Tasmania v Kossman - [2009] TASSC 35

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tasmania v Kossman

Details

AGLC: Tasmania v Kossman [2009] TASSC 35
Case: [2009] TASSC 35
Decision Date: 16 March 2009

CaseChat Overview and Summary

The case of Tasmania v Kossman was heard in the Supreme Court of Tasmania and involved a dispute concerning primary industry offences, specifically related to fish and record-keeping. The respondent, Kossman, was charged with knowingly making a false statement in records required under the Fisheries Act 1995 (Tas). The crux of the case was whether the record-keeping obligation imposed on divers was also a requirement for licence holders under the applicable statute.

The court had to determine the scope of the record-keeping obligations under the Fisheries Act 1995 (Tas) and whether these obligations were applicable to licence holders, as well as to divers. It was argued that the record-keeping requirement was specifically addressed to divers and not to licence holders. The court needed to interpret the statutory language to ascertain the true intention of the legislature in imposing such record-keeping obligations.

In its judgment, the court closely examined the statutory language and legislative history. It concluded that the obligation to keep records was indeed imposed on licence holders, including those who were divers. The court found that the plain meaning of the statute and its purpose, which was to ensure compliance and traceability in the fisheries industry, supported the inclusion of licence holders within the scope of the record-keeping requirements. Consequently, the court ruled that the respondent was correctly charged with the offence of knowingly making a false statement in the required records.

The court's decision affirmed the charges against the respondent, upholding the statutory requirement for licence holders to maintain accurate records as part of their obligations under the Fisheries Act 1995 (Tas). This ruling ensures that all individuals involved in the fisheries industry, including licence holders, are subject to the same regulatory standards.

Orders