Primary Industry - Fish - Offences - Other cases - Taking more than five rock lobster a day - Diver catching and placing in boat more than five - Intention to measure and return to water all undersize and all except the five largest - Whether more than five taken - Meaning of "take".

Fisheries (Rock Lobster) Rules 1997 (Tas), r 11(1)(d).

Wells v Hardy [1964] 2 QB 447; Browning v Barrett [1987] Tas R 122, referred to.

Judgment ID Number: [2001] TASSC 1

KIM HIBBLE v PETER JAMES CANNON and KIM DAVID PEARTON

REASONS FOR JUDGMENT CRAWFORD J 1 February 2001

1 The respondents were charged with taking more than five rock lobster a day, when they were not the holders of a fishing licence (rock lobster), contrary to the Fisheries (Rock Lobster) Rules 1997, r11(1)(d). Particulars in the complaint included that on 21 March 1999 they took 18 rock lobster, of the genus Jasus, from State waters at George's Rocks. Following a defended hearing, a magistrate dismissed the complaint. The complainant moved to review the dismissal.

2 Findings of fact made by the learned magistrate included the following. Each of the respondents held a fishing licence (recreational rock lobster dive). On the day in question they went out in a boat, along with Mr Pearton's father, Mr Alf Pearton. The respondents dived for rock lobster in mirror calm conditions. While diving, they kept apart to avoid tangling their lines. After about three hours they returned to the surface and the boat with their catch, Mr Cannon a minute or two before Mr Pearton. Mr Cannon climbed into the boat with his catchbag containing lobster. Mr Pearton climbed into the boat leaving his catchbag, containing lobster, hooked outside in the water. They intended to sort out what they had caught, dealing first with Mr Cannon's catch. They had each collected a bag full of fish and had not measured them before they left the water.

3 I have difficulty understanding all of the findings of fact which were made by the learned magistrate. However, it appears that he preferred the evidence of the respondents to that of the police officers, so I will relate what some of the respondents' evidence was.

4 As already stated, Mr Pearton left his catchbag containing lobster, hanging outside the boat in the water, while they sorted through the lobster in Mr Cannon's catchbag. There were eight lobster in it. Five of the really big ones were passed to Mr Alf Pearton, who clipped their tails to indicate a decision had been made to keep them, and they were placed in a bin containing water. The other three lobster were of legal size but smaller, and they were placed up one end of the bin and held away from the five clipped ones, while they proceeded to sort through Mr Pearton's catchbag. Essentially it was their common intention to retain between them the 10 largest lobster and to return all the others to the water. They would in any event have returned all undersized lobster to the water. They would then have divided the 10 largest lobster, all with their tails clipped, between the two of them, so that by the end of the day they had each taken and retained five and hopefully large, lobster.

5 Mr Cannon's evidence was that the lobster he had caught were out of the water and in the boat for about five to six minutes before the sizing of them commenced. It was Mr Pearton's evidence that it probably took three minutes or so to sort through Mr Cannon's catch.

6 Mr Pearton then brought his catchbag into the boat and they commenced sorting the lobster caught by him. His evidence was that prior to the arrival of the police, four of the lobster caught by him had their tails clipped and they were placed in the bin (increasing the total of clipped lobster to nine), and two unclipped lobster were placed in the bin (increasing the total of unclipped lobster in the bin to five). However, four of the five unclipped lobster (presumably the smallest ones) were then taken out of the bin and released overboard. Remaining in the bin then would have been nine clipped lobster and one unclipped lobster, all of legal size. A number of lobster remained in Mr Pearton's catchbag, still to be sorted through. The police boat then moved alongside and Constable Barnard boarded. Mr Cannon's evidence concurred with what I have just related.

7 It was Mr Pearton's evidence that Constable Barnard then checked and measured the lobster on board. In the course of doing so he released overboard four undersized lobster (bringing to a total of eight the number of lobster caught by the two men which had been released). The officer then told the respondents that they were over their quota. It was Mr Pearton's recollection that there were 19 lobster remaining on board, nine of them having had their tails clipped and 10 of them unclipped. Adding to that number the eight lobster which had been brought aboard but subsequently released, the evidence of Mr Pearton revealed that Mr Cannon had caught, placed in his catchbag and taken into the boat for sorting, eight lobster, and Mr Pearton had caught, placed in his catchbag and taken into the boat for sorting, 19 lobster.

