Riley v. Fuchs [2001] QDC 85 (18 May 2001)

District Court of Queensland|2001-05-18

[1] This is an appeal under s.222 of the Justices Act 1886 from the decision of an acting magistrate on 5 June 2000 dismissing complaints against the respondent alleging offences against the Fisheries Act 1994 and the Fisheries Regulation 1995, of taking fish in a way prohibited under the Regulation, and unlawfully possessing regulated fish. The particulars of the complaints indicated that the appellant alleged that the respondent had breached Regulation 89(1) and 89(2), and had unlawfully taken or possessed regulated fish, namely sand whiting of a length less than 23 centimetres. A fourth complaint had been dismissed earlier, following a finding that there was no case to answer, and that is not subject to this appeal.

" (1) A person using fishing apparatus must not allow a part of the apparatus containing fish to be out of the water other than to immediately remove the fish from the apparatus.

(2) A person taking fish with fishing apparatus must immediately release regulated fish, or fish the person did not intend to take, into water deep enough to allow the fish to escape.

(3) Subsections (1) and (2) do not apply if the person has a reasonable excuse."

Schedule 13 of the Fisheries Regulation also declares "sand whiting" of a size less than 23 centimetres to be regulated fish.

[3] The charges arose out of events on 17 October 1999 when two fisheries inspectors found the respondent and his son driving away from the Urangan boat ramp with a boat containing a fishing net which had fish still in it, including undersized sand whiting. There were also a quantity of sand whiting in an esky and a bin on the boat. The respondent was at the time a commercial fisherman who was entitled to fish for sand whiting with a net. The respondent had been fishing from a dinghy, assisted by his son. They had placed the net and obtained a catch of sand whiting, and proceeded to pull one end of the net into the dinghy, unmeshing the fish as they went. However, before they had completed this the balance of the net was simply pulled into the boat with the fish in it, and they headed back to the boat ramp at Urangan.

[4] According to the respondent, it had been his intention to continue unmeshing the fish from the net as they loaded the net into the boat until the whole mesh had been cleared, but he began to feel the effects of a hypoglycaemic attack. The respondent's general practitioner was called and gave evidence that she had treated him for diabetes since 1988 and that his condition was not stabilised. She said and the magistrate accepted that if the respondent's blood sugar level dropped too low, he could reach a state called hypoglycaemia and the seriousness of that condition could range from being relatively mild and relatively transient through to being fatal. The effect of such an attack was to produce symptoms involving a generalised feeling of being unwell, clouded consciousness, sweating, hunger, feeling wretched, and then if uncorrected the condition could move on to a coma. The simplest way of correcting such an attack was to have something to eat. She also said that a person with this condition can appear normal, and will not need anything in the way of medical attention so long as the person is in a position to get something to eat, or drink something sweet.

[5] On that particular day there was nothing available in the boat to fend off such an attack. There was only a bottle of mineral water; the respondent had earlier eaten two pieces of bread. Usually his son took a bottle of Coca Cola with him and that would have been available to be drunk by the respondent if such a situation arose. The respondent said at the trial that following this incident he now routinely takes barley sugar with him when he is out in the boat. On this occasion however he was left with no food immediately available and decided to return to Urangan boat harbour so that he could get something to eat, either there or at home. While the fishery patrol officers were speaking to the respondent, his son went to a shop nearby and obtained a soft drink and some food for him.

[6] The respondent at the trial relied on s.25 of the Criminal Code. That section provides:

25. Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise."

Although these are not offences created under the Criminal Code, the provisions of the Code dealing with criminal responsibility, including s.25, apply to offences created by other legislation unless excluded expressly or by necessary implication: s.36. If s.25 is raised, it is a matter for the prosecution to exclude its application beyond reasonable doubt. There was an issue at the trial about whether the respondent's evidence in relation to this matter was true, but the magistrate accepted the respondent's evidence as credible and the appellant has in the outline of argument not sought to challenge this finding, submitting rather that the evidence was not capable of raising the existence of a sudden or extraordinary emergency for the purposes of s.25 of the Criminal Code.

[7] There has not been a great deal of judicial exposition on the scope of s.25. In Dudley v. Ballantyne [1998] WASCA 198, Owen J, speaking of the equivalent provision in the Western Australian code which is based on the Queensland code, said that there were two factors involved in a defence under the section:

"1. That the act (otherwise incurring criminal liability) was the result of the circumstances of sudden and extraordinary emergency; and

2. That given the circumstances an ordinary person could not reasonably have been expected to act otherwise."

His Honour went on to say that the requirement that there be an emergency would be satisfied if circumstances existed under which a person would have reasonable cause to believe that there was a likely danger to life or property. The particular circumstances of that case however are somewhat different from those of the present.

