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

[2010] NZHC 728

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000263

THIN THI VU

Appellant

v

MINISTRY OF FISHERIES

Respondent

Hearing:         16 November 2009

Appearances: P T R Heaslip for the Appellant

S K Barr for the Respondent

Judgment:      18 May 2010

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 18 May 2010 at 1.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

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 [18 May 2010]

[1]      Thun Thi Vu was convicted in the District Court at Manukau of being a party to an offence under ss 233(1) and 252(1)(c) of the Fisheries Act 1996 (the Act).  She now  appeals  against  that  conviction.    The  Ministry  of  Fisheries  (the  Ministry) opposes the appeal.

[2]      Ms  Vu  was  found  to  have  aided  and  encouraged  the  principal  offender, Huong Ly, to obtain a benefit by knowingly possessing and procuring ordinary paua (paua) otherwise than in accordance with the Act.

[3]      The Ministry relies on three grounds to support the conviction entered against

Ms Vu:

a)       Mr Ly’s possession of the paua was not in accordance with s 192 of the Act,

b)Mr Ly’s possession of the paua contravened reg 19(1) of the Fisheries (Amateur Fishing) Regulations 1986 and was, therefore, not in accordance with the Act; and

c)       Mr Ly’s possession of the paua contravened reg 6 of the Fisheries (Recordkeeping) Regulations 1990 and was, therefore, not in accordance with the Act.

[4]      Ms Vu contends that Mr Ly’s possession of the paua:

a)       Does  not  contravene  s  192  of  the  Act  as  it  comes  within  the exemption to s 192 provided at s 192(10)(c); and

b)Neither reg 19(1) of the Fisheries (Amateur Fishing) Regulations nor reg 6 of the Fisheries (Recordkeeping) Regulations are applicable to the circumstances.

[5]      If Ms Vu is correct, it would follow that there is nothing to support the finding  that  Mr  Ly  has  acted  otherwise  than  in  accordance  with  the  Act  and, therefore, the conviction that she was a party to his offending was wrongly entered.

[6]      The  District  Court  found  that  s  192(10)(c)  did  not  apply,  but  did  not specifically address whether Mr Ly had contravened either of the regulations. Therefore, it is unclear whether or not the District Court found that the regulations provided a basis for the conviction under s 233.

The enforcement provision

[7]      Section 233 creates the offence of knowingly acting in contravention of the Act to obtain a benefit.   The relevant provision in this case is s 233(1) which provides:

233     Knowingly acting in contravention of Act to obtain a benefit

(1)Every  person  commits  an  offence  who  obtains  any  benefit  by knowingly taking, possessing, receiving, procuring, processing, conveying, selling, or otherwise dealing with any fish, aquatic life, or seaweed otherwise than in accordance with this Act.

To establish there has been a knowing contravention of the Act requires proof that restrictions imposed elsewhere in the Act have been breached.  This is why the focus of the parties’ argument is on s 192 and the two regulations, rather than on s 233. Section 252 sets out, inter alia, the penalties for an offence under s 233.

The s 192 defence

[8]      Under s 192, except for the categories of specified persons set out in the section, there are restrictions on other persons purchasing, acquiring or otherwise possessing fish for the purpose of sale.  Paua is by definition under the Act a fish for the purpose of s 192.  Ms Vu accepts that neither she nor the principal offender come within the categories of specified persons who are permitted to purchase, acquire or possess paua for the purpose of sale.  It is also beyond dispute that Mr Ly obtained the paua for the purpose of on-selling it to others.

[9]      Section 192 is one of the restrictions imposed by the Act that can constitute an offence under s 233.  Those who aid and encourage such offenders are liable as parties under s 66 of the Crimes Act 1961.

[10]     However,  there  is a  statutory exception  to  the  general  restrictions  s  192 imposes.   Section 192(10)(c) exempts transactions with the Crown from s 192’s effect.

[11]     In this case, Mr Ly purchased the paua from an undercover fisheries officer who has gone under the assumed name of Brett Stevens.  I will refer to him by the assumed name.  Ms Vu contends that because Mr Stevens is a fisheries officer and an employee of the Ministry, the acquisition of paua from him amounts to a transaction with the Crown for the purpose of s 192(10)(c).   Hence, the Ministry cannot rely on the restrictions s 192 imposes to provide the foundation to establish an offence under s 233.

