Wilson v Police

[2015] NZHC 1669

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-15 [2015] NZHC 1669

BETWEEN

MICHAEL WILSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	30 June 2015
Counsel:	Appellant in person C M Gisler for Respondent
Judgment:	17 July 2015

JUDGMENT OF FOGARTY J

(Supplementary submissions received from respondent and appellant)

This judgment was delivered by me on 17 July 2015 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Crown Solicitors, Whangarei

WILSON v POLICE [2015] NZHC 1669 [17 July 2015]

[1]      In a reserved decision following trial in the Kaikohe District Court, dated

12 March  2015,  Judge  de  Ridder  found  the  appellant  guilty  of  one  charge  of operating a ship in a manner which caused unnecessary danger or risk, pursuant to s 65(1)(a) of the Maritime Transport Act 1994 which provides:

65       Dangerous activity involving ships or maritime products

(1)      Every person commits an offence who—

(a)       Operates, maintains, or services; or

(b)      …

any ship or maritime product in a manner which causes unnecessary danger or risk to any other person or to any property, irrespective of whether or not in fact any injury or damage occurs.

[2]      On 11 March, the defendant’s application for discharge without conviction

was refused and he was fined $2,500.

[3]      The appellant now appeals against both the conviction and the refusal of the application for discharge.

The incident on 6 March, off North Cape

[4]      Shiraz was a fishing vessel engaged in fishing and displaying the red and white masthead lights for such use, it was conned by Mr Wilson.

[5]      From a distance of about half a mile, Mr Wilson recognised a vessel ahead as the  Independence.    He  knew  that  Independence  was  licensed  for  charter.    He regarded the Independence as fishing illegally outside its legal area of operation as its commander did not have a licence to operate commercially in these waters. Independently of its illegal area of operation, he regarded it as “the stand-on vessel” in his way, and so obliged by law to keep out of his way.

[6]      On that day the Independence was not being used for a commercial charter. Onboard were its owner, Mr Woolston, its skipper, Mr Noakes, the owner’s son and a deck hand. They were trolling live bait at approximately one to two knots.

[7]      Independence was heading in a southerly direction.  Shiraz was heading in a westerly direction and so approaching the side.

[8]      Having seen the Independence from a long way off, the Shiraz had every opportunity  to  alter  course  and  avoid  Independence  by  a  wide  margin,  after  it became apparent that the Independence was doing nothing to alter course.

[9]      To the contrary, the Judge found that having identified the vessel to be the Independence, Mr Wilson steered the Shiraz towards the Independence.   This is because Mr Wilson considered Independence to be operating illegally.  Mr Wilson had reported what he considered the illegal fishing activities of this vessel to the authorities on several occasions.  He personally had spoken to the skipper and owner about this.   In his mind, they continued to offend.   It mattered not, on his understanding of the law, whether the Independence was chartered on this occasion.

[10]     Upon closing on the Independence, Shiraz made three manoeuvres across the stern of the Independence within 50 metres of the vessel, the last two with the intent to sever the trolling lines.  He succeeded in severing a line.  That trolling line was from a rod held in a bracket.  Concerned not to lose the live bait, one of the persons on the vessel was pulling in that line by hand so as to be at risk of injury, the Judge found, when the line was severed.

[11]     Mr Wilson does not dispute that finding of risk, except to say that he could not have anticipated hand recovery of the line in the circumstances.  He accepts that he, in the last manoeuvre of the three, was deliberately intending to severe lines in order to stop what he considered to be illegal activity.  The three manoeuvres were summarised in the Judge’s decision:1

[9]       When  Mr  Wilson  observed  a  vessel  which  turned  out  to  be Independence some way off in the distance he altered course towards it. Independence maintained its southerly heading without changing direction or  speed.     Shiraz  approached  the  port  side  of  Independence.    As  it approached Independence Shiraz turned right and then passed the stern of Independence over to its starboard side.  There Shiraz executed a turn and crossed again behind the stern of Independence to the port side where it again executed a turn and again traversed behind the stern of Independence.

1      Police v Wilson [2015] NZDC 3715, 12 March 2015.

On the second crossing of the stern of Independence one of the trolling lines from Independence was cut by something on Shiraz.

