Jackson v Ministry for Primary Industries

[2018] NZHC 2142

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-000016

[2018] NZHC 2142

IN THE MATTER OF

an appeal against conviction

BETWEEN

ANTHONY KARAURIA JACKSON

Appellant

AND

MINISTRY FOR PRIMARY INDUSTRIES

Respondent

Hearing:	14 August 2018
Counsel:	A K Jackson (Self-represented Appellant) in Person A J Pollett for the Respondent
Judgment:	20 August 2018

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 20 August 2018 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:    Pollett Legal (Office of the Crown Solicitor), Tauranga

Copy To:     A K Jackson, Edgecumbe

JACKSON v MINISTRY FOR PRIMARY INDUSTRIES [2018] NZHC 2142 [20 August 2018]

[1]    On 31 January 2017, Mr Jackson was found in possession of approximately 16 kilograms of minced pāua. Evidence at trial established that this equated to approximately 227 individual pāua from around Motiti Island.

[2]    Mr Jackson was convicted of one charge of possessing pāua for the purpose of sale.1 Conviction was entered in a reserved decision of Judge I D R Cameron dated 28 November 2017 following a judge-alone trial in the District Court at Tauranga.2

[3]    On 24 January 2018, Mr Jackson was sentenced to a three-year prohibition from holding a fishing licence, engaging in any fishing activity and deriving any beneficial income from activities associated with the taking of fish or aquatic life.3

[4]    Mr Jackson appeals from conviction. He did not file any submissions in support of his appeal, but he appeared in person and presented oral submissions as to why the conviction was wrongly entered. From these oral submissions, and the grounds set out in the Notice of Appeal, the issues to be determined on appeal are as follows:

(a)Did the evidence reflect the true circumstances?

(b)Did the Judge err in relying on the  evidence  of  fisheries  officer Gary McAneny?

(c)Was there sufficient evidence of personal use to rebut the statutory presumption?

(d)Did the Judge take into account that there were three occupants in the car?

(e)Did the Judge have regard to Mr Jackson’s customary rights?

1      Fisheries Act 1996, s 192(5). In this context, and in the absence of proof to the contrary, a person is deemed by s 195 to be in possession of fish for sale where the quantity held in possession by that person exceeds three times the amateur daily limit.

2      Ministry of Fisheries v Jackson [2017] NZDC 26009.

3      The precise terms of the sentence are set out in the Judge’s sentencing notes: Ministry of Fisheries v Jackson [2018] NZDC 2416 at [7].

What happened?

[5]    On 31 January 2017, fisheries officers received  a confidential  tip-off that  Mr Jackson and his partner were due to depart Motiti Island for Tauranga and were likely to be in possession of pāua. Motiti Island is located off the Bay of Plenty coast, between Mt Maunganui and Maketu.

[6]    Acting on this information, fisheries officers met Mr Jackson after his arrival at Tauranga Airport. Mr Jackson was inside his car together with his partner and young son when approached  by  fisheries  officers.  When  questioned  by  the  officers,  Mr Jackson admitted that he had pāua in the boot of his car, that it had been gathered over a period of days and said that it was in his possession legally.

[7]    Following a search of his vehicle, the officers recovered three supermarket bags of minced pāua meat weighing a total of 15.94 kilograms. Each bag weighed just over five kilograms each. There was no dispute that the meat came from the ordinary black-foot pāua which is found in and around Motiti Island. Evidence at trial established that the wholesale price, on average, for this pāua meat is approximately

$130 per kilogram.

[8]    Mr Jackson was subsequently detained, and was informed of his rights under the New Zealand Bill of Rights Act 1990 and cautioned accordingly. He spoke with a lawyer by phone and was then interviewed by fisheries officer Paul Robertson on DVD. In his DVD interview, Mr Jackson said that the pāua had been collected by a number of people who had been diving over a period of time at Motiti Island. He told the officer that the pāua was not intended for sale as the intention was to deliver it to a family member for a tangi in Hastings. He also said he had been provided with a customary permit for the pāua.

