568 (Rich, Dixon, Evatt and McTiernan JJ); [1935] HCA 62; see also Beckwith v The Queen (1976) 135 CLR 569 at 576; [1976] HCA 55; Waugh v Kippen (1986) 160 CLR 156 at 164; [1986] HCA 12.

35. Turning to the language of cl 22(1), the applicant submitted that the obligation to attach a tag could only arise after the rock lobster was taken. Again, however, that approach assumes the conclusion, namely that the act of bringing the rock lobster onto the boat constitutes the whole event of taking the fish. Further, the language of cl 22(1) does not support the submission: it refers to an endorsement holder who “takes” rock lobster in the fishery and requires that that person attach a tag. The submission would have greater force if the clause referred to a person who “has taken” or “took” a rock lobster. The use of the verb “takes”, in the continuing present tense, suggests that the activity of taking is ongoing when the obligation to tag arises.

36. Viewed in context, cl 22 is integrally connected with the obligation under cl 16 requiring that a person must not take rock lobster in contravention of the shareholder’s quota. The yellow tags to be attached to each fish are consecutively numbered to the limit of the quota. [18] Further, the only person who may attach a tag is an endorsement holder or a member of the crew of a licensed fishing boat being used by an endorsement holder; in the latter case the tag must be attached in the presence of the endorsement holder. [19] No part of these precise and detailed regulations can be understood except as a highly structured scheme to limit the taking of rock lobster to the numbers identified as part of the allowable catch, and in accordance with the quotas issued to shareholders. The fact, emphasised by the applicant, that tagging can take place when the fish are landed, although only within 25 metres of the boat, is not inconsistent with this analysis. Rather, it is consistent with the taking of fish for sale as a comprehensively regulated activity which commences when the boat leaves its mooring and continues up to the point when the boat returns to harbour and the fish are landed.

    18. Management Regulation, cll 25 and 35.

    19. Management Regulation, cl 23.

37. This analysis is also supported by the language of par (a) of cl 22(1). Thus, where there is transfer to another boat, the tag must be attached before that occurs. The possibility of transfer to another boat is identified in cl 44, which permits an endorsement holder to “transfer rock lobster from the licensed fishing boat used by the endorsement holder to a lighter for the purpose of landing the rock lobster, but only while the licensed fishing boat used by the endorsement holder is moored at the place where it is ordinarily moored when not in use.”[20] No other transfer to another boat is permitted. [21]

    20. Management Regulation, cl 44(2).

    21. Management Regulation, cl 44(3).

38. The alternative in cl 22(1)(a) is also instructive, requiring the attachment of a tag before a rock lobster is transferred to a “holding pen”. The Management Regulation permits the use of a holding pen “for the purpose of storing live rock lobsters”, so long as it complies with the requirements of clause 42. That involves a new concept, namely storage of rock lobster. The other forms of regulation concern the taking of rock lobster. The distinction between taking, on the one hand, and storing, transfer to another boat or disposal, on the other, is clear. Clause 22, imposing the obligation to attach a yellow tag, falls within the category of regulations dealing with taking and must precede any of the other activities.

39. Finally, this analysis is at least consistent with the definition of “illegally taken” fish in s 35(3) of the Act. That concept is defined to mean “taken in contravention of a provision … made under … this Act”. Clause 22 of the Management Regulation is such a provision. The applicant submitted that this definition provides little assistance because it includes the critical part of the defined term, namely the word “taken”. It is true that there is an element of circularity in the definition because it repeats the participle “taken”, but significantly it does not limit the kind of provision which may constitute a provision regulating taking.

Whether possession lawful

40. If the failure of Mr Brancatisano to comply with cl 22 of the Management Regulation (with respect to tagging) meant that the fish were illegally taken, the applicant had no defence to the prosecution under s 35 of the Act because, on the finding of fact made in the District Court, he failed to satisfy the Court that he “could not reasonably have known that the fish had been illegally taken”, for the purposes of s 35(2).

41. On the same approach to the scope of taking, Mr Brancatisano was not in lawful possession of the fish for the purposes of cl 18(1) because the exemption applied only if he “lawfully took the fish for sale.” If his taking of the fish were unlawful because of his failure to comply with cl 22, the applicant’s defence under cl 18(3) failed.

42. If the applicant’s submissions as to the scope of taking were accepted, it follows that Mr Brancatisano was in breach of the obligation imposed on him under cl 22, but that the illegality did not infect the taking of the fish. In that case, a separate question would arise as to whether his failure to comply with cl 22 rendered his continuing possession of the fish unlawful. If it did, again the applicant’s defence under cl 18(3) would fail.

43. A contravention of cl 22 is an offence for the purposes of s 65 of the Act, which prescribes the maximum penalties. Further, pursuant to s 267 of the Act, a fisheries officer may seize fish if the officer has reason to believe that the fish “are taken, sold or in the possession of a person contrary to this Act or the regulations.” The inference from these provisions is that Mr Brancatisano’s possession of the improperly tagged lobster was unlawful. Accordingly, even if, contrary to the conclusion reached above, the failure to tag the lobsters properly did not involve them being illegally taken, nevertheless the applicant had no defence under cl 18(3).

Answers to questions stated

44. In order to answer question 1, it is necessary to identify the relevance of the phrase “lawfully took the fish for sale” in cl 18(1) of the General Regulation, which appears to be the focus of the question. As noted above, cl 18(1) grants an exemption from liability for the commercial fisher who otherwise possessed fish in excess of a possession limit; it is not directly relevant to the defence available to another person under cl 18(3).

45. Accordingly, question 1 should be answered as follows:

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).

46. Question 2 should be answered in the following terms:

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.

47. It follows that the applicant was properly convicted on both charges. The applicant required an order extending time within which to bring the case stated. The respondent sought an order for costs which was not opposed.

48. WALTON J: I agree with Basten JA.

49. PRICE J: I agree with Basten JA.

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Endnotes

Decision last updated: 27 September 2017