Parker v Ministry for Primary Industries
[2017] NZHC 2649
•27 October 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2017-425-33
[2017] NZHC 2649
BETWEEN AARON DAVID PARKER
Appellant
AND
MINISTRY FOR PRIMARY INDUSTRIES
Respondent
CIV-2017-425-32 BETWEEN
FRESH IS BEST LIMITED
Appellant
AND
MINISTRY FOR PRIMARY INDUSTRIES
Respondent
Hearing: 12 October 2017 Appearances:
A Tobeck for the Appellant
S McKenzie for the Respondent
Judgment:
27 October 2017
JUDGMENT OF MANDER J
[1] Fresh is Best Limited (Fresh Is Best) holds a commercial fishing permit. Its sole director is Mr Aaron Parker. Both the company and Mr Parker were convicted on two charges under the Fisheries Act 1996 (the Act) relating to the taking and
FRESH IS BEST LIMITED v MINISTRY FOR PRIMARY INDUSTRIES [2017] NZHC 2649 [27 October 2017]
undocumented possession of paua.1 Fresh Is Best was fined $12,350 and Mr Parker
$1,900.2 Both the company and Mr Parker appeal their convictions. Because Mr Parker’s liability as a director arises directly out of the alleged failures of the company the issues are the same for both appellants.
Paua fishing regulatory regime
[2] Prior to outlining the factual background to the offending it is necessary to provide some framework regarding the relevant regulatory regime in which Fresh Is Best was required to operate as a commercial fisher.
[3] Commercial paua fishing is permitted within certain “quota management areas”. Paua commercially harvested from these areas must be taken against quota which represents a share of the total stock within the area and can be bought and sold. A commercial fisher must hold an “annual catch entitlement” (ACE) in order to utilise quota to take paua from the management area. Each year on the first day of the fishing season the ACE for the management area is set. Like quota, ACE can also be traded. However, commercial fishers must hold a minimum ACE prior to commencing fishing.3
[4] Under Schedule 8 of the Act it is necessary for commercial fishers to hold a minimum of 1,000 kilogram ACE prior to commencing fishing in the quota management area PAU5A, being the quota management area relevant to this case. Taking paua without holding the minimum amount of ACE for the particular fishery area constitutes an offence of strict liability.4 Fresh Is Best was charged and convicted of the following offence:
That on 6 May 2015 being a commercial fisher, it took paua from a designated commercial paua fishery (quota management area – PAU5A – Fiordland) when it did not hold the minimum amount of annual catch entitlement (ACE) for that fishery area, contrary to sections 74(1), (12) and 252(5) of the Act.
1 Ministry for Primary Industries v Fresh is Best Ltd [2017] NZDC 1335.
2 Ministry for Primary Industries v Fresh is Best Ltd [2017] NZDC 11371.
3 Fisheries Act 1996, s 74(1).
4 Sections 74(12) and 240.
[5] When a commercial fisher takes paua, it is obliged to meet certain reporting obligations. In particular, the commercial fisher must complete a Paua Catch Effort Landing Return (PCELR). For this purpose, pre-printed forms are provided to commercial fishers in a booklet known as a “book of returns”. This document is required to be kept onboard the vessel to which it is issued whenever the vessel is used to take paua. A PCELR form is divided into two sections. The first is the “catch effort data” section which must be completed by midnight of the day upon which the diving for the paua occurred. The second is the “catch landing data” section which is required to be completed immediately upon landing, that is, upon the removal of paua from the vessel.
[6] The “catch effort data” section requires the number of the “licensed fish receiver” who is to receive the paua to be immediately recorded on landing. This will require either a purchase invoice to be issued, or, if that is impracticable, an “unloading docket” to be completed. Other details must be recorded in order for the fish to be able to be traced back to the specific date it was landed, and the vessel and commercial fisher.
[7] It is an offence to possess any fish, the taking or landing of which has not been recorded or reported in accordance with the Act.5 Again, this is an offence of strict liability. Fresh Is Best was charged and convicted of such an offence, namely:
That on 7 May 2015 Fresh is Best possessed 200 kilograms of paua, the landing of which was not recorded or reported in accordance with the requirements of the Act, contrary to sections 232(2) and (3).