[12]     The issues, therefore, are whether Mr Stevens is an officer of the Crown, and whether any dealings in fish in which he engages with another in his professional role as a fisheries officer are transactions which he carries out on behalf of the Crown.

The legislative scheme

[13]     The purpose of the Act is to provide for the utilisation of fisheries resources whilst ensuring sustainability.  Fish that are taken for commercial purposes must be taken in accordance with the Act’s provisions.   The disposition of such fish for commercial purposes must also be in accordance with the Act’s provisions.  In part, those provisions provide a regime for tracking fish to ensure that fish that are being disposed of commercially have first been legitimately taken.  Section 192 is part of this regime.  It provides:

192     Restrictions on purchase or acquisition of fish by certain persons

(1)No commercial fisher shall purchase, 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—

(a)      taken in that person's capacity as a commercial fisher; or

(b)purchased or acquired by that person from a licensed fish receiver for use as bait in that person's commercial fishing activities.

(2)No licensed fish receiver shall purchase or 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—

(a)Purchased or acquired for the purpose of sale from— (i)    a commercial fisher; or

(ii)      another licensed fish receiver; or

(iii)     a fish farmer; or

(iv)      the operator of a foreign fishing vessel, if the fish, aquatic life, or seaweed was landed under the authority and in accordance with the conditions of a licence issued under section 83 of this Act; or

(v)       the operator of a foreign vessel, if the fish, aquatic life, or seaweed was landed and disposed of in accordance  with  the  conditions  of  an  approval granted under section 113 of this Act; or

(b)       lawfully taken by that person for the purpose of sale in the person's capacity as a commercial fisher, where that person has lawfully kept and completed all records, returns, and other   documents   required   under   this   Act   as   if   the commercial fisher and the licensed fish receiver had been separate persons; or

(c)acquired or possessed by the licensed fish receiver otherwise than for the purpose of sale by the licensed fish receiver in accordance with subsection (7) of this section.

(3)      Repealed.

(4)       No spat catching permit holder shall be in possession of any fish, aquatic life, or seaweed for the purpose of sale, unless the fish, aquatic life, or seaweed was taken by that person in that person's capacity as a spat catching permit holder.

(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.

(6)Every person commits an offence and is liable to the penalty set out in section 252(3) of this Act who contravenes any provision of subsections (1) to (5) of this section.

(7)For the purposes of subsection (2)(c) of this section, fish, aquatic life, or seaweed is acquired or possessed by a licensed fish receiver in accordance with this subsection if the fish, aquatic life, or seaweed—

(a)       is held by the licensed fish receiver for a person for storage or processing; and

(b)was taken by that person in accordance with any relevant amateur or Maori customary non-commercial fishing regulations made under this Act; and

(c)is held by the licensed fish receiver with the approval in writing of the chief executive (which approval may be granted either generally or particularly) but was not so held before that approval was granted; and

(d)       is stored and processed in accordance with the conditions imposed by the chief executive (which conditions may relate to records and returns and such other conditions as the chief executive thinks fit to impose).

(8)Subsection  (5)  of  this section does not apply in  respect  of fish, aquatic life, or seaweed if—

(a)the fish, aquatic life, or seaweed was lawfully purchased or acquired from an approved person; and

(b)that approved person has lawfully acquired or purchased the fish, aquatic life, or seaweed from a licensed fish receiver; and

(c)the purchase or acquisition, and the storage and disposal, of the fish, aquatic life, or seaweed, and the keeping of records in relation to it, was in accordance with the conditions of the approval granted by the chief executive.

(9)Subsection (5) of this section does not apply in respect of any fish, aquatic life, or seaweed produced in the course of a lawful fish farming operation and subsequently traded.

(10)     This section does not apply in respect of—

(a)whitebait, seaweed of the Class Rhodophyceae taken while it is unattached and cast ashore, unwanted aquatic life, ornamental fish, seabirds, or protected species; or

(b)any fish, aquatic life, or seaweed lawfully taken outside New Zealand fisheries waters that has been landed in any country other than New Zealand before …; or

(c)      any transaction with the Crown; or

(d)       any fish, aquatic life, or seaweed lawfully taken otherwise than for the purpose of sale and served as part of a meal to the person who took the fish, aquatic life, or seaweed and the person's immediate guests.

