State of Tasmania v Mayes and O'Mahony
[2004] TASSC 52
•4 June 2004
[2004] TASSC 52
CITATION: State of Tasmania v Mayes and O'Mahony [2004] TASSC 52
PARTIES: STATE OF TASMANIA
v
MAYES, Nigel Joseph
O'MAHONY, Wayne
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 381/2003
DELIVERED ON: 4 June 2004
DELIVERED AT: Hobart
HEARING DATES: 13, 14 May 2004
JUDGMENT OF: Slicer J
CATCHWORDS:
Statutes – Regulations – Validity – Unreasonableness – Vagueness and uncertainty – Particular cases – Management plan – Specific terms of compliance.
Fisheries (Abalone) Rules 2000 (Tas), rr17(1)(c)(i), 29(3)(b), 35.
Williams v Law B28/1987; Minister for Primary Industries v Austral Fisheries Pty Ltd (1993) 40 FCR 381, followed.
Hitchener v Ham [1961] VR 97, distinguished.
Aust Dig Statutes [145], [147]
Primary Industries – Fish – Offences – Other cases – Illegal possession of fish – Offence proscribes possession without lawful excuse, not unlicensed possession.
Living Marine Resources Management Act 1995 (Tas), s264(1).
Fisheries (Abalone) Rules 2000 (Tas).
Aust Dig Primary Industries [35]
REPRESENTATION:
Counsel:
State of Tasmania: D G Coates SC
Accused Mayes: D J Porter QC
Accused O'Mahony M J Crisp
Solicitors:
State of Tasmania: Director of Public Prosecutions
Accused Mayes: Chris Boland
Accused O'Mahony Creese, Crisp & Fay
Judgment Number: [2004] TASSC 52
Number of Paragraphs: 56
Serial No 52/2004
File No 381/2003
STATE OF TASMANIA v NIGEL JOSEPH MAYES and WAYNE O'MAHONY
RULING SLICER J
4 June 2004
The State of Tasmania has indicted the accused on three counts of illegal possession of fish, contrary to the Living Marine Resources Management Act 1995, s264(1) ("the Act"). On 2 November 2000, police officers intercepted two vehicles, each driven by one of the accused, which were transporting 877 kilograms and 264 kilograms of abalone. Applying the formula prescribed by the Act, s269, the value of each consignment was $23,679 and $7,128 respectively.
The parties seek the determination, before the empanelment of a jury, of a number of legal issues, as permitted by the Criminal Code, s361A.
Factual basis of determination
Facts which are not in dispute concern the status of each accused, the physical possession of the fish, and the circumstances surrounding that possession. At all material times, the accused Mayes was the holder of a fishing licence (abalone dive) and a quota entitlement to take abalone. He had caught the abalone in question, all of which were of legitimate species and size and the quantity was within his quota entitlement. The accused O'Mahony was an employee of a licensed fish processor which was entitled to receive the abalone.
Police officers had observed an aluminium boat with two persons on board (Mayes and his deckhand) journey through Hell's Gates in Macquarie Harbour and come to the jetty adjacent to the boat ramp at the camping ground on Macquarie Heads Road at Strahan. The boat was grounded and loaded onto a trailer attached to a white Toyota. The driver of that vehicle was Mayes. Shortly after, a Toyota truck with an enclosed metal canopy, driven by O'Mahony, parked alongside the Toyota and a number of items, including grey fish bins, net bags and white bags, were transferred to it from the boat. Both vehicles drove off and were intercepted near the Strahan aerodrome on the road leading to Strahan and escorted to the Strahan Police Station. There the respective quantities of abalone were found in the boat and truck. Police also found a set of electronic scales in the front of the Toyota truck driven by O'Mahony, although at no time had observing police seen the scales used at or near the boat ramp.
At the time of the original interception, Mayes produced his commercial abalone diver's docket book (Number 98), the last completed entry in which was dated 1 November 2000. Docket Number 19656 had been partially completed with entries of date, place of loading, prior fishing report number, name and distinguishing mark of vessel. O'Mahony produced a book of "printed receipt pages" headed "Tasmanian Seafoods Pty Ltd" with the last entry being 4420, dated 1 November 2000. Both accused told police that "it was their intention and past practice to transport the fish to the Tasmanian Seafoods' depot at Strahan and weigh the fish at that point".
At the police station, both men declined to take part in an interview. Mayes made a statutory declaration stating:
"I am not prepared to say anything further about my contact with police today, Thursday 2nd of November 2000. I have been advised that I don't have to say anything unless I wish to."
O'Mahony did likewise, stating that he was the manager of "Tasmanian Seafoods and Red Rock Lobster" and that:
"I was present when a quantity of abalone were seized by police at the Strahan Airport. I was also present when they were weighed by Watkins Staff at the Strahan Police Stn. The gross weight was 899kg and an estimated net fish weight of 877kg. I have been cautioned that I do not have to make any statement if I don't wish to and do not wish to make any further statement or take part in any interview."
Neither man provided a reason why the landed abalone had been divided at the place of landing and transported in separate vehicles to the fish processing premises.
The indictment
Count 1 charges the accused jointly with the illegal possession, without lawful excuse, of 877 kilograms of abalone with a value of $23,679. Count 2 is against Mayes alone, alleging possession of 264 kilograms of abalone, valued at $7,128. Count 3, against both men, provides as particulars that:
"wayne o'mahony at Strahan in Tasmania on or about the 2nd day of November 2000, had without lawful excuse, possession of 606 kilograms of abalone with a value, determined in accordance with Section 269 of the said Act, exceeding $5,000, namely $16,362 and the said Nigel Joseph Mayes aided and or abetted Wayne O'Mahony to illegally possess such fish."
