Willmington v Burnett

[1997] QSC 80

IN THE SUPREME COURT

OF QUEENSLAND

OSC.  No. 1287 of 1997

Brisbane

Before the Hon. Justice Williams

[Willmington v. Burnett]

BETWEEN:

MICHAEL ANTHONY WILLMINGTON
  Applicant

AND:

TERRY WAYNE BURNETT
  Respondent

EX PARTE MICHAEL ANTHONY WILLMINGTON

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 09/05/1997

CATCHWORDS:     FISHERIES - Fisheries Regulation 1995 - Regulation 22 - construction of expression "waters south of Cape Gloucester (near Bowen)" - held not limited to pocket of water near Bowen - held particulars in complaint should be amended.

Counsel:Irwin for appellant

Lippett for respondent

Solicitors:Crown Solicitor for applicant

Duncan and Swanston for respondent

Hearing Date:   6 May 1997

IN THE SUPREME COURT

OF QUEENSLAND

OSC.  No. 1287 of 1997

Brisbane

[Willmington v. Burnett]

BETWEEN:

MICHAEL ANTHONY WILLMINGTON
  Applicant

AND:

TERRY WAYNE BURNETT
  Respondent

EX PARTE MICHAEL ANTHONY WILLMINGTON

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 09/05/1997

This is the return of an order nisi to review the decision of the Stipendiary Magistrate at Caboolture dismissing a complaint brought against the respondent pursuant to the provisions of the Fisheries Act 1994 and the Fisheries Regulation 1995. The principal issue raised by the applicant is as to the proper construction of certain regulations, but the respondent contends that even if those regulations are construed as contended for by the applicant, the complaint should nevertheless stand dismissed.
           The first issue I address is that of the proper construction of the regulations in question.  I mention at the outset that there was an error in particularising the regulations forming the basis of the charge, and one of the subsidiary questions which will have to be addressed is whether or not those particulars should be amended.  In the circumstances I approach the issue of construction on the basis that the particulars were appropriately amended.
           Section 84(1) of the Act makes it an offence to unlawfully use fishing apparatus.  The expression "fishing apparatus" is defined in s.4 to include any net (that term is also defined in very broad terms).  One then goes to Regulation 44 which, so far as is relevant, provides:-

"(1)A person acting under an authority with a fishery symbol on it may take fish only in -

(a)the commercial fishery identified by the symbol; or

...

(3)Also, the person may take fish in the commercial fishery only by using fishing apparatus -

(a)permitted by a fishery provision for the fishery; and

(b)in accordance with the fishery provision for the fishery."

The boat owned and operated by the respondent at the material time was subject to an authority with the fishery symbol "T1" on it.  Schedule 14 Part 2 of the Regulations is relevant to an authority bearing that symbol.  The "fishery area" for such an authority is defined by Regulation 9 as being "all tidal waters east of longitude 142° 31' 49" east".  In effect that means, reading that Regulation with s.11 of the Act and the relevant definitions, all Queensland tidal coastal waters east of that longitude.
           Pursuant to that licence or authority only prawns and saucer scallops may be taken (Regulation 10) and then only by using beam or otter trawl nets (Regulation 11(1)).  Division 2 of Part 2 of  Schedule 14 then provides for the use of nets to take prawns pursuant to such a licence or authority.  Regulations 13-26 inclusive each deal with the size of nets which may be used for taking prawns; there is a designated area for each Regulation.  Regulations 14, 15, 16, 17, 18, 19, 20, 21, 24, 25 and 26 each define a specific area of water within which nets of not more than a particular size and description can be used.  In many instances the area of water in question is defined with great precision; in others the area is defined with less exactitude but nevertheless with certainty.  Each of the areas covered by those regulations is an area of water close to shore or surrounding an island; the only exception being Regulation 26 which deals with the use of nets in "offshore waters."  That leaves for consideration Regulations 22 and 23 which are of critical importance.  Regulation 22 is in these terms:

"A beam or otter trawl net may be used in waters south of Cape Gloucester (near Bowen) only if it has a mesh size of at least 38mm but not more than 60mm and is not longer than -

(a)for a beam trawl net - 40m; or

(b)for an otter trawl net - 88m."

