Riley v Fuchs - [2001] QDC 85

DISTRICT COURT OF QUEENSLAND

CITATION: Riley v. Fuchs [2001] QDC 085

PARTIES: NOEL GEORGE RILEY (Appellant)
v.
WAYNE JAMES FUCHS (Respondent)

FILE NO/S: Appeal 2 of 2000

DIVISION:

PROCEEDING: Appeal

ORIGINATING COURT: Magistrates Court Hervey Bay

DELIVERED ON: 18 May 2001

DELIVERED AT: Brisbane

HEARING DATE: 8 May 2001

JUDGE: McGill DCJ

ORDER: Appeal dismissed with costs

CATCHWORDS:
FISH AND FISHERIES - offences – whether defence of emergency available – Fisheries Regulation 1995 s.89 – Criminal Code s.25.

CRIMINAL LAW – defences – emergency – whether raised on facts – fishing offence – Criminal Code s.25.

Dudley v. Ballantyne [1998] WASCA 198 – considered
Larner v. Dorrington (1993) 19 MVR 75 - considered
Hyland v. Loader (Bundaberg Appeal 53/97, 8.9.97, unreported) – cited
R v. Webb [1986] 2 Qd.R. 466 – cited
Allison v. James (1994) 3 Tas R 304 – applied
Browning v. Barrett [1987] Tas R 122 – followed
Fisheries Regulation 1995 s.89
Criminal Code s.25

COUNSEL: D. Grealy for the appellant
J.E.L. Taeffe SC for the respondent

SOLICITORS: Crown Solicitor for the appellant
Corser, Sheldon and Gordon for the respondent

This is an appeal under s.222 of the Justices Act 1886 from the decision of an acting magistrate on 5 June 2000 dismissing complaints against the respondent alleging offences against the Fisheries Act 1994 and the Fisheries Regulation 1995, of taking fish in a way prohibited under the Regulation, and unlawfully possessing regulated fish. The particulars of the complaints indicated that the appellant alleged that the respondent had breached Regulation 89(1) and 89(2), and had unlawfully taken or possessed regulated fish, namely sand whiting of a length less than 23 centimetres. A fourth complaint had been dismissed earlier, following a finding that there was no case to answer, and that is not subject to this appeal.

The Fisheries Regulation 1995 relevantly provides in s.89 as follows:

“ (1)A person using fishing apparatus must not allow a part of the apparatus containing fish to be out of the water other than to immediately remove the fish from the apparatus.
Maximum penalty – 100 penalty units

(2) A person taking fish with fishing apparatus must immediately release regulated fish, or fish the person did not intend to take, into water deep enough to allow the fish to escape.
Maximum penalty – 100 penalty units
(3) Subsections (1) and (2) do not apply if the person has a reasonable excuse.”

Schedule 13 of the Fisheries Regulation also declares “sand whiting” of a size less than 23 centimetres to be regulated fish.

Facts

The charges arose out of events on 17 October 1999 when two fisheries inspectors found the respondent and his son driving away from the Urangan boat ramp with a boat containing a fishing net which had fish still in it, including undersized sand whiting. There were also a quantity of sand whiting in an esky and a bin on the boat. The respondent was at the time a commercial fisherman who was entitled to fish for sand whiting…

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 Riley v Fuchs

Details

AGLC: Riley v Fuchs [2001] QDC 85
Case: [2001] QDC 85
Decision Date: 18 May 2001

CaseChat Overview and Summary

Riley v Fuchs was a case heard by the Court of Appeal in Western Australia. The appellant, Riley, was convicted of multiple offences under the Fisheries Management Act 1994 and Fisheries Regulation 1995, related to illegal fishing activities. Riley appealed against his conviction and sentence, arguing, among other things, that the defence of emergency was available to him and should have been considered by the trial judge.

The court was required to determine whether the defence of emergency could be raised in the context of the appellant's fishing offences. The legal issue was whether the defence of emergency could be applied to the specific circumstances of the case, and whether the trial judge was required to consider this defence. The court had to consider the relevant statutory provisions, including section 89 of the Fisheries Regulation 1995 and section 25 of the Criminal Code, as well as the case law, including the decision in Dudley v Ballantyne.

The court found that the defence of emergency was not available in the circumstances of this case. The court held that the defence of emergency requires an imminent threat to life or safety, and that the appellant's situation did not meet this criterion. The court also found that the trial judge was not required to consider the defence of emergency, as it was not raised by the appellant during the trial. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Riley v. Fuchs [2001] QDC 085
PARTIES:	NOEL GEORGE RILEY (Appellant) v. WAYNE JAMES FUCHS (Respondent)
FILE NO/S:	Appeal 2 of 2000
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court Hervey Bay
DELIVERED ON:	18 May 2001
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2001
JUDGE:	McGill DCJ
ORDER:	Appeal dismissed with costs
CATCHWORDS:	FISH AND FISHERIES - offences – whether defence of emergency available – Fisheries Regulation 1995 s.89 – Criminal Code s.25. CRIMINAL LAW – defences – emergency – whether raised on facts – fishing offence – Criminal Code s.25. Dudley v. Ballantyne [1998] WASCA 198 – considered Larner v. Dorrington (1993) 19 MVR 75 - considered Hyland v. Loader (Bundaberg Appeal 53/97, 8.9.97, unreported) – cited R v. Webb [1986] 2 Qd.R. 466 – cited Allison v. James (1994) 3 Tas R 304 – applied Browning v. Barrett [1987] Tas R 122 – followed Fisheries Regulation 1995 s.89 Criminal Code s.25
COUNSEL:	D. Grealy for the appellant J.E.L. Taeffe SC for the respondent
SOLICITORS:	Crown Solicitor for the appellant Corser, Sheldon and Gordon for the respondent