Harvey Fishing Limited v Ministry of Fisheries HC Rotorua CRI 2006 463 70

[2007] NZHC 1622

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006 463 70

BETWEEN  HARVEY FISHING LIMITED Appellant

AND  MINISTRY OF FISHERIES Respondent

Hearing:         12 February 2007

Counsel:        T H A Spear for the Appellant

S J Bridges and N J W Dunn for the Respondent

Judgment:      15 February 2007

JUDGMENT OF WILD J

Introduction

[1] This is an appeal against convictions entered against the appellant on two charges under the Fisheries Act 1996 (the Act) and also against the sentence imposed on one of those convictions.

[2] The convictions were entered by Judge Moore in the District Court at Whakatane on 27 January 2006, following a hearing on 18 March 2005.

[3] Judge Moore’s sentencing notes are not dated, save with a Court stamp for 26

June 2006.  He sentenced the appellant upon written submissions from counsel.

[4] The two convictions appealed against were on charges:

HARVEY FISHING LIMITED V MINISTRY OF FISHERIES HC ROT CRI 2006 463 70 15 February 2007

a)       That, being a commercial fisher, the appellant on 14 June 2004 at Whakatane contravened s72(1) of the Act by abandoning legal sized snapper in the sea (ss 72(4) and 252(3) of the Act).

b)       That the appellant, on 16 June 2004 at Tauranga, failed to comply with regulation 6(2)(a) of the Fisheries (Reporting) Regulations 2001 by failing to complete a Catch Landing Return at the end of a landing, entering  the  destination  type  code  A  for  snapper  returned  to, abandoned in, or accidentally lost at, sea.

[5] On  the  first  of those  charges,  Judge  Moore  fined  the  appellant  $3,500  and ordered it to pay Court costs.   He convicted and discharged the appellant on the Catch Reporting Charge.   The appellant  had pleaded guilty to that  charge on 1

December 2004, when the charge was adjourned for further consideration pending the outcome of the defended hearing on the, primary, Abandonment charge.

Factual background

[6] The charges arose out of observations made by a Mr Goodin on 14 June 2004 of the appellant’s trawler  Rose  Croix.    Mr  Goodin  is  a  charter  boat  operator  and honorary Fishery Officer.  That morning while at sea in his own boat he noticed the Rose Croix hove to near the western side of Whale Island in the Bay of Plenty. Running away aft of the Rose Croix for about a kilometre was a line of black back gulls feeding on something on the surface of the water.  It looked to Mr Goodin as if this line of gulls was in the wake of the Rose Croix.  As Mr Goodin got closer, he noticed a number of fish floating in the water.  After obtaining clearance from the MoF office in Opotiki, he retrieved, from just a small section of the 1 kilometre line,

20 fish.   They were all snapper, and all were just  around the  legal commercial minimum length of 250 mm.

[7] Mr Goodin’s retrieval of these fish was noticed by the skipper of the Rose Croix, Mr Ross Harvey.  He telephoned his brother, Mr Russell Harvey, ashore.  Mr Russell Harvey then called  Mr  Goodin’s vessel and  asked  Mr  Goodin to  return the  20

snapper to the sea.  Mr Goodin told Mr Russell Harvey that he would not do that, and intended passing the fish to the MoF, which he did.

[8] Sea conditions at the time were calm, with just a slight surface ripple.  No other commercial fishing vessel was in the vicinity.

[9] There was evidence from Fishery Officer Harley, who received the 20 snapper from Mr Goodin.  He deposed that a number of them had quite severe trawl damage, consistent with their having been pushed up against the mesh of a trawl net, leaving marks on and descaling the fish.

[10]     Both the Messrs Harvey gave evidence.    The  skipper,  Mr  Ross  Harvey, deposed that, on his second trawl on 14 June, a submerged log became snagged in the trawl net and, when the net was brought aboard, the log was found to have holed the net, which had to be repaired before the third trawl could be started.  Mr Harvey said that the log was dumped overboard.  Fishery Officer Harley gave evidence of having been shown, by the Harveys at Tauranga the following day, 15 June 2004, the trawl net of the Rose Croix which had been repaired.  A new section of net had been fitted about 2 or 3 metres up from the cod end, which is the extreme end of the trawl net into which netted fish are drawn.

[11]     The  second  charge  results  from  the  appellant’s  Trawl,  Catch  Effort  and

Processing Return made at Tauranga on 16 June 2004.  For its second trawl on 14

June the appellant returned: 100 kilograms of snapper; 40 kilograms of gurnard and

40 kilograms of kingfish.

