Department of Primary Industries v Pacific Shoji Pty Ltd [2006] NSWSC 728

New South Wales Supreme Court

CITATION : Department of Primary Industries v Pacific Shoji Pty Ltd [2006] NSWSC 728 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 3 July 2006 JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

EX TEMPORE JUDGMENT DATE : 07/03/2006

DECISION : Summons dismissed with costs

CATCHWORDS : Fishing regulations - undersized abalone purchased by wholesaler - honest belief that abalone not undersized - honest belief that suppliers had measured and would not supply undersized product - mistake of fact - acquittal upheld

LEGISLATION CITED : Fisheries Management Act 1994 s 16

CASES CITED : Proudman v Dayman (1963) 67 CLR 536 Von Lieven v Stewart (1990) 21 NSWLR 52

PARTIES : Department of Primary Industries (Plaintiff) Pacific Shoji Pty Ltd (Defendant)

FILE NUMBER(S) : SC 10952/06

COUNSEL : Mr G Craddock with Ms M Avenell (Plaintiff) Mr G Jauncy (Defendant)

SOLICITORS : I V Knight (Plaintiff) Fitzpatrick Teale by their agents Gordon & Johnstone

Ex tempore - revised

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

MONDAY 3 JULY 2006

10952/06 - DEPARTMENT OF PRIMARY INDUSTRIES v PACIFIC SHOJI PTY LTD

JUDGMENT 1 HIS HONOUR: The defendant in this matter, Pacific Shoji Pty Ltd, was charged with offences under s16 of the Fisheries Management Act 1994. Section 16 is in the following terms:

" Offences relating to prohibited size fish (1) A person who has prohibited size fish in the person's possession is guilty of an offence. (2) A person who sells prohibited size fish is guilty of an offence. Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units or imprisonment for 3 months, or both." 2 The facts were, in substance, undisputed. Something like 900 kilograms of abalone had been delivered to the defendant's premises. About 33 kilograms of that abalone was, on measurement by Fisheries' officers, found to be between 2 and 6 millimetres smaller than the regulation 11.5 centimetres. 3 The managing director of the defendant, Mr Spurrier, told the Fisheries' officer and later gave evidence before the Magistrate, in substance, that he believed the abalone complied with the regulation size limit because measurement of the abalone was the obligation of the divers who supplied the abalone to his company. They are licensed and obliged by law to ensure that they had not fished under-sized abalone; Mr Spurrier thought they had satisfied that obligation. He was himself unaware of the legal limit but thought it was about 11 centimetres. 4 He said in evidence when asked why his company did not have a measuring device: "Because it is the diver's responsibility. It is always…we're buying in good faith off the divers. It's their responsibility to provide us with a legal sized product and I always believed that is what we received." 5 Mr Spurrier was correct when he said that regulatory regimen required the abalone to be measured twice by the licensed divers before delivery to his company. 6 It is submitted by Mr Craddock of counsel for the defendant that this statement, also made by Mr Spurrier to the Fisheries officer, amounts to no more than an assertion that his company had no responsibility in relation to size but that responsibility was the responsibility of the divers. It is clear that the learned Magistrate interpreted Mr Spurrier's statements as an assertion that it was the diver's responsibility to measure the abalone which they fished and delivered and that he believed this is what had actually occurred. They were obliged to do that on two occasions, namely, when it was first gathered and then when it was brought on board the ship and that it was, therefore, reasonable to infer as a matter of fact that the abalone which was received by his company was "legal sized product". 7 It seems to me that the learned Magistrate was correct in interpreting Mr Spurrier's belief as being that, because of the divers' obligation and because he believed that divers complied with that obligation it followed as a matter of fact that the abalone which his company received was of or greater than the regulation size. 8 The learned Magistrate concluded that, although an offence under s16 was an offence of strict liability, an honest and reasonable belief as to state of facts which, if true, rendered the defendant innocent, entitled that defendant to an acquittal. It is not in dispute that the so-called Proudman v Dayman (1963) 67 CLR 536 defence does apply to offences under s16. 9 The sole question is whether there was evidence which raised the "defence". In my view, the evidence to which I have pointed does so. It is much more than a mere assertion of law: it is a belief that, as a matter of fact, the licensed divers complied with their obligations and, therefore, as a matter of fact, the abalone were measured twice and, therefore, were of a legal size when accepted by the company. But, even if I were not of that view, it seems to me that, this view of the evidence was open to her Honour. It will be a very rare case when an interpretation of the evidence will raise a question of law. 10 In this case, I am confident that the view formed by the learned Magistrate of the evidence was not only open to her Honour but was correct. 11 Mr Craddock referred the Court to the judgment of Handley JA (with whom Mahoney JA agreed) in Von Lieven v Stewart (1990) 21 NSWLR 52 – "[A] belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of law have been satisfied, cannot excuse in cases such as this ... The only excuse is the existence of an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent." 12 Here, Mr Spurrier was saying, (and he was not cross-examined to suggest he was not telling the truth) that he believed the abalone was of legal size. He asserted that the reason for that belief was that he believed they had already been measured twice by licensed divers who had a legal obligation to do so and, implicitly, he believed those divers would not have delivered under-sized abalone to him. This was not merely a belief that the requirements of the law were satisfied. 13 In my view, this was a belief of fact based upon reasonable grounds and was itself credible. If the fact was that the abalone fishers measured the abalone and only took the complying fish, the defendant must have been innocent. There was no evidence which might justified the opposite inference. It was rightly accepted by her Honour. 14 It follows that the summons must be dismissed with costs. **********