The Act, s264, provides:
"264 ¾ (1) A person who, without lawful excuse, has possession of fish with a value exceeding $5 000 is guilty of an indictable offence punishable under the Criminal Code.
(2) The court is to determine the value of fish in accordance with section 269."
The parties have agreed, and the evidence clearly establishes, that the value of the fish stated in each count of the indictment as calculated in accordance with the Act, s269, exceeds the amount of $5,000. That section requires a court to determine the value of "any fish" and, as such, might require a jury finding which would be limited to a mathematical calculation made in accordance with a finding of the quantity of the fish involved and the value declared by the Minister.
Questions raised
The matters sought to be determined in accordance with the Code, s361A, have been formulated as:
"1 That being the holder of a fishing license [sic] which entitled the accused to possession of fish with a value exceeding $5,000, the accused could not, as a matter of law, be convicted of the crime under the Living Marine Resources Management Act 1995, s264(1).
2 Alternatively, that further proceedings on the indictment be stayed on the basis that to indict the accused with a breach of the Act, s264 is, in light of the provisions of the Fisheries (Abalone) Rules 2000 and the circumstances of the case, an abuse of process.
3 That rr17(1)(c)(i), 29(3)(b) and 35 of the Fisheries (Abalone) Rules 2000 are ultra vires.
4 Alternatively, that established breaches of r17(1)(c) and/or r29(3)(b) of the Fisheries (Abalone) Rules 2000, do not of themselves deprive the accused of a lawful excuse for possession, within the meaning of s264(1).
5 If established breaches of r17(1)(c) and/or 29(3)(b) do not of themselves deprive the accused of a lawful excuse for possession, whether the concept of lawful excuse is confined to recognised criminal defences; eg necessity and mistake of fact.
6 That on a proper construction of r17(1)(c)(i), it does not apply to the holder of a fishing licence (abalone dive).
7 Whether the prosecution or the accused bears the onus of proof in relation to the absence or existence of a lawful excuse, within the meaning of the Act, s264."
Not all of the questions can, or ought, be answered. They will be considered under the following categories:
(1)Nature and effect of licence (issues 1 and 2).
(2)Validity of Regulations (issue 3).
(3)Application of Regulations (issue 6).
(4)Onus and extent of "lawful excuse" (issues 4, 5 and 7).
It is convenient to first deal with the validity of the impugned rules, since their status affects the primary contention of the accused Mayes that he cannot be convicted of the crime alleged. The case of O'Mahony, as manager of a fish processing company, would be enhanced if the rules are deemed invalid.
Validity of Rules and Regulations
The purpose of the Act is stated:
"To provide the sustainable management of living marine resources, to provide for management plans relating to fish resources, to protect marine habitats."
Its general nature is as stated by the High Court in Harper v Minister of Sea Fisheries (1989) 168 CLR 314 at 325:
"Under that licensing system, the general public is deprived of the right of unfettered exploitation of the Tasmanian abalone fisheries. What was formerly in the public domain is converted into the exclusive but controlled preserve of those who hold licences. The right of commercial exploitation of a public resource for personal profit has become a privilege confined to those who hold commercial licences. This privilege can be compared to a profit a prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content."
Brennan J considered the right to lawfully take fish and said, at 335:
"As licensees under the Act are the only persons who enjoy the right to take abalone from the Tasmanian fishery, the public being excluded, the right they enjoy is similar to the common of piscary - a right of fishing in another's waters to the exclusion of the public. Such a common law right is a profit a prendre (see Halsbury's Laws of England, 4th ed, vol 6, p 215, pars 581, 582) but at common law it is not available in tidal waters. When a natural resource is limited so that it is liable to damage, exhaustion or destruction by uncontrolled exploitation by the public, a statute which prohibits the public from exercising a common law right to exploit the resource and confers statutory rights on licensees to exploit the resource to a limited extent confers on those licensees a privilege analogous to a profit a prendre in or over the property of another. A limited natural resource which is otherwise available for exploitation by the public can be said truly to be public property whether or not the Crown has the radical or freehold title to the resource. A fee paid to obtain such a privilege is analogous to the price of a profit a prendre; it is a charge for the acquisition of a right akin to property. Such a fee may be distinguished from a fee exacted for a licence merely to do some act which is otherwise prohibited (for example, a fee for a licence to sell liquor) where there is no resource to which a right of access is obtained by payment of the fee."
By its enactment, Parliament afforded extensive regulatory powers which, relevant to these proceedings, include:
"285 ¾ (1) The Governor may make regulations for the purpose of this Act.
(2) Regulations may be made so as to apply differently according to any matter, condition, limitation, restriction, exception or circumstance specified in the regulations.
(3) The regulations may ¾
(a)provide that a contravention of, or a failure to comply with, any regulations or rules made under Part 3 or 5 is an offence;
…
(5) The regulations may confer a power and impose a duty on a specified person or a specified class of persons.
(6) The regulations may adopt or incorporate the whole or any part of any document, standard, rule, code, specification or method, with or without modification, issued, prescribed or published by any person or body before or after the regulations take effect.