Regulation 23 then provides the sizes for beam and otter trawl nets which may be used "in waters north of Cape Gloucester (near Bowen)".
           The complaint alleged that at the material time the respondent was fishing "in the waters of the South Pacific Ocean near Cape Moreton."  During the trial two marine charts were tendered as exhibits covering the waters from Sandy Cape at the northern tip of Fraser Island to Cape Moreton and the northern part of Moreton Bay.  It seems clear from reading the transcript, and this was confirmed by counsel during argument before me, that suggestions were made at the trial that additional charts should be prepared for the assistance of the court indicating the "fishery area" defined in Regulation 9 and the specific areas referred to in Regulations 14-26 inclusive.  However it appears that the learned Stipendiary Magistrate did not feel that such charts would be of assistance to him and no further steps were taken in that regard.  There was uncontradicted evidence from the prosecution witness Barry that the area of water the court was concerned with was "south of Cape Gloucester at Bowen."
           The critical passages in the reasons for judgment of the learned Stipendiary Magistrate are the following:

"The complaint alleges that his vessel was in the waters of the South Pacific Ocean near Cape Moreton but there is no proscription in Schedule 14 regarding the waters of the South Pacific Ocean near Cape Moreton.  A witness endeavours to justify the prosecution on the basis that the Kara Bella was then in the waters south of Cape Gloucester and there was then a reference to Moreton Bay."

Earlier he had observed:

"Mr Barry in evidence relied on s.22 relating to "waters south of Cape Gloucester (near Bowen)" ... Mr Barry's reliance on s.22 was echoed by learned Counsel for the complainant in her address.

... There was a submission that the phrase "waters south of Cape Gloucester (near Bowen)" as that phrase is used in s.22 of the Schedule should be restricted to mean the water adjacent to Bowen.  I agree with that submission.  If "waters south of Cape Gloucester" were all embracing, the use of the words "near Bowen" must indicate that there are two separate localities called "Cape Gloucester" and there is no evidence to that effect.  The only sensible interpretation, assuming that there is only one locality known as Cape Gloucester, is that s.22 is limited to an area around Bowen."

It is the correctness of that construction of Regulation 22 which is in issue in these proceedings.
           When the regulations found in Division 2 of Part 2 of Schedule 14 are read together it is clear that the construction placed on Regulation 22 by the magistrate was wrong.  As already noted each of the regulations in that Division with the exception of Regulations 22 and 23 describe and delineate a particular area of water (except for Regulation 26 a small area) in the sense that all the boundaries of that area are defined in the particular regulations.  If one takes the waters defined in Regulations 14, 15, 16, 17, 18, 19, 20, 21, 24, 25 and 26 it is clear that there is left a balance area of that which is defined in Regulation 9 as the "fishery area".  It is that balance area which is then made the subject of regulation by virtue of Regulations 22 and 23.  The balance area is divided into that north of Cape Gloucester and that south of Cape Gloucester.  When considered in that light it is clear that there is a regulation as to the size and type of net that may be used pursuant to a T1 authority in the whole of the defined fishing area in Regulation 9.
           When one reads the Act and Regulations as a whole it is clear that Cape Gloucester is used to establish a dividing line for a number of purposes.  For example, it is also referred to in Regulation 11(6) and (7) of Part 2 and Regulations 33 and 34 of Part 3 of Schedule 14.
           There is absolutely no justification for limiting the operation of Regulation 22 to a "pocket of water near Bowen"; there is nothing, as is the case in the other regulations, to define the boundaries of that pocket of water if that construction be correct.
           In my view the use of the expression "near Bowen" is only for ease of identification of the particular cape in question.  It matters not whether or not there be more than one Cape Gloucester along the Queensland coast.
           It follows that Regulation 22, properly construed, governs the use of beam or otter trawl nets in the coastal waters of Queensland being tidal waters east of longitude 142° 31' 49" east which are south of Cape Gloucester and not the subject of a specific provision in one of the other regulations in Part 2 of Schedule 14.
           There was no dispute as to where the Kara Bella was at the material time.  She was some 5.3 nautical miles from Cape Moreton and .6 of a nautical mile west of the eastern boundary of the offshore waters defined in Regulation 26.  She was not in any of the other specific areas designated in the regulations in Part 2 other than Regulation 22.  Therefore the vessel was clearly at the material time in waters subject to Regulation 22.
           The magistrate expressed his findings in that regard as follows:

"I am satisfied beyond reasonable doubt that the defendant was engaged in an act of trawling for prawns in the early hours of 21st March and he was at that time using fishing apparatus, namely otter trawl nets which had a combined length of 162.1 metres.  He was at the time about 5.3 nautical miles from Cape Moreton on board the vessel Kara Bella and his position was plotted at 26° 58' 6" South and 150° 32' 7" East which placed the defendant .6 of a nautical mile (or about 1.1 kilometres) west from an offshore trawl line.  It is accepted also that the trawl line referred to is the western boundary of the offshore waters defined by s.26(1) of the Schedule and referred to later."

