Wiseman v Department of Fisheries
[2013] WASC 86
•19 MARCH 2013
WISEMAN -v- DEPARTMENT OF FISHERIES [2013] WASC 86
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 86 | |
| 19/03/2013 | |||
| Case No: | SJA:1041/2012 | 1 FEBRUARY 2013 | |
| Coram: | KENNETH MARTIN J | 1/02/13 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN PHILIP WISEMAN DEPARTMENT OF FISHERIES |
Catchwords: | Fishing Bag limits Fishing with another Aggregate quota Penalty Provision Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(2) Criminal Code (WA), s 24 Criminal Procedure Act 2004 (WA), s 145(2) Fish Resources Management Act 1994 (WA), s 50(3) Fish Resources Management Regulations 1995 (WA), reg 124B(2), (3) and (4) |
Case References: | Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DEPARTMENT OF FISHERIES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M SHARRATT
File No : KL 18 of 2011
Catchwords:
Fishing - Bag limits - Fishing with another - Aggregate quota - Penalty Provision - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 24
Criminal Procedure Act 2004 (WA), s 145(2)
Fish Resources Management Act 1994 (WA), s 50(3)
Fish Resources Management Regulations 1995 (WA), reg 124B(2), (3) and (4)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr P G Giudice
Respondent : Mr I A Repper
Solicitors:
Appellant : George Giudice Law Chambers
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193
(Page 3)
- KENNETH MARTIN J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
1 This is an appeal against conviction and sentence brought by the appellant. Leave is required in respect of all grounds. The appellant was convicted of taking fish in excess of a group daily bag limit, contrary to the Fish Resources Management Act 1994 (WA) s 50(3). Ultimately, the sentence was a good behaviour bond of $400 for 12 months, a $580 penalty and the appellant ordered to pay $121.95 plus legal costs to the respondent of $2,000. He was given a spent conviction order.
2 The basic underlying facts appear to be relatively uncontroversial. Mr Wiseman was charged that on 4 March 2011, at Kalbarri marina, he took, from the west cost region, three fish in excess of his group daily bag limit of two fish, contrary to provisions listed in the Fish Resources Management Regulations 1995 (WA) sch 3, pt III, div 1, made pursuant to the overarching Fish Resources Management Act1994 (WA) s 50(3).
3 At the time in 2011 Mr Wiseman held a recreational (boat) fishing licence. He had been fishing from a boat in the company of three other men. Mr Wiseman was the owner of the boat. It appears uncontroversial that the boat was about 7 1/2-metres in length.
4 The men were participating that day in a fishing competition known as the Kalbarri Sports Fishing Classic. The competition appears to be an annual event. The same three men had been with Mr Wiseman in that competition at Kalbarri 12 months earlier, in 2010. In that fishing competition context, the men were known to each other. The three other men were Mr Harry M. Capeling, Mr Stephen G. Gilders and Mr Ian R. Jarvis.
5 At the end of the day's fishing on 4 March 2011, fishing inspectors boarded the appellant's vessel. They observed the day's catch of five fish, which had been stored then in the one ice container or esky. The competition catch for the day consisted of one rankin cod, two blue lined emperor and two red throat emperor.
6 These facts are all dealt with in the record of interview of the appellant, which became an exhibit before the learned magistrate. When Mr Wiseman was questioned on 5 March 2011, he identified that he had caught the rankin cod category 1 demersal. Mr Jarvis (referred to as
(Page 4)
- 'Ian Jarvis') had caught the two 'blue lined empoeror' [sic]. Mr Capeling had caught the two 'red throats', as the appellant referred to them.
7 In his record of interview Mr Wiseman was asked, 'Do you hold a current recreational fishing from boat licence?' His answer was that he did. That, of course, is accepted. It is the foundation for the charges he faced at trial and now challenges on this appeal.
8 Mr Wiseman was also asked, 'Were you aware if the other crew had current licences yesterday?' His answer was:
No, I was not, I thought they had, but in not checking wasn't aware. I assumed they had a licence but didn't verbally check.
9 Mr Wiseman confirmed he had fished with the same three men in March 2010. When asked, 'Are you aware if the other crew on board held commercial licences', his answer recorded was, 'have no idea.'
10 Numerous grounds of appeal are raised against the conviction of Mr Wiseman for his infringement against s 50(3) of the Fish Resources Management Act.
11 The various grounds can be conveniently distilled from the appellant's outline of written submissions down, essentially to four areas.
