Tasmania v Eather
[2015] TASSC 27
•25 June 2015
[2015] TASSC 27
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Eather [2015] TASSC 27
PARTIES: STATE OF TASMANIA
v
EATHER, Mark William
FILE NO: 180/2013
DELIVERED ON: 25 June 2015
DELIVERED AT: Hobart
HEARING DATES: 17 and 22 June 2015
RULING OF: Tennent J
CATCHWORDS:
Primary Industry – Fish – Offences – Other offences – Trafficking in fish - Proper construction of Living Marine Resources Management Act 1995 (Tas), s 264A.
Living Marine Resources Management Act1995 (Tas), s 264A.
Fisheries (Rock Lobster) Rules2006 (Tas), rr 21, 93.
Aust Dig Primary Industry [1129]
REPRESENTATION:
Counsel:
Crown: M Wilson and C Robinson
Accused: C Gunson and R Browne
Solicitors:
Crown: Acting Director of Public Prosecutions
Accused: FitzGerald and Browne
Judgment Number: [2015] TASSC 27
Number of paragraphs: 58
Serial No 27/2015
File No 180/2013
STATE OF TASMANIA v MARK WILLIAM EATHER
REASONS FOR RULING TENNENT J
25 June 2015
On 23 June 2015, I ruled that the accused on this trial, Mark William Eather, had no case to answer and directed the jury to return a verdict of not guilty. These are my reasons for that decision.
The accused was charged with one count of trafficking in fish contrary to the Living Marine Resources Management Act 1995 ("the Act"), s 264A. It is alleged that between on or about 17 January 2011 and 6 October 2011 the accused trafficked in fish, namely approximately 624.95 kilograms of rock lobster without lawful excuse. The accused pleaded not guilty.
Counsel for the State opened her case on Wednesday, 10 June. In that opening, she outlined by reference to the Act what it was the State needed to prove. Counsel for the accused indicated he took a different view of the law but did not explain what that view was. The State closed its case on the afternoon of Tuesday, 16 June. At that point, counsel for the accused advised that he wished to make a no case to answer submission, and the matter was adjourned until the following morning for argument. As it transpired when the argument commenced, counsel for the accused's application was based on a construction of s 264A which was significantly different from that which it appeared from Crown counsel's opening address to be that propounded by the State. As a consequence of the construction propounded by counsel for the accused, it was his submission that in relation to one element of the crime charged, the State had presented no evidence at all, and, hence, no jury properly instructed could convict the accused. It would be fair to say that Crown counsel was taken completely by surprise by the nature of the argument. There was a secondary and alternative argument in the event the first failed.
The Act, s 264A
The Act, s 264A, provides as follows:
"264A Trafficking in fish
(1) A person must not traffic in fish without lawful excuse.
(2) For the purposes of subsection (1), a person is taken to traffic in fish without lawful excuse if –
(a) the fish have been taken unlawfully or possessed unlawfully; and
(b) on one or more occasions, the person –
(i) possesses the fish; or
(ii) conceals the fish; or
(iii) processes the fish; or
(iv) sells or otherwise disposes of the fish; or
(v) receives or delivers the fish from or to another person; or
(vi) transports the fish from one place to another; or
(vii) otherwise deals with the fish; or
(viii) carries out any combination of the activities referred to in this paragraph.
(3) For the purposes of subsection (2) –
(a)it does not matter whether the fish referred to in that subsection are all of one species or a mixture of different species; and
(b) a person is taken to have carried out an activity if the person –
(i) carries out, or participates in the carrying out of, the activity; or
(ii) directs, controls or supervises the carrying out of the activity; or
(iii) provides finance, facilities or other resources to enable the activity to be carried out or to facilitate it; or
(iv) is knowingly concerned in the carrying out of the activity."
Section 264A was introduced into the Act in 2007 along with, relevantly, changes to the definition of what amounted to possession. The section is contained in Pt 9, Div 9 of the Act which is entitled "Indictable Offences". Division 9 contains only five sections. Prior to the 2007 amendments to the Act, Pt 9, Div 9 was entitled "Criminal Offences". It contained only three sections. These were s 264 which related to the illegal possession of fish, s 265 which related to false or misleading records and s 266 which related to the application of another Act to indictable offences under the division. Section 264, prior to the 2007 amendments, provided:
"264 Illegal possession of fish
(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."
When the Act was amended, the whole of Div 9, as it was, was repealed and a new Div 9 inserted. Relevantly ss 263A, 264 and 264A were inserted. The first two of those sections provided:
"263A Prosecution of offences
(1) An offence against this Division is an indictable offence.