Legislative Framework

[9]    Mr Jackson was charged under s 192(5) of the Fisheries Act 1996 (Act). That section provides:

192     Restrictions on purchase or acquisition of fish by certain persons

…

(5)No person (other than a person who at the relevant time is acting in the person's capacity as a commercial fisher, licensed fish receiver, fish farmer, or spat catching permit holder) shall purchase, otherwise acquire, or be in possession of any fish, aquatic life, or seaweed for the purpose of sale, unless the fish, aquatic life, or seaweed was purchased or acquired from—

(a)a commercial fisher in a transaction referred to in section 191(2) of this Act; or

(b)a licensed fish receiver; or

(c)a fish farmer.

…

[10]   Accordingly, that section prohibits persons (subject to certain exceptions) from purchasing or being in possession of shellfish for the purpose of sale, unless the shellfish was purchased from certain people specified in that subsection.

[11]   Section 195 of the Act deems any person in possession of any shellfish in a quantity exceeding three times the amateur individual limit prescribed for that shellfish to be in possession for the purpose of sale, subject to a limited exception which does not apply in this case. The amateur individual daily limit for black-foot pāua is 10, as set out in sch 1 of the Fisheries (Amateur Fishing) Regulations 2013.

[12]   Therefore, if Mr Jackson was found to be in possession of over 30 pāua then he would be deemed to be in possession for the purpose of sale. The key issue at trial was whether the 15.94 kilograms of minced meat found in Mr Jackson’s possession equated to more than 30 individual pāua.

District Court decision

[13]The trial of the charge took place on 27 October 2017 before Judge Cameron.

[14]   Evidence was given by four fisheries officers. One of those fisheries officers, Mr McAneny, gave evidence that the 15.94 kilograms of minced pāua found in the defendant’s possession equated to 227 individual pāua from around Motiti Island. The

reliance on this evidence forms one of the grounds for appeal and it is discussed in more detail later on in this judgment.

[15]Mr Jackson represented himself at the hearing and elected not to give evidence.

[16]   The Judge referred at the outset of his judgment to an initial jurisdictional challenge by Mr Jackson, but the Judge had ruled that the charges were properly subject to the jurisdiction of the Court.4

[17]   Judge Cameron then reviewed the evidence of the fisheries officers at trial, and in particular the evidence of Mr McAneny  as  to  the  quantity  of  pāua  found  in Mr Jackson’s possession. On the basis of that evidence, and the likely weights of the pāua, the Judge concluded as follows:

[16] It is an inescapable conclusion that approximately 16 kilograms of minced paua meat sourced from Motiti Island represents far in excess of 30 individual paua, irrespective of the size of those paua. For 30 paua to produce

15.94 kilograms of minced paua meat, the average weight of the shucked paua meat would need to be .53 kilograms, ie over half a kilogram. While there was no direct evidence as to the maximum weights pauas attain, I do not understand even the defendant to be suggesting that a legal size paua can produce .53 kilograms of paua meat, and that what he had in his possession represented no more than 30 paua. That would be an absurd proposition. Some guidance as to average weights can be obtained from reg 16 of the Fisheries (Amateur Fishing) Regulations 2013. In referring to accumulation limits for paua, the maximum accumulation limit for paua gathered over a period of more than one day is 20 paua, or paua comprising a shucked weight of 2.5 kilograms (reg 16(2)(b)). Thus from a legislative point of view 20 legal size paua have an average shucked weight of .125 kilograms. On this basis 30 legal size paua would produce 3.75 kilograms of paua meat. In the calculations carried out by fisheries officer McAneny, the average shucked weight of the representative sample taken by him from Motiti Island was .07 of a kilogram (requiring 227 paua to produce 16 kilograms of paua meat). In any event, I am satisfied that the sample taken by the fisheries officer demonstrates that even if there were some larger paua available to the defendant by virtue of his local knowledge, there is no real possibility that he had in his possession paua meat representing no more than 30 paua (having an average shucked weight of .53 kilograms).

[18]   On this basis, the Judge held that the prosecution had established beyond reasonable doubt that the defendant was in possession of pāua meat which equated to an excess of 30 pāua. The defendant had not established, on the balance of

4      Ministry of Fisheries v Jackson [2017] NZDC 26009 at [1].

probabilities, that he possessed the pāua meat for some other purpose and conviction was entered accordingly.

