Evans v Ministry of Primary Industries [2012] NZHC 3508 (17 December 2012)

Last Updated: 8 January 2013

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-416-000018 [2012] NZHC 3508

TONY MARCUS EVANS

Appellant

v

MINISTRY OF PRIMARY INDUSTRIES

Respondent

Hearing: 17 December 2012

Counsel: Appellant in person

F Cleary for Respondent

Judgment: 17 December 2012

_{JUDGMENT OF ASHER J}

Solicitors/Counsel:

_{Elvidge & Partners, DX MP 70017, Napier 4140. Email:} [e-mail]

Copy to:

TM Evans, 15 de Lautour Road, Gisborne.

EVANS V MINISTRY OF PRIMARY INDUSTRIES HC GIS CRI-2012-416-000018 [17 December 2012]

Introduction

[1] The appellant Tony Marcus Evans was found guilty and sentenced on six charges laid under the Fisheries Act 1996 in the District Court at Gisborne. There were two charges of obstruction, and charges that he took three times the daily limit of ordinary paua, that he took undersized ordinary paua, that he took undersized spiny rock lobster and that he took more than the daily limit of spiny rock lobster. His gear and equipment, which included kayaks and diving gear, were forfeit. He was fined $300 on the obstruction charge with court costs of $130. On the charges relating to the paua he was fined $1,250 with court costs of $130 and witnesses’ expenses of $750, and on the other matters he was fined $250 with court costs of

$130.

[2] Mr Evans appeals that conviction. He appears in person and the only document he has filed in support is his handwritten notice of appeal.

[3] I propose dealing with this matter relatively briefly as in the end there is no particular contest between the Ministry and Mr Evans as to the way forward.

[4] First, it is undoubtedly the fact that Mr Evans was not only unrepresented at the hearing but ultimately he was not present during the actual presentation of evidence. He had appeared on the day in question with another person who proceeded to speak and attempt to be his advocate in the District Court. This associate refused to comply with the directions of the Court as to how he should conduct himself and ultimately that associate was placed in custody for contempt.

The Judge then set out in his judgment what happened:[1]

Mr Evans was then given the usual tripartite advice for unrepresented defendants. But in response to a question was told that he was entitled, if he wished, to withdraw from the proceedings, these are not imprisonable offences and his attendance is not mandatory. Mr Evans then chose to leave the courtroom and the matter has proceeded as formal proof accordingly.

[5] Before me Mr Evans says that what he had understood was that he was being told after his associate was placed in custody for contempt that he should not stay in

the court. He says that under the impression that this was what he was being directed to do, he went and waited outside the court and the hearing then proceeded. He would have stayed and participated if he had thought that this was permitted.

[6] I have explained that before I could be satisfied of a misunderstanding of this type I would have required an affidavit or evidence on oath and I would have given the Ministry an opportunity to call evidence in reply. However, I am informed that the Ministry accepts that Mr Evans may have been mistaken in this regard. The Ministry has made it clear that it is prepared to accept that there was a genuine mistake made by Mr Evans, and that this led to him not being present. I am, like the Ministry, prepared to accept that there was on the face of things an apparent mistake. Mr Evans had come to court to defend the charges. The Judge had told him that he was not required to be there. He did appear to be, as he claims, hard of hearing. It is consistent with all this, that he could have thought he was being told to leave. The Judge would not have been aware of his misunderstanding.

[7] The second matter that must be addressed is the merits of Mr Evans’ position. He has produced an authorisation to take fish on the day in question. The authorised permit holder is Diane Brown who appears to have been given the right to take quantities of crayfish and paua. Mr Evans is listed as an associated harvester. However, the authorisation relates quite plainly to the Kaiti area and not the area where Mr Evans was diving.

[8] Mr Evans says that he mistakenly believed that the permit in fact extended to the area where he was diving. He says this was a genuine error on his part. At the time when he was diving he did not have the permit with him, and this made him defensive about what he was doing.

[9] Mr Evans accepts that he took the crayfish and paua as outlined by the Ministry’s witnesses. He is effectively saying that he has a defence of reasonable belief. As this may well be a strict liability defence, this can be seen as the defence of a complete absence of fault.

[10] In relation to the obstruction charges, Mr Evans does not deny that there was something of an altercation but says that the Ministry officers were acting unreasonably towards him.

[11] The Ministry submits that Mr Evans’ defences will not succeed. However, it has responsibly accepted that Mr Evans may at least have a basis for a submission that there are mitigating factors. These may be relevant to the issue of forfeiture in particular. There is no doubt that the assets forfeit were worth a considerable amount of money and would certainly have been of great value to Mr Evans.

[12] I have considered whether, given the apparent weakness of the defences available to Mr Evans, I should remit only the question of sentence back to the District Court. In the circumstances I think that it is proper to give Mr Evans an opportunity to defend the charges afresh. I have explained that should he wish to argue his reliance on the permit he should call Ms Brown as a witness and any other persons who can support his claim that he reasonably believed he had the right to dive and take shellfish and crayfish from the area.

[13] Mr Evans tells me that Ms Brown suffers from ill-health and is unwilling to appear. I have explained to him his ability to obtain a subpoena. Alternatively he could obtain an affidavit and give a copy to the Ministry to see if he could persuade the Ministry to accept her evidence by way of affidavit.

[14] I have also emphasised to him that he should get legal advice and a lawyer to represent him in court, if that is possible through legal aid. However, I am informed that a lawyer would be costly, and that he cannot get legal aid.

[15] Given the fact that it is accepted that Mr Evans may well have misunderstood what was happening, and leaving the court and thereby losing his right to be heard as a result, I consider that the only fair outcome is to allow the appeal and to remit the charges back to the District Court for a rehearing. I emphasise that I am not expressing any final view on the issues of whether there is a defence available, or whether anything other than forfeiture is appropriate. That will be a matter for the District Court Judge who hears the case to approach entirely afresh.

Result

[16] The appeal against conviction and sentence is allowed.

[17] The charges are remitted back to the District Court for a rehearing.

...................................

Asher J

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[1] Ministry of Primary Industries v Evans DC Gisborne CRI-2012-016-431, 11 September 2012 at [3].