Background
[8] At around 4.00 am on 7 May 2015, the fishing vessel San Nicholas was inspected by fishery officers while landing fish in Bluff. It had been at sea for three days, and Mr Parker had been onboard diving for paua and other fish. Seven bins of undocumented paua, weighing 199 kilograms, had been unloaded onto the wharf.
[9] The evidence of the fishery officers was that when they spoke to him about the paua Mr Parker, who was standing on the wharf next to the bins, said they “were his”
5 Fisheries Act 1996, s 232(2).
and that they had been taken “under his own permit”. Mr Parker did not personally have a commercial fishing permit in his own name but his company, of which he was the sole director, Fresh Is Best, did. When one of the fishery officers looked inside the bins, he noted there were labels on the bins recording the date 7 May 2015, the area from where the paua had been taken, being 5A, and the words “Fresh Is Best” written on them. The labelling of the catch or containers in this way is a requirement of persons who take or land fish.
[10] When asked for recording documentation, Mr Parker advised that he had forgotten to take his book of returns with him on the vessel, and he had left it behind at the factory. The fishery officer established that no paperwork had been completed for the landed paua.
[11] Mr Parker left to retrieve his documentation. When he returned he had a PCELR and an unloading docket which he had just completed. The unloading docket was in the name of “Seafood Direct Ltd” (Seafood Direct), which is a licensed fish receiver that Fresh Is Best shares premises with. It recorded the paua had been unloaded to Seafood Direct.
[12] The seven containers of paua were seized from Fresh Is Best’s premises the following morning. Six days later, Mr Parker was formally interviewed by a fishery officer. He confirmed that he took the paua pursuant to Fresh Is Best’s fishing permit, and that the bins of paua on the wharf belonged to that company. He said the licensed fish receiver was Seafood Direct, and that all the fish from Seafood Direct went to Fresh Is Best. He accepted the documentation had not been completed at the required times.
[13] Mr Parker maintained at the interview that he believed Fresh Is Best had the minimum 1,000 kg ACE. However, a letter dated 31 March 2015 was produced at trial which had been sent to Fresh Is Best by the appropriate authority, FishServe, formally advising the company that it did not hold the necessary amount of ACE, nor did any exemption apply to it to allow it to commence fishing. Mr Parker acknowledged the letter had been received and filed by an employee, but said he had not seen it. He maintained he was unaware of the minimum ACE requirement.
Approach to appeal
[14] An appeal against conviction is brought as of right and proceeds by way of rehearing.6 Accordingly, the appeal Court must examine the Judge’s reasoning carefully and come to its own decision on the facts.7
[15] An appeal must be allowed if it is found the Judge at first instance erred in assessing the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.8 A miscarriage of justice is defined in the Act as any error, irregularity, or occurrence in, or in relation to the trial that has created a real risk the outcome of the trial was affected, or has resulted in an unfair trial.9
Grounds of appeal
[16] Fresh Is Best and Mr Parker bring their appeals on three grounds. They allege the District Court Judge erred in finding certain elements of the charges proved beyond reasonable doubt. In particular, it is alleged the prosecution failed to prove:
(a)That at the time of fishing, Fresh Is Best did not hold the minimum ACE;
(b)That Fresh Is Best landed paua which was not recorded or reported in accordance with the Act;
(c)That Mr Parker, as director of Fresh Is Best, possessed the unreported paua.
(a) Proof of the minimum ACE
[17] Mr Tobeck on behalf of both appellants submitted that in order for the prosecution to prove its case it must prove that the “exceptions” to the requirement
6 Criminal Procedure Act 2011, s 229.
7 R v Slavich [2009] NZCA 188.
8 Section 232(2).
9 Section 232(4).
that a commercial fisher taking paua from PAU5A hold 1,000 kilogram ACE do not apply to Fresh Is Best.10 He submitted the District Court Judge erred by taking “the view that the one tonne minimum ACE requirement applied unless an exemption was available”. Rather, he submitted the position is that “the one tonne minimum ACE holding requirement does not apply in particular circumstances”, and the prosecution does not discharge its responsibility to prove the charge unless it proves those circumstances do not arise in this particular case. These circumstances, he submits, are not exemptions in the sense the appellants have to prove they apply.