[19]   At sentencing, the Judge referred to Mr Jackson’s previous guilty pleas to previous charges of unlawfully selling pāua. This met the requirements of s 257(1) of the Fisheries Act 1996, which provides that if any person is convicted of two or more qualifying offences within a period of seven years, then the court shall order forfeiture of any licence obtained under the Act and order prohibition from particular activities associated with fishing and aquatic life.5

[20]   The Judge found that the pattern of Mr Jackson’s offending indicated he was at a high risk of reoffending and needed to be held accountable for his actions. Denouncement and deterrence were also relevant to the circumstances of the offending. The Judge noted that Mr Jackson’s personal interests in fishing were outweighed by the public interest in the proper management and conservation of fisheries resources.6 Accordingly, he made a prohibition order for a period of three years commencing on 1 December 2017.7

Approach on appeal

[21]   Section 229 of the Criminal Procedure Act 2011 provides a right of appeal against conviction. An appeal court must allow the appeal if satisfied that, in the case of a judge-alone trial, the judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or a miscarriage of justice has occurred for any reason.8

[22]   A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trial that created a real risk that the outcome was affected or resulted in an unfair trial or a trial that was a nullity.9 A “real risk” will have arisen if there is

5      Ministry of Fisheries v Jackson [2018] NZDC 2416.

6 At [6].

7 At [7].

8      Criminal Procedure Act 2011, s 232(2).

9      Criminal Procedure Act 2011, s 232(4).

a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.10

Did the evidence reflect the true circumstances?

[23]   Mr Jackson’s Notice of Appeal states that the “evidence used did not reflect true circumstances”. This ground of appeal was not elaborated on in oral submissions, but I am nevertheless satisfied that it cannot succeed.

[24]   Judge Cameron made findings of fact based on the evidence presented at trial. There is no identifiable error in his assessment of that evidence. I am satisfied that the evidence called at trial allowed him to make findings beyond reasonable doubt on each element of the offence. In particular:

(a)The evidence of fisheries officer  Paul Robertson  established  that  Mr Jackson had pāua in his possession. Three bags of minced pāua meat were found in the back of Mr Jackson’s vehicle.

(b)Mr Jackson told fisheries officers that the pāua had been accumulated by a number of people over a period of days. There was no suggestion or evidence that it had been acquired from any of those persons stated in s 192(5).

(c)Mr Jackson was not acting as a commercial fisher, licensed fish receiver, fish farmer, or spat-catching permit holder as those terms are defined under the Act. Mr Jackson told fisheries officers that he had a customary permit for the pāua, but that is not one of the statutory exceptions under the Act. Mr Jackson’s assertion of customary rights is addressed later in this judgment.

(d)Mr McAneny’s evidence established that the weight of minced pāua found in Mr Jackson’s possession would have come from approximately 227 individual pāua from the Motiti Island area. That

10     Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

quantity of pāua well exceeded three times the amateur daily limit and accordingly Mr Jackson was deemed to be in possession for sale.

(e)Mr Jackson did not call any evidence to rebut the presumption that he was in possession of pāua for sale. Statements made by Mr Jackson in his DVD interview that he intended to deliver the pāua to another family member as a koha for a tangi in Hastings were not substantiated at trial. And, for the reasons addressed later in this judgment were not sufficient to rebut the statutory presumption.

[25]   Accordingly, there was sufficient evidence before the Judge to conclude that the charge had been proved beyond all reasonable doubt. There was no error in the Judge’s assessment of this evidence, and no miscarriage of justice as a result

Did the Judge err in relying on the evidence of fisheries officer Gary McAneny?

[26]   The Notice of Appeal refers to evidence of Mr McAneny as being inconclusive. This point was not elaborated on in submissions made at the hearing, but I infer that Mr Jackson alleges that the Judge erred by relying on this evidence.

[27]   Mr McAneny is a recreational snorkel and scuba diver with over 35 years’ experience. He gave evidence that 95 per cent of his diving is in the Motiti Island region. He also gave evidence that in all of his professional experience as a fisheries officer in the Motiti Island area, he had never seen a legal-sized ordinary black-foot pāua taken from that fishery.