(2) However, a court of summary jurisdiction may hear and determine proceedings for an offence against this Division if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.
(3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence against this Division, the penalty that the court may impose is a fine not exceeding 5 000 penalty units or imprisonment for a term not exceeding 2 years, or both.
264 Unlawful possession of fish
A person must not have possession of fish without lawful excuse."
The offences created by ss 264 and 264A were therefore in the first instance indictable unless, in effect, the prosecutor sought to have them dealt with summarily and a magistrate and an accused agreed.
There were a number of other offence provisions in the Act which were not altered by the 2007 amendments. To name some relevant to the issue in this case, there was s 262 (possession, purchase or sale of illegally taken fish), s 67 (which provided that a person who did not hold a fish processing licence could not for commercial purposes process rock lobster) and s 60 (which provided that a person without a relevant licence could not take fish in State waters).
In her opening address to the jury, counsel for the State told the jury in effect that, to convict the accused, they needed to be satisfied that the accused had possessed the rock lobster, the subject of the charge, unlawfully (she did not suggest he had taken it unlawfully) (subs (2)(a)), and that, on one or more occasions, he then did at least one of things identified in subs (2)(b) in relation to that rock lobster. The submission of counsel for the accused, on the other hand, was that subs (2)(a) required the State to prove that someone other than the accused first took or possessed the rock lobster, the subject of the charge, unlawfully, and then that the accused did at least one of the things identified in subs (2)(b).
The dispute therefore related to the construction of s 264A.
Factual background
On a factual basis there was no dispute on this trial that, over the period covered by the indictment:
· the accused purchased quantities of rock lobster from fish processors on a number of occasions;
· almost exclusively none of that rock lobster had a rock lobster tag attached to its horn when it was handed over to the accused or his representative;
· the accused then on-sold the rock lobster he purchased, either to restaurants or individuals;
· the accused did not hold a fish processing licence (rock lobster), a fish handling licence (rock lobster) or a fishing licence (rock lobster), and was not a nominated supervisor on anyone else's fish processing licence (rock lobster);
· there was no evidence at all presented by the Crown which might suggest someone other than the accused first took or possessed the rock lobster unlawfully before it was sold to the accused.
The primary submission of counsel for the accused
The primary submission of counsel for the accused as to the construction of s 264A was that s 264A(2)(a) required that the rock lobster the accused was alleged to have trafficked in was firstly taken or unlawfully possessed by someone other than the accused. Since there was no evidence of that, the State's case must fail.
Counsel for the accused made a number of submissions in support of that contention. These were:
· that s 264A was introduced to address a difficulty perceived by authorities to exist, that is, there were no appropriate crimes with which members of criminal groups exploiting the State's fisheries could be charged;
· that s 264A(2)(a) identified the status of the fish the subject of the crime, that is, the fish as a starting point must be fish taken or possessed unlawfully;
· that the wording of s 264A(2)(a), in particular the use of the past tense, supported the construction that the fish had to have already been taken or possessed unlawfully before any activity by reference to s 264A(2)(b) was carried out;
· if the section was construed so as to require an accused to be the person who unlawfully took or possessed the relevant fish in the first place, that construction would unnecessarily confine the operation of the section, and would not allow it to deal with potential offenders at different points in the offending chain. For example, it would not deal with a situation where one person unlawfully took the fish and another then on-sold it;
· that the construction of s 264A for which he contended promoted the purposes and objects of the Act.
As to the submission identified in the first bullet point in [12], when s264A was introduced in bill form in 2007, the relevant Minister made a second reading speech. In that speech, the Minister said in relation to s 264A and related amendments to the Act:
"A raft of changes to the Living Marine Resources Management Act 1995 – the act – are introduced in light of issues that became apparent during a major police operation known as 'Operation Oakum' and legal advice from the Office of the Solicitor-General and authorities involved in the prosecution of offenders.
It was identified that current offences under the act were inadequate to deal with criminal groups illegally exploiting fisheries such as the abalone and rock lobster fisheries. Consequently, the new crime of 'trafficking in fish without lawful excuse' is now introduced, together with changes to the definition of 'possession' to bring it in line with other legislation such as the Misuse of Drugs Act 2001."
Operation Oakum was a major investigation mounted by police and fisheries authorities some years ago into activities of groups of people found to be taking and selling prescribed species of fish illegally. Counsel for the accused submitted that, prior to the introduction of s 264A, police had difficulty dealing with the activities of people taking and possessing fish unlawfully who were then on-selling it, and that this provision was introduced to enable authorities to catch people involved in different stages of illegal activity by the one group involving fish. He submitted it was most likely that s 264A was introduced to meet that particular difficulty.
