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

An appeal to the District Court The Crimes (Appeal and Review) Act 2001 relevantly provides: s 18 Appeals against conviction to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, …. Fresh evidence may be given but only by leave: s 18(2) and s19. S20 Determination of appeals (1) The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal, or …

1. Neither the Crimes (Appeal and Review) Act 2001 nor the District Court Act 1973 specifically provide for the procedure to be adopted on appeal. The District Court Act 1973 provides that when exercising its criminal jurisdiction the Court shall, so far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction. The Supreme Courts powers can be found in s 75A Supreme Court Act 1970. It applies in the District Court: McKellar v Director of Public Prosecutions [2011] NSWCA 91 at [8]. Section s 75A Supreme Court Act 1970 relevantly provides so far as Appeals are concerned: "(6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (b) the drawing of inferences and the making of findings of fact…"
2. The District Court on appeal exercises a power analogous to that considered in Fox v Percy (2003) 214 CLR 118, where the High Court considered the nature of a "rehearing" in civil proceedings. There, Gleeson CJ, Gummow and Kirby JJ said, at 125-126: "The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. … The appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance."
3. The Magistrate's reasons for judgment are not evidence. However it is well established a District Court Judge is permitted to have regard to the Magistrate's reasons for judgment: Charara v R (2006) 164 A Crim R 39, per Mason J at [23]. The courts appellate function could not be properly exercised unless recourse was had to the Magistrate's evaluation of witnesses' credibility and critical issues: Limitations spoken of in Fox v Percy.
4. A question, still undetermined, is whether a Judge must find error in the decision of the Magistrate before setting aside the conviction.
5. In Dyason v Butterworth [2015] NSWCA 52, McColl JA made the point that, although the District Court does not have the supervisory jurisdiction over the Local Court, within the functions exercised pursuant to s18, a District Court Judge must be alive to the possibility that misapprehensions and errors of judgment can occur in a Magistrate's evaluation of evidence. Her Honour said a District Court Judge is entitled to draw his or her own inferences from the evidence given in the Local Court (with the "natural limitations" of an appellate court); those inferences may, or may not be, contrary to any inferences drawn by the Magistrate.
6. The accepted view in relation to the predecessor to s 18 was that the rehearing and the powers of the District Court on an appeal under s 18 of the Appeal and Review Act are "not dependent upon finding of error at the original trial": Gianoutis v Glykis (2006) 65 NSWLR 539 at [39]. However, in Dyason McColl JA expressed an opinion to the contrary: "[27] The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz (2000) 203 CLR 172 at [23]."
7. This statement is still controversial. While unresolved it adds a level of uncertainty to how a District Court judge approaches a s18 conviction appeal.
8. In AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 it was adopted by Basten JA. Justice Basten said what was said in Gianoutsos v Glykis at [39] is not consistent with recent authorities, which hold that an appellant must demonstrate some legal, factual or discretionary error for the appeal to succeed: [9], [12]. Justice Basten went on to say that the term "error" has no precise meaning; it requires the appellate judge to be satisfied that the judgement under appeal is wrong and should be corrected. How that satisfaction is achieved will depend on a range of factors relevant to specific cases: [34].
9. Simpson JA did not agree. Her review and discussion of the authorities led her to conclude that the appeal under s 18 of the Appeal and Review Act does not depend on a finding of any error by the Magistrate.

The proceedings in the Local Court

1. The prosecution brief was tendered to Magistrate Beattie. That Brief was broken up into Exhibit 1, containing a written opening statement by the prosecution and a "tender bundle;" the key documents extracted from the brief and Exhibit 2 which contained all the statements, and annexures to them, relied on. Her Honour read that evidence with a qualification that some short parts of it were inadmissible as offending the hearsay rule: An example being a recorded interview with Brancatisano, which was excised. Also tendered were two CDs containing surveillance footage of the appellate at the Wollongong Wharf. Her honour had to make no relevant assessment of witnesses as only one, Fisheries Officer Chen was called. His credibility was not put in issue. Her Honour's judgment of 29 July 2016 clearly sets out her reasoning and the material relied on.

