Sanderson v Bradley
[2006] TASSC 99
•20 November 2006
[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 from the wild) undersize scallop, namely 51 queen scallop (Equichlamys bifrons) each of which was less than 100 millimetres in its widest diameter when you were not the holder of a fishing licence (scallop).
4 CHARGE: Possess undersize scallop taken from the wild
BREACH OF: Rule l0(e) 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 have possession of undersize scallop taken from the wild, namely 51 queen scallop (Equichlamys bifrons) each of which was less than 100 millimetres in its widest diameter when the said scallop had not been taken or received by you in accordance with Rule 10(d) of the said Rules.
Grounds of Review
The grounds of review are as follows:
"In relation to Charge 1:
1 The learned magistrate erred in fact and/or in law in being satisfied that the respondent established a defence under Section 209 of the Living Marine Resources Management Act 1995 in regard to taking scallops in excess of the personal daily bag limit.
2 The learned magistrate erred in law in applying Section 209 Living Marine Resources Management Act 1995 with regard to the respondent's awareness of the amount of fish taken in excess of the personal daily bag limit as opposed to the respondent's awareness of his taking of the fish.
In relation to Charge 2:
3 The learned magistrate erred in fact/or in law being satisfied that the respondent established a defence under Section 209 of the Living Marine Resources Management Act 1995 in regard to possessing scallops in excess of the personal daily bag limit.4 The learned magistrate erred in law in applying Section 209 of the Living Marine Resources Management Act 1995 with regard to the respondent's awareness of the amount of fish possessed in excess of the personal daily bag limit as opposed to the respondent's awareness of his possession of the fish.
In relation to the Charge 3:
5 The learned magistrate erred in law in holding that 'widest diameter' of a queen scallop meant 'widest part of the shell' as opposed to the width of the main body of the shell.
6 In the alternative the learned magistrate erred in fact/or in law in finding that none of the scallops taken were 'undersize scallop' within the meaning of the Rules.
In relation to Charge 4:
7 The learned magistrate erred in law in holding 'widest diameter' of a queen scallop meant 'widest part of the shell' as opposed to the width of the main body of the shell.
8 In the alternative the learned magistrate erred in fact/or in law in finding that none of the scallops possessed were 'undersize scallop' within the meaning of the Rules."
The review deals with two issues, the defence raised on the respondent's behalf pursuant to the Living Marine Resources Management Act 1995 ("the Act"), s209, and the interpretation of the phrase "in its widest diameter" as that appears in the definition of undersize scallop in the Fisheries (Scallop) Rules 2000 ("the Rules").
Factual background
On 26 March 2005 the respondent was with a family group on his small boat. At about 4.50pm the boat was anchored near Satellite Island in the D'Entracasteaux Channel. It was approached by a fisheries patrol vessel which coincidentally had on board a television camera crew filming the activities of Marine Police in Tasmania. At the time, the respondent was in the water diving and there were two adults and a number of children in the boat itself. One of the adults was tending the diver's air line and the other was keeping an eye on the children.
Police boarded the vessel and saw a pile of scallops on the deck. Very soon after, the respondent surfaced holding against his chest some more scallops. He handed those to the male on board and then climbed aboard. The scallops brought on board at this time were added to the pile on the deck. The scallops in the pile were subsequently counted and measured by police in the respondent's presence. There were 54 scallops in all, three doughboy scallops and 51 queen scallops, that is 14 in excess of the amount the respondent was entitled, as a licensed recreational diver, to take that day. The police officer who measured the scallops determined that all the queen scallops were undersize. Once he had counted and measured all the scallops, he returned all except five, which he kept for evidentiary purposes, to the sea. There was no evidence the five kept came from the respondent's last dive. The evidence accepted by the learned magistrate was that the scallops returned to the sea were alive when so returned. The respondent admitted he had caught all the scallops.
The s209 defence
At the hearing before the learned magistrate, this defence was raised by the respondent in relation to counts 1 to 4 on the complaint. The challenge on review relates only to its success in respect of counts 1 and 2, being those relating to the taking and possession of a number of scallops in excess of the personal daily bag limit. There is no challenge to the application of the defence to the charges relating to the taking and possession of undersize scallops.