As to the submissions identified in the second, third and fourth bullet points in [12], counsel for the accused submitted that the wording of s 264A(2)(a) was particularly relevant in determining how it should be construed. He pointed to the fact that the wording was in the past tense, that is, it provided that a person was taken to traffic in fish in circumstances where the fish "have been taken or possessed unlawfully". He submitted that wording supported his contention that s 264A(2)(a) was intended to deal with the status of the fish in the first place, namely that they had been taken or possessed unlawfully. What was intended by the section was that the unlawful taking or possession had already occurred before a person in the accused's position became involved and potentially did one or more of the things identified in s 264A(2)(b). Counsel submitted that, if s 264A(2)(a) was read to mean that the accused was the person who unlawfully took or possessed the rock lobster, then s 264A(2)(b) would have little work to do. Most of the activities dealt with in par (b) involved an element of possession. On that basis, the crime would be complete once unlawful possession alone was established. For this reason, a two-stage process which involved the accused alone, namely proving he had possession unlawfully and then proving he did one of the things in par (b) did not make a lot of sense. In effect, the status of the fish issue and the issue relating to conduct would merge.
As to the submission in the fifth bullet point in [12], the Acts Interpretation Act 1931, s 8A, provides that an interpretation of an Act which promotes the purposes or objects of an Act is to be preferred to one which does not. Counsel submitted that the construction for which he contended was entirely consistent with an interpretation which promoted the purposes and objects of the Act. Those can be seen in the preamble to the Act which describes it to be:
"An Act to promote the sustainable management of living marine resources, to provide for management plans relating to fish resources, to protect marine habitats … ."
The Act, s 7, then provides:
"7 Purpose and objectives
(1) The purpose of this Act is to achieve sustainable development of living marine resources having regard to the need to –
(a)increase the community's understanding of the integrity of the ecosystem upon which fisheries depend; and
(b) provide and maintain sustainability of living marine resources; and
(ba) take account of a corresponding law; and
(c)take account of the community's needs in respect of living marine resources; and
(d) take account of the community's interests in living marine resources.
(2) A person must perform any function or exercise any power under this Act in a manner which furthers the objective of resource management."
Counsel submitted that it was clear that the primary purpose of the Act was to protect and manage the sustainability of the fisheries resources of the State. He submitted that s 264A was intended to deal with situations where that sustainability was being imperilled, that is, imperilled by fish being taken or possessed unlawfully in what might be described loosely as "off-docket" situations. There was no suggestion in the present case that the activities of the accused involved "off-docket" rock lobster, and thereby imperilled the sustainability of the State's rock lobster fishery in any way. That, he submitted, supported his contention that s 264A should not be interpreted as contended for by the Crown.
In his submissions, counsel for the accused also drew a distinction between the phrase "without lawful excuse" and the word "unlawfully". He submitted that, had Parliament intended the terms to mean the same, it would not have used the different phrases. That distinction was also drawn for the purpose of counsel's alternative submission.
Counsel also referred to two cases which related to trafficking in drugs. These were Ong Ah Chuan v Public Prosecutor [1980] 3 WLR 855 and R v Holman [1982] VR 471. Counsel for the accused took me to a discussion in Chaun's case about what was meant by the word "traffic" at 861. He submitted that the import of that discussion was that to traffic involved the existence of two parties and the movement of an item or transfer of possession between the two. He submitted that supported his construction of s 264A(2)(a) as relating to a person other than the accused. With respect, I do not think that can be taken that far. While I do not disagree with the concepts discussed, it could as easily in the present case relate to the accused's alleged activities by reference to s 264A(2)(b) which involve him dealing with third parties. Holman's case dealt with the same issue.
Another issue raised by counsel for the accused was the mental element which would be involved in a crime by reference to s 264A. At the end of the day, I did not understand the submissions counsel made about this to be of any assistance. If the section were to be construed as contended for by counsel for the accused, I accept it would be necessary for the State to prove a mental element. It may also, if the construction contended for by the State were upheld, be necessary to prove the accused's knowledge of relevant facts. However, with respect, none of that assists with answering the question, what is the correct construction of s 264A?