[18]Section 74 of the Act provides:
74 Minimum holdings of annual catch entitlement
(1)No commercial fisher may take any stock listed in Schedule 8 unless the fisher holds, at the time of the taking, the minimum amount of annual catch entitlement that is specified in that schedule in relation to that stock.
(2)If,—
(a)following the allocation of quota under section 44 or section 47 or section 52, the amount of quota owned by a commercial fisher does not generate an annual catch entitlement sufficient to satisfy the requirements of subsection (1); or
(b)following a reduction in the total allowable commercial catch, the amount of quota owned by a commercial fisher, as at the beginning of the fishing year in which the reduction takes effect, does not generate an annual catch entitlement sufficient to satisfy the requirements of subsection (1); or
(c)following an alteration of a quota management area under section 25, quota is allocated under section 26 to a commercial fisher and that quota does not generate an annual catch entitlement sufficient to satisfy the requirements of subsection (1); or
(d)following an increase in the amount of annual catch entitlement required to be held by virtue of an Order in Council under subsection (7), the amount of relevant quota owned by a commercial fisher, as at the beginning of the fishing year in which the increase takes effect, does not generate an annual catch entitlement sufficient to satisfy that requirement; or
(e)following a deduction of quota shares from any person by the chief executive under section 52, the amount of relevant quota
10 Fisheries Act, s 74.
owned by a commercial fisher, as at the beginning of the fishing year immediately following the year in which the deduction occurs, does not generate an annual catch entitlement sufficient to satisfy the requirements of subsection (1),—
then the requirements of subsection (1) shall apply as if the minimum amount of annual catch entitlement required to be held was the amount of annual catch entitlement actually generated by the commercial fisher’s relevant quota, and the commercial fisher may continue to take stock in each fishing year under the authority of the lesser amount of annual catch entitlement held by the commercial fisher unless the commercial fisher, in any particular fishing year, transfers any annual catch entitlement and thereby reduces the commercial fisher’s annual catch entitlement holding for that fishing year to an amount lower than the holding generated by the commercial fisher’s quota at the commencement of that year.
(2A) As soon as is reasonably practicable after Te Ohu Kai Moana Trustee Limited has notified the chief executive of the entities that it has approved under section 34 of the Maori Fisheries Act 2004, the chief executive must identify the approved entities on the Annual Catch Entitlement Register.
(2B) In the case of a quota holding that includes settlement quota, if the annual catch entitlement from that quota is transferred in full to a commercial fisher that is registered as an approved entity under subsection (2A), the annual catch entitlement must be treated as if it were not less than the minimum amount required under subsection (1).
(3)Subsection (2) does not apply to a commercial fisher referred to in paragraph (b) or paragraph (c) or paragraph (d) or paragraph (e) of that subsection unless, immediately before becoming a person referred to in any of those paragraphs, the commercial fisher owned a number of quota shares that would generate an amount of annual catch entitlement sufficient to satisfy the relevant requirements of subsection (1).
(4)If any commercial fisher is or becomes subject to subsection (2), that subsection shall continue to apply for only so long as the commercial fisher does not sell any of the relevant quota, however obtained.
(5)If any commercial fisher is or becomes subject to subsection (2) and the commercial fisher subsequently purchases any relevant quota, the requirements of subsection (1) apply on and from the commencement of the next fishing year as if the minimum amount of annual catch entitlement required to be held was the amount of annual catch entitlement actually generated by the commercial fisher’s quota (including such purchased quota) unless that amount exceeds the applicable amount specified in subsection (1); and subsection (2) shall cease to apply to that commercial fisher.
...
(12) If a person contravenes subsection (1) or subsection (2), the person commits an offence and is liable to the penalty set out in section 252(5).