…
287 ¾ The Governor may make regulations in respect of ¾
…
(b)the manner in which, and the means by which, fish may be unloaded, delivered, consigned or transported for processing
(c) the manner in which fish are received, transported and stored;
…
288 ¾ The Governor may make regulations in respect of ¾
(a)the manner in which, and the means by which, fish may be unloaded, delivered, consigned or transported by handlers; and
(b)the manner in which fish are received and stored by handlers;
…
295 ¾ The Governor may make regulations in respect of ¾
(a) reporting or notifying the landing of any fish."
The Act further permits the making of rules in accordance with Pt3 relating to fisheries management, which include:
"39 ¾ Rules may be made in relation to the following matters relating to fish and fishing:
(a)the regulation of fishing in a fishery;
(b)the possession of fish taken in a fishery;
(c)requirements relating to any accidental or incidental taking of fish in a fishery;
(d)the identification of fish by any means;
(e)the checking, measuring, grading, counting or weighing of fish taken in a fishery;
…
(g)the prohibition of fish being unloaded outside the port, place or area nominated by the holder of a licence;
(h)the notification of the time and place of arrival at a place to land fish;
…
(m)the area, port or place in which, or at which, fish may be unloaded or delivered.
40 ¾ (1) Rules may be made in relation to the following matters:
(a)the obligations on licensees, persons acting for those licensees or masters of vessels;
(b)the keeping of records and submissions of returns by ¾
(i)any person acting under a licence; or
(ii)any other person who handles, unloads, lands, stores, packs, consigns, transports, processes, sells or purchases fish."
and significantly, provides through s41:
"41 ¾ Any provision of rules made under this Division which is inconsistent with a provision of any regulations prevails over the latter provision to the extent of that inconsistency."
The wide-ranging powers afforded by Parliament govern the interpretations to be given to the Regulations and the Rules made in pursuance of those provisions.
The challenge to the Rules is stated to be on the basis that they are ultra vires. They are certainly within power. The argument really concerns certainty and efficacy.
The Fisheries (Abalone) Rules 2000, made in accordance with ss39 and 40, provide for the taking and possession of abalone, and the associated recording and documentation. Rule 17 proscribes:
· the taking of more than 10 abalone in one day unless the person is the holder of a fishing licence (abalone dive) or the possession of more than 5, except by specified persons; or
· the possession of more than 20 unless the person is in compliance with regulatory requirements.
Thus Mayes, by virtue of his licence, was entitled to take more than 10 abalone (r17(1)(a)) and, without more, entitled to possess more than 5 by virtue of that licence (r17(1)(b)(iii)). However, no person, including a licence holder, is entitled to be in possession of more than 20 abalone unless he or she:
"17 ¾ (1) …
(i) has the yellow sheet of the completed diver’s docket relating to the abalone with the abalone to which the docket relates; or
(ii) has a receipt relating to the purchase of the abalone from a fish merchant with the abalone to which the receipt relates; or
(iii) is the holder of a fishing licence (abalone dive) who has taken the abalone under that licence and the abalone have not been landed."
As a licence holder, Mayes was entitled to be in possession, by virtue of the Rules, without documentation, of abalone which had not been landed or for a period of four hours after landing and before transportation. O'Mahony was only so entitled to remain in possession if he had the necessary docket. Rule 25 prescribes the landing areas which, in this case was:
"(l) at any other place, the area within a radius of 50 metres on the landward side from the high tide mark closest to the point of landing."
Rule 29 requires a licence holder to complete a diver's docket, either on the day on which the abalone is taken (r29(1)), or within four hours of its landing (r29(2)). The Rules preserve a distinction between possession and documentary compliance. Rule 29 further requires:
"(3) The holder of a fishing licence (abalone dive) must complete Part A of a diver’s docket ¾
(a)if the processing premises are located within the landing area, before the abalone enters the premises, place or vehicle; or
…
(b)in any other case, before the abalone leave the landing area."
Rule 30 requires a person taking "possession of abalone from the holder of a fishing licence (abalone dive)" to complete Part B of the divers docket at the time of taking possession. Other stringent requirements are imposed on the receiving person (eg, rr31, 32, 33). In this case, both Mayes and O'Mahony were in possession of more than 20 abalone without a receipt or the "third copy of the completed divers docket" with the abalone.
The critique advanced by the accused can be stated as that their combined effect is:
(1)unreasonable and disproportionate to the efficacy of the legislative and regulatory scheme;
(2)uncertain in its operation and incapable of compliance;
(3)the Regulations are not validated by the enactment of the Living Marine Resources Management Amendment Act 2000, s13.
Rule 35 defines the place at which Part A of the divers docket must be completed before transportation or at which the licensed diver might be in lawful possession for a four hour period following landing. Its purpose is to define a geographical position which permits the tracking of landed abalone to the point of sale or export. A landing area is defined by reference to an identifiable location and a permitted measurable distance from that location. Although it is necessary to have recourse to another source such as a map, survey document, or geometric device for the purpose of identification, such does not render the rule invalid through uncertainty. (Williams v Law B28/1987; cf McDevitt v McArthur (1919) 14 Tas LR 6). The use of "high and low tide" as a point of reference is often used as a legislative device in property law and the delineation of jurisdiction (Hart v Woods [1972] Tas SR 143; Marine Board Act 117 of 1987; Strahan Marine Board Act 1963; Marine Act 1976; Marine Act 1921, s8; McArthur v Cheverton (1906) 3 TLR 89; Moles v Rose 1 Marsh 313; Territorial Waters Jurisdiction Act 1878 (UK); Keyn (1876) 2 Ex D 68; 13 Cox CC 403). In Hitchener v Ham [1961] VR 97, Sholl J determined that "Port Rules" made under the Marine Act 1958 (Vic), which defined Port Phillip Bay as:
"… consisting of all inlets, rivers, bays, harbours and navigable waters not included in the ports of Melbourne and Geelong respectively, north of and within that portion of the circumference of a circle described seawards of the entrance between points Lonsdale and Nepean with a radius of three nautical miles from the Point Lonsdale lighthouse as centre."