Court’s suspicions and the basis on which it proceeded

[12]     Judge Moore recorded that the MoF’s witnesses suspected this was a case of high grading.   In short, they suspected the Rose Croix had hove to after steaming ahead for a distance while discarding into the sea, from its second  trawl catch, snapper which were just on the legal limit and therefore of lesser value than the larger snapper it hoped to catch and land.

[13]     However, the Judge, though “with some hesitation” accepted the prosecution approach that it could not disprove beyond reasonable doubt the defence explanation that the fish in the sea astern of the Rose Croix had escaped through a hole in its damaged trawl net.  Judge Moore recorded:

[19]     …    That  explanation  is  a  reasonable  possibility,  if  only  just. Accordingly this judgment proceeds on the basis that that explanation is in substance what happened.

The Judge’s approach on the law

The Abandonment charge

[14]     Those parts of s72 of the Act relevant to the Abandonment charge are:

72       Dumping of fish prohibited -

(1)       No commercial fisher shall return to or abandon in the sea or any other waters any fish, aquatic life, or seaweed of legal size, or for which no legal size is set, that is subject to the quota management system.

…

(3)       Any commercial fisher who takes any fish, aquatic life, or seaweed subject to the quota management system that is not of legal size shall immediately return that fish, aquatic life, or seaweed, whether alive or dead, to the sea or waters from which the fish, aquatic life, or seaweed was taken.

…

(5)       Without limiting the application of section 241 of this Act, it is a defence to any offence under subsection (4) of this section if -

…

(c)      The following provisions were complied with, namely, -

(i)  A fishery officer  or  observer  was  present  when  the fish, aquatic life, or seaweed was taken; and

(ii) The  fishery  officer  or  observer  authorised  the  return  or abandonment of the fish, aquatic life, or seaweed; and

(iii) The  commercial  fisher  returned  or  abandoned  the  fish, aquatic life, or seaweed under the supervision of the fishery officer or observer, and complied with any directions of the fishery officer or observer;

…

[15]     Judge Moore first summarised the opposing legal submissions.   The MoF case drew a distinction between the alternatives in s72(1) “return to … the sea” and “abandon in the sea”.   Whereas the former encompassed situations where fish removed from the sea were discarded back into the sea, the phrase “abandoned in the sea” covered situations where fish are captured, including in a net, and without being brought onto the fishing boat are then deliberately left behind in the sea.  Fish caught but deliberately given up while still in the sea are “abandoned”, as are fish killed which are in the water to be recovered but are left.

[16]     The  defence  contended  that  “abandoned  in  the  sea”  encompasses  only deliberate and conscious acts of releasing the fish back into the sea prior to the fish being removed from the sea.   Thus, s72 does not impose a duty upon fishers to retrieve or try to retrieve fish killed but not brought aboard a fishing boat.   The defendant submitted the MoF approach would have major implications for commercial fishing, because it would apply to the inevitable accidental spillage of fish from trawl nets prior to their being brought aboard the vessel.

[17]     After reciting a dictionary definition of “abandon”, the Judge expressed the view that it carried an implication of knowledge.  He regarded it as artificial to use the word “abandon” absent knowledge of the loss or of circumstances requiring investigation/search or recovery.

[18]     The Judge then referred to the purposive approach to the interpretation to the word “abandoned” in s208(1) Harbours Act 1950 taken by this Court and subsequently by the Court of Appeal in Carter v Ports of Auckland Ltd [2004] 3

NZLR 262; CA122/04 29 August 2005.  He said that a purposive interpretation here would have regard to the quota management scheme and its object, as expressed in the Act.  If fish are killed by fishers, fish stocks are depleted regardless of whether the fish are taken and sold.   That is the reasoning behind the obligation to report dumped fish of quota species.

[19]   The Judge found it unnecessary to be drawn further into the opposing submissions about the proper interpretation of “abandon”.   Similarly, he saw no

necessity to consider whether a trawl net is an extension of the trawling vessel.  He referred to s244 of the Act, which imputes to an alleged corporate offender the state of mind of its relevant director, employee or agent.  The Judge held on the evidence that, at least by the time Mr Russell Harvey called Mr Goodin, the skipper of the Rose Croix was well aware that Mr Goodin had retrieved from the sea fish killed by the trawling of the Rose Croix.   He rejected, as not a reasonable possibility, the suggestion that those on the Rose Croix were unaware of the presence on the surface of other fish killed by their trawling, and deliberately chose to continue with a third trawl.