[8] In Larner v. Dorrington (1993) 19 MVR 75, the Supreme Court of Western Australia considered that there were two issues, involving subjective and objective criteria:

"1. Whether the accused person was or might have been impelled to act and did act because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result; and

2. if so, whether a sober person of reasonable firmness, sharing the characteristics of the accused person, would have responded to that situation by acting as the accused person had acted."

This is consistent with the statement in R v. Webb [1986] 2 Qd.R. 446 at 449 that the existence of the emergency could either be factual or the product of an honest and reasonable, but mistaken, belief.

[9] The magistrate said that he was required to consider the words of s.25 as they applied to the actual circumstances in which the defendant found himself. With respect I entirely agree. He found that the respondent did feel a hypoglycaemic attack coming on while he was at sea, and he was then relatively remote from access to an intake of sugar in the form of food or soft drink. There was nothing on the boat which would assist him; he had already eaten his bread. He knew of the potentially serious consequences of such an attack and he knew that he needed to provide an intake of sugar to remedy the situation.

[10] The magistrate regarded the crucial time as when the decision had to be made on the boat was when he felt the attack coming on. It was submitted by the appellant that an offence would not have been committed if the fish had been removed from the net during the journey back to Urangan, since there was evidence that it was the respondent's son who was actually driving the boat. The regulation requires that the person taking fish "must immediately release regulated fish, or fish the person did not intend to take, into water deep enough to allow the fish to escape." The purpose of the regulation is obviously to ensure that fish which are not actually required to be caught will be able to survive and return to their natural environment. It was submitted that the word "immediately" means "as soon as possible or practicable": Hyland v. Loader (Bundaberg Appeal 53/97, 8.9.97, unreported[1]).

[11] The word "immediately" must be interpreted by reference to the context in which it appears and the purpose of the legislation: Allison v. James [1994] TASSC 122; (1994) 3 Tas R 304 at 311; Wightman v. Land Board of Canterbury (1912) 31 NZLR 799 at 806. In my opinion, the regulation must be interpreted in the light of its plain intention to preserve the life of fish caught incidentally, and in these circumstances the regulation provides a context under which the word "immediately" to be given any sensible operation must be interpreted so as to mean, so far as possible within a sufficiently short time to enable the fish to survive[2]. It is not clear that that would have been the case if the nets had, on this occasion, been fully pulled in and then the fish had been removed from them as the boat was returning to the boat harbour. But for the existence of a defence, the offences would have been committed by the time the boat was returning to Urangan. In my opinion, therefore the relevant time was the time when the balance of the net was pulled into the boat. In effect, I agree with the magistrate.

[12] It was submitted on behalf of the appellant that the circumstances did not fairly raise a reasonable belief by the respondent that he had good cause to fear that death or serious bodily injury would result to him unless he broke the law, by hauling in the nets and not removing the fish from them. In my opinion, in the situation that prevailed, once the magistrate found that the respondent was suffering a hypoglycaemic attack, it followed that the respondent had reasonable cause to believe that circumstances existed which were likely to endanger his life. Whether or not the respondent ought to have had some sugar or something to eat with him on the boat to guard against this situation, the fact was that he did not on this occasion. Once he felt the attack coming on, he had a need to get some sugar in the form of food or sweetened drink to consume within a reasonably short time otherwise there could well be serious consequences to him, indeed consequences which were potentially fatal. Where he did not have immediately to hand the means to avert this danger, he was faced with an emergency. It was a sudden emergency in that the attack came on suddenly. It is not as though he had any warning of it.

[13] In addition, it is necessary to assess the question of whether there as a sudden emergency by reference to the prevailing circumstances. If he had been working at a food shop, so that there was the means immediately to hand to deal with the condition if it became more serious, then there would have been no sudden emergency because he would have had time to deal with the situation without any particular difficulty.

[14] There does not seem to be a finding about how long it would have taken the respondent to have loaded in the rest of the net if he was removing fish from it as he went, but the matter seems to have proceeded on the basis that there was a significant time saving in not clearing the net as he loaded it into the boat, in part because it was a relatively heavy catch of fish on this occasion. The nets contained a significant quantity of fish; from that part of the net which had already been stripped some 220 kilos of fish had been removed and kept, and other fish were removed and discarded. Ultimately a further 80 kilos of fish were removed and kept from the nets after the respondent had returned to the boat harbour and had had something to eat. There was evidence that they had been working for about 80 minutes before the attack, and that there was about a third of the net yet to be cleared.[3]

[15] Given the respondent's position at the time, about half an hour by boat from the Urangan boat harbour, he faced a delay of at least half an hour before he could obtain any food; that is, it was necessary for him at least to return by boat to the Urangan boat harbour. This indicates a delay of at least 70 minutes in getting food or drink if the net had to be cleared first, assuming that the respondent's work efficiency was not impaired by his symptoms. There would also be some time elapsing between when he returned to the harbour and when he could get some food, but at least once he was back at the boat harbour there was a prospect of food being available to him reasonably quickly.