The s 192(10)(c) exception

[14]     In s 2 of the Act Parliament has only defined “transaction” when it is used in specific circumstances:

Transaction means,—

(a)In relation to any quota or annual catch entitlement or provisional catch history, a transfer of the quota, annual catch entitlement, or provisional catch history:

(b)In  relation  to  any  quota,  a  mortgage,  variation  of  mortgage, discharge of mortgage, or assignment of mortgage over the quota:

(c)In relation to any quota or annual catch entitlement, a caveat or discharge of a caveat over the quota or annual catch entitlement:

These circumstances affect fish, but they are nonetheless separate from fish.  Such circumstances are legal and statutory constructs that the Act utilises to manage the taking and disposition of fish for commercial purposes.   Section 192(10)(c) uses “transactions” in the context of referring to fish, and not to the various constructs in s 2.   In this way Parliament has used “transactions” in a form that is outside the scope  of  s  2.     This  suggests  that  Parliament  intended  its  s  2  definition  of “transaction” to apply only when used in regard to the stated constructs in that definition, and that when used for other purposes in the Act the term was intended to have its ordinary meaning.

[15]     The  Oxford  English   Dictionary  (online  ed)  defines   “transactions”  as meaning:

3.  That which is or has been transacted; an affair in course of settlement or already settled; a piece of business; in pl. doings, proceedings, dealings.

4.  The action of passing or making over a thing from one person, thing, or state to another; transference.

I consider that the natural and ordinary meaning of “transactions” would include purchasing fish from an undercover fisheries officer.  In such circumstances, there is an intentional exchange of money for fish.  Between the two parties there is a piece of business, a dealing, a passing or making over of one thing for another.  It follows that I find that what occurred between Mr Ly and Mr Stevens was a transaction within the meaning of that word in s 192(10)(c).

[16]     The critical and difficult question is whether this transaction was with the Crown.  The Ministry accepts that when Mr Stevens participated in the transaction with Mr Ly, he did so in his role as a fisheries officer employed by the Ministry who was acting undercover for the purpose of detecting the commission of offences under the Act.  At paragraph 3.9 of its submissions, the Ministry states that Mr Stevens’ purchasing and selling of the paua to the principal offender was part and parcel of the  Ministry’s  undercover  operations,  and  that  Mr  Stevens  was  not  a  “rogue” Ministry employee.   The Ministry also acknowledges that when Mr Stevens purchased the paua from black market divers, he submitted it to his operator in the Ministry, whereupon the paua was evidentially processed and stored at the Ministry of Fisheries until it was provided back to Mr Stevens for on-selling on the black market.  There is no suggestion, therefore, that Mr Stevens was acting on his own account, or that he was acting outside the scope of his employment as a fisheries officer.  But against this background, the Ministry contends that it was Mr Stevens, and not the Crown, who purchased the paua initially from the divers and on-sold to Mr Ly on the black market.  In this regard, the Ministry submits that the evidence in the District Court was that Mr Stevens did not have approval under the Fisheries Act, the Regulations made under that Act, or from the Chief Executive to sell paua on the Crown’s behalf.

[17]     There  can  be  no  doubt  that  Mr  Stevens  is  an  employee  of  the  Crown. Philip A Joseph in Constitutional and Administrative Law in New Zealand (3rd  ed, Brookers, Wellington, 2007) notes at 16.2.4 that at “the heart of the executive government are Ministers of the Crown and the ministries and departments that oversee the delivery of public services in accordance with government policy”.  In CIR v Medical Council of NZ [1997] 2 NZLR 297, where the Court of Appeal had to determine whether the Medical Council of New Zealand’s income was income of a

public authority under the Income Tax Act 1976, the Court quoted with approval from the judgment of Lord Diplock in Town Investments Ltd v Department of Environment [1978] AC 359 at 381:

… “the government” — a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments. It is through them that the executive powers of Her Majesty's government in the United Kingdom are exercised, sometimes in the more important administrative matters in Her Majesty's name, but most often under their own official designation. Executive acts of government that are done by any of them are acts done by “the Crown” in the fictional sense in which that expression is now used in English public law.

[18]     The  Court  then  went  on  to  discuss  the  “control”  test  which  is  used  to determine what public bodies fall under the umbrella of the Crown and said at 328:

The various elements of control can be better understood against a sketch of the types of persons and bodies who exercise public power at the national level in New Zealand. At the centre, as Lord Diplock indicates, are the Ministers of the Crown and the ministries and departments that advise and service ministers, along with the Governor-General. Departments of state, listed in the First Schedule to the State Sector Act 1988, make up the public service, s 27(1).  The Chief Executive of a department is responsible among other things to the appropriate Minister for the carrying out of the functions and duties of the department, including those imposed by Act or by the policies of the government, and for the tendering of advice to the appropriate Minister and other Ministers of the Crown, s 32.