[12]     Mr Wilson’s ground of appeal was an error of law on the part of the District Court Judge.  He argued that Independence was obliged by law to keep out of his way as Shiraz was trolling legally and displaying the red over white lights of a fishing vessel.  He therefore held his collision course with Independence, relying on Independence to alter course.  It did not.

[13]     As he closed and seeing that Independence was doing nothing to keep out of his way, he then took appropriate action to avoid collision and turned to starboard, passing, he said, well astern of Independence.

[14]     Had the manoeuvring ended there, it is unlikely that there would have been any prosecution.  But, as is recorded in [9] of the judgment set out above, he turned and re-turned twice across the stern of the vessel with the intention to sever the lines and bring to an end what he considered to be illegal activity.

[15]     Judge de Ridder has the benefit of an expert witness, Mr Gooder.  Mr Gooder considered in this close encounter, Shiraz was the vessel required to keep out of the way.  Rule 22.15 of the Maritime Rules applied in his view, to the effect that where two power-driven vessels are crossing, the vessel that has the other vessel on its starboard side is to keep out of the way.

[16]     Mr Gooder was also of the opinion that the second and third passes of Shiraz across  the  stern  of  Independence  did  not  amount  to  good  seafaring  practice  as required by r 22.8(1).  Mr Gooder was on the opinion that there was no justification for the two vessels to being within 100 metres of each other, given the circumstances on that day.

[17]     The Judge’s critical findings underpinning the conviction appear in [42] and

[43]:

[42]     Quite apart from the Maritime Rules I am satisfied that Mr Wilson operated Shiraz in a manner which caused unnecessary danger or risk to Independence, its crew and its passengers.   Based on the calculations of distance travelled in Mr Gooder’s evidence, there was very little if any

margin for error if something had gone wrong onboard Shiraz.  I find that Mr Wilson deliberately continued to sail Shiraz directly at Independence when he had more than ample time prior to when he did alter course to take Shiraz on a totally different course well away from Independence.   Mr Wilson himself confirmed this in cross examination when he stated that he wanted to go and chase Independence away.  (p.161, 1.28)

[43]      Mr Wilson on his own evidence accepted that he deliberately crossed behind the stern of Independence in order to cut the trolling lines being used by Independence. At the time one of those lines was being retrieved by hand by Mr Noakes who was seated on the flying bridge.  When he realised that Shiraz was going to cross so close to the stern of Independence thus putting his line at risk, he endeavoured to retrieve it quickly.   By the time Shiraz passed the stern of Independence on the second occasion he had nylon coiled on the floor on the bridge and when the line became caught on some part of Shiraz it was dragged rapidly out of the bridge area and became caught on the chair prompting Mr Noakes to cut the line with a knife.   Mr Wilson’s actions in deliberately trying to cut the line being trolled from Independence were clearly dangerous.  There was a very real and clear risk that somebody on board Independence may have become entangled in the line as it was being stripped out the back of the boat.   His actions clearly caused unnecessary risk to the people onboard Independence.

[18]     In the course of the hearing of this appeal, it became apparent that Mr Wilson remains  fixed  in  his  view  that  the  Independence  was  operating  illegally  and, secondly, was obliged to get out of Shiraz’s way, principally for that reason.  Shiraz, operating legally and trolling, should not have had to avoid Independence.  He did not dispute the finding of fact that he had altered course to Independence.  Plainly he considered he was justified in ending what he saw was illegal activity by endeavouring to sever the trolling lines.

[19]     Mr Wilson has been clearly frustrated by what he sees as inaction by the authorities to his prior complaints of Independence’s illegal activity.

[20]     It is an irrelevant fact as to whether Independence was operating legally or illegally.  There was no justification for such manoeuvring of Shiraz across the stern of Independence, as it was dangerous and thereby in breach of s 65.  Section 65 is a superior law to all regulations.   The collision rules guide the decisionmaking by commercial vessels under the control of professional mariners, who know the rules. They can never be a justification for engaging with a vessel who is not being conned by the rules, let alone be allowed to trump s 65.

[21]     As to the culpability of the offence, when private vessels are fishing, it is customary  not  to  invade  the  other’s  area  of  fishing.     Mr  Wilson  said  the Independence refused to give way to Shiraz because they were going slowly and it had come into their area of fishing. That accords with custom.