[19] Subsection (2) is of limited application. It seeks to regulate the position of commercial fishers who initially have the minimum required amount of ACE but due to circumstances beyond their control their quota does not generate sufficient ACE to satisfy the requirement set out in subs (1). In such circumstances commercial fishers may continue to fish up to a lower calculated ACE provided they do not transfer any ACE during the particular fishing year, thereby reducing their ACE holding to an amount that is less than the holding generated by the commercial fisher’s quota at the commencement of that fishing year.11
[20] Essentially, Mr Tobeck’s submission was that the circumstances set out in s 74(2), which allow certain commercial fishers to hold a lesser ACE than that required by subs (1), may possibly apply to Fresh Is Best. The potential application of subs (2), he argued, must be negated by the prosecution beyond reasonable doubt before the company could be held to be in breach of taking paua without holding the minimum amount of ACE. I consider this argument fails both on the evidence adduced before the District Court and as a matter of law.
[21] Fresh is Best was charged with failing to hold the minimum amount of ACE, contrary to s 74(1) and (12) of the Act. Subsection (12) provides that a person commits an offence who contravenes subs (1) or (2). Both subsections require commercial fishers to hold a certain amount of ACE based on their individual circumstances. Fresh Is Best was charged under subs (1) on the basis it was subject to the requirement set out in that subsection, namely that it may not take paua unless it holds the minimum amount of ACE specified in sch 8 of the Act. A failure to so comply is the proscribed act which creates the offence.
[22] To prove the charge the prosecution was required to establish that Fresh Is Best was subject to the requirement set out in subs (1). It clearly discharged that responsibility. Fresh Is Best was a commercial fisher taking paua from Quota Management Area PAU5A. Prima facie therefore it was subject to the ACE
11 Fisheries Act 1996, s 74(2).
requirement listed in sch 8. Mr Lowther, the Chief Executive of FishService, confirmed that Fresh Is Best was subject to the ACE requirement specified in that schedule. He produced the letter of 31 March 2015, which formally notified the company of the amount of ACE it was required to hold to take paua from the relevant Quota Management Area being 1,000 kg, that it had insufficient ACE to do so, and that it held no exemption from this requirement. There was no challenge to that evidence.
[23] Another commercial fisher, Discovery Maritime Ltd (Discovery Maritime), had been allocated a minimum required ACE of only 334 kg pursuant to s 74(2) of the Act. On 31 March 2015, Discovery Maritime transferred 234 kg of ACE to Fresh Is Best. A suggestion made by Mr Tobeck, both at trial and before me, was that somehow, as a result of this transfer of ACE, Fresh Is Best obtained the benefit of Discovery Maritime’s lesser minimum ACE.
[24] There is nothing in the Act, and in particular s 74, which supports such a consequence. To the contrary, the effect of the transfer would be Discovery Maritime losing the benefit of its lesser ACE requirement because that status is reliant on there being no transfer and therefore no reduction of its ACE during that fishing year.12 The March 2015 letter specifically took into account the transfer of the 234 kg of ACE to Fresh Is Best. The defendant company’s position remained unchanged. It had insufficient ACE to take paua from PAU5A and no exemption applied.
[25] Furthermore, as observed by the District Court Judge, the “exemptions” set out in subs (2) which allow commercial fishers to continue to take fish despite an insufficient amount of ACE are based on an individual commercial fisher’s quota holding. The reference to “the commercial fisher” in the section is a reference exclusively to the commercial fisher that holds the quota at the time the reduced ACE requirement is calculated. This at all times was Discovery Maritime not Fresh Is Best.
