Vu v Ministry of Fisheries HC Auckland CRI 2009-404-263

[2010] NZHC 915

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000263

THIN THI VU

Appellant

v

MINISTRY OF FISHERIES

Respondent

Hearing:         10 June 2010

Appearances: P T R Heaslip for the Appellant

S K Barr for the Respondent

Judgment:      10 June 2010

ORAL JUDGMENT OF DUFFY J

[Re Application for Leave to Appeal to the Court of Appeal]

Solicitors:   P T R Heaslip P O Box 4108 Shortland Street Auckland 1140 for the Appellant Luke Cunningham and Clere P O Box 10357 The Terrace Wellington 6143 for the Respondent

VU V MINISTRY OF FISHERIES HC AK CRI-2009-404-000263  10 June 2010

[1]      In Vu v Ministry of Fisheries HC Auckland CRI-2009-404-000263, 18 May

2010, I allowed Ms Vu’s appeal against conviction on the ground that she could not be a party to an offence under the Fisheries Act 1996 by the principal offender, Mr Ly.  Mr Ly was someone who had obtained paua from an undercover fisheries officer.   The Ministry of Fisheries contended that Mr Ly had offended against the Fisheries Act in terms of s 192(5) and s 233.  I found that Mr Ly came within an exemption of s 192, namely 192(10)(c).  The consequence of this was that Ms Vu could not have aided and abetted someone who had not committed an offence under the Fisheries Act.

[2]      The Ministry of Fisheries seeks leave to appeal the judgment.

[3]      Ms Vu’s counsel, Mr Heaslip, has indicated that Ms Vu seeks finality, and would not wish to see the matter go further.  However, he has responsibly recognised that this is a case that has far broader ramifications than its effect on Ms Vu.

[4]      The effect of the decision I reached may threaten other undercover fishery investigations, and  the  convictions that have been obtained  as  a result of those investigations.

[5]      Mr Heaslip, therefore, responsibly recognises that as an officer of the Court, there is little that can be said against the broader ramifications of this matter, and how it qualifies for leave to appeal.

[6]      I am satisfied that this is a case where leave to appeal should be granted.  The question of law on which leave is granted is as follows:

Was I correct in law to hold that the transfer of paua by an undercover fisheries officer to Mr Ly and the defendant was a “transaction with the Crown” for the purposes of s 192(10)(c) of the Fisheries Act 1996?

[7]      The question I have posed is one that has been considered by both counsel, and they are agreed that it accurately reflects the legal issue to be determined by the Court of Appeal.

[8]      The result of the decision in this Court is that the sentence Ms Vu was serving has been set aside.  Until the outcome of the appeal is known, there is the possibility of the sentence being reinstated.   Mr Barr for the Ministry has no instructions regarding bail.

[9]      I propose  for  the  moment  to  remand  Ms  Vu at  large,  subject  to  further direction from the Court.

Duffy J