12 The first category concerns the asserted failure of the learned magistrate to allow the appellant (defendant at trial) through counsel, to give a closing address. The transcript shows that after counsel for the prosecution made his closing submissions to the learned magistrate, his Honour then, at page 61 of the transcript immediately says:
Thank you. Yes, I will give my reasons for decision now.
13 The learned magistrate then proceeded to relate the circumstances and his conclusion. There was no objection at the time from counsel for Mr Wiseman.
14 Grounds 1 and 2 of the appeal accordingly allege a failure to allow a closing address by the defendant through counsel, contrary to provisions of the Criminal Procedure Act 2004 (WA) s 145(2). Grounds 3 and 4 are similarly framed, but assert the failure to afford natural justice to the appellant in terms of what occurred.
15 A second category of challenge (ground 5) essentially raises the correct interpretation of the Fish Resources Management Regulations,
(Page 5)
- particularly reg 124B(2), (3) and (4), in the context of a contention that the learned magistrate erred in law by his construction of these provisions.
16 This challenge, to my mind, forms the main ingredient of this appeal in terms of overall merit. I return to an evaluation of the regulations, shortly.
17 A third group of appeal grounds (grounds 6 - 12) concerns rejection of a s 24 Criminal Code (Cth) defence by the learned magistrate. The argument put at trial was that a s 24 honest and reasonable belief defence was applicable, favouring Mr Wiseman. Section 24 says:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
18 The learned magistrate considered then rejected the s 24 defence. From his reasons he was clearly satisfied that there was not a relevant belief held by Mr Wiseman in a state of things concerning the holding of a recreational fishing licence by the other three men that day. Furthermore, even if such a belief were assumed to be held by Mr Wiseman, the learned magistrate was still satisfied that this would not be a reasonable belief in the circumstances.
19 A last bracket of appeal grounds challenges the penalty imposed by the learned magistrate. A contention is made that in all the circumstances, bearing in mind the favourable findings the learned magistrate had made regarding Mr Wiseman's conduct, character and antecedents, the end penalty was too great.
20 I would grant leave to appeal in respect of all grounds. But my decision is to dismiss all, save for ground 5 concerning the meaning of the regulations.
21 As regards an asserted failure to allow the appellant, through counsel, to make a closing address, the deficiency I assess in these grounds is that although today, properly, the respondent accepts that the provisions of the Criminal Procedure Act were not met, there is a causation difficulty. What, if any, difference to the outcome of Mr Wiseman's trial would have resulted had the appellant's counsel been afforded the opportunity to make a closing submission?
(Page 6)
22 It is very difficult to see what difference a closing address at the trial on behalf of Mr Wiseman would have made. More so, it seems to me any omissions or errors by the learned magistrate have manifested as grounds of appeal in the present proceedings. Possibly some submission might have been made about the meaning of the Regulations and their effect and workings. But that is the subject of appeal ground 5 of and will be determined in that context. Furthermore, Mr Wiseman was legally represented at his trial. Counsel could have risen to request an opportunity to make an address, but did not. That was a tactical decision at the time. So be it. It is too late to complain.
23 As to the honest and reasonable mistaken belief defence, in the overall circumstances, in my view, the learned magistrate was plainly correct in his conclusion that a failure by Mr Wiseman to ask the other men whether they held a fishing licence is an insurmountable obstacle. That is apparent from page 67 of the transcript. An exchange with counsel occurred after the conviction had been recorded illustrates the point. The learned magistrate said:
Mr Giudice, I have found he should have asked them and that his belief was not a reasonably held belief. If he had asked them and they had said, 'Yes, we've got a licence', and then he got caught, well that is completely different. But he did not and that is his only sin. Apart from that he is a blameless bloke. He was straight up with the officers when they came, he is clearly not out to bamboozle the - or get away with anything. He is the muggins in this court by the operation of that section. The only bloke who has actually got a licence winds up getting caught.
24 A relevant factor is that on the facts of this particular case the learned magistrate (rightly) concluded, I find, that the question needed to be asked by Mr Wiseman of the three other men whether they held a recreational licence or not. The question was not asked. Accordingly, a proper foundation for a 'reasonable' belief defence is missing.
