Smith v The Queen

[2004] NZCA 53

IN THE COURT OF APPEAL OF NEW ZEALAND

CA452/03

THE QUEEN

v

ADAM LIONEL SMITH

Coram:Glazebrook J
Hammond J
Chambers J

Counsel:G R Fulton for Appellant

B J Horsley for Crown

Judgment (On the papers):     27 April 2004 

JUDGMENT OF THE COURT DELIVERED BY  HAMMOND J

1. This appeal against conviction has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment

2. Mr Smith appeals against his conviction in the District Court, entered following a plea of guilty, on ten charges that contrary to s233(1)(b) of the Fisheries Act 1996 he knowingly, for the purpose of obtaining a benefit under that Act, engaged in commercial activity involving the dealing with fish, otherwise than in accordance with the Act.

3. The facts of the alleged offending, in brief, were that on ten occasions the appellant sold on the black market, to an undercover fisheries officer, paua totalling 481 kg.  Having pleaded guilty following committal, the appellant was sentenced to 18 months imprisonment on 7 April 2003.

4. On 15 September 2003 this Court held in R v Armstrong [2004] 1 NZLR 442 that conduct such as that of the appellant, did not constitute the particular offence because the relevant commercial activity involving the dealing with paua could not be regarded as for the purpose of obtaining a benefit under the Fisheries Act 1996. The terms of that judgment meant that the appellant had pleaded guilty to an offence of which he could not lawfully be convicted on the facts.

5. The appellant subsequently appealed to this Court on that basis and the Crown acknowledges that it cannot argue against the appeal having regard to the decision in R v Armstrong.

6. The appeal is accordingly allowed and the conviction and sentence quashed.

Solicitors:

Crown Law Office, Wellington