Citation: Lochiel South Pty Ltd v NSW Department of Trade and Investment, Regional Infrastructure and Services; Lavalle v NSW Department of Trade and Investment, Regional Infrastructure and Services [2019] NSWDC 22
Court: District Court of New South Wales
Date: 22 February 2019
Judge: Haesler SC DCJ
Background
The first appellant was a corporate shareholder in the Eastern rock lobster share management fishery regulated under the Fisheries Management Act 1994 (NSW). Eastern rock lobster is described in the judgment as a premium table species subject to a strict quota and tagging regime. The second appellant, a director of the corporate appellant, also held personal obligations under the fisheries legislation.
After a defended Local Court hearing spanning two years and over nine weeks of court time, a Magistrate found the corporate appellant guilty of 27 breaches of the Fisheries Management Act 1994 and three breaches of the Fisheries Management (General) Regulation 2010. These included the sale of untagged Eastern rock lobster and various contraventions of the Lobster Share Management Plan by the company's nominated fisher. The director was found guilty of three offences on the basis of imputed liability derived from the Act's shareholder obligations provisions.
On sentence, the Magistrate imposed fines totalling $378,000 on the corporate appellant (with findings of guilt only, and no further penalty, recorded for the remaining matters) and $40,000 on the director. Costs orders and, significantly, a forfeiture of the corporate appellant's shares in the fishery were also made. Both appellants appealed their convictions, sentences, costs orders, and, in the corporate appellant's case, the forfeiture order, to the District Court.
Legal Issues
- Whether the Magistrate erred in law in convicting the corporate appellant and its director of the relevant fisheries offences, including in drawing inferences from the evidence
- Whether concessions made by the appellants' representatives in the Local Court could be withdrawn on appeal, and whether new arguments not raised below could be pursued
- Whether the defence of honest and reasonable mistake was available and established on the evidence
- Whether the element of "knowingly permit" a contravention was proved against the corporate appellant
- Whether the sentences, including the quantum of fines and the level of accumulation, were appropriate
- Whether the forfeiture of the corporate appellant's shares in the Eastern rock lobster fishery was warranted
Decision
Haesler SC DCJ dismissed all grounds of appeal for both appellants. His Honour reviewed the Magistrate's 1048-paragraph judgment in light of the appeal submissions, transcript of over 2,300 pages, and eight volumes of appeal books. The District Court exercised its rehearing power under the Crimes (Appeal and Review) Act 2001, drawing its own inferences from the Local Court evidence while affording appropriate respect to the Magistrate's conclusions.
On the conviction appeals, the Court found no error in the Magistrate's reasoning or in the inferences drawn from the proved facts. Several arguments advanced on appeal had not been raised below, and some were directly contrary to positions taken in the Local Court. The Court noted that no issue estoppel operates in criminal proceedings to prevent the prosecution from resisting new arguments, but equally held that the appellants could not simply withdraw concessions made below in order to reframe their case on appeal.
On the sentence appeals, the Court confirmed the fines, the accumulation of penalties, and the costs orders. On the forfeiture question, the Court upheld the Magistrate's order forfeiting the corporate appellant's shares in the fishery. The corporate appellant had been convicted of 27 offences capable of grounding forfeiture, had shown no competence in preventing its nominated fisher from offending, and had taken no positive steps toward compliance. As the Magistrate had found, and the District Court agreed, the corporate appellant "was not a proper receptacle of the trust emplaced on it" by the State in granting it participation in this tightly controlled fishery.
Orders Made
Lochiel South Pty Ltd:
- Conviction appeal dismissed
- Sentence appeal dismissed; all Local Court orders confirmed
- Costs order appeal dismissed; all Local Court orders confirmed
- Forfeiture order appeal dismissed; all Local Court orders confirmed
- Appellant to pay respondent's costs of the appeal (as agreed, or liberty to restore within 28 days if not agreed)
Tory Lavalle:
- Conviction appeal dismissed
- Sentence appeal dismissed; all Local Court orders confirmed
- Costs order appeal dismissed; all Local Court orders confirmed
- Appellant to pay respondent's costs of the appeal (as agreed, or liberty to restore within 28 days if not agreed)
Key Takeaways
- A corporate shareholder in a share management fishery carries strict and imputed liability obligations under the Fisheries Management Act 1994; the conduct of a nominated fisher can ground offences by the shareholder entity even where the shareholder did not directly participate in each breach.
- Arguments not raised in the Local Court, or positions directly contrary to concessions made below, face significant obstacles on a conviction appeal to the District Court, which reviews the evidence rather than merely supervising for legal error.
- Under s 75 of the Fisheries Management Act 1994, forfeiture of fishery shares is available upon conviction for qualifying offences; the District Court confirmed that the existence of a parallel ministerial demerit-point forfeiture power is a relevant discretionary consideration but is not determinative of whether a court-ordered forfeiture should follow.
- In dismissing the forfeiture appeal, the Court emphasised that a failure to take any positive steps to prevent a nominated fisher from offending weighs heavily against a convicted shareholder seeking to retain its shares.
- The defence of honest and reasonable mistake requires affirmative proof by the defendant; answers given during a statutory interview with fisheries officers may ground inferences adverse to that defence.
Legislation and Cases Referenced
Legislation:
- Fisheries Management Act 1994 (NSW), including ss 65, 75, 279
- Fisheries Management (Lobster Share Management Plan) Regulation 2000
- Fisheries Management (General) Regulation 2010, cl 75
- Crimes (Appeal and Review) Act 2001 (NSW), ss 17, 18, 19, 20
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A
- Criminal Procedure Act 1986 (NSW)
- District Court Act 1973 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Fox v Percy (2003) 214 CLR 118
- Charara v R (2006) 164 A Crim R 39
- Gianoutis v Glykis (2006) 65 NSWLR 539
- Dyason v Butterworth [2015] NSWCA 52
- Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
- Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218
- He Kaw The v The Queen (1985) 157 CLR 52
- CTM v The Queen (2008) 236 CLR 440
- Hardt v Environmental Protection Authority [2007] NSWCCA 338
- Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68
- Various other NSW Court of Criminal Appeal authorities cited on sentencing and appeals principles