were too uncertain and difficult to understand to amount to a legitimate definition governing a proscribed offence. In that case there had been no evidence given at the hearing of any actual low-water mark and, accordingly, Sholl J concluded, in upholding the decision of the court of petty sessions, at 100 – 101 that:
"I may add that even if the other and wider meaning were given to the regulation, it would be impossible to be certain on the evidence that the defendant drove within 400 yards of low-water mark, unless one could assume, as a matter so notorious that judicial notice should be taken of it, that the tide at that particular point never goes in 400 yards beyond low-water mark ¾ and I do not think one could."
In relation to the substantive point concerning the definition of Port Phillip Bay, his Honour finally determined that the vagueness of drafting and the use of mathematical calculation made it impossible to discern the limits of the bay since, on any reading, portions of the water encompassed by the bay were excluded. In the earlier case of Ingwersen v Borough of Ringwood [1926] VLR 551, Schutt J had determined that the reference in a municipal by-law to "land abutting on Station Street, adjoining Ringwood Station" was too vague to be enforceable. Similar Victorian cases such as Velachoutakos v City of Port Melbourne [1972] VR 710 and Stewart v City of Essendon [1924] VLR 219, depend on the particular wording of the by-law since the wording made it impossible to discern the particular property or class of trade affected. Those cases do not assist the accused and are distinguishable. Here the definition applicable to the accused is:
"At [a] place, the area within a radius of 50 metres on the landward side from the high tide mark closest to the point of landing."
Mayes was able to choose his point of landing. The permitted area provided for by rr17(1)(c)(iii), 29(2) and 29(3)(b), was within the area of 50 metres of land from the chosen point. Whether the effect of the definition included possessed abalone which had been landed and re-embarked on another vessel is a question of the application of the rule, not its validity.
Concurrent with the contention of uncertainty are those of unreasonableness (Minister for Primary Industries v Austral Fisheries Pty Ltd (1993) 40 FCR 381), proportionality (House v Forestry Tasmania (1995) 5 Tas R 169) and practicality (King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184). Relevant to those contentions is the intention of the Parliament in its enactment of and grant of regulatory power (Brown v Petrie (1997) 7 Tas R 217; Brown v Tyrer [1999] TASSC 19). An intention, readily discerned, is the management of a valuable resource (Harper v Minister of Sea Fisheries (supra); South Australian River Fishery Association Inc and Warrick v State of South Australia (2003) 85 SASR 373) and provision of a documentary trail inhibiting evasion and permitting ready identification of compliance. The legislative regime imposes responsibility for discernable compliance on the taker, possessor and processor of the resource, alike. Written compliance, not oral or inferential claim, is the chosen methodology (Georgiadis & Ors v R [2002] TASSC 58).
Rule 17 makes it unlawful for a person to have in possession more than 20 abalone unless that person has a "third copy of the completed divers docket". Rule 29(3) requires the holder of a fishing licence (abalone dive) to complete Part A of that docket before leaving the diving area. Rule 30 requires a person taking possession of abalone to complete Part B of the "pink sheet" of that docket. Separate requirements are imposed where the processing premises are located within the landing area (r29(3)(a)), or delivery at those premises (r32(1)). The licence holder must deliver the catch to the holder of a fish processing licence (r14(1)(e)) and ensure that the "relevant divers docket accompanies the abalone". The processor must complete the pink sheet of the "transfer docket within 15 minutes after the abalone is received and weighed" (r32(1)) and not commence processing until "at least 15 minutes or any further period as may be specified on the licence" (r22(1)). Both are, or were, at the relevant time required to report (rr25 and 26) and keep records which include details of weight and price of abalone sold (rr36 and 37). The terms "divers docket" and "transfer docket (receipt)" both use colour coding as a form of regulatory identification. Parliament gave effect to the use of "colour coding" and the validation of the documentary requirements in its enactment of the Living Marine Resources Management (Validation of Documents) Act 2002, providing for a validation commencing on 31 May 1996. The term "divers docket" is defined in r3 as:
"a docket in an approved form relating to abalone that is part of records required to be kept under the Act."
The divers docket book issued to Mayes comprised a series of carbonated numbered pages, each colour coded in the order of pink, white, green and yellow. The accompanying information sheet states the obligation of the diver to:
· forward the first page (pink) to the department within 48 hours of the time of receipt recorded in Part B;
· retain the second page (white) for at least five years;
· ensure the third and fourth pages (green and yellow) accompany the abalone to the processing premises.
The same information sheet advises the processor of the requirement to forward the green page to the department and to retain the yellow for at least five years.
The docket scheme does not permit the splitting of documentation. Completion of Part A of docket numbered X with completion of Part B of Y, does not comply with the regulatory scheme. To permit otherwise would be to weaken or destroy the efficacy of a required documentary trail or verification. (Brown v Tyrer (supra)).
