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District Court 10 March 2017

Prodanovski v Department of Trade and Investment, Regional Infrastructure and Services

[2017] NSWDC 43

Other
CRIMINAL: APPEAL

Citation: Prodanovski v Department of Trade and Investment, Regional Infrastructure and Services [2017] NSWDC 43
Court: District Court of New South Wales
Date: 10 March 2017
Judge: A C Haesler SC DCJ

Background

On 14 March 2014, fisheries inspectors observed a licensed fishing vessel return to Wollongong Harbour with a catch that included 123 Eastern Rock Lobsters. Each lobster had a yellow tag attached, but none of the tags had been trimmed, contrary to the requirements of the Fisheries Management (Lobster Share Management Plan) Regulation 2000. The lobsters were loaded into seven fish boxes on the wharf.

Shortly after, the appellant arrived at the harbour driving a utility vehicle. He helped place the seven fish boxes onto the tray of the vehicle and drove away. Subsequent investigations by the Department of Trade and Investment, Regional Infrastructure and Services led to charges under the Fisheries Management Act 1994.

The Magistrate at Wollongong Local Court convicted the appellant on two charges: possessing fish in excess of the possession limit under sections 18(1) and 18(2A) of the Act, and possessing fish that had been illegally taken under section 35(1). Fines totalling $25,000 (with a 50% moiety) and a professional costs order of $10,000 were imposed. The appellant appealed both convictions to the District Court.

Legal Issues

  • Whether the District Court, on a conviction appeal under the Crimes (Appeal and Review) Act 2001, must identify error in the Magistrate's decision before setting aside the conviction.
  • Whether the appellant knew, when he took possession of the lobsters, that the tags were untrimmed.
  • Whether the word "take" in the Fisheries Management Act and associated regulations refers only to the act of removing lobsters from the sea, or extends to the process of bringing them to shore in compliance with all regulatory requirements.
  • Whether, on the correct statutory construction, the lobsters were "illegally taken" and the appellant's possession was therefore an offence.

Decision

Appellate approach: The court acknowledged ongoing uncertainty in NSW appellate jurisprudence about whether a District Court judge hearing a conviction appeal must identify specific error before intervening. The court noted conflicting Court of Appeal authorities, with Basten JA in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 requiring demonstrated error and Simpson JA disagreeing (at [10]-[15]). The court proceeded on the basis that it was entitled to draw its own inferences from the evidence and was not bound by the Magistrate's factual findings (at [11], [22]).

Factual findings: The court found, on reviewing the surveillance footage, that the appellant must have seen the contents of the fish boxes and would have noticed that over 100 lobsters had untrimmed tags. The court accepted that a purchaser might overlook a distorted tag locking mechanism on a quick glance, but rejected the proposition that a person with experience in the fish supply industry would have missed the untrimmed tabs given their size, length, colour, and sheer number (at [34]). The court found the appellant knew the tags were not trimmed when he accepted possession (at [34]-[35]).

Statutory construction of "take": The appellant argued that "take" referred only to the act of physically removing lobsters from the sea, and that because the fisherman held a licence to catch lobsters, the taking was lawful. On this reading, any subsequent possession by the appellant would not be caught by either offence provision. The court rejected this narrow construction. Applying a purposive approach under section 33 of the Interpretation Act 1987 and drawing on the principles in Project Blue Sky and Alcan, the court held that "take" is not determined by what occurs at the point of removal from the sea, but extends to the point at which the lobster is taken from the fishery, typically when it comes ashore or is transferred to another vessel (at [47]).

Application to the offences: The court held that compliance with regulatory requirements, including tag trimming before landing, is integral to the lobster being "lawfully taken" for the purposes of both the section 18 defence (under Clause 18 of the Fisheries Management (General) Regulation 2010) and the section 35 offence. Because the tags had not been trimmed, the lobsters were illegally taken within the meaning of the Act. The tagging regime exists precisely so that those taking possession of lobsters can verify, by inspecting the tags, that the catch has been lawfully taken (at [44]-[47]). Both convictions were confirmed and the appeals dismissed (at [48]).

Orders Made

  • Both appeals against conviction dismissed.
  • All orders made in Wollongong Local Court confirmed (including fines of $20,000 and $5,000 with 50% moiety, and professional costs of $10,000).
  • Appellant to pay the respondent's costs of the appeal, as agreed, with liberty to restore within 28 days for a costs determination if agreement cannot be reached.

Key Takeaways

  • Under the Fisheries Management Act 1994, "take" is not confined to the physical act of removing a lobster from the sea. The District Court held that the word extends to the entire process of bringing the lobster from the fishery, such that non-compliance with regulatory requirements at the point of landing or transfer means the lobster has been "illegally taken" (at [47]).

  • The regulatory requirement to trim lobster tags before landing serves a specific protective purpose: it enables persons taking possession of lobsters to verify compliance with the law by simple inspection. Failure to trim tags was therefore not a minor procedural lapse but a matter that bore directly on whether the lobsters were "lawfully taken" (at [44], [47]).

  • A conviction for possession of illegally taken fish under section 35(1) of the Act does not require proof that the fish were unlawfully caught from the sea. Non-compliance with post-catch regulatory requirements can be sufficient to render the taking illegal (at [46]-[47]).

  • In dismissing the appeal, the court applied a purposive construction of the Act consistent with section 33 of the Interpretation Act 1987, preferring an interpretation that promoted the statutory object of sustainable fishery management over a narrow textual reading (at [40]-[42]).

  • The question of whether a District Court judge must identify specific error before setting aside a Magistrate's conviction on a section 18 appeal under the Crimes (Appeal and Review) Act 2001 remains unresolved following conflicting Court of Appeal authorities, and this uncertainty continues to affect how such appeals are approached (at [10]-[15]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001
- District Court Act 1973
- Fisheries Management Act 1994
- Fisheries Management (General) Regulation 2010
- Fisheries Management (Lobster Share Management Plan) Regulation 2000
- Interpretation Act 1987
- Supreme Court Act 1970

Cases
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Allesch v Maunz (2000) 203 CLR 172
- Charara v R (2006) 164 A Crim R 39
- Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229
- Dyason v Butterworth [2015] NSWCA 52
- Edwards v the Queen (1993) 178 CLR 193, Fox v Percy (2003) 214 CLR 118
- Gianoutis v Glykis (2006) 65 NSWLR 539
- Lane v R [2011] NSWCCA 157
- McKellar v Director of Public Prosecutions [2011] NSWCA 91
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355