[28]   On 25 September 2017, Mr McAneny dived in the shallows at the northern end of Motiti Island using scuba equipment in an attempt to find legal-sized ordinary black-foot pāua. He could not find any. Accordingly, under the authority of a special permit, he took 10 under-sized pāua which were representative of what he believed to be a fair cross-section of pāua sizes in the bay.

[29]   Mr McAneny gave evidence about the weight of the shucked pāua and a conversion factor used to determine the average weight for a pāua in its shell. Using that conversion factor, he determined that the roughly 16 kilograms of minced pāua

found in Mr Jackson’s possession came from approximately 227 individual pāua from the Motiti Island area.

[30]   Mr Jackson cross-examined Mr McAneny on the precise location where the sample of pāua were taken. It was suggested to him that there were other locations around the island from which larger sized pāua could be gathered. Mr Jackson then challenged Mr McAneny’s calculations which had not been based on legal sized pāua. As the Judge clarified for Mr McAneny, the point being made by Mr Jackson was that the same exercise carried out by Mr McAneny, but using legal sized pāua, would have arrived at a lesser total quantity of pāua found in his possession. Mr McAneny confirmed that this was the case.

[31]   I do not consider the evidence of Mr McAneny was inconclusive. In light of his extensive experience of diving in the area, he gave clear and unequivocal evidence that he had never seen a legal sized ordinary black-foot pāua taken from Motiti Island. It is important to note that Mr Jackson did not face charges for taking undersized pāua. The purpose of Mr McAneny’s evidence was to establish an equivalent number of pāua for the 16 kilograms of minced meat. For that purpose, the samples he took were a representative sample of those he could find at the island. Despite Mr Jackson’s challenge to this evidence, the Judge was entitled to rely on it in concluding that the charge had been proved beyond reasonable doubt.

[32]   There was no error in the Judge’s assessment of Mr McAneny’s evidence and no miscarriage of justice as a result.

Was there sufficient evidence of personal use to rebut the statutory presumption?

[33]   The effect of s 195 in this case is that “in the absence of proof to the contrary”, Mr Jackson was deemed to have been in possession for the purposes of sale if he was found to be in possession of 30 or more pāua. Mr Jackson had to persuade the District Court Judge, on the balance of probabilities, that he was not in possession of the pāua for sale.

[34]   There  was  limited  evidence  before  the  Court  regarding  personal  use.  Mr Jackson told officers that the pāua was meant as a koha for a family member for a

tangi in Hastings. Text messages on the phone of Mr Jackson’s partner referred to the passing of a relative, but they did not refer to the tangi nor to the provision of pāua as a koha. Fisheries officer Rodney Voullaire gave evidence that he heard Mr Jackson say to his partner that she needed to contact an individual to get a customary permit for a “couple of days gathering” for a tangi at Hastings. There was no other evidence corroborating the personal use.

[35]   The substantial quantities found in Mr Jackson’s possession, which were divided into three  bags  of  roughly  equivalent  weights,  strongly  suggests  that  Mr Jackson intended to sell the minced pāua, rather than deliver it to a family member for a tangi. In the absence of any further evidence about the tangi, or the provision of a koha, the Judge was entitled to find there was no evidence rebutting the presumption that applied.

[36]   Accordingly, the Judge did not err in evaluating this aspect of the evidence, and there was no miscarriage of justice as a result. This ground of appeal must also be dismissed.

Did the Judge’s decision take into account that there were three occupants in the car?

[37]   This ground of appeal was referred to in the Notice of Appeal and elaborated on in oral submissions (albeit very briefly).

[38]   When fisheries officers first approached Mr Jackson, he was in his car with his partner and young son. Mr Jackson submits that this was not taken into account by the Judge in finding the charges proved beyond reasonable doubt.

[39]   However, it is clear from the Judge’s reasons that he did have regard to the number of occupants in the car at the time. The Judge referred to Mr Jackson’s statements in his DVD interview that the pāua was in his possession and had nothing to do with his partner.11 In the course of that DVD interview, Mr Jackson was specifically asked what his partner’s involvement was with respect to the pāua.

11     Ministry of Fisheries v Jackson [2017] NZDC 26009 at [7].

Mr Jackson said that she was just the driver of the car, that he did not discuss bringing the pāua over with her, and that she did not know about the pāua at all.

