Lemalu v Ministry of Fisheries HC Wellington CRI-2010-485-000129
[2011] NZHC 164
•23 February 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2010-485-000129
BETWEEN PELE PELE LEMALU Appellant
ANDMINISTRY OF FISHERIES Respondent
CRI-2010-485-000122
AND BETWEEN KYLE SCOTT MARRIOTT Appellant
ANDMINISTRY OF FISHERIES Respondent
Hearing: 15 February 2011
Counsel: W M Johnson for Appellant Lemalu
F C Butland for Appellant Marriott
S K Barr and K E Martley for Respondent
Judgment: 23 February 2011
In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.45pm on the 23rd day of February 2011.
RESERVED JUDGMENT OF GENDALL J
[1] This judgment is in relation to two appeals filed by each of Mr Lemalu and Mr Marriott against their convictions entered in the District Court at Wellington on identical charges. Namely that they, together with each other and seven additional offenders, with the intention of obtaining a benefit knowingly possessed all the paua
otherwise in accordance with the Fisheries Act 1996. Both appeals were heard
LEMALU V MINISTRY OF FISHERIES HC WN CRI-2010-485-000129 23 February 2011
together as the factual circumstances and background overlap and is relevant to each of them.
[2] Messrs Lemalu and Marriott, and one other man, defended the informations and after a three day hearing on 4-6 October 2010 each was found guilty by Judge P I Treston, sitting in the District Court at Wellington. The third man does not appeal his conviction.
Essential background
[3] On 4 September 2009 Mr Lemalu and Mr Marriott were present with seven other men at a remote coastal location, approximately three kilometres south of Titahi Bay. It was a rocky maritime bay surrounded by scrub and steep hills on the landward side. Other than access by sea, it would have required a walk of approximately one and a half hours from the nearest civilised built up area. Fishery officers, on the hills and at sea, observed the group of men for approximately three hours. Some were seen to be on the shore whilst others wearing wetsuits and other dive gear were in the ocean. It was apparent from the observations that some form of harvesting of produce from the sea was taking place.
[4] When the fishery officers descended upon the bay, they observed a group of nine men who they contended had been engaged in the joint enterprise of gathering, cleaning, shucking, collecting, bagging and removing paua. A total of 1,182 paua, of which 804 were undersized, were located. They had been placed into sacks and were hidden in various locations around the area, the prosecution case being for later removal by members of the group. Hidden in the vegetation above and back from the waterline, was a well equipped campsite set up with gas cookers, sleeping bags, cooking utensils and clothing.
[5] Mr Lemalu was a member of the group and was seen to be wearing a wetsuit. His explanation to the fishery officers was to the effect that he was about to go into the water but had not collected any paua. The prosecution case was that he was one of three men observed to be in the water at some time during the previous several hours when under observation. The prosecution case, however, did not depend on
that because he, along with Mr Marriott, was simply charged with the joint possession of paua with the intention of obtaining a benefit.
[6] The appellant Mr Marriott was not observed in the water, nor was he wearing a wetsuit. But the primary evidence was that a fishery officer who had observed the group over a period of some hours saw him walking down the beach, stopping at a large boulder and picking up and folding items of clothing apparently left by one of the divers. At another point he was seen to speak to a Mr Vandermade, who was one of the joint members in the group but not a diver. He then was seen to follow that man into a large patch of head high scrub where, in the middle of that scrub an additional male was observed wearing a wetsuit. Mr Marriott was observed to be standing next to that man and Mr Vandermade was observed walking back out of the scrub down to the beach carrying a white sack before hiding it behind a bush. It contained paua. Divers were observed leaving the main patch of scrub and entering the water directly in front of that area and when the fishery officers later searched the campsite approximately 10 to 15 metres from the beach, the well equipped campsite and diving paraphernalia was discovered.
[7] Mr Lemalu made no formal statement to the fishery officers other than that described, namely that he was about to go into the water but had not collected paua.