8 Mr Cannon's evidence was only slightly different. He agreed that by the end there remained nine clipped lobster and 10, 11 or 12 unclipped lobster. He said that Constable Barnard announced that there were 19 fish there and that they were nine over their quota. The officer had put four lobster overboard. Mr Cannon said that (if the police had not arrived) they would have clipped and retained only one more lobster, making a total of 10 clipped and retained, and all the remaining fish would have been liberated back into the sea.

9 The offence was alleged to have been committed against the Fisheries (Rock Lobster) Rules 1997, r11(1)(d), which provided that "a person must not ... take more than five rock lobster a day unless the person is the holder of a fishing licence (rock lobster)". By r15(1) it was provided that a person must not take, buy, sell or have possession of rock lobster less than a certain carapace length.

10 Rule 13 was headed "Possession and control of rock lobster". By subr(2) it provided that a person must not have possession of more than five rock lobster unless one of a number of circumstances existed, one of which was that the person was the holder of a fishing licence (recreational rock lobster dive). Both of the respondents held such a licence, so that the prohibition of subr(2) did not apply to them. However, subr(3) did apply to them. It provided that "the holder of a ... fishing licence (recreational rock lobster dive) ... must not have possession of more than 10 rock lobster". Therefore, it can be seen, in the circumstances of this case, that each of the respondents was prohibited from taking more than five rock lobster a day and from having possession of more than 10 rock lobster.

11 The respondents had Mr Alf Pearton clip the tails of nine rock lobster they had decided to keep and if not interrupted by the police, a tenth would have been clipped. A legal requirement for clipping was contained in r29(a), which required a person, such as each of the respondents, "who takes rock lobster", to ensure that the central segment of the tail fin of the rock lobster was marked in a certain way, and by subr(b)(i), to so mark the lobster "if the rock lobster is caught by any means and placed on a vessel, within 5 minutes of being brought to the vessel and before returning to shore".

12 There is one other legislative provision to which I refer at this point and that is the meaning of the expression "take fish" as provided by the legislation under which the rules were made. I refer to the Living Marine Resources Management Act 1995, s3, which provided as follows:

"take fish" includes any of the following activities, other than an activity authorised under a marine farming licence:

(a) fish for, remove, gather, catch, capture, kill, destroy, dredge for, raise, collect, carry away or obtain in another way from water, land under water or the foreshore:

(b) land from a vessel or in another way, bring ashore or transfer from one fishing vessel to another fishing vessel;

(c) attempt, cause or permit an act mentioned in paragraph (a) or (b)."

13 The learned magistrate said that the respondents had "purported" to commit the offence, in that they had taken more than five rock lobster on the day in question, whereas they were only permitted to "take" five fish in a day. His Worship said that each had taken more than five fish that day, having regard to the meaning of "take" in the Act, s3. There is, of course, no such meaning provided by s3, although there is the meaning of "take fish" to which I have referred. Rule 11(1)(d) prohibited taking more than five rock lobster and the expression "take fish" appears nowhere in the rules. I will return to that aspect later in these reasons.

14 It was considered by the learned magistrate that the scheme of the Act was plain. (He referred to the scheme of the Act, but I think he meant to refer to the scheme of the rules.) The holder of a fishing licence (recreational rock lobster dive) could "take" no more than five rock lobster in a day, although he might have possession of up to 10 rock lobster. His Worship said that r29 permitted possession for up to five minutes to mark the fish, beyond which time the possession became unlawful. That statement was wrong, for r29 did not apply to possession as such. In the circumstances of this case, it required that once the respondents had taken the rock lobster, they had to ensure that the tails were clipped (I use that expression loosely and not in strict accordance with the terms of the rule) within five minutes of the lobster being brought to their boat, and before they returned to shore.

15 I agree with the learned magistrate that under the rules, the number of rock lobster the respondents were entitled to possess (10) did not qualify the number they were permitted to "take" in a day (5), "possession" and "take" not being coterminous. His Worship pointed out that if the definition of "take" (once again I mention that the only relevant definition is of "take fish" in s3) was strictly applied, then every time a diver picked up a lobster, not knowing whether or not it was under the size limit of r12(1) until he had a chance to measure it, and on measuring it he found that it was undersize and immediately released it, he would nevertheless have committed the offence created by r12(1) of taking an undersize rock lobster (and also, I add, the offence of possessing an undersize rock lobster). His Worship went on to say that the scheme of the Act, however, suggested that the definition of "take" in s3, involved more than the physical acts referred to in it. It is not clear how his Worship might have thought that the scheme of the Act had such an affect on the definition. If his Worship was intending to refer to the scheme of the rules, then it must be noted that the rules could not affect the meaning of a word or expression in the Act. In any event, the learned magistrate then went on to say that if the respondents had taken eight fish, five of which were sized and three undersized, but only intended to take sized ones and to discard (return to the water?) the undersized ones after measuring the lobster, he found it difficult to conceive that Parliament[sic] intended that the offence of taking in excess of five lobster in a day had been committed. Further, his Worship doubted that it was intended that if a person takes five lobster, some sized and some undersized, the effect of r11(1)(d) was that the person could take no more lobster in that day, whether sized or undersized. He said that if that was what Parliament[sic] intended, he would have expected it to have been clearly stated.