[19]     The Ministry of Fisheries comes within the “centre” of this framework as it is one of the departments listed in the first schedule of the State Sector Act.  Fisheries officers are employees of the Ministry of Fisheries (see s 198 of the Act).   The Ministry accepts that Mr Stevens was acting in his role as a fisheries officer when he was transacting with Mr Ly, so it follows that Mr Stevens was acting on behalf of the Crown.

[20]     The Ministry has referred to Attorney-General for Ceylon v Silva [1953] AC

461 as authority for the proposition that a public officer cannot simply by reason of his/her employment in the service of the Crown have the right to act for and on behalf of the Crown in all matters which concern the Crown.  The Ministry argues that unless Mr Stevens was authorised to carry out the transaction with Mr Ly on behalf of the Crown, he cannot be said to have done so on the Crown’s behalf.

Furthermore, in this case, the task concerned was a criminal offence, and the Crown cannot direct or authorise a criminal offence to take place: Yip Chiu-chueng v R [1994] 2 All ER 924.

[21]     In Silva, a Principal Collector of Customs exercised the power given to him under a Customs Ordinance to sell goods that belonged to the Crown.  The Customs Ordinance did not apply to Crown property.   The Privy Council found that the Principal Collector’s authority to sell goods was restricted to circumstances where there was an applicable Customs Ordinance.  As the Customs Ordinance excluded Crown property, the Principal Collector lacked the necessary authority to sell the subject property.

[22]     Throughout the undercover operation, Mr Stevens acted under the direction and supervision of a Ministry investigator, Gray Harrison.   Both Mr Stevens and Mr Harrison were, at the relevant time, part of the Ministry’s Special Operations Unit.   The unit was engaged in an undercover operation to detect and prosecute illegal dealing in paua.  As part of the operation, Ministry officers acting undercover obtained paua from illegal fishers and later on-sold the paua to other persons, one of whom was Mr Ly.   The undercover operation resulted in over 70 persons being prosecuted for offences under the Act.

[23]     The Ministry accepts that Mr Stevens’ participation in the transaction with Mr Ly was in the course of the undercover operation it had authorised.  The Ministry knew or expected sales of paua to occur.  The sale of paua to Mr Ly was a key part of the undercover operation.  That paua had been acquired in an earlier phase of the undercover operation.  When the paua first came into the Ministry’s possession, it would have become Crown property.  Thus paua that was Crown property was sold by an employee of the Ministry with the Ministry’s authority.  The circumstances of this case are different from those in Silva.  Here paua that belonged to the Crown has been sold by an officer of the Crown who was authorised to conduct that sale.   I consider, therefore, that there has been a sale of paua between the Crown and Mr Ly. This must, on any ordinary understanding of what has occurred, be understood to be a transaction between Mr Ly and the Crown.  But can what occurred qualify as an exempt transaction under s 192(10)(c)?

[24]     Section 5(1) of the Interpretation Act 1999 provides that the meaning of an enactment is to be ascertained from its text and in the light of its purpose.   The ordinary and literal meaning of the text of s 192(10)(c) would make this sale of paua qualify as a transaction with the Crown, but this would also mean that the sale could not be an illegal transaction under s 192.  This would be a surprising outcome, which would make undercover operations to detect and prosecute illegal fishing very difficult to conduct.

[25]     The  detection  and  prosecution  of  illegal  fishing  forms  part  of  the  Act’s purpose  of  utilising  fisheries  resources  in  a  sustainable  way.    It  is  necessary, therefore, to consider if it is open to the Court to adopt a purposive interpretation of s 192(10)(c) that avoids the consequences of the subsection’s ordinary and literal meaning.

[26]     Francis Bennion Bennion on Statutory Interpretation (5th  ed, Lexis Nexis, London, 2008) at Part XX, s 304, defines a purposive construction as:

… one which gives effect to the legislative purpose by –

(a)       following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or

(b)       applying a  strained  meaning where the literal meaning is  not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction).

At Part XXI, s 313, Bennion states that:

The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament.  Sometimes, however, there are overriding reasons for  applying  such  a  construction,  for  example  where  it  appears  that Parliament really intended it or the literal meaning is too strong.