The Act, s209, provides:
"209 It is a defence in proceedings relating to the taking of fish for a person to satisfy the court that, on becoming aware of the taking of the fish, the person immediately returned the fish to the waters from where it came with the least possible injury."
Counsel for the State submitted that the learned magistrate had failed to apply the correct law in her approach to s209. He submitted that the present case involved a diver on the seabed with his hands free. The "taking" of the scallops occurred when he placed his hands on the scallops and picked them up under water. At the point of that taking, he became "aware" of the taking of the fish for the purpose of considering any defence under s209. There was, he said, nothing accidental about the taking and the fact that the respondent might have intended to return excess fish to the water later was not relevant. When he did not do so while under water, the defence was not available.
Counsel relied on the words of Crawford J in Hibble v Cannon (2001) 10 Tas R 129 at 138 where, at pars23 - 25 he said:
"With respect, the learned magistrate was plainly in error when he held that the offence created by r11(1)(d), of taking more than five rock lobster a day, is not committed unless the taker intends to take and keep more than five such fish. In particular, there is no justification for introducing into the rule, when interpreting it, a requirement for an intention to keep the fish.
It was the view of the learned magistrate that unless an element of an intention to keep is to be found in the meaning of 'take', an absurd result will be that purely innocent actions which inescapably and unintentionally cause more than five fish to be taken, will amount to an offence, and he gave as an example the holder of a recreational pot licence pulling up a pot containing eight plainly sized fish with the intention of only keeping the five largest lobster. That view ignores the provisions of the Living Marine Resources Management Act 1995, s209, which make it a defence to proceedings relating to the taking of fish if, on becoming aware of the taking of the fish, the person immediately returns the fish to the waters from where it came with the least possible injury. The section is headed 'Defence for accidental taking of fish'. Of course, there was nothing unintentional or accidental about each of the respondents taking more than five rock lobster, and s209 could not have been used by them as a defence.
One result of my interpretation of the meaning of 'take' may be that those who dive for rock lobster and find it impossible to measure until they have placed the lobster on board a boat, may well be accused of offending against r12(1), which prohibits persons from taking or having possession of undersize lobster. In that respect there may well be a defect in the rules. It might be desirable to insert in the rules provisions which expressly allow for five lobster to be taken and measured, for those undersize to be quickly returned to the water and for the diver to take further lobster so that he may retain a total of no more than five at the end of the day's fishing. Plainly a diver must first take and possess a lobster before he can effectively measure it, but I see it as an impermissible process of judicial legislation to interpret r12(1) as providing that no offence is committed until the fish have been measured and an opportunity given to return undersize lobster to the water. It may be arguable that the provisions of s209 provide a defence in such a case, but it is unnecessary for me to determine that."
Crawford J in those comments was referring to two different scenarios, one relating to the taking of a number of fish in excess of an allowed limit and one dealing with the taking of undersize fish. He recognised there may be different concerns arising.
Counsel for the State however submitted that the facts in that case were on foot with those in the present case. The defence was not available there and should not have been available to the respondent in the present case. He said this was an offence of strict liability and there was no doubt as to the taking of the scallops and no doubt as to when the respondent became aware.
Counsel went on to refer to Browning v Barrett [1987] Tas R 122. He repeated submissions made by counsel for the State at the hearing in the following terms:
"In Browning v Barrett (supra) a there was a division of opinion in the Full Court as to the meaning of the word 'immediately' in Section 65(2) of the Fisheries Act 1959 relating to fish 'accidentally' taken. This case is not determinative of the meaning of 'immediately' in Section 209 of the Act, which is cast in terms different to those contained in Section 65(2). However, even applying the interpretation emerging from that case most favourable to the defendant, ie 'immediately' means that the ascertainment of the size of the fish taken and the return of any undersize fish to the water must be made at the earliest practicable moment (per Neasey J at 127 and Cosgrove J at 134), the defendant has not established this defence."
