TATARELLI v Hera-Singh - [2007] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TATARELLI v HERA-SINGH
[2007] SASC 2
Judgment of The Honourable Justice David
15 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against the dismissal of nine charges contrary to reg 25 of the Fisheries (General) Regulations 2000 which provides that a person who places a net in the Lakes and Coorong Fishery must, on removing the net, immediately remove any buoy to which the net was attached – reg 25(2) provides a defence if the net is removed to carry out an action that is part of a fishing activity, and the net is returned to those waters “immediately” after the action is carried out – the respondent removed nets, but not the buoys attached to them, from the Fishery, cleaned them at his residence and tried to return them the next day – the magistrate dismissed the charges, finding that cleaning the nets was part of a fishing activity, and that the nets were returned immediately, satisfying reg 25(2) – whether the magistrate erred in his finding – held, appeal dismissed – the magistrate correctly applied the test – cleaning the nets was part of a fishing activity – “immediately” is not to be construed in its strict sense, but implies prompt, vigorous action without any delay.
Fisheries Act 1982 s 5; Fisheries (General) Regulations 2000 reg 4, reg 25; Summary Procedure Act 1921 s 56, referred to.
Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758, applied.

TATARELLI v HERA-SINGH
[2007] SASC 2
Magistrates Appeal
David J
Introduction

This is an appeal against a decision of a magistrate dismissing nine charges brought against the respondent contrary to reg 25 of the Fisheries (General) Regulations 2000.
The respondent, a professional fisherman, was charged on complaint with nine separate counts that on 22 March 2005, on removing a net from the waters of the Lakes and Coorong Fishery (“the Fishery”), he failed immediately to remove from those waters all buoys, anchors and other devices or things to which the net was attached.
Regulation 25 of the Fisheries (General) Regulations 2000 states:
(1)     A person who—
(a)     for the purpose of trade or business engages in a fishing activity of a class that constitutes the Lakes and Coorong Fishery; and
(b)     for the purposes of engaging in that activity places a net in the waters of the Fishery,
must, on removing the net from those waters, immediately remove from those waters any buoy, anchor or other device or thing to which the net was attached.
Maximum penalty: $2,500.
(2)     For the purposes of subregulation (1), if -
(a)     a net is removed from the waters of the Lakes and Coorong Fishery for the purpose of carrying out an action that is part of a fishing activity of a class that constitutes the Fishery; and
(b)     the net is returned to those waters immediately after the action is carried out,
the net will not be taken to have been removed from the waters.
At his trial, the respondent admitted that he removed nets from the waters of the Fishery, representing the nine counts with which he was charged, but argued that he removed those nets for the purposes of cleaning them and returned them immediately after that was done, thus establishing a defence pursuant to reg 25(2). The magistrate found that the defence was made out on each count, and it is against that finding that the present appeal lies.
Facts
The prosecution case at trial was presented by way of agreed facts (exhibit P1). The respondent presented his case at trial by tendering an affidavit (exhibit D1) and supplementing that by giving evidence on oath. It is clear that the basis of fact upon which the matter proceeded was not in dispute, and therefore, the magistrate’s findings of fact are not the subject of this appeal. I set out the relevant undisputed facts:
(1)The waters of the Lakes and Coorong Fishery are defined as the waters of the Coorong, Lake Alexandrina, Lake Albert and the coastal waters out to three nautical miles from low water mark from the seaward extension of the Goolwa Beach Road to the jetty at Kingston.
(2)On 22 March 2005, Fisheries officers, whilst conducting vessel patrols in the Fishery, located nine separate buoy and anchor devices (“device(s)”) at various waypoints as particularised on the complaint.
(3)No net was attached to any of the devices. At the time the devices were found, it was not known how long they had been in the water. However, at the time they were found, the devices were unattended and had been left unattended by the respondent.
(4)All devices were within the waters of the Fishery. Each device was marked “L13”. At the relevant time, the respondent was the holder of Lakes and Coorong Fishery Licence number L13. The devices belonged to the respondent.
(5)With respect to each device the respondent had:
(a)for the purposes of trade or business, engaged in a fishing activity of a class that constituted the Fishery;
(b)for the purposes of engaging in that activity placed nets in the waters of the Fishery.
(6)When in the water, the nets had been attached to the devices referred to above. The respondent removed the nets from the waters. The devices were subsequently detected with no nets attached and seized by the Fisheries officers on the two patrols.
(7)In March 2005 the respondent had set 41 nets at various waypoints along the length of the Coorong.
(8)In relation to nine of those nets, which are the subject of the charges, the respondent’s undisputed case was that upon checking the nets during March 2005 he found that they were weedy and consequently he was unable to catch many fish. He decided to take the nets out of the water to clean them. In order to do so, because of their weight and complexity, it was necessary to detach the nets and take them home.
(9)On 21 March 2005 the respondent pulled the nets away from five of the waypoints and left the buoys and anchors. He took those nets to his home at Meningie and cleaned them, and returned those clean nets to the same waypoints on the morning of 22 March 2005.