Alternative submission by counsel for the accused
Counsel for the accused submitted further that, if I were against him in relation to his first submission and concluded that the construction of s 264A as contended for by the State was correct, a jury properly instructed as to the law could still not, on the facts of this case, convict the accused. This submission related to the character of the activities said to have rendered the possession by the accused of the rock lobster for the purpose of s 264A(2)(a) unlawful.
The State's case was that the accused purchased rock lobster from fish processors and that, when he did so, the rock lobster were almost always untagged. He had, in those circumstances, breached the requirements of the Fisheries (Rock Lobster) Rules 2006, rr 21 and 93. Rule 21 relevantly provided that a person without an appropriate licence under the Act could not be in possession of untagged rock lobster. Rule 93 relevantly provided that a person must not be in possession of rock lobster at a place where the business of selling rock lobster was carried on, whether it be wholesale or retail, unless the rock lobster were tagged. There was no dispute the accused did not at the time of purchase of any rock lobster have a relevant licence.
Counsel for the accused submitted that the word "unlawfully" in s 264A(2)(a) was critical to this argument. He submitted that the breach of the rules in this case did not of itself render the possession by the accused of the rock lobster unlawful. He relied on two authorities for this submission, both of which dealt with motor manslaughter cases. The first was R v Rau [1972] Tas SR 59. The accused in that case was charged with manslaughter arising from the deaths of two people in a motor vehicle accident. He was charged by reference to the Criminal Code Act 1924, s 156(2)(c). To bring the case within section, the Crown needed to prove some act done by the accused was an unlawful and inherently dangerous act. The issue arose as to whether a breach of the Traffic Act 1925, s 32, (driving at a speed dangerous to the public) could amount to an unlawful act for the purpose of s 156(2)(c).
The Court of Criminal Appeal held that the offence of dangerous driving created by s 32 could not be equated with the offence of manslaughter by an unlawful act, that s 156(2)(c) stated the common law and must be construed as such, and that the law in Tasmania was therefore as stated in Andrews v DPP [1937] AC 576. Counsel referred me to passages in the judgment of Burbury CJ in Rau starting at the bottom of 63 and continuing to 65. At 65, his Honour made what I see as a useful distinction. He said:
"Where a driver in the course of driving a motor vehicle commits a breach of the Traffic Regulations, such as driving at an excessive speed or failing to give way, that does not make his whole act of driving unlawful. But there are cases where the legislature apparently makes the whole act of driving an unlawful act (such as the offence of driving a car while under the influence of liquor)."
R v Pullman (1991) 25 NSWLR 89 was another case dealing with a death as a consequence of a motor vehicle accident. The issue of whether a breach of the relevant motor traffic regulations could of itself constitute an unlawful act sufficient to found a charge of manslaughter arose. The court held that, for the purpose of common law manslaughter by an unlawful and dangerous act, an act was not unlawful merely because it breached a statutory prohibition, but that an act in breach of a statutory prohibition was not thereby precluded from being an unlawful act if, at the same time, it was otherwise unlawful.
Hunt CJ said at 91 – 92:
"The Crown ultimately relied in this case upon the category of manslaughter based on an unlawful and dangerous act. The appellant's first argument is that an act which constitutes a breach of the Motor Traffic Regulations does not, for that reason alone, constitute an unlawful act sufficient to found a charge of manslaughter within that category. That particular argument could not be denied; there is an abundance of authority for it: see, eg, Andrews v Director of Public Prosecutions. The Regulations include such a wide and diverse variety of circumstances that many (such as driving without the necessary licence, although otherwise competent to do so) could not possibly justify a charge of manslaughter within that category."
It should be noted that both Rau and Pullman were dealing with what might amount to an unlawful act for the purpose of a particular crime, and were not dealing with generally what the term "unlawfully" might mean in the present or indeed any context.
Nevertheless, applying the principles counsel extracted from those cases to the present case, counsel for the accused submitted that a breach of the Fisheries (Rock Lobster) Rules, as asserted in this case, could not amount to an unlawful act such as to make the possession of the rock lobster by the accused unlawful. It was submitted that, for example, the accused was entitled to purchase the rock lobster he did. It was only the regulatory breach which could then cause him problems. His purchase otherwise was not in any way unlawful.
