Tasmania v Kossman
[2009] TASSC 35
•16 March 2009
[2009] TASSC 35
CITATION: Tasmania v Kossman [2009] TASSC 35
PARTIES: TASMANIA, State of
v
KOSSMAN, Peter Joachim
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: 340/2004
DELIVERED ON: 16 March 2009
DELIVERED AT: Hobart
HEARING DATE: 18 February 2009
JUDGMENT OF: Blow J
CATCHWORDS:
Primary Industry – Fish – Offences – Other offences – Knowingly making false statement in keeping records under the Act – Record-keeping requirement addressed to divers – Whether a requirement imposed on licence holders under applicable statute.
Living Marine Resources Management Act 1995 (Tas), S265.
Aust Dig Primary Industry [1129]
REPRESENTATION:
Counsel:
Crown: D G Coates SC
Accused: G T Bigmore QC, J C Kitto
Solicitors:
Crown: Director of Public Prosecutions
Accused: J C Kitto
Judgment Number: [2009] TASSC 35
Number of paragraphs: 29
Serial No 35/2009
File No 340/2004
STATE OF TASMANIA v PETER JOACHIM KOSSMAN
REASONS FOR DETERMINATIONS BLOW J
16 March 2009
The accused has pleaded not guilty to four criminal charges relating to abalone diving. His counsel and the Crown prosecutor have asked me to determine three questions pursuant to the Criminal Code, s361A, before a jury is empanelled, and the basis of assumed facts, and facts admitted for the purpose of my determinations.
Question 1 – Status of diver's dockets
The first question for determination is as follows:
"Is Part A of any 'Commercial Abalone Diver Docket' relied upon by the State of Tasmania in this prosecution a record, account or other information required to be kept by the accused under the Living Marine Resources Management Act 1995?"
The charges relate to events that occurred in the years 2000, 2001 and 2002. The Crown alleges that certain dockets completed and kept by the accused during those years contained false information to the effect that the accused had caught and landed certain quantities of abalone which had in fact been caught and landed by other people. Counts 1, 2 and 4 are charges of conspiracy, alleging that the accused conspired with others to commit crimes against the Living Marine Resources Management Act 1995 ("the Act"), s265(a), by keeping false records under that Act. Count 3 is a charge of knowingly making a false or misleading statement in keeping records under that Act, contrary to s265.
Section 265 reads as follows:
"265 A person must not, in keeping any records, accounts or other information under this Act —
(a)make a statement knowing it to be false or misleading; or
(b)omit any matter from a statement knowing that without that matter the statement is false or misleading."
In relation to each charge, the Crown needs to prove beyond reasonable doubt that the accused knowingly kept false records. If it does so, the accused can be convicted only if those records were records that he kept under the Act, within the meaning of s265. He contends that the records allegedly kept by him do not amount to records kept under the Act for the purposes of that section. The Crown contends that they do.
The primary purpose of the Act is "to achieve sustainable development of living marine resources": s7(1). Tasmania's abalone fishery is a valuable resource which needs to be managed and conserved for the benefit of the community, and for future generations. Accordingly, it is regulated by means of a system of licences and quotas pursuant to the Act and pursuant to the Fisheries (Abalone) Rules 2000 ("the rules"). Those rules were made pursuant to the Act, s33(1). The regulatory regime during the years in question can be summarised as follows:
·The taking of abalone for commercial purposes was prohibited, except when the abalone was taken by the holder of a "fishing licence (abalone dive)": r11.
·The total allowable catch of abalone for each calendar year for the whole fishery was fixed by the rules. The total allowable catch was divided into a number of a quota units. Each quota unit was given a number Those quota units were allocated to the holders of licences called "fishing licences (abalone quota)".
·The Secretary of the Department of Primary Industries, Water and Environment issued docket books to commercial abalone divers. Each docket book contained a series of numbered dockets, in quadruplicate, and instructions as to the filling in of those dockets. According to those instructions, a diver who took and landed abalone on a particular day was required to fill in, in Part A of a docket, details of the date, the weight of the abalone landed, and the quota units to which that diver allocated the catch. Different copies of the docket recording those details were to be sent to the Secretary, sent with the abalone to a processor, and retained by the diver.
·In addition to the instructions in the docket books, the rules contained certain provisions as to the completion, despatch and retention of dockets from the docket books.
The Crown case is based on allegations that the accused made false statements in dockets that he completed in accordance with this regulatory system. Because of the wording of s265, the critical question for me to determine is whether the activity allegedly engaged in by the accused amounted to "keeping any records, accounts or other information under this Act". The question whether a particular activity falls within a particular statutory description is a question of mixed fact and law. However a pure question of law arises if, on the facts as found or assumed, only one conclusion is open as to whether the case comes within the relevant statutory expression: Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 at 138; Hope v Bathurst City Council (1980) 144 CLR 1 at 9; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450; Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354 at 364 – 365, 379 – 380, 382 – 383.