The licence as issued "authorises the holder … to carry out fishing in accordance with the licence" and is subject to the management plan (the Act, ss61 and 62).
Neither the rules nor the provided recording documents are oppressive or impractical. In House (supra), the Full Court determined that a regulation expressed in the most general and non-specific terms which purported to impose an absolute liability was beyond the power afforded by Parliament. In that case, the appellant had relied upon a general regulatory requirement of safety as a basis for his claim in tort based on breach of statutory duty. That is not the case here where the requirements are quite specific and readily identifiable.
The Rules constitute a management plan which creates detailed rights and obligations in relation to a fishery (Secretary Department of Primary Industries and Energy v Collins (1992) 34 FCR 340). The obligations might be strict and even onerous, but the rights granted are rewarding. The plan could not be said to be "merely arbitrary or capricious" in the sense discussed by the House of Lords in Chertsey Urban District Council v Mixname's Properties Ltd [1965] AC 735. Any test of unreasonableness does not depend on the court's opinion of value (Williams v Melbourne Corporation (1933) 49 CLR 142). As Lockhart J stated in Minister for Primary Industries v Austral Fisheries Pty Ltd (supra) at 284:
"Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorizing the subordinate legislative authority to enact laws."
The management plan requires the completion of documentation before abalone is transported from a defined area. The accused claim such to be impossible, since the rules require the completion of both Part A and Part B of the drivers docket and absent completion of Part B, no "completed divers docket" can accompany the abalone to the processing premises. Further, it is contended that there must always be a hiatus between the delivery to the processor for weighing and verification and the issue of a receipt or completion of the Part B documentation. The contention requires a linguistic construct of the words "completed divers docket" appearing in r17(1)(c)(i). The word "completed" as used in the rules has varying meanings. Rule 14(1)(g) requires a licence holder to "ensure the relevant divers docket accompanies the abalone". Rule 30 prohibits a person from taking possession of abalone from the licence holder unless "the green and yellow copies of the completed divers docket … are delivered when the abalone are delivered". Rule 25(1)(b) requires the licence holder to make a post-fishing report "within 30 minutes of completing the divers docket under r29(2) or (3)" whilst those rules require the completion of Part A of the docket. Any perceived impracticability arising from a construct of r17(1)(c)(i) can be resolved if the meaning given to the word "completed" relates to the stage of the journey or chain of possession. Completion of the docket, Part A, protects the licence holder during his or her transportation to the processor and as such, the abalone is "accompanied" by a "completed" docket. If possession has been given to another, then the required "completed" docket is that comprised by Parts A and B.
The conclusion reached does not require a concluded determination of the effect of the Living Marine Resources Management Amendment Act, s13, which states in full:
"13 ¾ (1) The Fisheries (Abalone) Rules 2000 ¾
(a)are taken to have been validly made; and
(b)apply on and from 1 January 2000 as if a reference in rule 2 of those rules to the day on which their making is notified in the Gazette were a reference to 1 January 2000.
(2) Rules 8, 14(1)(c), 15 and 16 of the Fisheries (Abalone) Rules 2000 are valid despite any inconsistency with any provision of a deed of agreement relating to the abalone fishery made under the Fisheries Act 1959 or the Principal Act.
(3) The Fisheries (Abalone) Rules 2000 are the management plan for the abalone fishery."
Subsection (3) affirms, if such were necessary, that the rules constitute a management plan (see Department of Primary Industries and Energy v Collins (supra)). Subsection (1) provides for any challenge to procedural regularity and it may be, as learned counsel for Mayes contends, that the provisions of subs(2) by its wording do not render valid the rules here impugned. If my primary determination in respect of the validity of rr17, 29 and 34 be wrong, I would not have concluded that they were validated by the amending legislation.
In this case, the indictment contains three counts. The first relates to both accused in the transportation of 877 kilograms of abalone without a "completed", ie, Part A docket. The second relates solely to the licence holder Mayes in the transportation of 264 kilograms of undelivered abalone without a "completed" Part A docket. The third relates to the transportation by O'Mahony of 606 kilograms (the difference probably explicable by the taking by police of six abalone for species identification, but unweighed) of abalone without a "completed", ie, Part A and B docket, and for the aiding by Mayes in that possession and/or transportation out of the landing area.
Rules 17, 29 and 34 remain available to the prosecution as part of its case at trial.
Licence
The Act, s264, provides:
"264 ¾ (1) A person who, without lawful excuse, has possession of fish with a value exceeding $5 000 is guilty of an indictable offence punishable under the Criminal Code
(2) The court is to determine the value of fish in accordance with section 269."
There is a distinction between lawful and reasonable excuse (Attorney-General v Breckler (1999) 197 CLR 83).
Mayes contends that as a licence holder he has, without more, a lawful excuse for possession He concedes that his conduct exposes him to prosecution for breaches of the rules which are triable summarily. Since his taking and original possession is lawful, then his continued possession cannot constitute possession "without lawful excuse". The contention commences with the premise that since the Act provides him with authority by way of licence to take and possess a commercial quantity of fish, any breach of its terms or conditions renders him liable for forfeiture or prosecution for breach, but not criminal liability. The licence issued to him contains the following relevant "schedule of licence" conditions, namely that the holder:
"1 Complies with the Living Marine Resources Management Act 1995 (the LMRMA) and all regulations and rules made thereunder whilst carrying on any activity under the licence.
