Evans v Ministry for Primary Industries
[2013] NZHC 1684
•3 July 2013
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2013-416-000009 [2013] NZHC 1684
BETWEEN TONY MARCUS EVANS Appellant AND
MINISTRY FOR PRIMARY INDUSTRIES
Respondent
Hearing: 2 July 2013 Appearances:
Appellant in person
K Laurenson for RespondentJudgment:
3 July 2013
JUDGMENT OF KEANE J
This judgment was delivered by on 3 July 2013 at 5pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
Solicitors:
Crown Solicitor, Napier
EVANS v MINISTRY FOR PRIMARY INDUSTRIES [2013] NZHC 1684 [3 July 2013]
[1] On 30 May 2013, after a summary hearing in the District Court, Gisborne, Tony Evans was convicted of six offences on 14 February 2012. He took 44 paua, more than three times the daily limit, and 28 undersized paua. He took eight spiny rock lobster, in excess of the daily limit, six of which were undersize. He did not, when lawfully directed to by a fisheries officer, stay where he was. He resisted when the officer arrested him.
[2] On 14 February 2012, Judge Watson found, Mr Evans spent two hours diving from a kayak off Turihaua Reef. In another kayak with him was Talifaki Ata, who did not himself dive. Mr Evans, the Judge found, came to shore with a legal catch,
10 paua, two rock lobsters and 30 kina. Mr Ata, who had by the date of the hearing admitted to the four fishing offences, the Judge found, tied to buoys out from shore two catch bags containing the rest of Mr Evans’ catch, 34 paua, 28 of which were undersized, and six undersized rock lobsters.
[3] Mr Evans, the Judge found, co-operated with the fisheries officers, who had been observing them, when those officers wanted to inspect the two catch bags he brought ashore. He became angry, agitated and aggressive when Mr Ata and the two catch bags tied to buoys became their focus. To make sure Mr Evans did not then impede them, one officer directed him to stay where he was and then arrested him. Mr Evans, the Judge found, sprinted into the sea to waist height and when he came out refused to be handcuffed. A struggle ensued.
[4] The Judge sentenced Mr Evans to 100 hours community work for all six of his offences and, as a consequence of convicting him of resisting his arrest, and thus of resisting the officer in the exercise of his power of arrest, the Judge held to be forfeit the two kayaks, both of which belonged to Mr Evans, and all his diving and fishing gear.
[5] On this appeal Mr Evans, who represents himself, seeks to have the forfeiture order set aside. He is an unemployed fisherman and on the sickness benefit. He relies on his kayak and diving equipment for food for himself, his family, and others. He is willing to complete more community work in place of forfeiture. The issue on this appeal, as Mr Evans has advanced it therefore, is whether he can be excused
forfeiture on the ground of personal hardship. The Ministry contends that he cannot. Personal hardship, it contends, is a reason relating to him. It is not, as it has to be, ‘a special reason relating to ... (his) offence.’
[6] Another issue also emerged. At the hearing the Ministry anticipated that the most serious of the four fishing offences, the taking of paua in excess of three times the daily limit, should carry the consequence of forfeiture. The Judge deemed the resisting offence to carry that consequence, however, as I have found the record unambiguously shows. The question is whether that matters. I do not consider that it does.
Forfeiture consequence
[7] The Judge, though he does not say so, can only have deemed the kayaks, and the diving and fishing equipment to be forfeit under s 255C, subs (2) of which prescribes the categories of property to be rendered forfeit, and subs (1) of which prescribes the categories of conviction that trigger forfeiture. If convictions are entered for any offence within the categories subs (1) prescribes forfeiture follows as a matter of law. It is ‘a collateral and entirely independent consequence of conviction’ and it does not call for any ‘subsequent formal decision of the Court’. It
happens ‘quite automatically’.1
[8] The conviction triggering forfeiture on which the Ministry intended to rely at the hearing was that prescribed in s 255C(1)(c), ‘... for a serious non-commercial offence’, which is any regulatory offence carrying a maximum penalty not exceeding
$100,000.2 Mr Evans’ fishing offences, those to which Mr Ata independently
pleaded, were against Fisheries (Amateur) Fishing Regulations 1986; and his most serious, taking paua in excess of three times the daily limit, an offence against reg
19(3), is deemed to be a serious non-commercial offence, carrying maximum
$20,000 fine.3
1 Fisheries Inspector v Turner [1978] 2 NZLR 233 at 236.
2 Fisheries Act 1996, ss 255(1), 297.
3 Fishing (Amateur) Regulations 1986, reg 29(2).
[9] As a result of that conviction, and even though the Judge did not formally identify it as a consequence, the items seized became forfeit under s 255C(2)(c) if they were ‘property used in the commission of the offence’. Such property is defined to mean, ‘any vessel ... fishing gear, ... equipment, or thing used in respect of the commission of the offence’.4 ‘Used’ encompasses all elements that would have to be
proved to establish the offence;5 and as Wild J said in McGlone ‘if the boat and the
fishing gear on it used to take and land ... fish are not liable to forfeiture, then it is
difficult to see what property is ...’.
[10] I am satisfied that the kayaks, diving and fishing gear Judge Watson held to be forfeit as a consequence of the resisting offence, were independently forfeit as a result of this prior fishing offence and the issue whether he was correct in deeming the resisting offence to carry that consequence does not need to be resolved. In all likelihood, I consider however, he was correct.
[11] The conviction for the resisting offence does carry the consequence of forfeiture under s 255C(1)(a). It is a conviction for an offence referred to in s 252(3)(l) as a result of which also it attracts a fine not exceeding $250,000. The issue can only be whether Mr Evans ‘used’ any of the forfeited items when resisting the officer. He did not do so literally but the cases to which I have referred say it is to be given a wide and purposive meaning.
Conclusions
[12] To be exempted from forfeiture Mr Evans had to establish when sentence was
imposed, some justifying ‘special reason’. To be ‘special’ the reason had to be one
‘not found in the common run of cases’; not an ‘exceptional’ or ‘extraordinary’ reason but one ‘not ordinary or common or usual’. Furthermore his reason would have had to ‘relate to the facts involved in or connected with the commission of the
offence’.6
4 Fisheries Act 1996, s 255(1).
5 Director-General of Agriculture & Fisheries v William Rose Trawling Ltd HC Napier CP14/93,
21 February 1994; McGlone v Ministry of Fisheries HC Wellington, [file no? ] 16 December
1998.
6 Basile v Atwill [1995] 2 NZLR 537 (CA) at 539.
[13] Mr Evans relies on the fact he is a sickness beneficiary, and lacks means, and on references from those who have relied on his gifts of seafood. Those are not uncommon reasons. Nor did the fact that on the day he said he was fishing for a 21st and a 60th birthday party have anything to do with his offence. His motive was entirely personal.7
[14] I have also considered whether Mr Evans could advance as a ‘special reason’ that forfeiture is out of all proportion to his offending. But as the cases say that can never be a ‘special reason’ in itself. It can only be a relevant discretionary factor where there is a ‘special reason’ that does qualify.8 Accordingly, I dismiss Mr Evans’
appeal. The items now forfeit as a matter of law must remain forfeit.
P.J. Keane J
7 Auckland Acclimatisation Society v Smith (1988) 4 CRNZ 58 at 61.
8 Schooling v Department of Conservation HC Rotorua AP61/88, 21 October 1988; MAF v
Bannister HC Whangarei AP13/92, 17 July 1992.
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