25 That effectively disposes of the key grounds of appeal (other than as to penalty), save for ground 5. I am not persuaded the failure to allow an opportunity to address goes anywhere in a causative sense. On that basis, even were there merit in it, I am of a view s 14(2) of the Criminal Appeals Act, colloquially referred to as 'the proviso', would be applicable. It says:
[E]ven if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
(Page 7)
26 I consider that there has been no substantial miscarriage in all the circumstances, especially where there was no objection by counsel for Mr Wiseman at the time of the failure to offer an opportunity to counsel for a closing address. More importantly than that, I do not think anything that might have been said, bearing in mind conclusions reached by the learned magistrate, would have made any difference to that end result.
Ground 5
27 That leaves ground 5 and penalty.
28 Given end conclusions that I reach as to ground 5, it is not necessary for me to deal with penalty. Ground 5, in my view, must be upheld and the appeal allowed on that basis alone.
29 Before setting out s 50(3) of the legislation and provisions of the Fish Resources Management Regulations, I would note that the learned magistrate in his reasons as regards these regulations, dealt with the issue of their meaning very briefly. I refer in particular to pages 61 and 62 of the reasons. He began, at the bottom of 61:
Although it is apparent that there were a number of varieties of competition going at the same time at the Kalbarri Sports Fishing Classic 2011, there were a number of categories including a category for all the members of a boat. It is by no means certain that these - proven, even, that these four men were enrolled in a boat fishing competition, although it was thought possible by Ms Eley that that could have been the case. As far as all four were concerned, they were fishing against each other. No doubt we have four competitive men fishing against each other for the purposes of the competition. (my emphasis)
30 The reference to 'fishing against each other', I take to be the learned magistrate's finding of fact, in terms of what was occurring from Mr Wiseman's boat in the fishing competition that day. He then continued:
For the purposes of the word 'with', though, I am - I think it is proven that they were fishing with each other. (my emphasis)
31 As will emerge, by his above reference to the word 'with', his Honour was referring to reg 124B(3).
32 I will deal shortly with how that Regulation operates.
33 But continuing with what the learned magistrate said at page 62:
I say that -
(Page 8)
- namely, that the men were 'fishing together' -
because they are on the boat together, fishing together. That is all that is required. In this case -
'(indistinct)' reads the transcript, then continues -
was able to be proved that they did use the same box to put the fish in on ice, and in addition, they - although they appeared to use their own tackle and any bait bought was bought between them, they nevertheless used the boat to take them to the fishing grounds.
For the purposes of this Act, I find the prosecution have proved that for the purposes of subsection (3) and subsection (4), that they were fishing with another person who held a recreational boat fishing licence. Now, it is not in dispute and it is agreed that the accused man, Mr Wiseman, held a recreational fishing licence. It is not disputed that the other three did not hold a recreational fishing licence. (my emphasis)
The deeming provision is fixed and impersonal. It operates for the muggins who held the licence, not the ones who did not. It is set in that fashion possibly through the very representations made by Mr Wiseman in his official capacity.
35 I interpolate the learned magistrate was referring to evidence about Mr Wiseman's experience in fishing regulations, including it seems at quite a high level by advising government (including a Minister) by way of representations about how the Fish Resources Management Act should operate.
36 His Honour continued:
That was that a man could take his son out fishing with him without the son getting a licence and they could both fish off the same licence so long as they did not exceed the bag limit for that licence, a recommendation that he recommended appeared to have been taken up in some more overarching form than intended by him at least and caught him.
Now, really, the case is proven on the statement of admitted facts with the exception of the word 'with'. But I should go and add, I suppose, that during the journey the accused caught a rankin cod, Jarvis caught two blue-lined emperor, Capeling caught two red throat emperor. As far as the evidence of everyone is concerned, I believe just about everything everybody said. You could not get a nicer bunch of people. The fishing inspectors, their evidence was consistent. They boarded the vessel, they observed the fish.
(Page 9)
37 A substantive component of the reasons from page 64 and onwards deals with the attempted raising of s 24 as a defence, unsuccessfully, as I have discussed.
Regulation 124B
38 It is convenient to turn to the provisions of the Fish Resources Management Regulations, which, read together, culminated in leading the learned magistrate to his conclusion that there had been an infringement against s 50(3).
39 I will commence with the legislation, which is in div 3 of the Fish Resources Management Act. Under a heading, Bag and Possession Limits. Section 50(3) says:
A person must not take, or bring onto land or into WA waters, on any one day more fish than the bag limit of those fish.
Penalty: As provided in sections 52 and 222.