Submissions by counsel for the State
Counsel commenced her submissions by asserting that it was unnecessary to go outside the Act for a definition of to "traffic" because the meaning of that word was set out in s 264A. The circumstances which amounted to trafficking, it was submitted, were confined to those set out in s 264A(2)(b). She agreed that s 264A(2)(a) dealt with the status of the fish alleged to have been trafficked in without lawful excuse. She then submitted that, "That is, it is an element of the offence that (for present purpose) the fish are possessed unlawfully, para (b) then looks at what is done with the fish by the person". Counsel further submitted that the words "have been possessed unlawfully" did not import a requirement that the fish have been possessed unlawfully by another person. They just meant that, at the time any activity by reference to s 264A(2)(b) occurred, the fish must already have assumed the status of having been possessed unlawfully. The construction contended for by counsel for the accused would involve the Court in reading into s 264A(2)(a) the words "by another person". She submitted the Courts have been reluctant to imply words to the text of legislation, and referred the Court to a passage from the text Statutory Interpretation in Australia, 7th ed, by Pearce and Geddes at 55.
Counsel for the State also read a second reading speech to me, being that by the then relevant Minister Robin Gray when the Act was first introduced in Bill form in 1995. In that speech, Mr Gray highlighted four issues which were sought to be addressed by the new Bill. The fourth was the "strengthening of law enforcement arrangements". Extrinsic material such as a second reading speech may be relied upon for the purpose of interpreting a section in an Act. However the second reading speech to which counsel for the State referred was made by way of general remarks at a time the Act was first introduced nearly 10 years before the 2007 amendments, and could not, on any basis, have been referring to s 264A. While I accept that Mr Gray's comments had relevance in the context of interpreting what was intended by the new piece of legislation replacing one enacted nearly 20 years before, I do not accept his comments have any particular relevance in interpreting s 264A.
Counsel for the State also submitted that the construction of s 264A, as contended for by counsel for the accused, would result in "a great many" offenders not being able to be convicted of trafficking. With respect, the fact that authorities might not be able to prosecute a person for a breach of s 264A is not a matter which should be called in aid of the interpretation of that section. Apart from anything else, as was pointed out to counsel, while it may mean an offender could not be prosecuted by reference to s 264A, it did not necessarily mean that offender could not be prosecuted for other appropriate offences under the Act or Rules made pursuant to it.
Counsel also submitted that when s 264A was added to the Act, Parliament saw fit to leave s 264 which dealt with the crime of "Unlawful possession of fish". It clearly intended that the two crimes co-exist and that there was to be a discretion left in a prosecutor's hands to determine which crime better suited a particular factual matrix. Counsel referred to remarks by Hill AJ in Mayes v Tasmania [2005] TASSC 126 at [76]. Counsel for the accused had already referred to Mayes but to [26].
Mayes' case dealt with an abalone fisherman who had gone diving for abalone and taken 870 kilograms. He brought it ashore and divided the catch into two batches, one of which was then transported in his car and the rest in another man's car. Both vehicles were intercepted by police. The diver was charged with the indictable offence of unlawful possession of fish by reference to s 264 as it then read. The State's case was that the appropriate fish docket had not been completed, that the diver had more than 20 abalone in his possession, that his possession was therefore contrary to the Fisheries (Abalone) Rules 2000, r 17(1)(c), that the abalone were worth more than $5,000, and therefore the diver's possession constituted an indictable offence contrary to s 264(1).
The diver was convicted and appealed unsuccessfully. His counsel submitted to the Court of Criminal Appeal that the regulatory framework entitled the diver to be in possession of abalone with a value of in excess of $5,000. He submitted that it could not have been intended that, if that entitlement were extinguished by a breach of the Rules (that is, no appropriate dockets), the diver could be liable to conviction and punishment under s 264. The argument was mounted by reference to the significant difference in the penalties which could be imposed for the breach of the Rules and the substantive offence.
Blow J (as he then was) said at [26]:
"I think that submission should be rejected. I think that the key to the proper interpretation of s264(1) is the requirement of the Acts Interpretation Act 1931, s8A(1), that an interpretation that promotes the purpose or object of the Act in question must be preferred to one that does not promote that purpose or object. The purpose of the 1995 Act is clear from its long title, which begins with the words, 'An Act to promote the sustainable management of living marine resources, to provide for management plans relating to fish resources, to protect marine habitats …'. Tasmania's abalone fishery is a very valuable resource, and also a vulnerable one. It needs to be conserved and managed for the benefit of the Tasmanian public, and for future generations. Abalone poaching can be fairly easy, extremely lucrative, and very hard to detect. The 1995 Act therefore makes provision for a strict and detailed management regime, and substantial penalties. The interpretation of s264 contended for by the appellant would exempt from the operation of that section a licensee whose possession of fish, originally lawful, had somehow become unlawful. That would not promote the purposes or objects of the Act. The additional exposure of an offending licensee to prosecution for an indictable offence when the offending involves fish worth more than $5,000 would promote the purposes and objects of the 1995 Act simply by providing a strong deterrent against such large-scale offending."