Counsel submitted that the respondent could have used a catch bag and counted the scallops he picked up as he put them in the bag. He could have measured the scallops underwater, or at least after each dive. It was not logical to measure after several dives and there was a pile of scallops in the boat. He referred to Ministry of Agriculture and Fisheries v Prangley [1994] 1 NZLR 416 and to the observation in the New Zealand Court of Appeal joint judgment in relation to breaches of recreational scallop fishing requirements where, at 421, the court said:
"Generally a diver reasonably should be expected to count scallops as he picks them up and places them in his bag."
At 422 the court went on to say:
"It is no answer that until they are measured it cannot be known whether 20 above the minimum size have been taken. Such a practice could not be defended as involving reasonable steps to ensure not more than 20 were taken."
The court was there dealing with specific legislation which allowed a defence if a fisherman took all reasonable steps to ensure he did not breach the law. However it was submitted the observations were consistent with the regulatory regime in Tasmania.
In summary, counsel submitted that the learned magistrate did not apply established principle and hence grounds 1 to 4 of the notice of review should succeed.
Counsel for the respondent did not take issue with the definition of "take" upon which counsel for the State relied. He did not dispute that the respondent took and possessed the scallops as alleged. However, he submitted that the respondent's actions were protected by s209 because he did not become aware of the taking of too many fish until he was on board the boat and he would have, but for police intervention, returned any excess scallops to the sea.
With respect, reliance on Hibble's case (supra) in this matter by counsel for the State has to an extent been misplaced and it is useful to consider the facts in that case. Cannon was charged with taking more than five rock lobster in a day, he not being the holder of a fishing licence entitling him to do so. He and another fisherman dived for rock lobster and each placed more than five in a boat intending to keep the largest 10 between them, returning undersize and the smallest fish to the water. A magistrate dismissed the charge, finding that Cannon did not intend to keep more than five fish and that the offence was not committed unless the taker intended to do so.
On a review of that decision, this Court found that an intention to return fish to the water was not a relevant consideration and did not mean they had not been taken within the meaning of the rule. The court found that Cannon did take more than five rock lobster. What Crawford J said at par24 was that in that particular case, Cannon had quite deliberately taken more than five rock lobster and that a s209 defence would not be available to him because there was nothing unintentional or accidental about his actions. He interpreted s209 to have that flavour by reference to its heading in the legislation which was "Defence for accidental taking of fish".
The process undertaken by Cannon was what was called "high-grading". The respondent in the present case specifically denied that, his evidence being he thought he had only taken 40 scallops in accordance with what he knew was his personal bag limit. In Hibble's case, the taking and the awareness by reference to s209 were at the same time because Cannon knew when he lifted the rock lobster that he had more than he should.
The facts of that matter determined the outcome and it is not support for any general proposition that once there is a taking of fish there is contemporaneous awareness for the purpose of considering a s209 defence.
The starting point should be the wording of s209. The first thing s209 does is identify the type of proceedings in respect of which it may be raised. These are "in proceedings relating to the taking of fish". In this case the identifiable proceedings were the taking of fish in excess of the personal daily bag limit, not simply the taking of fish which may have no illegal aspect to it. The section then continues with the words "on becoming aware of the taking of the [my emphasis] fish". The only logical interpretation of that phrase is that it refers to the taking of the fish which gives rise to the proceedings, that is, the taking of those fish which constitutes an illegal act. That will not be when a diver puts his hand on and lifts his first scallop of the day but will arise when he puts his hands on and lifts his 41st scallop. It is then a question of fact as to when the diver became aware of the illegal nature of his activities which will depend on the circumstances of the case.
In effect there are two types of "taking". There is the "taking" which occurs when a diver lifts a scallop off the seabed which might be perfectly legal. There is then the "taking" which constitutes an illegal act. It is the second, in my view, which is contemplated by s209. The learned magistrate said at 9 of her reasons:
"In s209 of the Act the phrase 'on becoming aware of the taking of the fish' must mean the taking of the illegal fish to which the proceedings relate. The provision cannot operate sensibly otherwise … ."
With respect, I agree with the learned magistrate's conclusion. The awareness of the respondent must relate to his awareness that he had taken fish in excess of the personal daily bag limit and not that he had just taken fish.
That conclusion in my view disposes of grounds 2 and 4 of the notice of review which must fail.
