Fishery ruling should not set a precedent, says judge
A keen Marlborough Sounds fisherman has been let off a charge of unlawfully transporting filleted blue cod through a protected area, but the judge says the case should not set a precedent.
Christchurch District Court Judge John Strettell’s written decision on the case has come out about seven weeks after the hearing and just as the fishing season opens.
It was seen as a test of an unpopular Sounds fisheries regulation – known as “The Slot” – but it does not seem destined to change the rules or how they are applied.
Judge Strettell has decided that the case depends on a particular set of facts, and on concessions made by the prosecution, the Ministry of Primary Industries.
Before the court was airline pilot Matthew Quentin Cox who had denied a charge of possessing blue cod which was not whole or gutted on the Marlborough Sounds. He admitted the facts, but he wanted the rule tested.
The blue cod fishery was closed for four years, and then new regulations came into force creating “The Slot” which meant only cod between 30cm and 35cm in length could be landed. There are scientific reasons for that range, relating to the way in which cod breed.
Mr Cox had been on a 10-day fishing holiday with his family and they were returning from the bach – which has no road access – when they were stopped at the Waikawa Marina.
They had cod fillets in a chilly bin. The fish were of the correct size and had been landed whole as required and then filleted at the bach.
However the regulations don’t allow them to be transported by water through the Sounds in that state because fisheries officers are unable to tell from the fillets whether the fish was of a legal size. The cod can be filleted on the water only if they are being eaten on the boat itself.
Mr Cox would have been liable to a $500 instant fine, but because he chose to argue the matter at court he was liable for a fine of up to $20,000.
Ironically, Mr Cox was very supportive of the fishing regulations, Judge Strettell noted. The problem arose when the family transported the uneaten fillets through the Sounds, intending to eat them later.
The judge said the Ministry’s prosecutor, Grant Fletcher, said Mr Cox should be held liable to ensure the compliance of people less law-abiding than he was.
An Amicus appointed by the court to assist Mr Cox with his defence, Kerry Cook, raised the defence that there was “an absence of fault”.
The prosecution conceded that Mr Cox was not in breach of the regulation except for transporting the filleted fish. The judge accepted that Mr Cox did not believe he was breaking the law. That judgment included an assessment of how Mr Cox conducted himself at the hearing.
Judge Strettell accepted that the absence of fault defence was available. The prosecution said that if Parliament intended to allow transport of the fish – as opposed to fishing – it could have stated that, but the judge said that view did not recognise Mr Cox’s efforts to comply with the regulation.
The Ministry conceded he did not commit any offence in taking the fish. His fault was only in transporting the filleted fish through a protected area.
“It surely cannot be the case that in order to ensure compliance of others that the lawfully compliant must be held liable,” he said. He had taken all reasonable steps that could have been anticipated.
But without the concession from the prosecution, Mr Cox would not have been able to prove his innocence.
The case “remains very dependent on its own facts and should not be seen as a precedent for others”, the judge said.
If he had found Mr Cox was liable, on the facts he had outlined he would have discharged him without conviction.
“While it remains a regulatory and relatively minor offence, people are entitled to their good name and people who comply with the law should not have to have the embarrassment of minor offences being registered against their name in such circumstances,” he said.
The Marlborough Express