[8] Mr Marriott was interviewed by an officer and the essence of his explanation was as follows:
he said he had left his home in the suburb of Northland, Wellington, at about 8.00pm or 9.00pm the previous night. He said he went “for a walk” because he had a disagreement with his flatmate. He then caught a bus and a train, and then another bus to Titahi Bay and then walked to the location. He said he got to the top of the hill by the reservoir at Titahi Bay (that being about three to five kilometres north of the site) at about
11.30pm and had walked to the bay around the coast. He said he had been at the bay from 3.00am or 4.00am until located there by fishery officers 12 hours later that day at about 3.00pm. He said he went to sleep in the bush and when he woke up there was a bunch of men of which he
knew a couple and they invited him to the campsite for coffee at about
9.00am. He said that the campsite was about 100 metres away from where he had slept and that he did not know the others in the group. He said he went to sleep after having coffee and after waking up saw the fishery officers descend upon the group and he hid because everyone else was hiding. His explanation was he could tell the fishery officers nothing about the paua, that he does not normally go to that beach to meet friends and that this was a one-off and chance meeting.
Judge Treston’s decision
[9] It is not necessary for this Court to recite in any further detail the factual background or evidential matters. They are recorded in the judgment. There was evidence that the value on the legitimate market of that amount of paua was between
$12,000 and $16,000. Judge Treston recorded the relevant provisions of s 233(2) of the Fisheries Act 1996 which provides that:
Every person commits an offence who, with the intention of obtaining any benefit, knowingly takes, possesses, receives, procures, processes, conveys, sells, or otherwise deals with any fish, aquatic life, ... otherwise than in accordance with [this Act].
[10] For the purposes of the section, under subs (3):
benefit includes any privilege, property, pecuniary advantage, or valuable consideration of any kind whether for that person or any other person.
[11] The essential ingredients to be proven was that the appellants were identified as being involved, in a deliberate way, and that they knowingly possessed paua with the intention of obtaining a benefit. The Judge stated that “possession” required control, not ownership; that control did not require physical custody; and that possession could be established through the drawing of “safe” inferences from the circumstances of a particular case. He said that some degree of knowledge on behalf of the individual defendant was necessary in order for there to be the element of knowing possession, but that could be inferred from the surrounding circumstances. The Judge then referred to other decisions, some of which involved group activity in
unlawfully gathering, collecting or possessing paua, noting that s 195 provided that for the purpose of the Act:
any person in possession of any fish, aquatic life, or seaweed of an amount or quantity exceeding 3 times the amateur individual daily limit (if any) ... shall, in the absence of proof to the contrary, be deemed to have acquired, or to possess, the fish, aquatic life, or seaweed for the purpose of sale unless the fish, aquatic life, or seaweed was lawfully taken by a person under regulations made under section 186 of this Act.
[12] The Judge referred to the fact that the amateur individual daily limit was
10 paua per person. Here there were proven to be nine persons present and involved in one form or another at the remote location so that clearly the number of paua found in possession exceeded three times the amateur individual daily limit.
[13] The Judge heard a total of 15 witnesses and had exhibits, including photographs and maps of the area. He reminded himself of the onus of proof being on the prosecution, the necessary standard of proof beyond reasonable doubt, the requirement that he regard each of the charges separately and the fact that no evidence was given or called by the appellants, which is their right and he said he did not draw any adverse inference for them adopting that course.
[14] He then went on to deal with Mr Marriott’s statement, noting that whilst not on oath the Court was entitled to take that into account as part of the pool of evidence if it wished. He summarised what Mr Marriott had said. He then referred to the prosecution’s submission that the evidence that Mr Lemalu was apprehended in a wetsuit was compelling, and the reasonable inference could be drawn that he was one of the divers, despite the photographs not specifically identifying him by appearance – other than wetsuit description. Judge Treston referred to the submissions made on behalf of Mr Marriott that he was not seen in the vicinity of any paua hidden in sacks on the beach and although seen to be present for the whole time of three hours or so, was not seen to participate in any way other than fold some clothes, by reference belonging to one of the divers, which were on a large rock.
[15] The Judge observed that essentially the defences were that there was no proof of the essential ingredients of the charges, namely knowledge or control of the paua (that is joint knowing possession), nor of any proof of an attempt to obtain a benefit
from possession. He referred to the defence argument that the Court should have a reasonable doubt as to the elements of the charge being established. The Judge observed that the case depended on inferences arising from circumstantial facts and correctly recorded that circumstantial evidence might be stronger than direct evidence it depending on the well-known analogy of strands in a rope. The Judge then set out what he considered were the circumstantial facts that he regarded as
compelling including, but not making an exhaustive list:
the remote location of the paua diving at a point approximately three kilometres away from the general area of Titahi Bay where access had to be presumably over private property or possibly around the coastline but not an
area nearby residential locations;
the existence of a camp with packs, sleeping bags, food, cookers, diving gear
and a makeshift toilet;
interaction of the three defendants with others in the group;
divers were in the water for three hours under observation by fishery officers;
noother outsiders apart from the group of nine were even in the general area apart from the fishery officers having them under observation;
the number of illegally taken paua, of which 482 had been shucked –
obviously at the bay;
the prospective value of the paua between $12,000 and $16,000;
the presumption, which he found as a matter of law applied to the circumstances and the inferential facts to which he had referred.