[20]     Because actual knowledge was proved beyond reasonable doubt, the Judge found “it … unnecessary for the Court, in this case to decide the extent, if any, of the knowledge component of abandonment for the purposes of s72”.  But he commented that, absent knowledge, the Court would be slow to find fish had been “abandoned”. He observed:

[33]      …  Absent knowledge (actual or imputed) in time to permit retrieval such fish would normally be described as “lost” not “abandoned”.   “Lost” would also be the appropriate description for fish not reasonably able to be retrieved.    There  is  an  obligation  to  report  fish  lost  as  well  as  those abandoned.

[21]     Finally, the Judge accepted that sometimes a fisher may not become aware that the fishing process has killed fish.  He accepted also that sometimes it may not be possible to ascertain where fish have been lost, and that it may be impracticable to retrieve or try and retrieve fish lost in the sea.  He held that none of those difficulties occurred here.  He concluded:

[35]      Given those findings, there is no avoiding the conclusion that the s72 charge has been proved beyond reasonable doubt.

The Catch Reporting Charge

[22]     The appellant’s plea of guilty to this, lesser, charge dispensed with any need for the Judge to consider the applicable law.

The abandonment charge

[23]     Mr Spear took three points:

a)       The snapper were never “taken” by the appellant and therefore cannot have been abandoned by it.

b)       If  the  Court  finds  the  snapper  were  taken,  the  Judge  erred  in concluding that the act of abandonment includes a duty to retrieve fish after  the  actual  loss.    Abandonment  is  complete  upon  escape  or release of the fish.

c)       The word “abandon” in its context  in s72  includes an element  of intent.  That element was not proved.

“Taken”

[24]     Mr  Spear  rested  the  first  of  these  submissions  on  the  s2  definitions  of “taking” and “fishing” and on a number of cases, decided both in New Zealand and overseas.   The New Zealand cases are Attorney-General v Gillespie [1959] NZLR

746; MAF v Prangley, MAF v Folwell [1994] 1 NZLR 416; Blackler v Baker (MAF) HC CHCH AP89/91 4 June 1991 Fraser J and Southland Acclimatisation Society v Otago Acclimatisation Society [1918] NZLR 524. The overseas authorities are The Ship “Frederick Gerring Jnr” v R (1897) XXVII SC 297, R v Skinner NJ No 20 (NFLD CA) and Alexander v Tonkin [1979] 2 All ER 1009. Based on these cases Mr Spear submitted that the crew of the Rose Croix (the appellant’s agents) had not taken the fish which spilled out of the hole in its trawl net, and did not have those fish in their control and possession. The act of abandonment requires initial possession and control over the thing to be abandoned.

[25]     I  do  not  read  Judge  Moore’s  judgment  as  containing  a  finding  that  the appellant had “taken” the snapper.

[15]      All the evidence before the Court, including the photographs, makes plain that there was no other trawler working in this locality at any relevant time.   It is proved beyond reasonable doubt that the sample of schnapper gathered by Mr Goodin, and the other fish in the line he described, were killed as a result of trawling by the “Rose Croix”.

[27]     I do not accept that it was necessary for the abandonment conviction for the MoF to prove a “taking” of the snapper by the Rose Croix.  “Taking” is used in s72 only in s72(3) and (5)(c)(i), and there in relation only to the legal obligation to return to the sea undersize fish “taken” by the commercial fisher, or the ability to return or abandon fish taken, provided all steps are observed, authorised and supervised by a fishery officer.   Consistently with this, at 421 in Prangley, the Court of Appeal observed of s88(1A) of the Fisheries Act 1983:

… but it (s88(1A)) is instructive in its use of the word “taken”.  It perhaps suggests  by  the requirement  of  return  to  the water  that  taking  involves removal from the water.   It implies that a person can unintentionally do something (take fish) contrary to the Act and regulations so indicating that knowledge is not a necessary element of contravention.

[28]     I consider the Judge  was correct to  find  this aspect  of the  abandonment charge made out upon proof that the snapper retrieved from the sea by Mr Goodin “were killed as a result of trawling by the Rose Croix”.

