Ministry for Primary Industries v Amaltal Fishing Co Ltd [2020] NZDC 22506

Published 18 November 2020

Judge-alone trial — taking or removing marine life from Marine Reserve — strict liability offending — mens rea — vicarious liability — "person" — rules of attribution — "controlling mind" presumption — agency — Shark Experience Ltd v PauaMac5 Inc [2019] NZSC 111 — Millar v Ministry of Transport [1986] 1 NZLR 660 — Ministry of Agriculture v Pandey HC Wanganui AP 3/98 — Cullen v R [2015] NZSC 73 — Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 NZLR 7 — St Regis Paper Co Ltd v R [2011] EWCA Crim 2527 — Linework Ltd v Department v Labour [2001] 2 NZLR 639 — Moir Farms (Maimai) Ltd v Department of Conservation [2011] NZAR 694 — Bartle v GE Guardians [2010] NZCCLR 36 — Moir Farms (Maimai) Ltd v Department of Conservation [2011] NZAR 694 — Marine Reserves Act 1971, s 18I — Evidence Act 2006, s 9 — Fisheries Act 1996, ss 8, 103(2), 113H & 244-246 — Kaikōura (Te Tai ō Marokura) Marine Management Act 2014, sch 2 — Summary Proceedings Act 1957, s 67(8) — Interpretation Act 1999, s 29. The defendant faced a charge of taking or removing marine life from a marine reserve for commercial purposes, without lawful authority or reasonable excuse. It was a registered corporation that was authorised to carry out commercial fishing operations. A vessel in its fleet had carried out a bottom trawl inside a marine reserve, catching approximately 104 kg of fish. The captain of the vessel had already been convicted for his part in the offending; however the prosecution argued that the offence was one of strict liability where the defendant's intention or knowledge did not have to be proven, and that the actions of the captain had to be treated as the actions of the defendant. The Court found that the offence was not one of strict liability, as the relevant provision contained the word "knowingly." But given that the defendant had not raised any lawful authority or reasonable excuse for the offending, there was no obligation on the prosecution to provide a rebuttal. The Court then found that under the Marine Reserves Act offending by a corporation was recognised, and the actions of a relatively low-level actor like the captain of the vessel could be attributed to a corporation. The captain was an employee not of the defendant but the defendant's parent company, but the Court found that he had been acting as the defendant's agent because he had been in control of the defendant's vessel and had been acting under the defendant's commercial fishing permit. The Court found the defendant guilty. Judgment Date: 4 November 2020