That does not however resolve grounds 1 and 3. The question arises whether it was open to the learned magistrate on the facts of this case to find that the respondent did not become aware of the taking of the fish until he was on board the boat and the police counted and measured his scallops.
The learned magistrate said at 9 and 10 of her reasons:
"As stated, I find that the Defendant became aware of the amount of fish he had taken when they were counted on the boat by Constable Stacey.
To ensure compliance with the law it was not prudent for the Defendant to undertake in a quick succession a flurry of dives without proper means for keeping a correct and running total of scallop caught. As Counsel for the prosecution submitted he could have adopted a number of means, not least arranging to have Mr Welling keep count and advise him on each occasion how many he had taken. This would have been a simple and reasonable measure to adopt.
I do not consider however that simply because the Defendant's lack of awareness was brought about by this lack of forethought that he is necessarily precluded from relying upon s209 as a defence. This was recognised by Cosgrove J in Browning v Barrett (at p132) in relation to the previous similar defence provision, s65(2) of the Fisheries Act 1959."
In that passage the learned magistrate referred to a recognition by Cosgrove J in Browning v Barrett (supra) at 132 of the proposition she put forward. With respect, I do not accept that proposition can be distilled from the words of Cosgrove J in that case. There the court was dealing with charges of the taking and possession of undersize crayfish. At 132 Cosgrove J dealt with the impact of the Fisheries Act 1959, s65, which provided that:
"A person, who, while fishing lawfully, accidentally takes an undersized, unclean, or unseasonable fish, or a fish the taking of which is at the time unlawful, does not incur any penalty or forfeiture under this Act if he immediately returns that fish to the water with the least possible injury."
His honour referred to the reasons of Underwood J (as he then was) in which the history of fisheries legislation and the definition of the word "take" had been canvassed. It was pointed out that the legislation had originally been intended to protect the gentry's sporting fish, salmon and trout and that initially "take" meant to remove from the water. Since fly fishermen could not tell prior to landing a fish precisely what it was or its size, the regime which included an accidental taking defence made sense. However the expansion of the regime to cover other fish with various catching methods created problems. With respect, nowhere on 132 does his Honour suggest that lack of awareness brought about by lack of forethought might still allow a fisherman to avail himself of this type of defence. His honour was dealing with specific methods of catching certain fish which would include an unavoidable illegal act.
The learned magistrate appears, however, to have relied on the view she expressed to support her finding as to the respondent's awareness notwithstanding she found his method of fishing imprudent.
The learned magistrate said at 9 - 10 of her reasons:
"He had diligently prepared for the opening of the recreational scallop season. He had read the guide book (D2). He was aware of bag limits and permitted sizes. He had gone to the trouble of having his plastic measuring guide reinforced with steel. He was aware that forfeiture of this boat may be a penalty for illegal fishing. This is evidenced by his statement to Constable Stacey and in evidence to the effect that he had too much to lose, referring to his two new motors, for a few fish. On the footage he presented as honest and co-operative with the Police. He had never fished for scallops before. I thought that he was an honest man trying to do his best to comply with the Regulations."
She found that the respondent spent about 10 minutes in the water diving, which consisted of eight short dives. On each dive the respondent collected scallops by hand, around half a dozen, and took them to the surface. He knew he was not allowed to take more than 40. The respondent told the court he was counting the scallops as he was gathering them. He accepted he was inaccurate and that his method was fraught with risk. The learned magistrate found that the respondent's demeanour when he finally surfaced was consistent with a flurry of intense and tiring diving activity that did not involve concentrating on exact numbers of scallops, but at best approximating. While she determined the respondent did not deliberately take in excess of 40 scallops, she could not be satisfied he had a belief he only had 40, accepting his belief extended only to having somewhere in the vicinity of his limit. She determined that because there were only some 14 over the limit, the excess might not necessarily have been obvious.
The facts in this matter were that the respondent took 54 scallops. Despite being aware of the requirements and having he said prepared diligently for his day out, he made no serious attempt at all to ensure he took only what he was allowed. The approach to the charges of taking and possession must necessarily be somewhat different to the approach to be taken to charges relating to undersize fish. It is confusing the issue to suggest in relation to the taking and possession charges that it was unrealistic to suggest the respondent could not measure his scallops underwater and what he intended was to measure on the surface and return undersize fish to the sea. That may have been relevant to the charges relating to undersize scallops, but is not, in my view, relevant to the take and possession charges.