The Proceedings in the District Court

1. By agreement the exhibits and transcript in the court below were made available to me the day before hearing so I could read them. They were formally tendered. Exhibit 1 was the original tender bundle, Exhibit 2 the brief of evidence, exhibit 3 and 4 the disc recording covert surveillance of the appellate and Brancatisano. Ms Davenport of senior counsel who appeared for the appellant was content for my focus to be on her Honour's judgment. She submitted that from it I could discern enough inconsistencies and errors to determine this appeal and set aside the convictions.
2. Mr Averre was content with my having read all documents. He asked that I focus on the tender bundle material and the covert recordings made by Fisheries Officer Russell on 14 March 2014 and 18 February 2014 both of which were played in court. The 18 February 2014 recording showed the appellate and Brancatisano on the Lochiel South in Wollongong Harbour talking and looking into the vessel's holding tank. The recording from 14 March 2014 shows the unloading of the seven fish boxes and there being placed on a utility vehicle.
3. In summary Ms Davenport's submitted that: 1. Magistrate Beattie's verdicts of acquittal and guilt contained fundamental inconsistencies in her findings of fact. Particularly so on the issue of the Appellant's state of mind and the defences to s 18 "he had no reasonable grounds to suspect that the other person's possession of the fish was unlawful" and s 35 he "could not reasonably have known that the fish had been illegally taken". 2. Her Honour erred in her interpretation of the terms "take", "lawfully took" and "lawfully taken' in the Act and its regulations.
4. Mr Averre, of counsel, who appeared for the Department submitted that a review of the Magistrate's reasons and the evidence revealed both no factual inconsistency and that her legal interpretation was correct. Further, he said the Ms Davenport's statutory interpretation argument involved so narrow a reading that it would, if accepted, defeat the statutory purpose of the Act and the regulatory scheme for management of the lobster fishery.

The Evidence

1. None of the evidence was in serious dispute. The evidence must be considered as a whole. As part of my fact finding process I am entitled to draw my own inferences from the evidence given in the Local Court. I am entitled to make a value judgment in respect of matters of fact adduced in evidence. Such evaluation will be based on many factors, including my life experiences as an individual in society and my training and experience as a lawyer and judge. That evaluation must be in respect of proved facts. A trial judge is not entitled to use personal experience to make findings of fact or to draw inferences unless that personal experience satisfies the prescription for the use of matters of common knowledge set out in s 144 Evidence Act 1995 (NSW). And, unless the requirements in s 144(4) are complied with, so as to ensure a party is not unfairly prejudiced: see Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229 at [68]-[69]. During the course of hearing the appeal relevant matters were drawn to counsel's attention.
2. In making factual findings or drawing inferences from proved facts I am not bound to follow the factual findings made in the Court below.
3. I find: 1. Prodanovski in an interview of 2 October 2014 with Fisheries Officer Chen denied being in any employment. He said he did not have a financial interest in Illawarra Trading Pty Ltd, but on occasions he would bump into Brancatisano "on the way to unloading our trawler." He said he previously worked as the shop assistant and Manager of Shellharbour Square Fish market: Exhibit 2: Statement Fisheries Officer Chen - Annexure H. 2. Prodanovksi denied ever purchasing lobsters from Brancatisano or that he received fish on behalf of Illawarra Trading Pty Ltd: interview of 2 October 2014. 3. Prodanovski had previous dealings with Brancatisano. In the interview of 2 October 2014 he said it concerned mainly Brancatisano obtaining bait for use in his lobster fishing. 4. On 14 March 2016 Brancatisano was a licenced fisherman operating from a licenced fishing vessel. 5. On that day about 123 lobsters weighing a 100 Kg were taken from the holding tanks of the Lochiel South and put in seven fish boxes. Yellow fisheries tags were attached to each lobster. These tags were not trimmed. 6. Photographs of commercial lobster fishery tags trimmed and untrimmed are found in Annexure D in tender bundle Exhibit 1. Each tab is numbered so that a record can be kept of its use. A tag enables each lobster taken to be recorded and monitored and a proper record kept to ensure licence provisions are met and to help maintain a sustainable commercial lobster industry. 7. An unused tag has a yellow plastic wire about 15cm protruding from it. This tag can be cut or trimmed flush with the locking mechanism. The locking mechanism can also be manipulated so that it can be reused. The photographs show some variations to the mechanism indicative of "distortion." To the untrained eye this distortion is subtle. However, to the untrained eye the presence of an untrimmed 15cm plastic wire is obvious. 8. On 14 March contrary to his denials in the interview Prodanovski attended Wollongong harbour and took possession of seven boxes of tagged lobsters from the Lochiel South. Those boxes were open. Prodanovski handled each box as it was unloaded from the vessel and placed on the tray of the Illawarra Trading Pty Ltd utility he arrived and left in. He can be seen on the recording Exhibit D looking directly into the first box, possibly others.