The learned Stipendiary Magistrate dealt with a defence submission that the respondent had made "an honest and reasonable but mistaken belief that he was within the permitted area."  That defence was rejected by the magistrate and there was no challenge to that conclusion on the hearing before me.
           The body of the complaint alleged that on 21 March 1996 "at a place in the waters of the South Pacific Ocean near Cape Moreton within the Magistrates Court District of Caboolture in the said state one Terry Wayne Burnett did unlawfully use fishing apparatus."  That was clearly a statement of the offence pursuant to s.84(1) of the Act.  Then the complaint went on to give particulars in the following terms:

"The said Terry Wayne Burnett did use on the abovementioned date Offshore Otter Trawl Nets other than as prescribed by Regulation 6(1) Part 1, Schedule 14 of the Fisheries Regulation 1995."

In the course of opening the case for the prosecution counsel referred to the fact that the trawler in question "had a licence to fish in T1 ... fishery areas".  Indeed there was no dispute at the hearing that the vessel Kara Bella had an authority endorsed with the T1 symbol.  There was also no dispute that the respondent was the owner of that vessel at the material time.  It is clear from looking at Schedule 14 that the regulations dealing with the fishery symbol T1 are those contained in Part 2.  Part 1 of Schedule 14 referred to in the particulars endorsed on the complaint relates to vessels having an authority endorsed with the symbol T2 and Regulation 6 thereof relates to the use of otter trawl nets by vessels having that authorisation.  It must therefore have been obvious from the prosecution opening that there was an error in particularising the regulation which the respondent had allegedly breached.  It is clear from a reading of the transcript that the evidence concentrated on Part 2 and in particular Regulation 22; those were the correct references.
           In the course of his reasons the magistrate dealt with the issues thereby raised in this way:

"If the defendant is not liable because of the provisions of s.6(1) as particularised, it is difficult to ascertain just which part of the Regulation he is in breach of ...  The defendant is entitled to be told how it is alleged he has broken the law.  There has been no application for any amendment and it is difficult to define just which provision would be substituted for the words "Regulation 6(1), Part 1, Schedule 14" if an amendment were to be made.

...

As there are a number of provisions which might make the conduct unlawful, it is appropriate that proper particulars be supplied.  Incorrect particulars have been supplied in the complaint and subsequent endeavours by the witnesses to particularise the offence have also been unsuccessful.  To proceed in the absence of proper particulars is almost trial by ambush.

I consider that the application by the defendant should be granted and that it is not in the interests of justice to amend the particulars."

It seems reasonably obvious that the difficulty perceived by the magistrate with respect to the amendment of the particulars was due in no small measure to the incorrect construction he placed on Regulation 22.  Once it is accepted that Regulation 22 covers all Queensland coastal tidal waters south of Cape Gloucester not otherwise specifically dealt with in Part 2 it is obvious that an offence was committed by the respondent at the time and placed alleged in the complaint.  The offence committed was using a net "other than as prescribed by Regulation 22 of Part 2 of the Schedule 14".  The question is whether or not the magistrate should have permitted or made an amendment to the particulars in that regard.
Section 48 of the Justices Act 1886 is relevantly in these terms:

"If at the hearing of a complaint, it appears to the justices that -

...

(c)there is a variance between such complaint ... and the evidence adduced at the hearing in support thereof;

then

(d)if an objection is taken for any such defect or variance the justices shall; or

(e)if no such objection is taken - the justices may;

make such order for the amendment of the complaint ... as appears to them to be necessary or desirable in the interests of justice."

That, or similar provisions, have been considered in Johnson v. Miller (1937) 59 CLR 467, Hassett v. Pauls Ice Cream and Milk Ltd; ex parte Pauls Ice Cream and Milk Ltd (1966) Qd. R. 173, Fox v. Chiu ex parte Fox (1978) Qd. R. 88, Robinson v. Murweh Shire Council ex parte Robinson (1984) 2 Qd. R. 349 and Hayes v. Wilson ex parte Hayes (1984) 2 Qd. R. 114. Having considered those authorities I have come to the conclusion that here there was a variance between the complaint as particularised and the evidence adduced and that in the circumstances the interests of justice required the magistrate to amend the particulars so that in lieu of "Regulation 6(1), Part 1," there was a reference to "Regulation 22 Part 2".
           Once that amendment was made, in the light of the findings made by the learned Stipendiary Magistrate a conviction should have been recorded.
           The appeal should be allowed, the Stipendiary Magistrate's order quashed, and the matter remitted to him to enter up all necessary adjournments, and proceed according to law.