Then at [76] Hill AJ said:
"The construction of s264 urged by the appellant is not one which, in my view, is open. The fact that a set of facts, if proved, may give rise to a liability under legislative provisions, some to be dealt with summarily and others to be dealt with on indictment, is not a novel one, and in my opinion does not help the appellant here. In my view, the appellant can take fish in accordance with his licence, but his continued possession must be subject to the legislative provisions. If the appellant's submissions concerning s264 were correct, the licence holder would, after taking in accordance with his licence, effectively be without restraint in his future handling and dealing with the fish. That would not be in accordance with the policy and intentions of the legislation."
I do not cavil with anything said by either Blow J or Hill AJ about s 264 as it was at the time that case was dealt with. In that case, however, the factual matrix was different to the present. The diver held an appropriate licence, and was lawfully entitled to take and possess in the first instance the quantity of abalone that he took. Where his problem arose was that he then removed the abalone from the place where he had landed it, and failed to complete the appropriate dockets when he did so. That second step put him in breach of the relevant Rules. That was not a case which provided for some sort of prosecutorial discretion between two indictable offences depending on a factual matrix. With respect, [76] does not assist the argument of counsel for the State in the present case.
Another submission by counsel for the State was that an offence under s 264 was a continuing offence, whereas an offence under s 264A could apply to a combination of being in possession of fish and then selling them.
The submissions by counsel for the State, with which I have been dealing to this point, relate to the accused's primary submission. As to the alternative submission, counsel for the State submitted that the reliance by counsel for the accused on the cases of Rau and Pullman was flawed, in that Rau was not authority for the proposition relied upon, and Pullman could be distinguished. Counsel referred to two further cases. The first was R v Vallance [1960] Tas SR 51. The accused in that matter was acquitted of unlawfully wounding someone after firing a firearm in the person's direction. The trial judge directed the jury that there must be proof that the accused intended to wound the victim and that the accused's act was unlawful if it constituted a breach of the Police Offences Act, s 24, which forbade, amongst other things, shooting in towns. The Crown sought leave to appeal the acquittal.
Burbury CJ said at 60:
"The actus reus is complete once there is an unlawful wounding by any means, whether the means used be lawful or unlawful. There is no requirement (as in the case of manslaughter) that the act causing the wounding be an unlawful act.
Lawful justification for the use of particular means causing a wound may in some circumstances be relevant to the question whether there is lawful justification for the wounding. But the quality of unlawfulness is by the definition of the crime attached to the fact of wounding and not to the means which causes it. It follows that the question whether the discharge of the gun constituted a breach of s 24 of the Police Offences Act 1935 or whether it was otherwise an unlawful act was not relevant to the charge of unlawful wounding. 'Unlawfully wounding' for the purposes of s 152 of the Code in my opinion simply means 'wounding without lawful justification.'"
The second case to which counsel for the State referred was that of Resource Management and Planning Appeal Tribunal Act 1993, s27 Reference pursuant to, Re [1999] TASSC 85. The question of law referred by the Tribunal was:
"Whether the word 'unlawfully' in section 53 of the Environmental Management and Pollution Control Act 1994 means 'without lawful justification' or 'contrary to law', in the sense of in breach of some law other than section 53 above, or has some other and if so what meaning."
Section 53 provided that a person who "unlawfully causes an environmental nuisance ... ".
Wright J said at [6] that the observations of Burbury CJ in Vallance had a direct bearing on the issue. His Honour quoted the passage referred to above and, in fact, quoted more extensively than I have from the judgment of Burbury CJ. He also quoted passages from the judgment of Crisp J. At [11] in his judgment Wright J said:
"Mr Virs, in his very helpful written submissions, presented a compelling argument that, contrary to Mr McElwaine's contentions, the structure and purpose of the Act is entirely consistent with the view that 'unlawfully' in s53 means 'without lawful justification'. I can do no better than set forth the relevant part of his written argument:
…"
His Honour then set out the written submissions of Mr Virs, and said at the end of [11] that he need only record that he agreed with those submissions.
Counsel for the State submitted that the reasoning in both Vallance and the Tribunal reference case represented the appropriate legal framework which this Court should use to deal with the alternative argument of counsel for the accused.