40 Here, Mr Wiseman's relevant bag limit was found to be exceeded by operation of pt 11 subdiv 2 of the Fish Resources Management Regulations. This provision came into force in 2010 (see the Government Gazette of 12 February 2010). It was subsequently amended on 24 August 2011.
41 The Fish Resources Management Regulations are headed 'Recreational (boat) fishing licence, when required'. Relevantly, s 124B reads:
124B. Recreational (boat) fishing licence, when required
(1) In this regulation –
boat means a vessel propelled by a motor.
(2) A person who fishes by use of a boat must hold a recreational (boat) fishing licence unless –
(a) the person is not required to hold a recreational (boat) fishing licence under subregulation (3); or
(b) the person is not required to hold a recreational (boat) fishing licence under subregulation (5); or
(c) the person is fishing for a commercial purpose; or
- (d) the person is an Aboriginal person not required to hold a recreational fishing licence under section 6 of the Act; or
(e) the person is participating in a fishing tour on board a boat that is specified on a fishing tour operator’s licence, or a restricted fishing tour operator’s licence, granted under regulation 128J.
Penalty: a fine of $2 000.
- (3) A person (an unlicensed person) is not required to hold a recreational (boat) fishing licence to fish by use of a boat if the unlicensed person is fishing with another person who holds a recreational (boat) fishing licence.
(4) For the purposes of determining whether a bag limit has been exceeded, any fish taken by an unlicensed person when fishing under the authority conferred by subregulation (3) are to be regarded as having been taken by the other person who holds a recreational (boat) fishing licence.
(5) A person is not required to hold a recreational (boat) fishing licence to fish by use of a boat if the person in doing so engages only in an activity set out in the Table to regulation 124 for which the person holds a recreational fishing licence specifying that the person may engage in that activity.
(6) This regulation does not limit the operation of regulation 123.
42 The regulation imposes a penalty upon persons who do not hold a recreational (boat) fishing licence, but fish by use of a boat.
43 Accordingly, the regulation was applicable to all four men on Mr Wiseman's boat, including himself, on 4 March 2011.
44 I observe that the regulation does not discriminate in terms of whether a person owns the boat or not. It applies to any person who fishes by 'use' of a boat. Ownership or possession of the boat are not relevant criteria as regards potential liability.
45 As seen, an exemption is then provided under reg 124B(2)(a). That exemption is crafted by reference to the following content of subreg (3).
46 Pausing at that point, reg 124B(3) presents overall, as liberalising in its work. That is, in a sense that a person who may otherwise infringe reg 124B(2) by fishing from a boat without a recreational (boat) fishing licence may, under reg 124B(3), become protected and so be exculpated
(Page 11)
- from the need to hold this type of licence, if they are 'fishing with another person' who does hold such a recreational (boat) fishing licence.
47 In the present case, none of the three other men in Mr Wiseman's boat - Messrs Jarvis, Capeling and Gilders - were charged. This appears to be on the basis of an assumption for the purposes of (3) that they were, at the time, 'fishing with' a person who did hold a recreational (boat) fishing licence, namely Mr Wiseman. That observation, however, only concerns the three other men.
48 An exposure of Mr Wiseman, resulting in his end conviction, emerges out of the workings of reg 124B(4), seen above.
49 Regulation 124B(4) provides the basis upon which it was concluded that in calculating Mr Wiseman's bag limit that day, the fish caught by the other persons fishing on his boat that day, were to be brought to his account, in assessing whether or not Mr Wiseman had exceeded his bag limit of, relevantly, only two fish.
50 It was concluded by the learned magistrate that Mr Wiseman had, in effect, automatically infringed, by reason of reg 124B(4). A necessary component of that conclusion is that the fish caught by the unlicensed persons were to be attributed to Mr Wiseman's day's catch and bag limit. The only basis to reach that conclusion is by also reaching a view that subreg (3) was applicable to the other men in this case. It was a necessary component to convict Mr Wiseman of exceeding his daily bag limit that, as regards the other, unlicensed persons, they were covered by reg 124B(3) and were thereby protected against infringing of reg 124B(2), by reason of par (a) working in their favour. As will emerge, I do not agree.
51 The evaluation concerning Mr Wiseman proceeds ultimately to seeking a meaning for a key phrase used within subreg (3). Were the unlicensed persons 'fishing with' another person, namely Mr Wiseman? Mr Wiseman did hold a recreational (boat) fishing licence that day. But what is the true test for making the reg 124B(3) assessment as to his 'fishing with' others?