[29]     If I am wrong in holding that, then I accept Mr Bridge’s submission that the New Zealand cases establish that a “taking” of the snapper was complete when they were caught in the Rose Croix’s trawl net, as Judge Moore found they had been.

[30]     The leading case is MAF v Prangley,  which  involved  “high grading” by recreational fishers diving for scallops in the Hauraki Gulf.  They were found with

347 scallops in their two boats.   They claimed that they intended, after moving to calmer waters, to sort through those scallops with the aim of keeping their legal limit of 140 of the largest lawful sized scallops, before returning the rest to the sea.  At

421 the Court said:

We consider therefore that in reg 19(1) “taken” should be given its ordinary meaning appropriate to the particular method of fishing being employed. Where scallops are collected by diving they generally will be taken when placed in the dive bag and certainly when removed from the water. Knowledge and therefore assessment of the catch are not part of the taking.

[31]     Gillespie is also instructive.   Mr Gillespie was found on Dargaville Beach with 57 toheroa, against a legal limit of 20.  Some of these toheroa were on a sack and some were heaped on the sand.   The evidence did not establish the respective numbers in each category.  Against that background Shorland J held at 748:

In my view, the verb “take”, when applied to fish or game, means to capture or to catch in the sense of so securing the fish or game either by complete removal from its natural element or by some method of restraint, that it is prevented from re-entering or moving unrestrainedly within its natural element.

I respectfully agree that fish caught in a trap are taken and caught, notwithstanding an intention to release them later.  In my opinion, however, shell fish which have been lifted to the surface of their natural element, and there left alive in such contact with their natural element that they may, and in the normal course of events, will re-enter their natural element and resume their freedom, have neither been “taken” nor “caught” within the meaning of the Regulation.  The toheroa which were either within or upon the sack were not in this happy position, and in my opinion they were both taken and caught; but there is no evidence that more than twenty toheroa were within or upon the sack, and it follows that, in my opinion, the prosecution failed to prove that the respondent had “taken” more than twenty toheroa within the meaning of Reg. 7 of the Regulations.

[32]     Shorland J dismissed the MAF’s appeal.

[33]     I accept Mr Bridge’s submission that these passages support a conclusion, were one necessary,  that  the appellant  had “taken” the snapper  once they were caught in the Rose Croix’s trawl net.

Failure to retrieve

[34]     I am not at all attracted to Mr Spear’s second submission, that the Judge erred in concluding that the act of abandonment included a duty to retrieve the snapper after they had been lost out of the trawl net.  Mr Spear submitted that abandonment was complete when that loss occurred.

[35]     I agree with Judge Moore that there cannot, in the ordinary sense of the word, be “abandonment” without knowledge that a thing (or person) has been lost and that some sort of investigation or search is required.  To hold otherwise would give the word “abandon”, as it is used in s72(1), a most uncommon and unnatural meaning,

and would be tantamount to  dismembering s72(1).   If, as Mr Bridges accepted, retrieving the snapper lost in the sea would have meant that the appellant committed no offence, it must sensibly follow that a duty to make reasonable efforts to retrieve the snapper was an integral part of the abandonment offence.   That interpretation accords with the purpose of s72, which is to prevent depletion of fish stocks through dumping.   It is also practically workable, in that it is not unduly burdensome on fishers to retrieve lost fish which are reasonably retrievable.

[36]     Mr  Spear  retreated  to  a  submission  that  the  MoF  had  not  adduced  any evidence about the ability of the Rose Croix to retrieve the snapper, and that the conviction should be quashed on that basis.  I have held in [35] that a duty to make reasonable efforts to retrieve lost fish is an integral part of the abandonment offence. It follows that the appellant’s ability to retrieve the snapper was an element of the offence, and not a statutory defence (as was the case in Prangley at 421):  see Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680. The MoF therefore bore an evidential burden to prove the ability of the Rose Croix to retrieve the fish.

[37]     I am satisfied that the Judge had adequate evidence to find that element of the abandonment offence proved.  Judge Moore observed:

[34]      … well before Mr Goodin’s entirely appropriate intervention, those on board the “Rose Croix” should have been well aware that, as a result of their fishing, there was on the surface of the water a line of dead fish easily able to be gathered up and included back in their catch.  After Mr Goodin’s intervention there can be no “should have”.