[27]     Bennion refers to the principle that in criminal cases, the court will lean against a construction  which would render proof of guilt impracticable.   As an example, the text cites D (a minor) v Yeats [1984] Crim LR 430 in which the defendant was convicted of using a superstar 360 FM CB transreceiver without a licence, contrary to s 5(1) of the Wireless Telegraphy Act 1949, (repealed). This

section said that no person shall “use” such apparatus except under a licence.  The defendant appealed.  She appealed on the ground that it was not proved that she had used the apparatus during the seven day period specified in the charge.  The appeal failed  because  the  court  found  “it  would  be  virtually  impossible  to  obtain  a conviction if the operator had to be apprehended at the time the set was switched on”.  Kerr LJ said, “the word use should be given a broad and sensible interpretation of being available for use”.

[28]     Chapter 10 of J F Burrows and R I Carter Statute Law in New Zealand (4th ed Lexis Nexis, Wellington, 2009) sets out a helpful discussion on when a court can depart from the ordinary or literal meaning of statutory language.  It is clear from the cases considered in chapter 10 that before there can be such a departure, the court must be satisfied that the conditions for doing so are present.  In Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109, Lord Nicholls recognised that in order to discharge its interpretative function, a court must be able to add, omit or substitute words to correct obvious drafting errors. But this was to be done on certain strict conditions:

Before interpreting a statute in this way the court must be abundantly sure of three  matters:  (1)  the  intended  purpose  of  the  statute  or  provision  in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.  The third of these conditions is of crucial importance.  Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.

[29]     Burrows and Carter refer at 308 to 309 to examples of extreme cases where, in order to avoid absurdity, unworkability or the frustration of Parliament’s purpose, the courts have gone a considerable distance to read qualifications into the words of a statute.  In all the cases Burrows and Carter cite, the courts have always been able to ascertain the purpose which their intervention in the statute’s language is intended to achieve.

[30]     In this case, the Act’s purposes are readily ascertainable as they are clearly set out in Part 2.  However, they are high level purposes that throw little light on the

intended purpose of s 192(10)(c).  The first step, therefore, is to ascertain the purpose of this provision.

[31] The Crown has provided helpful submissions which throw some light on how s 192(10)(c) came to be included in the Act. The history of the legislation reveals the following. The predecessor to the current Act was the Fisheries Act 1983. The original form of the Fisheries Act 1983 did not bind the Crown. Furthermore, in its original form, the 1983 Act did not address the issue of who commercial fisherman could sell fish to, and who could buy commercially caught fish. Such restrictions on dealing in fish were introduced as part of the quota management system which was enacted by the Fisheries Amendment Act 1986. Section 3 of the Amendment Act made the 1983 Act binding on the Crown. Sections 67 and 67A of the amended

1983 Act specified the categories of person who could sell or buy fish, and the Crown was expressly included as one of those persons.  The reason why the Crown was   included   is   not   made   express   in   either   the   explanatory   note   to   the Amendment Act or the Select Committee Report.  Nothing more is said than that the Crown should be included.  What types of situation the inclusion should cover is not discussed.

[32]     The Ministry’s analysis of Hansard, with which I agree, is that the apparent reason for including the Crown in ss 67 and 67A of the 1983 Act was that the Government at the time wanted to reserve authority for the Crown to hold quota and to be able to obtain fish, primarily for the purposes of research and development. Hansard records that the opposition considered that the Crown should be subject to the same rules as commercial fisherman.   If the Crown was, therefore, to be both bound by the Act and free to deal in fish, it required an exemption from the restrictions the Act placed on this activity.  On this analysis, the original purpose or reason behind exempting the Crown from s 192 has nothing to do with the enforcement of that section.

[33]     The idea of the Crown being generally subject to fisheries legislation, but with an exemption when it comes to dealing in fish, has been carried through into the current Act.   The Hansard reports on the current Act show that when it was introduced, the Bill largely re-stated ss 67 and 67A but in a clearer format, which is

now to be found in s 192.  The explanatory note of the Bill says that the language used in the 1983 Act has been retained unless “the relevant policy has changed, or good reason exists for re-wording the provision”.  Since there has been no substantial change between the language used in ss 67 and 67A of the 1983 Act and s 192 of the current Act, the policy reasons for exempting the Crown must remain the same.  But the purpose or reasons for exempting the Crown from the Act’s restrictions on dealing in fish are no clearer than they were under the 1983 Act.