[40]   I consider the Judge was entitled to rely on that evidence in deciding that the pāua found in Mr Jackson’s possession belonged solely to him.

[41]This ground of appeal is dismissed.

Did the Judge have regard to Mr Jackson’s customary rights?

[42]   In his DVD interview, Mr Jackson referred to having a customary permit, but he was not able to produce the permit when requested.   Later in the interview,      Mr Jackson  said  that  he  did  not  recognise  the  permits  issued   by   the   Ministry of Primary Industries, and the permit he was talking about was established by his marae, under the auspices of the Māori Incorporation on Motiti Island.

[43]   The Māori Incorporation referred to by Mr Jackson is the Nga Tama Tuhi Rae Hapu Oneone Incorporation. Mr Jackson submits that this is a Māori Incorporation established under the Te Ture Whenua Maori Act 1993  in  respect  of  land  on Motiti Island. Mr Jackson contends that the Ministry of Primary Industries is encroaching on the rights of this Māori Incorporation.

[44]   This argument was raised by Mr Jackson on a sentence appeal for one charge of obtaining a benefit by selling fish where he had no licence to do so. The charge related to the sale of pāua and kina. Mr Jackson had pleaded guilty to the charge. On appeal to the High Court, Mr Jackson contended that he represented the commercial arm of Ngā Uri a Te Hapu Kaoperihina Māori which had full plenary power to deal with customary fishing rights and that he should not be penalised or sanctioned for the acts that he undertook.12 Just what the relationship between the two incorporations are in this case is not clear, but I proceed on the basis that the essential argument raised is the same.

12     Wells v Ministry of Primary Industries [2017] NZHC 1860.

[45]   Heath J reviewed the law on the interrelationship between customary fishing rights and the provisions of the Fisheries Act 1996 and concluded:

[27] There is no doubt  that  the Act  governs  the  right  to  take  fish  in New Zealand. Any exceptions for customary rights are expressly contained in that statute. However, Mason make it clear that aspects of tikanga can be taken into account in sentence.

(footnotes omitted)

[46]   In that case, letters which the sentencing judge had received from other tangata whenua from Motiti Island demonstrated that Mr Jackson’s views regarding the exercise of customary rights were not universally shared, and in fact Mr Jackson’s actions in that case had been roundly condemned as showing no regard for tikanga at all. Heath J held that there was no basis on which the sentence imposed on Mr Jackson could be reduced to reflect customary values.13 An application for leave to bring a second appeal from this judgment was dismissed.14

[47]   Mr Jackson’s present appeal is against conviction only, and there is no separate appeal against sentence. It is not clear how customary values can operate as a defence to the charges in this case (if that is what is contended). At the outset of his judgment, the Judge recorded that he had dismissed Mr Jackson’s jurisdictional challenge. I consider he  was right to do so.   And,  any challenge to the sentence imposed on   Mr Jackson would face the same hurdles that precluded his appeal in the previous case. I am satisfied that this ground of appeal must also fail.

[48]   Finally, I record for completeness that Mr Jackson raised two further arguments in his oral submissions at the hearing. First, he submitted that he was suffering undue hardship because the sea around Motiti Island was his cupboard from which he was entitled to gather food as part of his right as a beneficial owner of the land. Second, he submitted that there was an element of “double dipping” because Paa Kooti had granted him relief from his home detention sentence to go back to Motiti Island where he lives, but that had not occurred.

13 At [28].

14     Jackson v Ministry of Primary Industries [2018] NZCA 68.

[49]   Neither of these arguments provide grounds for an appeal against conviction. In some circumstances such arguments may be relevant to questions of sentencing, but I am not persuaded that either of them would have resulted in a different sentence than that imposed by the Judge in this case. The response to the customary rights argument addresses the hardship argument  advanced  by  Mr  Jackson.  The  relief  said  by Mr Jackson to have been granted by Paa Kooti relates to Mr Jackson’s sentence of home detention for earlier offending which is not before the Court.

Result

[50]   There were no errors by the Judge, and no miscarriage of justice has occurred. The appeal against conviction is accordingly dismissed.

Edwards J