2 Does not carry out any fishing which is not authorised by a fishing licence pursuant to the LMRMA and subordinate legislation.
3 …
4 Must ensure the use of accurate measuring and weighing instruments throughout the period of this licence to determine the weight information to be entered into any original return or record when carrying on any activity under the licence as required by the Living Marine Resources Management Act 1995.
5 Must retain at an address notified to the Secretary in writing, all statutory records which are in the possession, custody or control of the holder upon commencement of this licence in relation to operations conducted under the licence, and in relation to business activities arising in connection with those operations, for a period of 5 years from the occurrence of the matter recorded.
6 …".
Breach of a condition of retention of records could not operate as an ex post facto basis for making previous possession unlawful or "without lawful excuse" and whilst unauthorised fishing, eg, by mistake, in closed waters might attract penalty, it does not necessarily render possession simpliciter criminal or without lawful excuse (Browning v Barrett [1987] Tas R 122). Here it is said that breach of documentary requirement taints the person, not the status of the catch. The approach suggested by learned counsel is that since "the mens rea of regulatory offences is not the existence of a criminal intent but the absence of an honest, reasonable mistake [and] can be committed unwittingly", that "it is extremely unlikely that Parliament intended that the consequence of such a breach will ultimately result in a prosecution on indictment under s264(1)". The interrelationship of mens rea, strict liability and the intention of Parliament, has long been considered by the courts (Proudman v Dayman (1991) 67 CLR 536; Sweet v Paisley [1969] 1 All ER 69; Warner v Metropolitan Police Commissioner [1968] 2 All ER 356; He Kaw The v R (1985) 157 CLR 523; and Gibson v Fitzmaurice [1986] Tas R 137) including the Code (Martin v R [1963] Tas SR 103) and breaches of licence or permit (Geraldton Fishermen's Co-Operative Ltd v Munro [1963] WAR 129; R v Larsonneur (1933) 24 Cr App R 74). The common law has long provided for prosecution by indictment for the transgression of public rights regulated by public statute (R v Richards (1800) 8 TR 339) and modern English statutes recognise the employment of an indictment offence (Criminal Law Act 1977 (UK); Magistrates Courts Act 1980 (UK); Firearms Act 1968 (UK)).
Different conceptual approaches can be taken in relation to the Act, s264. The first is that the legislation permits the taking and possession of abalone by licence. The holding of a licence is a lawful excuse. Breach of terms of licence does not result in its termination except by legal process and does not vitiate its operation. Parliament, in enacting s264, did not intend to attach "criminality" to a breach of condition, but to the status or lack of general right of the person in offending. Two objections may be had to this line of reasoning. The first is that a person acting in accordance with a statutory right or permit is not thereby entitled to conduct which interferes with another public right (Metropolitan Asylum District v Hill (1881) 6 App Cas (HL) 193). Further, the section is directed at "possession". Breach of a regulation or terms of licence which occurs after the time of possession such as failure to keep documentation or file a return, would not render the possession unlawful or without lawful excuse. But breach of a condition, analogous to a condition precedent, precludes the licence from affording protection. Here the terms of licence permitted landing but not transportation beyond a certain distance. The terms of the licence did not encompass that further act of possession.
The second conceptual approach is that the legislation provides for an "indictable offence", by a general prohibition of possession "unless …". Compliance with the regulatory scheme is exculpatory or provides justification. In doing so, Parliament neither intended nor created an absolute offence, but provided for "lawful excuse" as a matter requiring negation by the prosecution. In causing the matter to be brought within the province of the Criminal Code because of its perception of seriousness, Parliament balanced its enactment with a limiting or exculpatory provision and retention of any rights afforded by the Code, s14. Parliament stated as its purpose in enacting the legislation:
"To provide the sustainable management of living marine resources, to provide for management plans relating to fish resources, to protect marine habitats."
The Act, s264, ought be interpreted in the light of that statement. The section proscribes possession, not unlicensed possession. It proscribes offenders not by category, but by compliance.
Either approach has the same result but this determination is based on the latter. The prosecution is entitled to present evidence of non-compliance with rr17 and 29 as part of its case that each accused was "in possession of more than 20 abalone without lawful excuse".
Stay of proceedings
Even had the issue of "licence" been determined adverse to the prosecution, it would not have been appropriate, at this stage, to have ordered a stay of proceedings. Although there is inherent jurisdiction (Williams v Spautz (1992) 174 CLR 509) and the categorisation of abuse of process is not historically confined (Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129) the power ought not be exercised except in the most exceptional cases (Barton v R (1980) 147 CLR 75). The approach which I have taken accords with that taken by Evans J in Konestabo v Brown [2001] TASSC 152. One general test of reputation of the administration of justice (Rogers v R (1994) 181 CLR 251) requires that opportunity be given to the State to properly consider the implications of an adverse ruling or any appeal, reformulation of its case, or the effect of not offering evidence. This is not a case of abuse of process. Nor is an issue raised because others have been dealt with differently (Strachan v Brown [2000] TASSC 142; Murfet v Visser [2000] TASSC 35; Konestabo v Brown (supra)). There may be good reason why, in those cases, a particular course was taken, or a discretion exercised or why this prosecution is brought within the Code. The decision itself to prefer an indictment alleging breach of the Act, s264, is not oppressive or unfair to the accused Mayes, and O'Mahony not being a licence holder, other than as an employee of a processor, is not entitled to the claim made by his co-accused.