[34]     The impact the Crown’s exemption has on undercover operations like that which detected Mr Ly’s conduct is due to the exemption having been drafted so broadly  that  it  includes  every  transaction  with  the  Crown.    This  must  be  an unintended consequence that nobody realised when the subsection was drafted.   It leads to unworkable and impracticable outcomes when it comes to enforcing the Act’s prohibitions on and penalties for illegal dealings in fish.

[35]     I see difficulties, however, in using a purposive approach to interpreting s 192(10)(c)  in  a  way that  would  overcome  the  unintended  consequence  of  the subsection’s broad language.   Transactions like the present could be excluded if qualifications  were  read  into  s  192(10)(c)  to  narrow  its  scope.    This  could  be achieved by reading s 192(10)(c) in a way that excluded transactions with the Crown where the civilian party was unaware that he or she was transacting with the Crown, and did not intend the transaction to be with the Crown.  The evidence clearly shows that Mr Ly neither knowingly nor intentionally engaged in a sale with the Crown.  If s 192(10)(c) were read as requiring a subjective intent on the part of the civilian participant to transact with the Crown, this would effectively exclude transactions with persons like Mr Ly.  However, the conditions which must be present before a court can read down statutory language are not satisfied.

[36]     First, I am not “abundantly sure” of the purpose for the broad language in s 192(10)(c)    The  need  for  such  certainty  is  the  first  condition  identified  by Lord Nicholls  in  Inco  Europe.    An  interpretation  which  narrows  the  scope  of s 192(10)(c) to sales with civilian parties who knowingly and intentionally transact fish with the Crown may exclude transactions which Parliament would want to have

covered.     Parliament’s  use  of  broad  language  to  achieve  the  exemption  in s 192(10)(c) is not to be disregarded.

[37]     Secondly, regarding the third condition in Inco Europe, it is by no means clear to me what the substance of s 192(10)(c) would have been had the error which led to the unintended consequence been noticed.   The idea of limiting the circumstances to which s 192(10)(c) can apply by introducing a requirement for a subjective intent to transact with the Crown has only been thought of as a solution to the present problem the Ministry faces with the prosecution of Ms Vu, and no doubt the follow on effects for other such prosecutions.  So whilst this interpretation avoids the present circumstance, the wider impacts of such a solution are hard to predict.  In the light of the difficulty identifying the purpose behind s 192(10)(c), one can only speculate as to how the draftsman would have re-drafted the subsection.  This is a case where adding in such words would be straining the construction of this exemption to an extent that interferes too far with Parliament’s language.

[38]     Finally, and most importantly, the Ministry has not sought to argue for a purposive approach that would have s 192(10)(c) read in a way that excluded transactions with the Crown where the civilian party was unaware that he or she was transacting with the Crown.  The Ministry has chosen instead to confine its argument to contending that Mr Stevens was not selling paua on behalf of the Crown.  Without hearing full argument on a purposive approach that would see s 192(10)(c) read in a constrained way, I could not be sure that this interpretation meets the Act’s purpose. The interpretation may run contrary to other statutory purposes of which the Ministry is aware, and this may be why it has chosen to argue this appeal as it has.  I am not, therefore, prepared to read s 192(10)(c) in a way that would depart from its ordinary and literal meaning.

[39]     R v Armstrong [2004] 1 NZLR 442 is an example of the Court of Appeal refusing to depart from the ordinary meaning of words in what was then s 233 of the Act, despite the outcome being that the provision was “largely ineffective”. The Court of Appeal held that there had been a drafting error which only Parliament could fix. I consider that the same has occurred in s 192(10)(c). The combination of the purpose of the subsection being unclear, and the subsection using such broad

language, means that I am unwilling to read in any qualifications because of the risk of undermining Parliament’s intention.

[40]     The Ministry argued that the Crown could not direct or authorise a criminal offence to take place.  However, I do not consider this submission has any relevance because the transaction is covered by s 192(10)(c) which makes what has occurred legal.    Under  s  192(10)(c),  transactions  with  the  Crown  which  result  in  the acquisition or disposition of fish are outside the restrictions s 192 places on such conduct.  It follows that I accept Ms Vu’s submission that s 192 cannot provide a foundation  for  establishing  that  Mr  Ly  came  by  the  paua  otherwise  than  in accordance with the Act.

[41]     The Ministry has also argued that for Mr Stevens to buy or to sell paua on behalf of the Crown would be contrary to reg 19(1) of the Fisheries  (Amateur Fishing) Regulations.  I discuss those regulations later in this judgment when dealing with the argument of whether Mr Ly has contravened them.   The effect of those regulations on the culpability of Ms Vu is the same whether in relation to Mr Ly or Mr Stevens.