52 Ground of appeal 5 proceeds on a basis that something akin to a level of agreement must be reached between persons in order for subreg (3) to be applicable on the basis that the unlicensed person is 'fishing with' the person who holds the licence. On the other hand, the respondent contends that there is no need to show any level of express or implied agreement.
(Page 12)
53 In my view, it will be a question to be determined upon the facts of each case, whether or not (unlicensed) persons are assessed as 'fishing with' a licensed person. From a policy perspective need to estimate individual case by case scenarios is not a very workable criterion for the operation of a provision such as (3). Nevertheless, it is an exercise that is unavoidable, as the regulation is drafted. On the face of it, subreg (3) by itself presents as a liberalising provision. But it also, via being injected into the workings of subreg (4), plays a part in the operations of a penalty provision, at least insofar as it is sought to be made applicable against a person who holds a boat fishing licence.
54 In assessing the character of this regulation overall, it is important to recognise the liberalising work of subreg (3) as regards unlicensed persons, standing with its contribution to the punitive work of subreg (4), as regards calculating bag limits for persons who do hold recreational (boat) fishing licences.
55 The overall work of (3) and (4) in different directions is important in the context of seeing a policy behind these regulations, viewed coherently. Clearly, there is a recognition that fish are a protected form of marine life in Western Australia. Some fish are endangered. Catch or bag limits directed at protecting a precious resource are laid down. The catch limits are strictly enforced for the overall sustainability and maintenance of fishing resources. These underlying objects need to be recognised in an overall exercise of interpretation that is required for these regulations, including reg 124B.
56 An unlicensed person wishing to fish from a boat is not necessarily made to go off and obtain their own licence for themselves, if they may share in a bag limit of someone else who is licensed. That unlicensed person can, in subreg (3) circumstances, fish by use of a boat with another, licensed, person - fishing within the bag limit the licensed person holds. Because a bag limit for one person is not being exceeded by the two (or more) people fishing together, the protection for the limited fish resource is still preserved.
57 Regulation 124B does not, on its face, relate to the person who owns a boat. It applies to any person who fishes by 'use' of a boat. The person who fishes from a boat needs to hold a recreational (boat) fishing licence. 'Use' is the criterion for the responsibility, not ownership of a boat.
58 Boat ownership by Mr Wiseman is nevertheless one factor, I think, to be weighed in the overall factual circumstances applicable to assessing
(Page 13)
- whether or not the relevant group of four people present on his boat are to be viewed as 'fishing with' Mr Wiseman.
59 In my view, it is not necessary, in order for subreg (3) to apply, for there to be a formal contractual agreement, or a plan - a plan requiring intent - or even for those concerned to expressly discuss whether they will be 'fishing with' each other. By reason of the somewhat clumsy and cluttered way in which subreg (4) is drafted in conjunction with (3), in a potential importation of liability upon a licence holder, the assessment as to fishing 'with another' is always a question of fact to be determined for a particular case.
60 The sharp punitive edge of reg 124B(4) is tied back to subreg (3). Subregulation (4) factors subreg (3) into a potential exposure of the person holding the recreational (boat) fishing licence, to penalty. It is important to re-emphasise that reg 124B(4) is applicable not to a boat owner per se, but to the holder of this particular form of licence. Again, it is a matter for assessing in all the relevant circumstances.
61 The learned magistrate recognised in his concluding remarks that if somebody with a recreational (boat) fishing licence expressly enquired of another person, but was wrongly told that the person did hold a licence, that would be a relevant exculpatory consideration. I agree. But that is not this case.
62 Here I am assessing a group of four obviously experienced fishermen present on Mr Wiseman's boat and found as fact to be fishing in a competition that day. The issue of the three other men fishing under Mr Wiseman's licence and within his bag limit that day was not discussed. Nor was there discussed, as the day's fishing proceeded, whether any aggregate limit applied, or whether anybody's fishing bag limit was possibly being infringed. Nothing was said. But the five fish caught that day were all readily identifiable in terms of who caught them (as would be expected in a competition), even though they were placed in one esky on Mr Wiseman's boat, once caught over the course of the day's competition.