[16] The Judge concluded:1
From these facts, I find that the defendants had knowledge of the taking of a large number of paua and, as a matter of common sense, it was impossible for them not to be aware of the taking of paua in such huge numbers. They were there, the paua was shucked in the area in which they found themselves and I also find that each of these defendants was in joint possession of the paua which was clearly a commercial enterprise and that all of the nine defendants, including these three [the appellants and Tulo Tuala] is a matter of common sense, were going to transport the paua back to civilisation in the coincidentally nine packs that were there for ultimate disposal for profit or for sale, ... and there is the presumption of sale under s 195 of the legislation.
[17] The Judge went on to find as a fact that the appellants were part of the group of nine and interacting with others and he found as a fact that Mr Lemalu, in a wetsuit was one of the persons observed to be diving by a fishery officer. He found as a fact that Mr Marriott’s explanation in his interview was “fanciful” and that he was acting with others of the group, knew some of them, was in the vicinity not only of the diving but also of the shucking of the shellfish. The Judge correctly observed that the appellants did not need to be involved in the actual diving and removal of paua from the seabed, although he found Mr Lemalu clearly was. Nor did it have to be proved by direct evidence that they shucked any of the paua but that the circumstantial evidence might lead readily to that conclusion. He said, in any event, they were certainly in joint possession of the paua as part of the group of nine and these appellants were convicted.
Submissions on behalf of the appellants
[18] Ms Butland, on behalf of Mr Marriott, submitted that the evidence was not sufficient to prove the charges against him. She said it had not been proved that he knowingly was in joint possession, nor that he had the intention to obtain a benefit from such possession of paua. She concedes, as she must, that Mr Marriott was present at the time. But she submitted that mere presence was insufficient to establish the charge. She argued that Judge Treston had overlooked the activities of others, the location of the paua, the time that elapsed before Mr Marriott was
observed,2 and that the activities of others and what he did, do not support the
1 Ministry of Fisheries v Tuala DC Wellington CRI 2010-085-6377, 6 October 2010 at [46].
2 Although in Mr Marriott’s statement to the officer he said he arrived in the early hours of the morning.
conclusion that he had the required possession or knowledge. Ms Butland carefully analysed pieces of evidence and their detail, submitting that although paua was discovered in the regions of the camp area there was no evidence, she said, to place Mr Marriott there, other than that he was in a scrub location next to a person in a dive suit. She submitted that detailed items of evidence should have been given greater weight and the Judge erred in concluding that there were nine backpacks when, she said the officer’s evidence was in fact there were only seven. At this stage I simply record that the evidence was to the effect that there were nine backpacks or carrying bags of some form or another, whether accurately described as “backpacks” or not. Essentially, Ms Butland’s submissions came down to the proposition that it had not been established beyond reasonable doubt that the ingredients of the charge had been established as against her client Mr Marriott.
Mr Johnson’s contentions on behalf of Pele Pele Lemalu
[19] Mr Johnson adopted in large part the submissions of Ms Butland. But he contended that there existed in his submission, even “less evidence” against Mr Lemalu. He challenged the description of the detail or markings on the dive suit as given by the Ministry of Fisheries’ officer.
Discussion
[20] The notices of appeal typically, but unhelpfully, describe the grounds of appeal as being (for Mr Lemalu):
That the Learned District Court Judge erred in fact and law by entering a conviction.
and (for Mr Marriott):
The Learned District Court Judge was wrong in fact and law.