Has there been an offence committed under the regulations?

[42]     The next question is whether the regulations on which the Ministry relies can provide a foundation for establishing that Mr Ly acquired the paua otherwise than in accordance with the Act.

Fisheries (Amateur Fishing) Regulations 1986

[43]     The Ministry contends that Mr Ly’s purchase of the paua from Mr Stevens contravened reg 19 of the Fisheries (Amateur Fishing) Regulations, because the result of the purchase meant that Mr Ly was in possession of more paua than the permitted allowance under reg 19.

[44]     The Ministry also contends that when it comes to Mr Stevens’ participation in the transaction, if the Court decides that he was buying and selling the paua on

behalf of the Crown, then the Crown has also contravened reg 19.  This formed part of the argument that the Crown could not direct or authorise a criminal offence to take place.  The Ministry appears to be arguing that this view of the Crown, in turn, supports viewing Mr Stevens’ participation in the paua transaction as something that is separate from the Crown.  I have difficulty following this aspect of the Ministry’s argument.

[45]     The purpose of the Fisheries (Amateur Fishing) Regulations is to regulate the taking of fish by non commercial fishers (amateurs) and the possession of such fish by amateurs.  But the regulations have been drafted so broadly that they appear to apply to anyone who happens to possess more than the permitted daily bag limit of paua, irrespective of how they have procured the paua.

[46]     Regulation 2 provides:

These regulations shall apply in respect of all persons taking or possessing any fish or aquatic life to which these regulations relate other than commercial [fishers] taking or possessing the fish or aquatic life under a permit, licence, [catch entitlement], or other authorisation issued or granted under the Act or any regulations made pursuant to the Act. (emphasis added)

[47]     Under s 2 of the Act, “commercial fisher” is defined as:

Commercial fisher—

(a)       means a person who holds a fishing permit issued under section 91;

and

(b)       for the purposes of sections 72 and 75, includes—

(i)       a person who holds a high seas fishing permit; and

(ii)      a person using a New Zealand ship who, in the judgment of the chief executive, holds a valid authority from a foreign country to take highly migratory species in the national fisheries jurisdiction of that foreign country.

[48]     Section 2 defines “commercial fishing” as meaning “taking fish, aquatic life, or seaweed in circumstances where a fishing permit is required by section 89 of this Act”.

[49]     It seems, therefore, that the Fisheries (Amateur Fishing) Regulations may apply to anyone, other than a commercial fisher, who has taken or possessed fish under the authority of a permit or some other authorisation under the Act.  There is nothing expressed in the regulations to exclude them from applying to someone who has come into possession of more paua than the regulations permit as a result of buying  paua  from  the  Crown  in  the  course  of  a  transaction  permitted  under s 192(10)(c).

[50]     Ministry of Fisheries v Williams HC Whangarei AP06/03, 13 November 2003 (at [49] to [52]) is authority for the principle that possessing fish otherwise than in accordance with the Act includes possessing fish otherwise than in accordance with regulations made under the Act.   The Crown has been expressly subject to the fisheries legislation since 1986, which is when the regulations were made.   The result of the decision in Ministry of Fisheries v Williams is that all references to “Act” in the current legislation are to be read as references to regulations as well. This means that s 7 of the Act which makes the Crown expressly bound must be understood to extend to regulations made under the Act as well.  Section 323 deems regulations validly made under the Fisheries Act 1983 to be made under s 297 of the present Act.  Hence, the Crown is seemingly also subject to the Fisheries (Amateur Fishing) Regulations.

[51]     If  the  Ministry’s  argument  relying  on  reg  19  of  the  Fisheries  (Amateur Fishing) Regulations were to be accepted, it would mean that every person who transacts with the Crown, either knowingly or unknowingly, to obtain more than the daily permitted bag limit of paua would be in breach of those regulations. Furthermore, the Ministry’s argument would also lead to the Crown being in breach of the Fisheries (Amateur Fishing) Regulations whenever it possessed more fish than the regulations permit.  This would be a nonsensical outcome.