Fisheries Management Act and related Regulations

1. The Fisheries Management Act section 18 relevantly provides: "(1) A person who has in the person's possession more than the possession limit of any fish is guilty of an offence. This subsection applies irrespective of the period over which the fish were taken."
2. The Fisheries Management Act in s 4 notes "In this Act…"take" fish includes: (a) catch or kill fish, or (b) gather or collect fish, or (c) remove fish from any rock or other matter."
3. The Fisheries Management (General) Regulation 2010 Clause 18 is headed "Possession limits do not apply to fish lawfully taken for sale" it qualifies section 18 by providing that: "(1) It is lawful for a commercial fisher to be in possession of fish in excess of a possession limit specified in this Division if the commercial fisher lawfully took the fish for sale. (2) It is lawful for a person to be in possession of fish in excess of a possession limit specified in this Division if the person purchased or otherwise acquired the fish from another person whose possession of the fish was lawful (whether as a result of subclause (1) or as a result of one or more applications of this subclause). (3) It is a defence to a prosecution for an offence against section 18 of the Act constituted by being in possession of fish in excess of a possession limit specified in this Division if the person charged proves: (a) that he or she purchased or otherwise acquired the fish from another person, and (b) that the other person's possession of the fish was lawful or that there were no reasonable grounds to suspect that the other person's possession of the fish was unlawful.
4. The Fisheries Management Act s35 provides: "(1) A person who is in possession of fish which were illegally taken is guilty of an offence. (2) It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the person could not reasonably have known that the fish had been illegally taken. (3) In this section: "illegally taken" means taken in contravention of a provision of or made under: (a) this Act, or (b) a law of another State or Territory, or of the Commonwealth, relating to fisheries."
5. The Fisheries Management (Lobster Share Management Plan) Regulation 2000 provides in Clause 22. Rock lobster to have tag attached (1) An endorsement holder who takes rock lobster in the fishery must attach a tag to the rock lobster as follows: (a) if, before landing the rock lobster, the endorsement holder transfers the rock lobster from the boat used by the endorsement holder to another boat or transfers the rock lobster to a holding pen, before the rock lobster is so transferred, (b) if paragraph (a) does not apply, immediately after the rock lobster is landed, but in any case no more than 25 metres from the point of landing (that is, the place where the rock lobster is brought ashore) and before entering any premises. (2) The tag that is attached must be a tag that was issued by the Secretary for use in the fishing period in which the rock lobster is taken. (3) The tag must be attached in such a manner that it cannot be removed without being broken. (4) The endorsement holder must, immediately after attaching the tag to the rock lobster, trim the tail of the tag so that it is flush with the locking mechanism. (5) …
6. And in Clause 23 "Unauthorised use of tag A person must not attach a tag to a rock lobster unless the person: (a) is an endorsement holder, or (b) is a member of the crew of a licensed fishing boat being used by an endorsement holder and he or she attaches the tag in the presence of the endorsement holder, or (c) is an officer of NSW Fisheries acting for the purposes of the enforcement or administration of the Act or this Plan."