16 Continuing to confuse the Act with the rules and Parliament with the Minister for Primary Industries and Fisheries, who made the rules, the learned magistrate concluded his reasons for dismissing the complaint:

"The Fisheries legislation is inter alia designed to protect the sustainability of the fishery, the policing of which needs to be facilitated, and the restriction of taking and possession by the various holders of the fishing licences, is designed to that end. Nor do I think that the legislation evinces an intention to discourage the leisurely harvesting of choice lobster specimens, and then the selection of the plumpest, as happened in this case. On the face of it the Act makes taking an act without mitigation, and consequences flow from it. Any apparent harshness of this tough approach to management of of[sic] the fisheries, is remedied in part by the defence of accident in s209 of the Act, which does not apply to the facts in this case. However I am of the view that the Act discloses the intention that the meaning of take is to be considered in the context of the physical realities of fishing in respect of each offence. One can readily appreciate the defence submission that taking is not complete until certain things are done, and S209 evinces the clear intention that wholly innocent acts are not to be the subject to punishment, and that section is plainly directed to the inescapable nature of the commercial fishery. The definition of take in s 3 of the Act viewed as relating to the physical acts only, given the nature of fishing, could lead to an absurd result of potentially creating offences out of purely innocent actions that are the inescapable concomitant of the act of the fishing or 'taking' a person is engaged in, for example if the holder of a recreational pot licence pulled up 8 plainly sized fish, and only intended to keep the 5 largest. Nor do I think that the parliament disclosed an intention to have different standards of responsibility to apply to holders of dive or pot recreational licences. Those physical acts referred to in s3 to be constituent elements of the offence in this case, to do so must be accompanied with the relevant mental element, related to each offence. In the case of regulation[sic] 11(1) (d) of Fisheries (Rock Lobster) Rules, being that the defendants intended to take and keep more than 5 sized rock lobsters. I do not think that this reasoning is inconsistant[sic] to that of Crawford J in Llyod[sic] v Snooks unreported 65/1997, although there is[sic] honour was dealing with a different offence. If I have incorrectly read parliaments[sic] intention, and 'take' in r11 (1) (d) is an offence of strict liability, the defence of honest and reasonable mistake of fact remains available. See Llyod[sic] v Snooks.

As I mentioned in my previous reasons, so far as this offence is concerned, taking is not an offence, but taking in excess of what they are allowed is. The defendants'[sic] say that they thought what they were doing was permitted, that is take the number of fish they had until they released them, they relying on the information brochure that they recieved[sic] with the licences. Listening to them I have no doubt that their belief was an honest one, the brochure referring to 'catch' and 'possession' in a misleading way. The brochure is issued by the Deptarment[sic] of Primary Industry and Fisheries, for the benifit[sic] and information of users, and presumably it is meant by the Department to be relied upon by the licence holder. It is plainly meant as a guide. The brochure notes that it is of no legal effect, and I though[sic] I do not know exactly what this means, as an administrative exercise it cannot exclude a lawful defence otherwise availble[sic] to the defendants'[sic]. It is not unreasonable for licence holders to rely upon it.

After considering all the evidence, I am not satisfied beyond a reasonable doubt that the belief of the defendants'[sic] was not an honest mistake of fact based on reasonable grounds.

17 The information brochure referred to by the learned magistrate, provided information for the public concerning recreational rock lobster fishing. It commenced by stating that it was a guide and had no legal standing. Under a heading "Catch & Possession Limit", it stated that "the holder of a recreational rock lobster ... dive licence is allowed to catch up to five rock lobster per day and possess ten". I note that "catch" was incorrectly used instead of "take", which was the word used by the rules. The brochure advised that persons should not take or possess rock lobster that were soft shelled, undersized or in berry (carrying eggs) and that such fish were required to be returned to the water gently and immediately, in the area from which they were taken. Under a heading "Measuring", it explained the required carapace length of lobster and how the measurement could be made, and stated:

"If diving, rock lobster should be measured as soon as practicable after taking them. If diving from the shore rock lobster should be measured before the diver leaves the water. If diving from a boat rock lobster should be measured before leaving the dive site. Rock lobster not kept should be released carefully in the area from which they were taken and not over sandy bottom.