63 The end question, then, is: in all those circumstances, as regards Mr Wiseman, was there enough for subreg (3) to operate and thereby to carry over into subreg (4), causing Mr Wiseman to exceed his bag limit of two fish? My view is that there is not. This issue, as I observed, was only briefly dealt with by the learned magistrate, looking at the transcript. As I pointed out in citing the extract from transcript page 61 going on to transcript page 62, he said:
(Page 14)
- As far as all four were concerned, they were fishing against each other. No doubt we have four competitive men fishing against each other for the purposes of the competition.
64 That finding of fact is, I find, not consistent with his subsequent and even more briefly expressed view, seen in the following paragraph, that:
I say that because they are on the boat together fishing together.
65 The relevant criterion under reg 124B(3) is not necessarily met simply by four men by being present and each fishing on one boat. In my view, mere proximity of location of persons fishing per se on one boat is not necessarily enough for subreg (3) to be engaged, either advantageously for the unlicensed person(s), or derivatively, adversely against the licensed person, via subreg (4).
66 Here, more was needed, I think, than just being on Mr Wiseman's boat together and fishing from his boat that day.
67 What else there is here factually, apart from the three other men being present and fishing from Mr Wiseman's boat, is the fact of a fishing competition. Moreover, there is the prior fishing experience all men, plus their specific identification of particular fish they each caught that day. And for this competition, they supplied their own rods, gear, baits and lures. There was no joint enterprise or adventure between these men. They were competitors in a fishing competition 'doing their own thing'.
68 In these circumstances, I am unable to discern from the learned magistrate's reasons a sufficient basis for the conclusion as regards (3), that the three unlicensed persons, or any one of them, were that day 'fishing with' Mr Wiseman. Merely being present on his boat and in the same fishing competition that day, was not enough.
69 Subregulation (3), factored into subreg (4), operates, in effect, as a penalty provision. From a drafting perspective, to take a liberalising subreg (3) conceived by itself to advantage unlicensed persons but then use it via (4), against a person holding the licence, creates considerable difficulties in implementation. Subregulation (4) might work effectively, in circumstances if there was a proven arrangement, understanding or even a recognition inferred from conduct that the unlicensed persons should or would be assessed, in the event of being scrutinised, as engaged with each other in some joint fishing exercise, adventure or event. They would thereby engage the protections of subreg (3), or even a
(Page 15)
- corresponding exposure in the licence holder by subreg (4). This is not the case.
70 Imposing a penalty against a citizen is not a result to be reached lightly from words of a statute or regulation that are less clear as to their intent. If the legislature wishes to impose an absolute or autocratic liability against a boat owner or licence holder for the conduct of other persons fishing on that person's boat, then it should say so in clear and direct terms. Presently, it does not. The use of a porous phrase such as 'fishing with' to create a 'black hole' of potential exposure is the problem.
71 Any conclusion as to 'fishing with' another person, under the regulation's loosely worded rationale for an imposition of liability when aligned with (4), must be clearly established by sufficient evidence. Here the prosecution case was left to inferences drawn from minimal facts. Four men were present in Mr Wiseman's boat at the one time and had been fishing from that boat. More is needed.
72 I am well cognisant that no rigid or narrow view should be taken of penal laws or penal regulations. Each needs to be assessed towards their particular circumstances. I refer generally to what Pearce and Geddes said as to that at par 9.9, pages 297 to 299, in the seventh edition of Statutory Interpretation in Australia, particularly to observations by reference to what the High Court said in Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193 [45]:
An appreciation of the heavy hand that may be brought down by the criminal law suggests the need for caution in accepting any loose, albeit 'practical', construction of [the relevant provision].
73 Those observations are pertinent to the present case. With respect to the learned magistrate, he did not explain sufficiently in his reasons a basis for why subreg (3) was engaged. On my assessment, he rather expressed the bare conclusion that there had been a transgression based on the porous terminology of 'fishing with' used in (3). That is not enough.
74 Coming afresh, as I must, to assess whether subreg (3) working in conjunction with subreg (4) was transgressed or not, I am not satisfied it has been proven beyond reasonable doubt, per reg 124B(3), that the three men on Mr Wiseman's boat that day in the Kalbarri Classic Fishing Competition of 2011 were 'fishing with' Mr Wiseman. In my view, these four competition participants were very much 'doing their own thing' that day in a fishing competition.
(Page 16)
75 On the particular facts of this case, appeal ground 5 must be upheld. Leave, as I have said, will be given for all grounds. But as I have set out above, only ground 5 will be upheld and the appeal allowed on that basis.
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