Factual issues

1. At page 17 of her judgment of 29 July 2016 Magistrate Beattie when dismissing the count relating to trafficking found that: "a. the lies obviously told in the 14 October 2014 interview were not told in consciousness of guilt of the specific offences charged but could have been told "to protect another or to avoid another consequence." And "b. There is no evidence the defendant was aware of that illegal tagging. On the evidence of Ms Russell and on the video we do not see the defendant inspecting tag numbers or even looking inside the crate…". She repeated this finding at page 19 when considering the s 18 offence before finding Prodanovski's failure to look at the tags did not give rise to a reasonable excuse.

Factual issues- Consideration

1. I am not bound by her Honour's factual findings. I can, consistent with authority, make my own findings of fact or take a different view of the facts.
2. First, I can have regard here to his post offence conduct. The lie is relevant to the appellant's possession of the lobsters. I can consistent with authority find that Prodanovski lied because he knew his possession of the lobsters was unlawful. A lie can constitute an admission against interest.
3. Her Honour referred correctly to both to Edwards v The Queen (1993) 178 CLR 193, and Lane v R [2011] NSWCCA 157 and applied the necessary cautions the law insists on. But, with great respect to her Honour a lie can go to one element of an offence, it does not have to go to all of them. A lie told knowing the truth might convict can go to "some circumstance or event connected with the offence if it was told … in circumstances in which the explanation for the lie is that [the defendant] knew that the truth would implicate him in the offence": Edwards at 210-211. The lie here however while it relates to a material issue is not determinative.
4. Secondly, having viewed, and re-viewed, the recording of the appellate taking the fish boxes from the vessel it is clear he did look into, at the very least, the first box and must have seen the contents of each box. Her Honour's judgement focussed on whether or not Prodanovski had inspected the numbers on the tags. That is not my focus here. I am prepared to accept that a purchaser or lobsters does not have to check the tags. I am prepared to accept that a purchaser on a quick glance might miss a distorted locking mechanism on a tag. But, I do not to accept that the appellant, a person who had worked in the fish supply industry and must have some knowledge of the purchase and sale of lobsters, would have missed the fact that over 100 Eastern Rock Lobsters had untrimmed tabs, given the size, length, colour and sheer number of the tags. I have no doubt that Prodanovski looked at the lobsters he helped take from the vessel or wharf and put on the ute. I have no doubt that Prodanovski knew the tags were not trimmed. This finding is determinative of the factual issue regardless of any finding about lies and the use that could be made of them.
5. Brancatisano had not trimmed the tags on his lobsters. Prodanovski knew this when he accepted possession of them. He had experience in the fishing industry. He did not assert on appeal or below anything other than what was revealed in the evidence about what occurred on the wharf on the 14 March 2014 could give rise to a reasonable excuse. Accordingly, any suggestion that Prodanovski had no reasonable grounds to suspect that Brancatisano's possession of the fish was unlawful (the s 18 offence) or that he could not reasonably have known that the fish had been illegally taken (the s 35 offence), is not supported by the evidence.

The Statutory interpretation issue

1. Ms Davenport's argument is with respect deceptively simple. She asserts that each offence, s18 and s35, can be determined by looking at whether Brancatisano's taking of the lobsters was, at time of taking, lawful. If it was then any subsequent dealing with them including Prodanovski's possession of them is not proscribed by either section.
2. She points out "take" includes catching or gathering or collecting the fish. Here she asserts "take" must mean the act of taking the lobster from the sea onto the Lochiel South. Brancatisano was a licensed fisherman working from a Licenced Fishing Vessel. Brancatisano was entitled to take lobster from the sea. Prodanovski knew this or could reasonably be presumed to know this. She submits I must consider these penalty provisions from the perspective of those who take possession of the lobster from the fisherman. When he took possession of the lobster on the afternoon of 14 March 2016 Prodanovski did so from someone who had lawfully taken them and could be presumed to have lawfully taken them because he was licenced to take lobster from the sea.
3. Accordingly, she argues the defence in regulation 18 applies: Prodanovski acquired the fish from another person whose possession of the fish was lawful. And, so far as the s 35 offence is concerned, Prodanovski could not reasonably have known that the fish had been illegally taken because the lobsters were not illegally taken.

