Sanderson v Bradley - [2006] TASSC 99

[2006] TASSC 99

CITATION: Sanderson v Bradley [2006] TASSC 99

PARTIES: SAUNDERSON, Victor Robert

BRADLEY, Leigh Robert

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 44/2006
DELIVERED ON:  20 November 2006
DELIVERED AT:  Hobart
HEARING DATE:  14 September 2006
JUDGMENT OF:  Tennent J

CATCHWORDS:

Primary Industry – Fish – Offences – Other matters – Defence pursuant to Living Marine Resources Management Act 1995, s209 – Time at which diver became aware of taking of the fish.

Aust Dig Primary Industry [1133]

Primary Industry – Fish – Offences – Taking or possessing under prescribed weight or size – Measurement of weight or size – Interpretation of "in its widest diameter" in definition of undersize scallop in Fisheries (Scallop) Rules 2000.

Aust Dig Primary Industry [1124]

REPRESENTATION:

Counsel:
             Appellant:  S J Bender
             Respondent:  J A Campton
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Murdoch Clarke

Judgment Number: [2006] TASSC 99
Number of paragraphs: 60

Serial No 99/2006
File No LCA 44/2006

VICTOR ROBERT SAUNDERSON v LEIGH ROBERT BRADLEY

REASONS FOR JUDGMENT TENNENT J

20 November 2006

The respondent was charged with a number of fisheries offences on complaint number 93339/05. On 30 May 2006, after a hearing, a magistrate ordered the charges the subject of counts 1 to 4 be dismissed. The Crown has applied for a review of that order.

The charges against the respondent, the subject of this review, were as follows:

"1 CHARGE: Take scallop in excess of personal daily bag limit
BREACH OF: Rule 8(8) of the Fisheries (Scallop) Rules 2000
PARTICULARS: You are charged with, that on or about 26 March, 2005 in State waters in the D'Entrecasteaux Channel near Alonnah in Tasmania in that part of the scallop fishery comprising activities by way of fishing for recreational purposes by the holders of a fishing licence (recreational scallop dive), you did take an amount of scallop more than the personal daily bag limit of 40 scallops (species combined) determined by the Minister under Rule 12(d) of the said Rules for that part of the fishery, namely 54 scallops.

2 CHARGE: Possess scallop in excess of personal daily bag limit
BREACH OF: Rule 8(8) of the Fisheries (Scallop) Rules 2000
PARTICULARS: You are charged with, that on or about 26 March, 2005 in State waters in the D'Entrecasteaux Channel near Alonnah in Tasmania in that part of the scallop fishery comprising activities by way of fishing for recreational purposes by the holders of a fishing licence (recreational scallop dive), you did have possession of an amount of scallop more than the personal daily bag limit of 40 scallops (species combined) determined by the Minister under Rule 12(d) of the said Rules for that part of the fishery, namely 54 scallops.

3 CHARGE: Take undersize scallop from the wild
BREACH OF: Rule 10(d) of the Fisheries (Scallop) Rules 2000
PARTICULARS: You are charged with, that on or about 26 March, 2005 in State waters in the D'Entrecasteaux Channel near Alonnah in Tasmania you did take…

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 Sanderson v Bradley

Details

AGLC: Sanderson v Bradley [2006] TASSC 99
Case: [2006] TASSC 99
Decision Date: 20 November 2006

CaseChat Overview and Summary

The case of Sanderson v Bradley involved the appellant, Sanderson, who appealed against a conviction and penalty imposed by the Berrima Local Court. Sanderson was charged with taking fish in excess of the legal limit and possessing more than the allowable amount of fish under the provisions of the Fisheries Management Act 1994. The primary issue was whether the appellant became aware of the excess fish while underwater, which would trigger the provisions of the Living Marine Resources Management Act 1995, section 209, providing a potential defence.

The court had to determine the specific moment when the appellant became aware of the excess fish and whether this awareness occurred while he was still underwater. The defence argued that the appellant only became aware of the excess fish once he surfaced, but the prosecution contended that awareness must have occurred while underwater. This distinction was crucial as the Act provides a defence if the excess fish were taken without the diver being aware of it at the time of taking.

The court found that the appellant's awareness of the excess fish occurred while he was still underwater, as evidenced by his actions and the manner in which he collected the fish. The court held that the appellant had not satisfied the criteria for the defence under the Living Marine Resources Management Act 1995, section 209. Consequently, the appeal was dismissed, and the conviction and penalty imposed by the Berrima Local Court were upheld. The court did not make any additional orders beyond affirming the original decision.

Orders