It may be necessary to carefully spread the antennal horns apart to fit the measure in the correct place. If the other end of the measure reaches beyond the rear edge of the carapace then the fish is not legal size and must be returned gently to the water immediately."

18 Before me, both counsel agreed that it is close to impossible for a diver to accurately measure lobster under water, because of the violence with which the fish struggle. It has always been the practice of divers working from a boat, to measure the fish upon returning with them to the boat.

19 The ratio decidendi of the learned magistrate's decision, included the following:

1(a) Each of the respondents did not intend to take and keep more than five rock lobster of legal size.

(b) The offence created by r11(1)(d), of taking more than five rock lobster a day, is not committed unless the taker intends to take and keep more than five rock lobster of legal size.

2(a) The respondents honestly and reasonably believed, in reliance upon the information brochure, that what they were doing and intending to do was permitted by law, that is, they honestly and reasonably believed that they were permitted by law to each catch more than five rock lobster and take them to their boat, there to measure the lobster and between them to select the 10 largest out of those of legal size, and then to return the balance to the water.

(b) Such an honest and reasonably held belief amounted to a defence to a charge under r11(1)(d).

"1 The learned magistrate erred in law in holding, if he did so hold, that there was a mental element in the concept of "taking" within the meaning of Rule 11 (1) (d) of the Fisheries (Rock Lobster) Rules 1997, particularly in the circumstances of this case; ie, that in order to prove that each of the Respondents had committed an offence under the said rule, the prosecution had to prove that each intended to take and keep more than 5 sized rock lobsters.

2 The learned magistrate erred in law in failing to hold that an offence under Rule 11 (1) (d) of the Fisheries (Rock Lobster) Rules 1997 was an offence of strict liability.

3 Having ruled (in the alternative) that the defence of honest and reasonable mistake of fact was available, the relevant offences being offences of strict liability, the learned magistrate erred in fact and/or in law in holding that he was not satisfied beyond reasonable doubt that the belief of the Respondents (that they were permitted to take the number of fish they had until they released them) was not an honest mistake of fact based on reasonable grounds, in that;

- no such defence was ever raised by the Respondents nor could one have been raised on the facts;

- such belief was a belief as to a matter of law, not fact".

21 Each of the respondents committed the offence created by r11(1)(d) if, on the day in question, he did "take" more than five rock lobster. The meaning of "take" needs to be considered for the purposes of this case.

22 Under the repealed Fisheries Act 1959, s3, the meaning of "take" was said to include "catch, dredge for, raise, kill, and attempt to take". If that definition applied to the circumstances of this case, there would be no doubt that each of the respondents did take more than five rock lobster on the day of their alleged offences, for each of them did catch more than five and raise more than five lobster. By the time the lobster were in the boat there could be no room for doubt that the fish had been well and truly caught and raised, and therefore taken. However, the Act currently in force, the Living Marine Resources Management Act 1995, contains no such definition. In s3 it relevantly provides merely for the meaning of the expression "take fish", which is not the expression used in the Fisheries (Rock Lobster) Rules 1997, r11(1)(d). There is some reason to think that the meaning of "take fish" may be applied to the rule when interpreting its prohibition of a person taking more than five fish of a particular kind, namely rock lobster. However, I will not discuss that aspect further, for I have no hesitation concluding that if the meaning of "take fish" in the Act applied, each respondent took more than five rock lobster, and if it did not apply, they nevertheless did the same thing. There is no reason to doubt that a person has taken a lobster in a situation where he has deliberately taken hold of it while underwater, placed it in a bag, raised it to the surface and placed it in a boat, notwithstanding that he may have contemplated the possibility of subsequently returning it to the sea. As was observed by Lord Parker CJ in Wells v Hardy [1964] 2 QB 447 at 455, "prima facie the word 'take' is of very general import, its primary meaning being to lay hands on, to grasp, to seize, to capture", and an intention to subsequently return fish to the water does not mean that they have not been taken.

23 With respect, the learned magistrate was plainly in error when he held that the offence created by r11(1)(d), of taking more than five rock lobster a day, is not committed unless the taker intends to take and keep more than five such fish. In particular, there is no justification for introducing into the rule, when interpreting it, a requirement for an intention to keep the fish.