[21] There has not been advanced in support of the appeal any real argument that the Judge erred in law in the manner in which he applied the provisions of the Fisheries Act the well-known law as to possession, matters such as burden and standard of proof, the appellants not giving evidence, circumstantial evidence, and so
forth. There is no possible error of law in any of the remarks of Judge Treston or the way in which he dealt with the evidence. What is said is that he erred in his assessment of the evidence, on a factual basis, because it was insufficient in law for him to find the offence in respect of each appellant proved beyond reasonable doubt. That in a sense parallels the grounds contained in s 385(1)(a) of the Crimes Act 1961 (applying to the Court of Appeal and Supreme Court when dealing with an appeal) that a jury’s verdict should be set aside. The section refers to the ground that it is unreasonable or cannot be supported having regard to the evidence. Obviously an unsupported verdict is necessarily an unreasonable verdict and a verdict will be unreasonable if the evidence is insufficient to support it.
[22] The test to be applied under s 385(1)(a) was refined by the Supreme Court in Owen v R.3 The Supreme Court endorsed six aspects of the Court of Appeal’s decision in R v Munro,4 and held that a verdict will be unreasonable if the evidence could not have reasonably satisfied the jury that the accused was guilty.5 The threshold for appellate interference is high.
[23] The Owen/Munro factor of most relevance to the present case is that appellate review of the evidence must give appropriate weight to such advantages the fact- finder may have, including in the assessment of credibility and reliability. Weight to be given to individual pieces of evidence is essentially a function of the decider of facts. An appellate court is performing a review function on matters of evidence and not one of substituting its own view of the evidence and appropriate weight is to be given to the advantage that the trier of fact has over the appellate court so weight to be given to the individual pieces of evidence is for the fact finder. The test must be whether the fact finder, be it Judge or jury, could reasonably come to the conclusion that it did, that is guilt, beyond reasonable doubt based upon the evidence that it heard and was presented to it bearing in mind that acceptance of those parts of the evidence and weight to be given to it is a matter for the fact-finder. It is the essence of the submissions made on behalf of both appellants that the Judge erred in his
findings of fact.
3 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 (SC).
4 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 (CA): Owen v R at [13].
5 Owen v R at [17].
[24] This was a case based upon direct evidence but also on circumstantial evidence in the drawing of reasonable inferences from that evidence. The direct evidence was the presence of a very large quantity of paua, some of it shucked, bagged in the vicinity of nine men in a remote coastal location some considerable distance from residential areas, where there was wetsuits, men in the water obviously harvesting seafood and a campsite set up at which all men (including Mr Marriott, who admitted being there) must have spent the night. The Judge correctly directed himself on the issue of circumstantial evidence and the drawing of inferences. He was entitled to reject as fatuous the explanation given to the fishery officers by Mr Marriott. He outlined a number of items of circumstantial evidence, but not all of them, which he concluded their combination established that there was joint possession (being knowledge of, control over and an intention to assert control and possession) of a substantial quantity of valuable paua.
[25] Whilst counsel argued where there were two inferences available, one favourable and one unfavourable to an accused, the Judge ought not have drawn the unfavourable conclusions. That will arise only if the two conclusions available were of equal weight. Here the Judge found the inferences to lead to compelling conclusions and there was ample evidence available to him to reach that view. If he had been sitting as a jury his verdicts of guilty would have been unassailable if it had been argued that they were not reasonably open on the evidence.
[26] Intricate analysis of detailed parts of evidence does not assist the appellants because it is, as with all circumstantial evidence cases, the totality of the combined strands or pieces of evidence which is important and the underlying process of reasoning is whether it was reasonably open to the Judge to conclude from the totality of the evidence that the accused must have been guilty of the offences. There is no need for the prosecution to prove beyond reasonable each “circumstance” upon which it relies before the fact finder can take into account the evidence as to such circumstance although the reasoning process involves drawing conclusions from proven facts. However, as is in many cases the fact finder must take a holistic assessment of the evidence as a whole and it is clear beyond any doubt that that is what Judge Treston did.
[27] The challenges made to the factual findings and conclusions of the Judge must fail and by a wide margin. Given his factual findings which were squarely open to him on the evidence conviction for each appellant was inevitable. The evidence was overwhelming and the verdicts of the Judge entirely justified and unassailable. The evidence justified the Judge in reaching the factual conclusions that he did and he properly applied the law in finding the charges to be proved.
[28] Both appeals are dismissed.
J W Gendall J
Solicitors:
W M Johnson, Wellington for Appellant Lemalu
John Gwilliam & Co Ltd, Upper Hutt for Appellant Marriott
Crown Solicitor, Wellington for Respondent
Copy to: Ms K E Martley, Ministry of Fisheries, P O Box 1010, Wellington 6140