The Statutory interpretation issue - Consideration

1. The definition of "take" is not determinative. The inclusion of the word "includes" means the section terms are not exclusive. Both the Regulation that apples to a s 18 offence and s 35(3) include the adverb "lawfully". I have to consider what is meant by "lawfully taken." In that regard the offence provision must be the leading provision and the definition section the subordinate provision in the Act. I also not that the use if the words "take includes" in s 4 means what is set out thereafter is not intended to be exclusive or restrictive. It does not compel a prescriptive reading down of the section or exclude a purposive approach.
2. In engaging in an exercise of statutory construction I can have regard to the purposes or objects of Acts and statutory rule and prefer a construction that would promote the purpose or object underlying the Act: s 33 Interpretation Act 1987. I can also take a practical approach consistent with the purposes of the legislation.
3. I must construe the key terms in the sections, here both "taken" and "unlawfully taken" so that it is consistent with the language and purpose of all the provisions of the statute. As was noted in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed:"
4. Here, that requires reconciling conflicting provisions and determining which must give way to the other. Furthermore, in construing these statutory provisions I must strive to give meaning to every word of the provision: Project Blue Sky [70]-[71]. This involves a consideration of the text of the Act, its general purpose and policy and, in particular, the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, at [47].
5. Fish, including lobsters, must be caught and dealt with on a vessel at sea. Events happen in sequences. Some flexibility is allowed by the Act and regulations to meet the exigencies of life at sea. These include recognising that safety concerns require some things occur after the catch is brought on board, back in harbour or when transfer of the catch is otherwise safe. The Act and regulations place a number of obligations on a licenced fisherman in order to ensure that both the customer and the regulator can be can be satisfied the catch is lawfully taken.
6. The Fisheries Management Act and its associated regulations provides for the proper management of a natural resource in a way that is hopefully sustainable on an environmental and commercial level. It enforces that purpose by penalty provisions. It allows for the taking and sale of a valuable resource - the Eastern Rock Lobster. That particular fishery is subject to extensive regulation. That regulation includes tagging of all lobster taken from the fishery by commercial fishermen and the manner in which they are to be lawfully tagged. Lawful tagging involves trimming the tags before landing: Clause 22 Fisheries Management (Lobster Share Management Plan) Regulation 2000.
7. So far the s 18 offence is concerned the Fisheries Management (General) Regulation 2010 Clause 18 provides no offence is committed if "the commercial fisher lawfully took the fish for sale."
8. So far as the s 35 offence is concerned there no offence is committed unless the lobster were "illegally taken" that is, "taken in contravention of a provision of or made under the Act: s 35(a).
9. Striving to give meaning to every word of the penalty provisions means that I cannot take the narrow route urged on me by Ms Davenport. "Take" is not determined by what occurred at the point a lobster is taken from the sea but at the point the lobster is taken from the fishery. This would mean in most cases where it comes to shore or is transferred to another vessel. If the relevant regulatory regimes are not complied with at the point possession is transferred to another the lobster is illegally taken. These regulations are designed to ensure that where lobster are transferred to those taking possession they can be assured they have been lawfully taken by observing whether or not they are tagged and the tags trimmed. So much must have been, and I find was, obvious when the appellate took possession of the 123 lobsters on 14 March 2014.
10. The offences have been proved. Magistrate Beattie was not in error in the decision she reached. Any errors made were not material. In both matters I determine the appeal against conviction by dismissing the appeals. The orders made in the Court below are confirmed. The Respondent is to have the costs of the appeal as agreed. The parties have liberty to restore within 28 days for a costs determination if agreement cannot reached.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2017