[26] While not strictly necessary for the purpose of determining this aspect of the appeal, Mr Tobeck’s submission raises the issue of the approach to be taken to regulatory offences which provide exceptions or exemptions to the general rule or
12 Fisheries Act 1996, s 74(2).
prohibition creating the offence. The identification of the elements of an offence as opposed to available defences is a matter of statutory interpretation. The distinction is important because the former must be proved by the prosecution beyond reasonable doubt, whereas the latter must only be negatived by the prosecution if the defence are able to discharge an ‘evidential burden’ by “point[ing] to evidence before the court which sufficiently raises the issue”.13
[27] In cases where it has not been clear from the words of the statute whether the provision constitutes an element of the offence or a defence the Courts have applied the common law test as set out in R (Sheahan) v Cork Justices:14
The test, or dividing line appears to be this: Does the statute make the act described an offence subject to particular exemptions, qualifications, etc, which, where applicable make the prima facie offence an innocent act? Or does the statute make an act prima facie innocent, an offence when done under certain conditions? In the former case the exception need not be negatived; in the latter, words of exception may constitute the gist of the offence.
[27] Accepting for present purposes Mr Tobeck’s argument, put in the most neutral terms, that the offence created by the prohibition in subs (1) cannot be considered in isolation from subs (2), it is clear the former subsection prohibits commercial fishers from taking fish unless the fisher holds the minimum amount of ACE specified in sch
8. The act of fishing without the minimum ACE specified in sch 8 is by itself an offence. It cannot be described as an innocent act which is “prohibited in certain circumstances”. At most, the limited scenarios set out in subs (2) and, as was also argued by Mr Tobeck, subs (2B) provide exceptions or qualifications which allow, in particular limited circumstances, the taking of fish notwithstanding non-compliance with subs (1).
[28] In order for any one of those limited circumstances to be raised as a live issue a defendant would need to be able to point to some basis in the evidence which supports the possibility of such circumstances having application to its position. In
13 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [31].
14 R (Sheahan) v Cork Justices [1907] 2 Ir R 5 at 11; adopted in Akehurst v Inspector of Quarries [1964] NZLR 621 at 625; subsequently applied in Te Weehi Regional Fisheries Officer [1986] 1 NZLR 680; Assistant Registrar of Companies v Moses [2002] 3 NZLR 129; Flavell v Police [2013] NZHC 481. While these cases applied the test in the context of the reversed onus in s 67(8) of the now repealed Summary Proceedings Act 1957, the test predates that provision and remains relevant to the distinction between offence element and defence.
the present case, nothing was suggested in evidence that any of the circumstances set out in subs (2) or (2B) were relevant to Fresh Is Best’s situation, nor that any in-house exemption, as obliquely referred to by Mr Tobeck in the course of his submissions, applied.
Failure to record and report in accordance with the Act
[29] Mr Tobeck submitted that Mr Parker’s explanation that he had forgotten his paperwork and was required to go to the premises of a licensed fish receiver to retrieve the appropriate documentation meant he had “immediately upon landing” recorded the paua. Such a construction is simply unavailable. The nature and circumstances of the commercial fisher’s default may be sought to be raised as a matter of mitigation but it provides no defence to its failure to comply with the strict obligation to complete the PCELR when required.
[30] The Fisheries (Reporting) Regulations 2001 require a commercial fisher who targets paua to complete and provide a PCELR. The landing section of this return must be completed “immediately on landing”.15 The PCELR must be retained on the vessel used to take fish and at all other times be in the custody of the person who is responsible for completing the return.16 The PCELR must immediately be produced to a fishery officer when requested.17
[31] I accept the District Court Judge’s conclusion that the words of the regulations could not be plainer (“immediately on landing”), particularly when viewed against the legislative objectives of the quota management system to ensure that once fish are removed from a commercial fishing vessel there is a complete paper trail immediately available. The claimed oversight by Mr Parker provides no defence to this strict liability offence. To countenance any lesser requirement would defeat the purpose of the regulatory regime. Clearly, on the uncontested facts Mr Parker as the agent and/or representative of Fresh Is Best failed to comply with the commercial fisher’s recording and reporting obligations.
15 Fisheries (Reporting) Regulations 2001, reg 10(2)(b).
16 Regulation 31.
17 Regulation 35.
Was Fresh Is Best in possession of the paua at the time of its landing?