As to the take and possession charges, the respondent, despite his apparent genuineness and honesty, was, at the very least, completely reckless in the approach he took to diving and counting. In the context of a total of 54 scallops, when on his own evidence he was bringing half a dozen or so to the surface each time and dived about eight times, an excess of 14 was in fact quite a large proportion of the total. He should have been aware of the number of scallops he was lifting and in my view it is not open for a diver to adopt a system any reasonable person would realise could cause him to take more than he should and then rely on that system and say, well I thought I only had 40.
I am of the view it was not open on the evidence for the learned magistrate to find that the respondent did not become aware of the taking of the excess fish until they were counted and measured on his boat by police. In essence, the surplus 14 should never have been brought to the surface.
That finding makes it unnecessary, in my view, to determine the further issue raised by s209 which is the impact of the word "immediately". However, should I be wrong as to that, I conclude that, since the awareness occurred while the respondent was still in the water, the impact of the word "immediately" is that the respondent should never have brought the fish to the surface. The intervention by the police, insofar as they returned the fish to the sea, was therefore irrelevant.
Grounds 1 and 3 of the notice to review should therefore succeed.
Grounds 5 to 8 – undersize scallops
The issue raised by grounds 5 to 8 inclusive of the notice to review related to the charges of taking and possessing undersize scallops and central to the argument was the method of measuring scallops. The scallops the subject of the charge were all queen scallops. The definition of an undersize queen scallop in the Rules was one "less than 100mm in its widest diameter".
The term "widest diameter" is not defined.
The evidence before the learned magistrate was that all the 54 scallops taken by the respondent were measured by Constable Stacey. He found 51 undersize queen scallops. He measured all of them by reference to a line running parallel to the hinge of the scallop shell. The learned magistrate accepted the accuracy of his measurements and that, if that were the correct method of measuring, the scallops were undersize within the meaning of the Rules.
However, counsel for the respondent submitted there was no basis for interpreting "widest diameter" as being the line measured by Constable Stacey and that the term should be interpreted as meaning whatever the widest point of the shell was. The learned magistrate found in favour of the submission by counsel for the respondent. The question then remained, could the court be satisfied beyond a reasonable doubt on the evidence presented that the scallops measured by Constable Stacey were undersize having regard to the method of measuring found by the learned magistrate to be the correct one?
The only scallops actually measured in the manner found by the learned magistrate to be the correct one, which I will refer to as the "across the shell" method, were the five which Constable Stacey retained for evidentiary purposes. He was asked to measure those in court and did so and each was undersize. However of course the other 46 scallops which were referred to in the charges had been returned to the sea and could not be measured that way. Counsel for the State sought to rely on a combination of the parallel measurements Constable Stacey had taken on the date of the alleged offences and some evidence from a Dr Semmens. The proposition he put forward based on that combined evidence was that, even if the across the shell method of measuring were correct, then the scallops not measured in that way, would still, by reference to their parallel measurement, have been undersize. This was based on the concept that if you added a few millimetres to the parallel measurements taken by Constable Stacey to accommodate the different method of measuring, the scallops still came in undersize. While the learned magistrate accepted this evidence of Dr Semmens, she took the view, as a consequence of the small number of scallops he had sampled, it was not sufficient to satisfy her beyond a reasonable doubt that all the 51 scallops were undersize.
What is the meaning of "widest diameter"? The learned magistrate began her examination of the term by reference to the definition of "diameter" in the Oxford Dictionary. As she pointed out, that definition described a straight line running through the centre of a circle or sphere, and a queen scallop shell is neither.
There were, in effect, two bases put forward by counsel for the State to support his submission that the method of measuring adopted by Constable Stacey was correct.
