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Court of Criminal Appeal 27 September 2017

Prodanovski v Andrews

[2017] NSWCCA 230

Other
APPEAL AND REVIEW CRIME REGULATION OF COMMERCIAL FISHING PROTECTION OF EASTERN ROCK LOBSTER

Citation: Prodanovski v Andrews [2017] NSWCCA 230
Court: Court of Criminal Appeal, NSW
Date: 27 September 2017
Judges: Basten JA (primary reasons); Walton J and Price J (agreeing)

Background

The applicant was convicted in the Wollongong Local Court of two fisheries offences: possessing eastern rock lobster in excess of the possession limit in aggravated circumstances (contrary to s 18(2A) of the Fisheries Management Act 1994 (NSW)), and possessing fish that had been illegally taken (contrary to s 35 of the same Act). Fines were imposed on each count.

The applicant appealed to the District Court, which dismissed both appeals in March 2017. The primary judge then acceded to the applicant's request to state a case to the Court of Criminal Appeal on questions of law arising from the statutory construction of the Act and its regulations.

The central factual issue was that a commercial fisher, Mr Brancatisano, had transferred 123 eastern rock lobsters to the applicant at Wollongong Harbour. The tails of the tags attached to each lobster had not been trimmed flush with the locking mechanism as required by clause 22 of the Lobster Share Management Plan (contained in the Fisheries Management (Lobster Share Management Plan) Regulation 2000 (NSW)). The prosecution relied on this tagging defect to establish that the lobsters had not been lawfully taken and had in fact been illegally taken.

  • Whether a commercial fisher who transfers rock lobster to another person without properly tagging the lobster (as required by cl 22 of the Lobster Share Management Plan) has "lawfully taken" the fish for sale within the meaning of cl 18(1) of the Fisheries Management (General) Regulation 2010 (NSW).
  • Whether, as a consequence, the defence in cl 18(3) of the General Regulation was available to the applicant (who acquired the lobsters from that commercial fisher) in answer to the s 18 possession offence.
  • Whether improperly tagged rock lobster is "illegally taken" for the purposes of s 35 of the Act, such that possession of it constitutes the offence of possessing illegally taken fish.

Decision

The s 18 possession offence and the cl 18(1) defence

Clause 18(1) of the General Regulation exempts a commercial fisher from the possession limit only if the fisher "lawfully took the fish for sale." The court held that the activity of "taking" fish is not confined to the moment of physical capture. Rather, it extends across the entire process from capture through to landing, including the steps required by regulation to be taken during that process. Because cl 22 of the Management Plan required the tag to be attached and trimmed at or before landing, the tagging obligation formed part of the act of "taking" the lobster. Mr Brancatisano's failure to trim the tag tails meant he had not lawfully taken the lobsters for sale, so cl 18(1) did not apply.

The cl 18(3) defence

The defence in cl 18(3) is available where a person acquires fish from another person whose "possession of the fish was lawful." The court found that lawful possession, in this context, required compliance with the tagging scheme. Because Mr Brancatisano's possession was not lawful even if the initial taking were treated as otherwise valid, cl 18(3) did not assist the applicant on its first limb. The applicant's alternative argument (that he had no reasonable grounds to suspect the possession was unlawful) had been rejected on the facts and was not revisited on appeal.

The s 35 "illegally taken" offence

Section 35 defines "illegally taken" as fish taken in contravention of a provision made under the Act. The court confirmed that the tagging requirement in cl 22 was such a provision, and that a contravention of it rendered the lobsters "illegally taken." The temporal scope of "taking" again proved decisive: the failure to tag during the landing process was a contravention that coloured the entire act of taking, so the lobsters were illegally taken for the purposes of s 35. The applicant's conviction on this count was therefore also upheld.

Orders Made

  • The stated questions were answered against the applicant: the commercial fisher did not lawfully take the lobsters for sale under cl 18(1), nor did he lawfully possess them under cl 18(3); and untagged rock lobster is "illegally taken" for the purposes of s 35.
  • The applicant's convictions on both charges were confirmed as correct.
  • The applicant required, and was granted, an extension of time to bring the case stated.
  • Costs were ordered against the applicant (not opposed).

Key Takeaways

  • The act of "taking" fish under the Fisheries Management Act 1994 (NSW) is not a momentary event limited to physical capture. It extends through the landing process, encompassing regulatory steps (such as tagging) required to be completed at or before landing.
  • Under cl 18(1) of the Fisheries Management (General) Regulation 2010 (NSW), a commercial fisher's entitlement to possess fish in excess of the possession limit depends on having "lawfully taken" that fish for sale. A failure to comply with tagging requirements during the landing process defeats the lawfulness of the taking.
  • The defence in cl 18(3) of the General Regulation is available to a person who acquires fish from another, but only where the transferor's possession was itself lawful. Defective tagging by the transferor removes that foundation.
  • Rock lobster not tagged in accordance with cl 22 of the Lobster Share Management Plan is "illegally taken" within the meaning of s 35 of the Act, exposing a subsequent possessor to criminal liability unless the s 35(2) defence (that the possessor could not reasonably have known the fish were illegally taken) is established.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that regulatory compliance steps embedded in the landing process are integral to whether a "taking" is lawful, not merely administrative formalities that sit outside the core offence provisions.

Legislation and Cases Referenced

Legislation
- Fisheries Management Act 1994 (NSW), ss 4, 5, 6, 18, 21–25, 35, 60, 78, 107, 201, 241, 248
- Fisheries Management (General) Regulation 2010 (NSW), cll 18, 48; Pt 3
- Fisheries Management (Lobster Share Management Plan) Regulation 2000 (NSW), cll 14, 15, 22, 23, 25, 35, 40A, 44, 46A; Sch 1
- Criminal Appeal Act 1912 (NSW), s 5B
- Supreme Court Act 1970 (NSW), s 69

Cases
- Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55
- Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61
- The King v Adams (1935) 53 CLR 563; [1935] HCA 62
- Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12
- Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53