Prodanovski v Andrews [2017] NSWCCA 230

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Prodanovski v Andrews [2017] NSWCCA 230 Hearing dates: 20 September 2017 Date of orders: 27 September 2017 Decision date: 27 September 2017 Before: Basten JA at [1]; Walton J at [48]; Price J at [49] Decision: 1. Grant the applicant an extension of time within which to file the stated case until 5 July 2017.

2. Answer the questions in the stated case as follows:

Question 1:

Is the question as to whether fish has been "lawfully taken for sale" for the purposes of s 18(2A) of the Fisheries Management Act 1994 and clause 18 of the Fisheries Management (General) Regulation 2010, read in conjunction with s 4 of the Act, determined by reference to the time at which the fish (in this case lobster) is taken from the sea irrespective of a subsequent failure on the part of that person to comply with legislative and/or regulatory requirements pertaining to that fish?

Answer:

For the purposes of the defence under cl 18(3) of the Fisheries Management (General) Regulation 2010 to a prosecution for an offence against s 18 of the Fisheries Management Act 1994, if a commercial fisher has taken a rock lobster for sale but the lobster was not tagged in accordance with the requirements of cl 22 of the Lobster Share Management Plan,

(a) the commercial fisher did not lawfully take the lobster for sale and his possession is not lawful under cl 18(1); and

(b) even if the taking were not unlawful, the commercial fisher did not lawfully possess the lobster under cl 18(3).