Firstly, he submitted that an interpretation which promoted the purpose or object of the Act was to be preferred (Acts Interpretation Act 1931, s8A(1)). The Act, s7(1)(b), provides:
"7 (1) The purpose of this Act is to achieve sustainable development of living marine resources having regard to the need to-…
(b) provide and maintain sustainability of living marine resources; …"
As to that, Dr Semmens, who was a fishery scientist employed by the Tasmanian Aquaculture and Fisheries Institute, gave evidence about his work with scallops in Tasmania. He gave uncontradicted evidence that the width and height of a scallop will determine the approximate age of a scallop. He described the width as that measured on the line parallel to the hinge and the height as that measured on a line perpendicular to the hinge. Research in relation to scallop size and age was conducted to enable sustainable management practices. A scallop of a certain age will have had two major spawnings. The size determined by the legislation as the minimum at which a scallop could be caught is such that it has been determined the scallop will have been old enough to have had those spawnings. Dr Semmens said that since somewhere around about 1987, width has been used as a standard form of scientific measurement.
Dr Semmens was also asked a question about a measurement "from the extreme point of the hinge of the shell diagonally if you like across the shell to the widest opposite extremity". He was asked if there was any obvious scientific factor which might explain why that particular measurement was not used. He said:
"Well firstly because it - well to me it's a difficult measurement, you know, it's taking into account the hinge which can be different shapes. The hinge on one side can be longer than the other, there's no really sort of standardisation. I mean that's important, as a scientist and in the fishery you need repeatability and I wouldn't be very confident of being able to repeat a measurement using the hinge, and also there's been no work on how that sort of measurement would relate to the biology and I would think that would be difficult because of the repeatability, you wouldn’t be getting a good standard."
There was no other evidence to suggest such a method of measuring did have any particular significance.
From a scientific point of view, Dr Semmens interpreted the widest diameter as the widest portion of the shell parallel to the hinge across what he saw as the circular part of the shell. He also told the court that as to correlation between height and width, there was a reasonably tight relationship which was that the width was slightly larger than the height.
The net effect of this particular evidence was that Dr Semmens had been specialising in research into scallops to assist the government in determining polices relating to the sustainability of the industry. There was no evidence to contradict that. There was a specific reason for the measurements he described, ie height and width to determine the age of a scallop, and the standard measurement accepted scientifically since about 1987 was to measure by reference to the width. There was no scientific basis for the form of diagonal measurement put forward by counsel for the respondent. Therefore from the point of view of giving effect to the purpose of the Act, the measurement by reference to the width would appear to be the most logical. It is also consistent with Dr Semmens' description of the shape of the shell.
Constable Stacey gave evidence about the method he used to measure the scallops. He measured them on a line parallel to the hinge. He was asked why he did that and he said that was the recognised way to measure the size of a scallop. He said to his knowledge it had been common practice of commercial fishermen, recreational fishermen and police officers to measure that way. There was no contrary evidence. The respondent in fact said he had never measured a scallop shell before that day. The only measuring of scallop shells it appeared he did was of one doughboy scallop shell, a different type from that the subject of the charges, being one he found and thought he would measure.
Counsel for the respondent submitted that the phrase "widest diameter" should be given its ordinary meaning, that there is nothing in the legislation to suggest that it should be qualified by the term parallel to the hinge, and hence the only logical meaning is to measure at whatever the widest point is.
In his submissions to the learned magistrate, counsel for the respondent referred to public notices issued under the authority of the relevant minister and published in the Tasmanian Gazette and local newspaper in March 2005 which dealt with the term widest diameter but in relation to other parts of the Rules than that being dealt with in this case. There were, it appears, two public notices, one just before and one just after the date of the relevant offences. Counsel referred to differences between the definitions in the public notices themselves and inconsistencies between them and the Rules, and submitted, by reference to those inconsistencies, that it would be unsafe to convict the respondent in reliance on them. What was actually tendered to the court was a copy of the relevant gazette and copy of a newspaper with the public notice as they existed at the date of these offences. Counsel for the respondent sought to put into evidence the second public notice which amended the wording of the first. However, the learned magistrate ruled that evidence inadmissible. It was perhaps unfortunate that for some reason not apparent a copy of that second public notice found its way into the judge's papers at page 20. The learned magistrate in any event determined that the reference in the public notice should in effect be disregarded for the purpose of determining any issue of interpretation and at the hearing of this review neither counsel submitted otherwise.
