Young v Brown - [2003] TASSC 42

[2003] TASSC 42

CITATION: Young v Brown [2003] TASSC 42

PARTIES:  YOUNG, Murray
  v
  BROWN, Constable Graeme Maxwell

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 31/2002
DELIVERED ON:  26 June 2003
DELIVERED AT:  Launceston
HEARING DATE/S:  3 April 2003
JUDGMENT OF:  Crawford J

CATCHWORDS:

Primary Industry - Fish - Offences - Other cases - Special penalty - Making a statement knowing it to be false and misleading - Whether offence relates to the taking or possession of fish.
Living Marine Resources Management Act 1995 (Tas), ss263, 267.
Glover v Zouroudis (1990) 54 SASR 200; Cutting v Glover (1987) 135 LSJS 35, considered.
Aust Dig Primary Industry [35]

REPRESENTATION:

Counsel:
             Applicant:  D G Grey
             Respondent:  F C Neasey
Solicitors:
             Appellant:  Zeeman Kable & Page
             Respondent:  Director of Public Prosecutions

Judgment ID Number: [2003] TASSC 42
Number of paragraphs: 15

Serial No 42/2003
File No LCA 31/2002

MURRAY YOUNG v CONSTABLE GRAEME MAXWELL BROWN

REASONS FOR JUDGMENT CRAWFORD J
26 June 2003

Before a magistrate, the applicant pleaded guilty to two charges which were as follows:

1On or about 4 October 2001 at Ansons Bay, he gave a copy of a Commercial Abalone Dive Docket - Greenlip Zone No 28997 to a fisheries officer, stating in that document that on that day he had landed 358 kilograms of greenlip abalone, when he knew that statement to be false or misleading, contrary to the Living Marine Resources Management Act 1995 ("the Act"), s263(a).
2That on the same day and at the same place he gave the same document to the same fisheries officer in which he had made the same statement and he omitted from that statement that he had landed that day an additional 31 greenlip abalone weighing approximately 14.45 kilograms, knowing that without that matter the statement was false or misleading, contrary to the Act, s263(b).

On each charge he was fined $2,750. A special penalty of $4,340 was also ordered on the first charge. It was calculated by multiplying the number of abalone, 31, by $140. A total of $9,840 was therefore payable by the applicant. The learned magistrate made no mention of convicting the applicant, but the record made by the court states that he was convicted of both counts.

The facts upon which the penalties were imposed were as follows. The fisheries officer, who was a police officer, stopped the applicant when he was driving a motor vehicle towing a boat. He produced a commercial abalone diver's docket for greenlip abalone that showed he had fished and caught 358 kilograms of greenlip abalone. As a result of catching that quantity he believed that he had exhausted his quota for the resource. Those abalone had been sold to Adelaide Bay Seafoods, a licensed processor I presume. Police climbed into the boat and in some fish bins located another 31 greenlip abalone weighing 14.45 kilograms. Upon being asked about them he said "they are some for home, they are broken", but he admitted they…

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 Young v Brown

Details

AGLC: Young v Brown [2003] TASSC 42
Case: [2003] TASSC 42
Decision Date: 26 June 2003

CaseChat Overview and Summary

In the case of Young v Brown, Murray Young, the applicant, was convicted by a magistrate of two offences under the Living Marine Resources Management Act 1995. The first offence involved Young falsely stating the quantity of greenlip abalone he had landed, while the second offence related to omitting additional abalone from the statement. Young was fined $2,750 on each count, with a special penalty of $4,340 applied to the first count. Young appealed the sentence, arguing that the magistrate erred by convicting him on both counts and imposing a special penalty on the first count.

The legal issues before the court were whether the magistrate erred in convicting Young on both counts and whether the special penalty applied to Young's offence. The court found that the magistrate had indeed erred by convicting Young on both counts, as they essentially alleged the same offence. The court also found that the special penalty did not apply to Young's offence, as the offence did not relate to the taking or possession of fish.

The court re-sentenced Young on the first count, taking into account his income, assets, and prior convictions. The court found that a fine of $5,000 and costs of $37.05 were appropriate penalties for Young's offence.

The court made orders to set aside the conviction and sentence on the second count, and to impose a fine of $5,000 and costs of $37.05 on the first count.

Orders