Those findings were open to the Judge on the evidence.  There was nothing about the circumstances at the time suggesting the Rose Croix could not have retrieved the snapper it had lost out of its trawl net.  On the contrary, the evidence, for example of the calm sea conditions and the distinct line of fish stretching aft of the Rose Croix in the sea, overwhelmingly support a conclusion that it could have.  And, of course, by retrieving 20 snapper from the sea in just one part of the kilometre long line of snapper floating in the sea in the wake of the Rose Croix, Mr Goodin convincingly demonstrated the ability to retrieve the fish.

[38]     I can deal briefly with Mr Spear’s third submission, that the abandonment offence includes an element of intent not proved by the MoF.  The evidence called before Judge Moore is fatal to that submission.   In addition to the evidence just referred to, there is the evidence outlined in [7] above that Mr Russell Harvey called Mr Goodin and asked him to return the 20 snapper to the sea.  Notwithstanding Mr Goodin’s refusal to do that, Mr Ross Harvey made a deliberate decision to steam off with a third trawl for the day.  Judge Moore found:

[31]     …   There is no avoiding the conclusion that those on the “Rose Croix” deliberately chose to continue with the current trawl as planned rather than bring it to an end and return to the area where the black back gulls were feeding in a line, or, possibly – because the return shows the trawling was being done at three knots, to change the direction of the trawl so that it brought the vessel along that line in a way which enabled the retrieval of the fish that were there to be retrieved.  …

[39]     Mr  Bridge  submitted  that  the  abandonment  offence,  being  one  of  strict liability, does not have a knowledge component.  Once fish are lost out of a trawl net, as they were here, they are abandoned irrespective of whether or not those on the trawling vessel are aware that the loss is occurring.

[40]     As I indicated to counsel in the course of argument, I do not intend ruling upon that submission.  Given the Judge’s finding of actual knowledge on the part of the skipper of the Rose Croix of fish lost out of its trawl net, the Judge did not need to decide the point and, wisely, did not attempt to do so.  I take the same approach. A decision on that issue would, I think, be obiter and it is best left until necessary to decide a case.

[41]     For those reasons, the appeal against conviction on the abandonment charge fails, and I will dismiss it.

The Catch Reporting Charge

[42]     As I mentioned, the appellant pleaded guilty to this charge on 1 December

2004, well before the defended hearing on the abandonment charge.

[43]     Notwithstanding that, Mr Bridges accepted that the MoF had laid the charges in the alternative.   If the appeal on the abandonment charge failed, as it has, he accepted that the conviction entered by the Judge on this, lesser, charge should be quashed.

[44]     Although I do not accept that that is an entirely logical consequence, i.e. that the charges are true alternatives, I accede to it.

[45]     I quash the conviction entered by Judge Moore on this charge.

Sentence appeal

[46]     I regard the appeal against sentence on the abandonment charge as hopeless. [47]     First, acknowledging that the case could be viewed as a test case, the MoF

sought neither the forfeiture of the Rose Croix or its fishing gear, nor an order as to costs.  Both, particularly the former, were very substantial concessions by the MoF, both acceded to by Judge Moore.

[48]     The Judge noted that the maximum fine upon conviction under s72(1) is

$250,000.  The Judge fined the appellant $3,500 which, as Mr Bridges observed, is only a little over 1% of the maximum fine.  In no way could that fine be viewed as manifestly excessive, or its imposition as wrong in principle.

[49]     Finally,   I   reject   Mr   Spear’s   submission   that   the   conviction   on   the abandonment charge is out of all proportion to the gravity of the offence, and that accordingly the Judge ought to have discharged the appellant without conviction. Suffice it to say that I agree with everything Judge Moore said in his sentencing notes when rejecting the plea for a discharge without conviction under ss 106 and

107 Sentencing Act 2002, particularly the Judge’s remarks at [18] of his sentencing notes.

Result

[50]     The appeal against conviction on the abandonment charge (under s72(1)) is dismissed.

[51]     The  conviction  on  the  alternative  and  lesser  Catch  Reporting  Charge  is quashed, the MoF accepting that it was laid in the alternative.

[52]     The  appeal against  the  sentence  imposed  on  the  abandonment  charge  is dismissed.

Costs

[53]     The appellant is to pay the MoF’s costs of this appeal on a basis equating with 2B costs under the High Court Rules (which do  not, strictly, apply to this appeal).   I certify for second counsel.   The appellant  is also  to  pay the MoF’s disbursements, to be fixed by the Registrar failing agreement.

Solicitors:

Oceanlaw New Zealand, Nelson for the Appellant

Crown Solicitor, Rotorua for the Respondent