Discussion
I have taken the opportunity when considering this matter to look at legislation in other States which might be said to be the equivalent of s 264A. Legislation relating to trafficking in fish is unfortunately not uniform, and, in fact, the Tasmanian provision appears to have features not found elsewhere. Also, as counsel for the accused submitted, there do not appear to be any reported cases in this State which deal with s 264A. There appear to have been only two sentences on pleas of guilty involving the section. One involved an accused and another man stealing rock lobster from a processing factory and then the accused selling it. The other involved an accused helping another man who took abalone unlawfully in removing it from the beach near where it was caught and transporting it elsewhere. In neither case was the Court called on to consider the construction of s 264A.
When counsel for the State opened her case in this matter, she did so on the basis that, by reference to s 264A(2)(a), the issue of taking unlawfully did not arise, and what was alleged was that the accused had possessed rock lobster unlawfully because he had purchased and then possessed rock lobster which was not tagged in accordance with the Fisheries (Rock Lobster) Rules. Thereafter the accused had processed the fish by killing them and had then on-sold them. He had no licence which enabled him to do any of this and therefore, after he had come into possession of the rock lobster unlawfully, he had carried out an activity by reference to s 264A(2)(b) and was thus guilty of the crime charged. While counsel for the accused said at the beginning of the trial that he took a different view of the construction of s 264A, he did not tell either me or the jury just what that view was.
Thereafter the State's case proceeded with a significant amount of evidence being led to establish the licence status of the accused, the regulatory framework which operated under the Act generally, that, during the period covered by the indictment, the accused had purchased quantities of rock lobster from licenced processors, and that he had, for the most part, purchased those without rock lobster tags. Further evidence was led to show the documentation which had accompanied the accused's purchases and how he had paid for them. There was evidence about the sales he then made. In all, the State's case took nearly a week. It was only after the State's case closed that the nature of the accused's view of the legislation was exposed in the form of this application.
As to the application, if I determine that s 264A should be construed in the manner contended for by counsel for the accused, the State's case cannot be made out because there is no evidence at all to suggest any person other than the accused took or possessed rock lobster for the purpose of s 264A(2)(a). As I understand it, even had the State had notice of the difficulty it now potentially faces, there never could have been any such evidence.
How therefore should s 264A be construed? The Acts Interpretation Act, s 8A, provides that, in the interpretation of an Act, an interpretation which promotes the purpose or object of the Act is to be preferred to one which does not promote that purpose or object. The purposes of the Act are to promote the sustainable management of living marine resources, to provide and maintain the sustainability of such resources, to take account of the community's interests and needs in respect of those resources, and to increase the community's awareness of the ecosystem upon which fisheries depend. The Act and the various Rules made pursuant to it are designed to establish a framework pursuant to which the relevant authorities are able to limit the quantities of fish which are taken from the sea, limit the persons who may take fish from the sea, and track fish which are taken through the various steps before it might reach someone's plate. In effect, a paper trail is provided for which records the progress of the fish. That paper trail ensures that only the amounts of fish authorised to be taken from the sea are in fact taken, and thus the relevant fisheries are not imperilled. The regulatory framework also provides for various offences by reference to the Act and various Rules made under it, and differing penalty regimes depending on where in the framework a particular offence sits. Clearly, significant penalties have been provided for in some cases to ensure fisheries are protected, while lesser penalties have been provided for breaches of Rules, where those breaches arise from activities which do not directly imperil the sustainability of the State's fisheries, but put at risk the tracking framework after fish leave the sea.
Both constructions of s 264A contended for generally promote the purposes and objects of the Act. However, that contended for by the State would seem not to recognise what might be an obvious distinction in the regulatory framework, that is, the distinction between serious offending which directly imperils the sustainability of fisheries, and offending which it might be said does not.
The Acts Interpretation Act, s 8A, permits regard to be had to extrinsic material if it is capable of assisting with interpretation and in the circumstances identified. Given the nature of the argument raised by counsel for the accused, it is not, in my view, possible to say that there is an ordinary, unambiguous meaning of s 264A. Extrinsic material which may be had regard to in those circumstances is the second reading speech made to Parliament when the Bill which included s 264A was introduced into Parliament.
Prior to s 264A being introduced, there was no provision in the Act which dealt with the concept of trafficking in fish. There were simply individual provisions relating to the illegal taking and possession of fish. As the relevant Minister said in his second reading speech when the Bill was introduced, it had been identified that offences which then existed were inadequate to deal with criminal groups illegally exploiting fisheries such as the abalone and rock lobster fisheries. As a consequence of that, he said, the new crime of "trafficking in fish without lawful excuse" was being introduced, together with changes to the definition of "possession"'. There is a clear inference to be drawn from the Minister's remarks that s 264A was intended to deal with serious crime being engaged in by criminal groups who were exploiting (and thus imperilling the sustainability of) the State's fisheries.