[22]     Mr   Wilson   argued   that   Judge   de   Ridder   had   mistakenly   accepted Independence to be a private (pleasure) boat.  The witnesses aboard Independence claimed that they could use it as a private pleasure boat when the owner is using the boat for his own use.

[23]     Mr Wilson argued this was an error of law as the 2013 Maritime Rules, Part

91 – Navigation Safety Rules, define “pleasure craft” in r 91.2 as meaning:

A vessel that is used exclusively for the owner’s pleasure or as the owner’s

residence, and is not offered or used for hire or reward.

[24]     Rather,  he  argued  that  Independence  being  licensed  as  a  commercial passenger vessel is restricted to the operating limits assigned to it by a maritime surveyor  and  by the  qualifications  of  the  skipper,  whichever  is  the  lesser.    He submitted  that  the  skipper,  Mr  Noakes,  only  holds  a  CLM  qualification  which restricts both him and the boat to in-shore limits.  The distinction in the Navigation Safety Rules is between recreational craft and “fishing vessel” meaning a ship used for catching fish etc for profit.  The Navigation Safety Rules are basic rules largely dedicated to use of vessels in shallow or coastal waters such as for water skiing, motoring through access lanes and anchoring near jetties etc.

[25]     By contrast, the Maritime Rules on collision prevention have a different purpose.  They are under Part 22.  They do not distinguish recreational vessels from commercial vessels.   They appear to have nothing to do with enforcing limits on individual masters licences to operate commercial vessels.   (I did not receive full argument on this point.) They are directed to the use of all vessels.  “Vessel” is given a wide meaning, being “any ship or any wing in ground craft (WIG craft) or sea plane”.  For the most part they are, however, designed for guiding large commercial vessels, appropriately lit and conned by professionals.

[26]     This case is not the occasion to determine whether or not Independence can be used as a private pleasure boat for the owner’s pleasure as well as separately being used as a commercial charter boat and subject to the requirement that the skippers have qualifications and the boat be used within the limits of those qualifications.

[27]     It is apparent from the submissions that Mr Wilson has lodged that he has had a personal opinion that Independence has been fishing illegally: “Since she first went into survey (at least 14 years ago).”

[28]     Views in this regard do not justify him taking the law unto himself and manoeuvring dangerously astern of the Independence with the deliberate intention of terminating what he considered to be its illegal activities.   The appeal against conviction is dismissed.

[29]     I turn to the appeal against refusal  to discharge him without conviction. Mr Wilson is not directly appealing the fine.  He is appealing against the refusal of the Judge to discharge him without conviction enabled by s 106 of the Sentencing Act.  Section 107 guides the application of s 106:

107      Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[30]     These are very difficult criteria to satisfy.

[31]     It is apparent from the judgment of Judge de Ridder, that Mr Wilson sought to argue that he was trying to stop Independence fishing illegally and, second, that he was concerned that if he is convicted, he may be prevented from travelling to visit his brother and family in Hong Kong.

[32]     The Judge noted that Mr Wilson is currently under investigation by Maritime New Zealand as to whether he remains a fit and proper person to hold the maritime documents that he does.  The application for a discharge is opposed by the police. The Judge in dismissing this application relied on his deliberate conduct and on a

finding that this was a private fishing trip being conducted by the owner of the vessel. The Judge found:

Therefore  Independence  was  perfectly  entitled  to  be  doing  what  it  was doing.

[33]     The Judge rejected the risk of the issue of travel to Hong Kong.  As to his continuation of the holding of maritime licences, the Judge was of the view that Maritime New Zealand was the appropriate authority to make decisions about whether persons were fit and proper to hold appropriate licences and that the Court should not interfere.

[34]     I am not making a finding as to whether Independence was operating illegally or not.  I make no finding either way.  Even if it was operating illegally, in my view, the conduct of Mr Wilson in three passes astern of Independence with the intention of cutting its lines was dangerous manoeuvring of the Shiraz in breach of the Maritime Rules and the Judge properly reached that conclusion.   In these circumstances, assuming I have the jurisdiction to apply s 106 if Judge de Ridder was wrong in finding that Independence was being operated legally as a private pleasure craft, I would not exercise discretion under s 106 in favour of Mr Wilson.

[35]     Accordingly, the appeal against conviction is dismissed.