The learned magistrate concluded at 16:
"Whilst I accept that to prescribe a diameter measurement to an object which is not wholly circular is unusual, and that there is scientific merit in the parallel measurement, it would be forcing the language of the phrase 'widest diameter' to confine the measurement to a measurement parallel to the hinge, when the widest part of the shell may be a diagonal measurement from the edge of the hinge.
The ordinary meaning of the word 'widest diameter' should be interpreted as simply a measurement of the widest part of the shell. This is a penal provision. If a specific measurement parallel to the hinge was required the definition could easily state as such."
The learned magistrate went on to say that she was reinforced in her view by comments of Thomas J in Crosthwaite v Loader (1995) 77 A Crim R 348, which she then quoted. With respect, however, that case dealt with a different species of scallop and a particular measuring system in Queensland. Thomas J was simply setting out the Queensland practice and making no determinative findings in relation to Tasmanian queen scallops, nor the practice in this State.
The relevant definition is that a scallop is undersize if it is less than 100 millimetres in its widest diameter. The word diameter is, in the ordinary use of that word, used to describe a measurement across a circle and will, wherever on the circle it is measured, be the same. A queen scallop shell is not circular. Neither the Rules nor the Act contain a definition of the phrase. Neither one contains any instruction as to how the "widest diameter" is to be determined. The fact that the word "widest" is used to qualify diameter suggests the legislation envisaged the scallops to be measured would not be precisely circular and that divers would be given the benefit of the widest of any diameter measurements.
Dr Semmens' uncontradicted evidence was that in the scientific context, the width of a queen scallop shell was measured across the widest point parallel to the hinge, while height was measured along a perpendicular line from the base of the hinge. He gave evidence also that based on his own experience and literature available at his work, the width of a queen scallop shell was usually slightly larger than the height, maybe 3 to 4 millimetres. When Dr Semmens gave evidence about this, he firstly said that the height was greater than the width. He then, after a break, changed his evidence explaining that he was not a practiced witness, he had become nervous and had "botched" his first answer. He acknowledged that he had done no published research on this topic and he was unable to produce the literature he referred to. He explained he had not been asked to produce such, but to concentrate on the type of measuring suggested by counsel for the respondent.
With respect, the way in which Dr Semmens was examined and cross-examined would, in my view, have confused even the most practiced witness. Even the learned magistrate confessed herself confused by the evidence at times. However, Dr Semmens was clear in his ultimate conclusion and there was no contradictory evidence.
The learned magistrate's interpretation of the phrase was that it should be a measurement of the widest part of the shell. She took the view that had Parliament intended to restrict it in the manner contended for by the State, they could have said so. With respect, however, the learned magistrate has ignored the word "diameter" and the connotations of that word by her interpretation and there is no justification for so doing.
The Acts Interpretation Act, s8A, provides that an interpretation which promotes the purpose or object of an Act is to be preferred to one that does not. One of the expressly stated objects of the Act is to ensure sustainability of the industry. Dr Semmens' evidence was that scallop size was important in determining sustainability of stocks and that the standard scientific measure was by reference to width. Dr Semmens' work and that of his employer was for the purpose of advising government about sustainability issues. Logic dictates that, if determinations as to scallop size on a scientific basis are used to determine appropriate sizes to be caught by divers so as to ensure sustainability of stocks, then the same sort of measuring approach would be that which Parliament intended when it provided for the measurement it did.
In all the circumstances I am persuaded that the learned magistrate erred in determining that the phrase "in its widest diameter" should be interpreted to mean simply "the widest part of the shell" and that the phrase should be interpreted to mean a measurement along a line parallel with the shell hinge representing the diameter of the circular part of the shell.
Grounds 5 and 7 of the review should therefore succeed. It is not necessary in the circumstances to make any finding in respect of the alternative grounds 6 and 8 of the notice to review.
Conclusion
The notice to review should therefore succeed and the order of the Court will be that the order of the learned magistrate dismissing counts 1 to 4 inclusive on complaint number 93339/05 is quashed. I will hear counsel as to the further disposition of the matter.
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