24 It was the view of the learned magistrate that unless an element of an intention to keep is to be found in the meaning of "take", an absurd result will be that purely innocent actions which inescapably and unintentionally cause more than five fish to be taken, will amount to an offence, and he gave as an example the holder of a recreational pot licence pulling up a pot containing eight plainly sized fish with the intention of only keeping the five largest lobster. That view ignores the provisions of the Living Marine Resources Management Act 1995, s209, which make it a defence to proceedings relating to the taking of fish if, on becoming aware of the taking of the fish, the person immediately returns the fish to the waters from where it came with the least possible injury. The section is headed "Defence for accidental taking of fish". Of course, there was nothing unintentional or accidental about each of the respondents taking more than five rock lobster, and s209 could not have been used by them as a defence.

25 One result of my interpretation of the meaning of "take" may be that those who dive for rock lobster and find it impossible to measure until they have placed the lobster on board a boat, may well be accused of offending against r12(1), which prohibits persons from taking or having possession of undersize lobster. In that respect there may well be a defect in the rules. It might be desirable to insert in the rules provisions which expressly allow for five lobster to be taken and measured, for those undersize to be quickly returned to the water and for the diver to take further lobster so that he may retain a total of no more than five at the end of the day's fishing. Plainly a diver must first take and possess a lobster before he can effectively measure it, but I see it as an impermissible process of judicial legislation to interpret r12(1) as providing that no offence is committed until the fish have been measured and an opportunity given to return undersize lobster to the water. It may be arguable that the provisions of s209 provide a defence in such a case, but it is unnecessary for me to determine that.

26 There is no doubt that each of the respondents intended to take the lobster they placed in their catchbags, so that the view of the learned magistrate that no offence is committed without an intention to take more than five lobster in a day, could not have assisted them in this case. Nevertheless, I consider his Worship was mistaken in that regard and the correct position is that the offence created by r11(1)(d) is one of strict liability, not requiring proof of an intention to take more than five, although the defence of honest and reasonable mistake will be available, for reasons similar to those applied in Browning v Barrett [1987] Tas R 122. The defence under s209 may also be available in an appropriate case.

27 Accordingly, ground 2 of the motion is made out, although I add that the issue of intention is immaterial on the facts of this case.

28 An alternative route by which the learned magistrate concluded that he should dismiss the charges against the respondents, was through the defence of honest and reasonable mistake. In this Court, counsel agreed that the defence may be raised in an appropriate case but it did not apply in the circumstances of this case. Indeed, the respondents' counsel did not seek to rely on it before the learned magistrate. There was therefore a concession by the respondents' counsel in this Court, that ground 3 of the motion had been established.

29 The learned magistrate found that the respondents honestly and reasonably believed, in reliance upon the information brochure in evidence, that the law permitted them to do what they were doing and intending to do and that accordingly they had a good defence to the charges. The obvious error in that conclusion is that the defence requires a mistake concerning facts. A mistake concerning the state of the law is no defence whatsoever.

30 It is unnecessary for me to say more about mistake, but I mention that his Worship's finding that the respondents were so mistaken concerning the law, because they were misled by the information brochure, is open to question. There was no evidence that Mr Cannon had knowledge of the brochure and its contents. Mr Pearton's evidence was that he had read the brochure when he obtained his licence, and that what it said was that he could measure lobster "before you leave your dive site within five or ten minutes of going back into the boat or going ashore to class your fish and return the ones that is ...". That was not correct. The brochure advised that if diving, rock lobster should be measured as soon as practicable after taking them and when diving from a boat, rock lobster should be measured before leaving the dive site. It also advised that if a fish was not of legal size it had to be returned gently to the water immediately in the area from which it was taken and not over sandy bottom. The only relevant reference in the brochure to time, was where it stated that when operating from a boat, it was required that lobster taken should have their tail fin clipped or punched within five minutes of being brought to the boat and before landing. Concerning the limit relating to the number of rock lobster taken, the brochure stated that the holder of a recreational rock lobster dive licence was allowed to catch up to five rock lobster per day and possess 10. There was nothing in the brochure which could have provided a basis for honestly, reasonably and mistakenly believing that the law permitted a diver to catch more than five rock lobster, take them to their boat, select the five largest out of those of legal size, and return the balance to the water.

31 All of the grounds of the motion to review have been established. Upon the respondents' own evidence they were guilty of the offence charged and the learned magistrate ought to have found the complaint proved. Each of the respondents caught, raised and placed in the boat more than five lobster and as a result each was guilty of taking more than five rock lobster that day, regardless of whether or not they intended to return some to the water.

32 There will be an order setting aside the dismissal of the charge against the respondents. In its place I determine that the complaint was proved against both respondents.