[32] Fresh Is Best sought to dispute that it was in possession of the paua at the time Mr Parker was spoken to by the fishery officer at the wharf. That argument was premised on a submission that when paua is landed from a vessel to the wharf it must be landed to a licensed fish receiver. Mr Tobeck submitted that after the paua was landed Mr Parker must have been acting as an agent for the fish receiver. It followed therefore on his argument that the fish receiver was in possession of the paua at the time Mr Parker was approached by the fishery officers.
[33] Mr Tobeck further submitted that a view expressed by fishery officers when giving evidence that the requisite paperwork was required to be completed before possession could pass to a fish receiver was simply their opinion and not the legal position. Finally, Mr Tobeck submitted the District Court Judge erred in her analysis of this issue by reversing the onus onto the defendant when she concluded that “there are insufficient proven facts to enable me to infer that Mr Parker was acting as agent for Mr Williams”.
[34] As far as it is relevant to the present situation, fish is landed when it is removed or discharged from a vessel.18 The requirement placed on a commercial fisher landing fish is not that it be landed to a licensed fish receiver, but that any later sale or disposal of the fish must be to a licensed fish receiver.19 It follows that the premise upon which Mr Tobeck’s argument is founded is incorrect.
[35] The question of whether Fresh Is Best or some other entity was in possession of the paua distils to a factual inquiry. It was contended that Mr Parker at the time he was accosted by the fishery officers was acting by that time as an agent for a fish receiver, being either Seafood Direct or a Mr Danny Williams. The evidence at trial established that Seafood Direct was neither a licensed fish receiver nor a commercial fisher. It appears Mr Williams was a licensed fish receiver. However, he did not give evidence. There was no direct evidence provided either by or from any other source
18 Fisheries (Reporting) Regulations 2001, s 3.
19 Fisheries Act 1996, s 191.
that at the time Mr Parker was being spoken to at the wharf he had taken possession of the paua as Mr Williams’ agent.
[36] At interview, Mr Parker referred to Mr Williams as the person “who has got Seafood Direct and does the LFRs landings”. He explained that a person called “Vicky” who was the factory manager was responsible for “picking up fish from the boat, writing out the unload docket, weighing it, and passing the fish on to Danny”. Mr Parker referred to “Danny” completing the purchase invoice.
[37] When Mr Parker was spoken to by the fishery officer on the morning the paua was landed neither the PCELR, nor any unloading docket or any other documentation had been completed. The bins of paua were labelled in the name of Fresh Is Best, and Mr Parker when directly asked said they were his. When interviewed several days later, Mr Parker confirmed the fish belonged to Fresh Is Best. Before the District Court, Mr Parker, maintained that he had “landed” the paua to Seafood Direct, however, he made no reference to acting as an agent for Mr Williams or indeed Seafood Direct. The circumstances admit of no other conclusion other than that Mr Parker retained possession of the paua on the wharf at the time he was spoken to by the fishery officer, and did so in his capacity as the representative of the commercial fisher who had taken and was landing the paua, namely Fresh Is Best.
[38] I do not consider the Judge made any error when she referred to the insufficiency of proven facts to allow her to infer that Mr Parker was acting as an agent for Mr Williams. In the absence of any direct evidence to that effect, the trial Court was left with having to assess whether such an inference was available. Clearly, it was not. To the contrary, the Judge made a positive finding based on the evidence that the paua was in the possession of Mr Parker in his capacity as the sole director and agent of Fresh Is Best. I do not consider there was any reversal of the onus of proof in the Judge’s observation of there being inadequate evidence to support the assertion that Mr Parker was at that time acting as agent of Mr Williams or, for that matter, Seafood Direct. Absent such evidence the contention that Fresh Is Best was no longer in possession of the paua was unsustainable.
Sentence appeal
[39] The notice of appeal included an appeal against sentence, however, no grounds were specified, and no written nor oral submissions advanced in support of such an appeal. Fresh Is Best and Mr Parker were fined respectively $8,000 and $1,300 on the reporting charges, and $4,350 and $600 in relation to the ACE charges. There is nothing to suggest these fines were either inappropriate or manifestly excessive.
Result
[40]The appeals against conviction and sentence are dismissed.
Solicitors:
Menzies Marshal Law, Winton Crown Solicitor, Invercargill
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