It is common ground that the Secretary was empowered to impose record-keeping obligations pursuant to s145(1) of the Act, which reads as follows:
"145 — (1) The following persons must keep records, accounts and other information in a manner and form approved by the Secretary:
(a) the holder of an authorisation;
(b) the master of a vessel;
(c) the owner or person in charge of premises where fish are received, bought, processed, stored, sold or otherwise disposed of;
(d) a person in charge of a vehicle which contains fish for sale;
(e) any other prescribed person.
Penalty:
Fine not exceeding 200 penalty units."
The Crown relies on s145(1)(a), but not on any of the other paragraphs in that subsection. The word "authorisation" is defined in the Act, s3, as meaning "a permit, licence or other authority permitting a person to undertake an activity". The Crown alleges that at all material times the accused was the holder of a fishing licence (abalone dive), and therefore the holder of an authorisation within the meaning of s145(1)(a).
However the instructions in the relevant docket books were expressed as instructions to divers, rather than to licence holders. Part A of each docket is headed "to be completed by the diver".
The accused contends that such documents cannot amount to records kept pursuant to s145(1)(a). His counsel pointed out that that provision enables the Secretary to require the holders of licences or other authorisations, as distinct from divers, to keep records. Thus, he argued, if abalone are dived for, taken and landed by someone other than a particular licence holder, (a) that licence holder is not required to complete any information in the docket book; and (b) any false information recorded in the docket book as to who dived for, took and landed the abalone does not amount to a record kept under s145.
The Crown contends that, although the relevant requirements in the docket books were expressed to be addressed to divers, they amounted in substance to requirements imposed upon licence holders in accordance with the power conferred by s145(1)(a). If that is correct, any false statement made by a licence holder in a diver's docket as to taking and landing abalone on a particular occasion when that person had not taken and landed any, or any misstatement as to the quantity of abalone taken and landed, would amount to a false statement made in keeping records under the Act, within the meaning of s265.
I accept the Crown's contentions as to that point. I think the only conclusion reasonably open upon the evidence is that the author of the docket books addressed the instructions therein to the holders of fishing licences (abalone dive), but used loose language by referring to them as divers, rather than licence holders. The very nature of a fishing licence (abalone dive) is such that its holder is a diver. It would be absurd to think that the author of the docket books intended to draw a distinction between divers and the holders of fishing licences (abalone dive), with a view to making the instructions applicable to other divers, or with a view to imposing no obligation on licence holders at times when they did not take or land any abalone, or took abalone by means other than diving.
I think I am entitled to take judicial notice of the fact that abalone can sometimes be taken by swimming or wading, without diving. However I also take notice of the fact that the normal method of taking abalone in commercial quantities involves diving for them, as the name "fishing licence (abalone dive)" suggests. The fact that the holder of such a licence is authorised to take abalone without diving does not, in my view, give any strength to the accused's contentions as to the absence of an obligation imposed by s145.
Another argument advanced on behalf of the accused was that, if the Secretary issued a form that a diver was required to complete after diving for abalone, no obligation to complete that form fell upon anyone other than that diver, with the result that any form completed by the accused falsely stating that he had done what that diver did could not be a record kept under the Act. I reject that argument. Parliament must have intended the expression "keeping any records, accounts or other information under this Act" in s265 to include the keeping of false or misleading records in purported pursuance of the Act. A contrary interpretation would be absurd.
My conclusion in relation to the first question has been reached without taking into account the provisions of the Living Marine Resources Management (Validation of Documents) Act 2002. However, if I have erred in my reasoning, I think that s4(e) of that Act must lead to the conclusion that the dockets in question were records kept by the accused under the Act, within the meaning of s265. Section 4(e) provides as follows:
"4 For the avoidance of doubt —
…
(e)any document issued or used, or purportedly issued or used, during the validation period for the purposes of section 145(1) of the Act is taken to have been —
(i) properly approved for issue or use for the purposes of that section; and
(ii) in a form approved for the purposes of that section when it was so issued or used or purportedly so issued or used."
By virtue of s3(1) of that Act, the "validation period" is the period from 31 May 1996 to 19 December 2002. The Crown case is that the crimes charged were all committed during that period.
The docket books relied on by the Crown each contain the following assertion:
"This docket book and the instructions are forms approved by the Secretary of the Department of Primary Industries, Water and Environment (DPIWE) for the purposes of Section 145 of the Living Marine Resources Management Act 1995."
Mr Bigmore QC submitted on behalf of the accused that s4(e) had no application to the facts of this case. He submitted that it was intended only to remedy defects in the issue or use of documents, and could not result in a document addressed to divers being treated as a document imposing obligations on licence holders.