[52]     The ability to acquire fish in a transaction with the Crown is to be found in the Act.  It is a general principle of statutory interpretation that delegated legislation cannot  override  an  Act  of  Parliament,  and  certainly  not  the  enabling  Act:  see Bennion at 244.  The regulations must be read, therefore, in context with the Act. This means that where the Act allows some form of dealing with fish, the Act trumps

anything in the regulations that would otherwise prohibit such activity.  Reading the regulations like this is the only way to make them workable, and to avoid the bizarre result where persons who have acquired fish from a legitimate source, in terms of the Act’s provisions, are nonetheless in breach of the daily limits that the regulations impose.

[53]     Section 233 makes it clear that an offence is committed once it is shown that the defendant has knowingly possessed and procured fish otherwise than in accordance with the Act.  In the case of both Mr Stevens and Mr Ly, they have each possessed and procured paua in accordance with the Act through their participation in an exempt transaction under s 192(10)(c).   The Act must be seen to permit the Crown, and those who deal with the Crown to engage in such transactions.  Hence, any transaction that is understood to meet the requirements of s 192(10)(c) must also be understood to have been carried out in accordance with the Act, and so it could never constitute an offence under s 233.

[54]     I cannot see how s 233 and the Fisheries (Amateur Fishing) Regulations can be read in any other way.   The only sensible way of interpreting the interplay between the regulations and s 233 of the Act is to understand the regulations to not apply to those occasions where a party can establish that his or her possession of fish is in some other way (here by virtue of s 192(10)(c)) in accordance with the Act.

[55]     It  follows  that  in the circumstances  of this  case,  the Fisheries  (Amateur Fishing) Regulations cannot provide a separate basis for establishing an offence under s 233.

Fisheries (Recordkeeping) Regulations

[56]     The evidence shows that on one occasion, 20 May 2008, Ms Vu was present when Mr Ly purchased paua from Mr Stevens.  They all met at a service station on East Tamaki Road.  Ms Vu was a passenger in the car.   The District Court Judge found that she knew Mr Ly was going to procure paua from Mr Stevens.   The District Court did not specifically make findings on whether or not Mr Ly had committed an offence under reg 6 of the Fisheries (Recordkeeping) Regulations.

The Ministry’s case is that Mr Ly was going to on-sell the paua and, therefore, he meets the definition of a “dealer in fish” in reg 2, which defines a dealer in fish as meaning “a person who is engaged in acquiring fish for the purposes  of sale”. Regulation 6 requires certain records to be kept by dealers in fish.   The Ministry argues that Mr Ly was not keeping any such records.  The difficulty I have with the Ministry’s argument is that the primary focus of the case in the District Court was that  an  offence  had  been  committed  under  s  192  of  the  Act.    Because  the District Court Judge found that s 192(10)(c) did not apply, it was open to him to find that an offence had been committed under s 233 on the ground that there was a contravention of s 192, which meant the paua had been acquired otherwise than in accordance with the Act.

[57]     It may well be that as someone who intended on-selling the paua, Mr Ly would be obliged to comply with reg 6, or else he would commit an offence under that regulation.  But in this case I am dealing with the culpability of Ms Vu.  When it comes to assessing whether or not she was a party to Mr Ly’s contravention of reg 6, I have difficulty seeing how the evidence that was before the District Court could support a finding of culpability on her part.  I do not see how that evidence could demonstrate that Ms Vu had aided and encouraged Mr Ly to commit the offence of not keeping records as required by reg 6.  Nor do I see how her conduct on 20 May

2008, which led the District Court Judge to conclude that she was aiding and encouraging Mr Ly to purchase paua illegally, could also show that she had aided and encouraged him not to discharge the obligations under reg 6.  It follows that I do not find that any offence that Mr Ly may have committed under reg 6 can support a finding that Ms Vu was a party to such an offence.

Conclusion

[58]     There  is  no  foundation  to  support  the  view  that  Ms  Vu  has  aided  and encouraged Mr Ly to knowingly procure or possess paua in a manner that is contrary to s 192 of the Act, reg 19 of Fisheries (Amateur Fishing) Regulations, or reg 6 of the Fisheries (Recordkeeping) Regulations.   The Ministry has provided no other basis for finding that Mr Ly procured or possessed the paua in a way that could form

an offence under s 233 of the Act.  It follows that Ms Vu’s appeal must succeed and the conviction against her be set aside.

[59]     This is another occasion where the Court has found that a drafting mistake in the Fisheries  Act  has  had  the  result  of  making the enforcement  of the offence provisions in the Act ineffective.  Early consideration needs to be given to legislative clarification.

Result

[60]     The appeal against conviction is allowed, and the conviction and sentence imposed on Ms Vu are set aside.

Duffy J