Application of Rules
In the alternative, Mayes contends that r17(1)(c)(i), if valid, does not apply to the holder of a fishing licence (abalone dive) by reason of its wording. As a general prohibition, the rule overlooks possession on the vessel and within the area permitted by r29(2) and (3). It is not necessary to resolve whether failure to make a post-fishing report required by r25 or any inconsistency between that rule and permitted possession afforded by r29(2). Here Mayes chose to deliver a portion of his catch to another and transport the remainder without completion of his portion of the docket. In doing so, he became a person subject to the operation of r17(1)(c)(i).
Onus and lawful excuse
The prosecution concedes that it bears the onus in proving the possession to be "without lawful excuse". It is not appropriate to provide an answer to the existence or otherwise of any possible alternate "lawful excuse" which might arise on the evidence, since neither accused proffered any explanation to police as to the reason for the division of the abalone for transportation or factual reason for the non-completion of the documentation, nor advanced any possible basis for excuse at this hearing (Browning v Barrett (supra)). The prosecution concedes that the issue of "without lawful excuse" is not confined to consideration of the effect of breaches of rr17(1)(c) and/or 20(3)(b). A more general answer might be found in the information section of the Commercial Abalone Diver's Docket Book provided to Mayes which relevantly states:
"Requests to Alter/Reverse Reported Weights
Each request will be investigated by DPIWE Audit staff. Time involved in conducting the investigation will be charged in accord with DPIWE's pricing policy for professional services.
The person requesting the alteration must agree to pay the charges before any investigation will commence.
Before any adjustment is made, the Secretary must be satisfied that:
· the mistake occurred, and
· the mistake was reported to a Fisheries Officer immediately it was detected, and
· the relevant fisher, processor, or other party (or a person acting on their behalf) had established work practices to prevent mistakes from occurring, and
· neither a fisher, processor, nor other party (nor a person acting on their behalf) filling in or certifying any relevant document was negligent in complying with their established practices to prevent errors occurring.
The Secretary's decision shall be final.
What if the Docket Book is damaged?
If your docket book is damaged to the extent that you cannot fill it in then you should return the unused portion to the DPIWE. You will be issued with a replacement book.
What do I do if I lose this book?
You should notify the Quota Audit Unit immediately if your docket book is lost. A replacement fee of $60 will be charged for a new book."
Questions of fact raised by evidence of landing place (r35) or time of land (r29), might likewise be capable of raising issues relevant to the Code, s14, or lawful excuse (the Act, s164).
Concession by the State obviates the need to consider the effect, if any, of the operation of the Evidence Act 2001, s142A, in relation to this prosecution under the Act, s164. The Evidence Act, s142A provides:
"142A ¾ (1) It is not necessary in any complaint or indictment to specify, negative or prove any exemption, exception, proviso, condition, excuse or qualification.
(2) If a defendant or an accused relies on any exemption, exception, proviso, condition, excuse or qualification, the proof lies on the defendant or the accused."
This form of legislation has long been used in relation to summary offences (Summary Offences Act 1970 (NSW), s50 (since repealed); Bacon [1977] 2 NSWLR 570) but usually specific to a particular statutory or regulatory prohibition. Whether the onus lies with a defendant or remains with a complainant who must disprove the necessary factual basis, depends on the construction of the statute in question (Czerwinski v Hayes (1987) 26 A Crim R 213). Elevation to a status affecting basic requirements of criminal law might require further scrutiny (see Cousins [1982] 1 QB 526, a case dealing with a statutory offence of making, without lawful excuse, a threat to kill, and Douglas [1985] VR 721, which dealt with the Crimes Act 1958 (Vic), s48, which created a sexual offence, but included a defence of mistake). The position taken by the prosecution in this case makes it unnecessary to determine the import of the legislative provision.
Learned counsel for Mayes, alert to the implications of the Evidence Act, s142A, submitted in his written submissions that:
"The absence of lawful excuse is not an 'exemption, exception, proviso, excuse or qualification' giving rise to its operation … S264(1) does not contain a general statement of the offence followed by exculpatory circumstances, or made subject to certain stated exceptions …".
Support for the proposition was said, in the submission, to be had in the authorities of Harris v Macquarie Distributors Pty Ltd [1967] VR 257 and Marshall v Crane 11/1982. The import of s142A might be more complex. In Harris (supra), Adam J stated at 259 – 260:
"I find the most helpful pronouncement upon the question whether a legislative provision affecting the specification of an offence is or is not to be regarded as an 'exception', 'proviso' or 'qualification', within the meaning of s 219 of the Justices Act, that given by Fullagar, J, in Barritt v Baker, [1948] VLR 491, at p 495; [1949] ALR 144. His Honour, dealing with an argument that the form of a legislative enactment should yield to substance, said: 'It was argued with considerable force that this view in this case reduced the whole question of the application of s 214 [now s 219] to a matter of form rather than substance. ... But it seems to me that the question must often turn on the form of the legislation. The problem is not a problem of formal logic. The court is not to undertake the task of classification and to decide what is the logical statement of the rule and the logical statement of the exception. Its task is purely and simply one of statutory construction. It has only to say what are the elements which the Legislature has specified as the prima facie ingredients of the offence. When it has determined, as a matter of construction, what those ingredients are, it necessarily follows that the burden of proving the totality of those ingredients rests upon the prosecution. The solution of the logical problem of the classification of things is governed by logical considerations, and logical considerations will determine what is to be stated as a rule and what is to be stated as an exception. But the Legislature may formulate its rule or its rule and exception as it pleases. It might, for example, provide that any person who made a bet in a city, town or borough should be guilty of an offence. Or it might provide that any person who made a bet in any municipality other than a shire should be guilty of an offence. The substance might be precisely the same, but it might well be held that s 214 applied to the latter but not to the former. This would be because the essential elements in the specification of the offence are differently stated in each case.'