I disagree. It is worth noting that s5 of the 2002 Act made detailed provisions as to the construction of provisions in the rules concerning divers' dockets. That suggests that it was the intention of Parliament, in enacting retrospective legislation, to overcome deficiencies or uncertainties in relation to the record-keeping regime that had been set up for the regulation of the abalone fishery. The Acts Interpretation Act 1931, s8A(1), requires an interpretation that promotes the purpose or object of an Act to be preferred to one that does not. In my view the purpose of Parliament, in enacting the 2002 Act, was to protect and preserve Tasmania's fisheries resources by retrospectively tightening up the applicable regulatory regimes in general, and that relating to the abalone fishery in particular. Accordingly, I think I should interpret s4(e) so that it does not just overcome deficiencies as to the issue and use of documents. In my view, on a proper interpretation of s4(e), the relevant docket books should be treated as documents that were issued or purportedly issued during the validation period for the purposes of s145(1), and therefore documents to which s4(e) applies.
Section 145(1) is not the only possible source of record-keeping obligations under the Act. Under s40(1)(b), the Minister has the power to make rules in relation to the keeping of records and submissions of returns by any person acting under a licence, or any other person who, amongst other things, handles or lands fish. There are various provisions as to the completion and retention of divers' dockets in the rules which, at first glance, might seem to be rules made pursuant to s40(1)(b). These include r29, which at all material times read as follows:
"29 — (1) The holder of a fishing licence (abalone dive) must complete the information relating to fishing in Part A of a diver's docket —
(a) on the day on which the abalone are taken; and
(b) as soon as possible after that day's diving is complete.
Penalty: Fine not exceeding the applicable Grade 3 penalty.
(2) The holder of a fishing licence (abalone dive) must complete Part A of a diver's docket within 4 hours after the abalone are landed.
Penalty: Fine not exceeding the applicable Grade 3 penalty.
(3) The holder of a fishing licence (abalone dive) must complete Part A of a diver's docket —
(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.
Penalty: Fine not exceeding the applicable Grade 3 penalty.
(4) The holder of a fishing licence (abalone dive) must —
(a)send the pink sheet of the completed diver's docket to the Secretary within 48 hours after Part B of the diver's docket has been completed; and
(b)retain the white copy of the completed diver's docket for at least 5 years.
Penalty: Fine not exceeding the applicable Grade 2 penalty.
(5) The holder of a fishing licence (abalone dive) must ensure that any information entered on a diver's docket appears and is maintained in a clear and legible manner on the pink sheet and each copy of the diver's docket.
Penalty: Fine not exceeding the applicable Grade 2 penalty."
However "diver's docket" is defined in r3(1) to mean "a docket in an approved form relating to abalone that is part of the records required to be kept under the Act". "Approved" is defined in the Act, s3, to mean "approved by the Secretary". It follows that the provisions in relation to divers' dockets in the rules do not create record-keeping obligations independently of s145(1). All that the relevant rules do is to add obligations as to when certain parts of the dockets are to be completed, and to create additional offences in respect of record-keeping.
Mr Bigmore QC submitted to me that the conduct alleged in this case was not conduct that could have resulted in depletion of Tasmania's abalone resources. All of the abalone that were the subject of the alleged false statements were abalone that the accused had the right to take pursuant to his fishing licence (abalone quota). All that is alleged is that he falsely stated that he had taken them, when in fact others had done so. However I see no reason why that state of affairs should make any difference to my determinations. The critical questions, in my view, are whether the record-keeping instructions addressed to divers in the docket books amounted to record-keeping obligations imposed on licence holders pursuant to s145(1)(a), and whether s4(e) of the 2002 Act is relevant to the determination of any such question. Those questions have to be resolved by reference to considerations that go far beyond the facts of this particular case. The happy circumstance that no unplanned depletion of resources is alleged in this case does not really have a bearing on the determination of those questions.
For the above reasons, my answer to question 1 will be in the affirmative.
Question 2
This question reads as follows:
"If question 1 be answered in the negative, can the making of a false or misleading statement in Part A of such a document constitute a contravention of s265 of the Living Marine Resources Management Act?"
The obvious answer is "Not applicable".
Question 3 – Admissibility
This question reads as follows:
"Should any 'Commercial Abalone Dive Docket' be admitted into evidence?"
On the basis of my reasoning above, the answer must be "Yes". All of the dockets relied upon by the Crown are relevant, and tend to prove the commission of the crimes charged.
Conclusion
My determinations in relation to the three questions are therefore as follows:
Question 1: Is Part A of any "Commercial Abalone Diver Docket" relied upon by the State of Tasmania in this prosecution a record, account or other information required to be kept by the accused under the Living Marine Resources Management Act 1995?
Determination: On the basis of the facts admitted and assumed for the purpose of this determination, Part A of every such docket relied upon by the State in this prosecution is a record required to be kept by the accused under the Act.
Question 2: If question 1 be answered in the negative, can the making of a false or misleading statement in Part A of such a document constitute a contravention of s265 of the Living Marine Resources Management Act?
Determination: Not applicable.
Question 3: Should any "Commercial Abalone Dive Docket" be admitted into evidence?
Determination: Yes. All such dockets relied upon by the Crown are relevant and admissible.
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