[16] It also seems to have been assumed that he could not have set off in his boat towards the harbour with the net as it was, and either pulled in and cleared the net as he went, or done this after the boat returned to the harbour and after he had obtained something to eat. I assume that the matter proceeded on the basis that such a course was either impractical or would have delayed his return significantly anyway.

[17] By the time he returned to the boat ramp there may well no longer have been any sudden emergency involved, because his condition had not deteriorated seriously and at that stage food was reasonably readily available. But whether at the relevant time the respondent was faced with a sudden emergency has to be assessed in the context that he was out in a boat and any food was necessarily at least half an hour away. In my opinion, it was open on these facts for the magistrate to conclude that, when the respondent felt this attack coming on, he was then faced with a sudden emergency.

[18] The magistrate then had to consider whether the commission of the offence was the result of that situation having arisen, and consider whether an ordinary person in such circumstances could not reasonably have been expected to act otherwise. The magistrate found that the decision to load the net, fish and all, into the boat was taken in order to get the sugar intake that the respondent needed. There would seem to have been then a limited number of choices available to the respondent: he could continue as he had been pulling in the net and clearing it of fish as he went, he could pull in the net without clearing the fish, he could throw overboard that part of the net which was already in the boat or he could cut the net, saving that part already in the boat and abandoning the rest of it. It follows from my analysis of why an emergency had arisen that it was not reasonable to expect him to have chosen the first of these.

[19] The question therefore is whether an ordinary person in his position could not reasonably be expected to act other than by taking the second of these options. In deciding this, I think it is relevant to bear in mind the nature of the offences which were committed[4], and the apparent purpose of the regulation, and the effect of taking either of the latter courses. It is not clear whether the fish in the net could have escaped had the net been abandoned, and it may well be that the fish were doomed whatever happened. Under these circumstances, an ordinary person would reasonably be less concerned about the consequences to the fish of simply pulling the net into the boat without removing the fish from it.

[20] The magistrate found that the respondent's actions were reasonable in the circumstances; on that finding an ordinary person could not reasonably have been expected to act otherwise. I am not persuaded that, on the evidence before him, he erred in making that finding. In my opinion, in the circumstances of this matter, all of the elements of s.25 were at least fairly raised. The magistrate appears to have found positively that the requirements of s.25 had been satisfied. It was in my opinion only necessary for him not to be satisfied beyond reasonable doubt that they were excluded, but certainly once he found that they were present he was bound to acquit.

[21] In these circumstances there is no basis on which I should interfere with the decision of the magistrate. It is therefore not necessary for me to consider further whether, had a defence under s.25 not been raised by the factual matters found by the magistrate, the respondent could nevertheless have established that he had reasonable excuse for the purposes of s.89(3) of the Regulation, which was in itself a defence to two of the charges. This would be a matter on which he would bear the onus[5], but in the light of the findings made by the magistrate, who was satisfied positively about the various aspects of the explanation offered by the respondent, in my opinion had these circumstances not given rise to a defence under s.25, they would have provided a reasonable excuse for the purposes of s.89(3) and therefore the respondent ought to have been acquitted anyway.

[22] In the circumstances therefore the appeal is dismissed with costs.

[1] See also Newnham v. Baker [1989] 1 Qd.R. 393 at 402; R v. Berkshire Justices (1878) 4 QBD 479 at 471.

[2] See Browning v. Barrett [1987] TASRp 16; [1987] Tas R 122 at 127: "at the earliest practicable moment".

[3] That is the way I would read the evidence quoted in the appellant's outline of argument, although the magistrate understood the evidence as indicating that two-thirds of the net remained to be cleared. On either view, the time involved was significant.

[4] I was referred to Dudley v. Stevens (1844) 14 QBD 273 where it was held that necessity was not a defence at common law to a charge of murder when two shipwrecked seamen, after 20 days, killed and ate a cabin boy; but they may well have had a defence if, under such circumstances, they had taken and eaten undersized sand whiting.

Fisheries Regulation 1995

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