As this passage makes clear, it is for the legislative authority to specify the prima facie ingredients of the offence. No doubt, when the essential ingredients are specified in equivocal language, resort may be had, with differing results (as in Shillinglaw v Roberts (1891), 17 VLR 136, and Donoghue v Terry, [1939] VLR 165; [1939] ALR 215) to the policy of the legislation for resolution of the ambiguity; but where the form of the legislation makes plain what the legislative authority intends to specify as the prima facie ingredients of the offence, the question what constitutes the rule and what the exception or qualification, within the meaning of the section, may usually be expected to present little difficulty."
In Marshall (supra), Neasey J was required to consider the application of the predecessor of s142A, namely the Evidence Act 1910, s110, which stated:
"110 ¾ It shall not be necessary ¾
(a) in any indictment; or
(b) in any complaint made before a justice –
to specify or negative, nor for the prosecutor or complainant to prove, any exemption, exception, proviso, condition, excuse, or qualification, whether it does or does not accompany in the same section the description of the offence in the Act, by-law, regulation, order, or other document creating the offence; but where any such exemption, exception, proviso, condition, excuse, or qualification shall be relied upon by the defendant, the proof thereof shall lie upon him."
In considering the effect of the provision on the Traffic (General and Local) Regulations 1956, Neasey J stated, at 3 – 4:
"Section 110 has its counterpart in most if not all of the other Australian States and elsewhere. The point of origin of these various provisions lies in the English Licensing Act of 1872, 35 and 36 Vic c 94, s 51 (4), the purpose of which is explained by Blackburn J (as he then was) in Roberts v Humphreys (1873) LR QB, 483, at pp 488‑9. Reference has been made to this in a number of Victorian cases in which the relevant .Victorian section was under review ‑ see, eg, Bell v Hyde (1939) VLR 300, Barritt v Baker (1949) Arg LR, 144 at p 146, and Harris v Macquarie Distributors Pty Ltd (1967) VR 253, at p 260.
Typically, provisions such as this relate to the specification of a statutory offence which indicates that it shall be committed in a given set of circumstances subject to certain stated exceptions. The existence of such exceptional circumstances in any particular case is in the nature of things usually a matter wholly or largely within the knowledge of the defendant, and therefore is extremely difficult for the prosecution to disprove. It has been thought just in such cases to place the onus upon the defendant to prove the exception if he relies upon it by way of defence. (There is a similar rule at common law ‑ see Cross on Evidence, 2nd Aust edn, pp 95-96, para 4.23.)
This is so with s 110 of the Tasmanian Evidence Act. It applies to the specification of an offence in an indictment or complaint, in respect of which it provides that it shall not be necessary to specify or negative any exemption, exception, etc, nor necessary for the prosecutor or complainant to prove it as part of his case. It further provides that proof of any such exemption, exception, etc, relied upon by the defendant shall lie upon him. S 110, however, has no application to the specification in a complaint or the proof of any breach of regulation 5 (1) (i) of the Traffic Regulations 1956. Regulation 5 (1) does not specify circumstances constituting an offence or offences. It prescribes certain general duties required of users of public streets other than in respect of special cases or places for which particular duties are prescribed. The introductory words of the sub-regulation provide that such prescribed general duties shall be 'subject to', ie, shall apply in the absence of, such special provisions. The most obvious examples of 'special case or place' rules which displace the give way to the right rule are intersections controlled by road signs or traffic lights. The offence constituted by breach of a 'rule of the road' prescribed by regulation 5 (1) is set up by s 52 (1) of the Traffic Act 1925. This provides that if any person acts in contravention of any of the provisions of the Act he shall be guilty of an offence against the Act. In a prosecution for a breach of regulation 5 (1) it is therefore incumbent upon the prosecution first to prove the existence of the duty - ie the relevant provision of the Act or regulations which it claims applies in the particular case or place, and then to prove a breach of that duty."
The complication is that Parliament in re-enacting s110, restated the provision through s142A in two parts, creating a general provision in subs(2) disjunctive from the "guiding" words in subs(1). I suspect that Parliament intended only to replicate the original provision and that the interpretation which ought be placed on it is that given by Neasey J in Marshall. Given the concession of the prosecution, it is not necessary to reach a final conclusion on the issue.
Rulings:
(1) The prosecution is entitled to present a case to a jury as stated in the indictment.
(2)The prosecution is entitled to rely on evidence of non-compliance with the Fisheries (Abalone) Rules 2000, r29, as part of its case in support of the indictment.
(3)The prosecution is entitled to rely on the provisions of r17(1)(c) in support of its case of "possession without lawful excuse" as stated in the indictment.
(4)The onus of proving the possession to be "without lawful excuse" remains with the prosecution.
(5)Nothing in this ruling precludes the raising by the accused of any other matters as a basis for "lawful excuse".
(6)Nothing in this ruling affects the operation, in this case, of the Code, s14.
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