(10)On 22 March 2005 the respondent pulled another six nets from the water on to his boat for the purposes of cleaning them. Once again he left the marker buoys and the anchors in the water, and it was his intention to clean the nets and return them to the same positions. He took the nets to shore at Pelican Point and then to his home at Meningie, where he proceeded to clean and weed them. It was undisputed that each net took up to 40 minutes to clean, and he was unable to return those nets on 22 March 2005 because he ran out of time. He attempted to return the nets on 23 March 2005, but was unable to do so because in the intervening period the Fisheries officers had located his buoys and anchors and removed them from the water.
It was therefore the respondent’s case that it had been proved on the balance of probabilities that he removed all of the nets for the purposes of carrying out an action that is part of a fishing activity of a class that constitutes the Lakes and Coorong Fishery, namely cleaning the nets for further use. He also argues that in the circumstances, those nets were returned to the water immediately after that action was carried out.
The Magistrate’s Decision
The magistrate found that it was unchallenged, and therefore had been proved, that reg 25(1) of the Fisheries (General) Regulations 2000 was made out. He found that pursuant to s 56 of the Summary Procedure Act 1921, the onus was on the respondent to prove on the balance of probabilities that the defence provided by reg 25(2) was made out. He then dealt with the two issues that were argued at trial, namely whether the respondent’s nets were removed for the purpose of carrying out an action “that is part of a fishing activity of a class that constitutes the Fishery”, and secondly, whether the respondent’s nets were returned “immediately”.
The magistrate found that he was satisfied that removing the nets from the water and returning them to shore for the purposes of cleaning them was part of a fishing activity. He also found that it had been proved that in the circumstances of the case the nets had been returned to the waters immediately after the action of cleaning had been carried out. He therefore found that the defence had been made out and dismissed the charges.
Arguments on Appeal
The appellant argues that the magistrate erred in both of his findings. It is conceded that for the respondent to have been successful at trial, both exceptions set out in reg 25(2) must be made out. The appellant argues that for the purposes of reg 25(2), a defence that it was “for the purpose of carrying out an action that is part of a fishing activity” could not be available where a net is removed for cleaning or maintenance. However, as pointed out by the respondent, reg 4(2) of Fisheries (General) Regulations 2000 provides as follows:
(2)In these regulations, a reference to the taking of fish or a particular species of fish is to be taken to include any act that is preparatory to or involved in the taking of that fish or species of fish, whether or not any such fish or species of fish have been taken.
It is argued that the taking of fish is clearly a part of a “fishing activity”. Also s 5 of the Fisheries Act 1982 defines “fishing activity” in the following terms:
…
fishing activity means the act of taking fish, or an act preparatory to, or involved in, the taking of fish;
…
I find that the removal of nets for the purposes of cleaning them in order to effectively use them for fishing is clearly a preparatory act to a fishing activity, and therefore, the magistrate was correct in finding that the respondent had proved reg 25(2)(a).
In dealing with the question of whether on each count the net had been returned to the waters immediately, the magistrate found:[1]
The prosecution case is that the defendant was required by regulation to return the nets to the waters immediately. The use of the word “immediately” in Acts and Regulations has been the subject of much judicial discussion over the years. The authorities indicate that the word “immediately” is not to be construed in its strict sense. It means with reasonable promptness having regard to all the circumstances of a particular case. That sounds eminently sensible to me. The circumstances of this case involve considerations of the practicality of the defendant returning the nets with reasonable promptness and the safety considerations involved in that.
I have said earlier that in my opinion the defendant’s practise of pulling the nets one day, cleaning them the same day and resetting them at the same waypoint the following day is understandable and sensible. Just as weedy nets do not catch fish nets sitting on shore cannot catch fish and the defendant is a commercial fisherman whose income is derived from fish caught. I am satisfied and so find that by returning the nets to the waters on the morning of the day after they were pulled from the water the defendant has, having regard to all the circumstances, returned them immediately.
[1] Department of Primary Industries v Gary Ian Hera-Singh (Unreported, Magistrates Court of South Australia, Johansen SM, 4 August 2006), 7.
Conclusion
I find that on the facts as presented to the magistrate, his finding is correct. He correctly directed himself that the word “immediately” is not to be construed in its strict sense, but its meaning depends to a great degree upon the circumstances in which it is used. This, of course, will depend upon the circumstances of a particular case, but implies “prompt, vigorous action without any delay”.[2]
[2] Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758, [8] (Lee and Finn JJ)
In applying that test the magistrate took into account the time needed to clean the nets and what was involved, and held that in the circumstances, returning them the next day satisfied the prerequisite of them being returned “immediately” after the action of cleaning them was carried out. In my view there is no reason for disagreeing with his conclusion.
I therefore find that the magistrate was correct, on the facts that were presented to him, in finding the respondent had proved his defence pursuant to reg 25(2) of the Fisheries (General) Regulations 2000. I would dismiss the appeal.