As counsel for the accused pointed out, I in fact dealt with a prosecution in 2006 of a businessman in Queensland, David Lee, who was sourcing dried abalone from an unlicensed operator in Hobart. He was charged under s 264(1) as it existed prior to the introduction of s 264A, with illegal possession of fish. At the time at which he was charged there was no provision which enabled someone to be charged with trafficking, and yet his activities would have fitted precisely within s 264A as it now exists and were it construed in the manner contended for by counsel for the accused. That is so because he was acquiring abalone from another person who unlawfully possessed it.
If it is accepted that the intent behind the introduction of s 264A was to address the more serious offending by criminal groups exploiting the State's fisheries, then the construction contended for by counsel for the accused is an entirely logical one. It directs s 264A at serious offending which involves a chain of offenders each taking part in different activities and which imperils the sustainability of the State's fisheries rather than regulatory breaches, which it is arguable, do not. It potentially allows offenders at different points in the chain to be prosecuted for their part in a trafficking operation.
The Act still provides for offences relating to the taking of fish and possession of fish by individuals. The legislative framework generally also provides for a number of measures, such as the attaching of rock lobster tags, which make it possible to track fish once sold by a processor. Offenders breaching those provisions can still be dealt with by the Courts.
Returning to the wording of s 264A, there seems no dispute that s 264A(2)(a) deals with the status of the fish, the subject of a charge, and that that status is an element of the relevant crime to be proved by the State. The difficulty of course is someone has to bring about whatever status is relied upon. The opening words of s 264A(2)(a) are that, "a person (my emphasis) is taken to traffic in fish without lawful excuse if". That person clearly must be the offender charged. Section 264A(2)(a) then goes on to provide, "the fish have been taken unlawfully or possessed unlawfully;". There are no words in that sub-section which directly relate it to an activity by an offender. However, s 264A(2)(b) does have a direct reference to activity in which the offender is involved because it provides for an activity by the person. It would have been a simple step for Parliament to have added the words "by that person" or indeed "by that or any other person" at the end of s 264A(2)(a) to achieve the construction contended for by the State and remove any possible doubt. Parliament did not do that.
The past tense used in s 264A(2)(a) makes it clear that the status of the fish, the subject of any charge, as unlawfully taken or unlawfully possessed must be established before moving to establish whether an offender has carried out one or more of the activities listed in s 264A(2)(b). The State has disavowed any reliance upon any fish being unlawfully taken. It also does not assert that the fish were unlawfully possessed by the person who sold them to the accused. It is the accused who it is asserted possessed the relevant rock lobster unlawfully when he purchased them from a processor without rock lobster tags because, absent those tags, the accused had no authorisation to possess the rock lobster he purchased. He had no relevant licence.
It seems to me that the key to the construction of the section lies in the use of the past tense in s 264A(2)(a), its lack of reference to the alleged offender, and the impact of the relevant Minister's second reading speech in 2007. The use of the past tense implies that the status of the fish having been unlawfully possessed occurred at a time before the person said to have carried out any activity covered by s 264A(2)(b) carries it out, and most likely by someone other than the alleged offender. The lack of any reference in s 264A(2)(a) to something being done by the alleged offender supports that construction.
Further, the Minister's second reading speech clearly identifies circumstances which authorities were trying to address when s 264A was introduced. That is, groups who were involved in exploiting, and by implication imperilling, the State's fisheries by various activities. The section as construed by counsel for the accused would allow for offenders at different parts of the supply chain to be brought under the section without necessarily having to prove they were involved directly in the actual taking or possession unlawfully of the fish in the first place. That interpretation promotes the purposes and objects of the Act, and also recognises that the most significant crimes and associated penalties under the Act are reserved for those who imperil the State's resources by their activities.
Conclusion
The construction of s 264A contended for by counsel for the accused is, in my view, the correct one. For that reason I have not dealt with the alternative argument because it would be dealing with a hypothetical case. The State in the circumstances needed to prove that someone other than the accused took or possessed the rock lobster, which ultimately came into the accused's possession, unlawfully. No such evidence has been led on this trial and, as I have already indicated, it would seem there never could have been any such evidence. In those circumstances, no jury properly instructed and accepting the Crown's case at its highest, could convict the accused. The jury should be directed to return a verdict of not guilty on the crime charged.
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