AMALTAL FISHING CO LIMITED v MINISTRY FOR PRIMARY INDUSTRIES [2021] NZHC 2275 [31 August 2021]

AMALTAL FISHING CO LIMITED v MINISTRY FOR PRIMARY INDUSTRIES [2021] NZHC 2275 [31 August 2021]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2021-442-006[2021] NZHC 2275BETWEEN AMALTAL FISHING CO LIMITEDAppellantAND MINISTRY FOR PRIMARY INDUSTRIESRespondentHearing: 17-18 June and 9 July 2021Appearances: H Lanham and J Storey for the Appellant J Webber and J Wotton for the RespondentJudgment: 31 August 2021JUDGMENT OF GRICE J(conviction appeal re: attribution)Contents ParaIntroduction [1]Procedural history [4]Factual background [9]The Talley's/Amaltal corporate structure [15]District Court decision [18]Issues on appeal [27]Leave to appeal out of time [31]Law [33]Appeal against conviction [33]Legislative framework: Marine Reserves Act 1971 [35]Basis for attribution [39]Attributing Mr Saunders' offending to the appellant [40]Agency [41]Vicarious liability [44]General developments [45]The "Directing Mind and Will" test [46]Attribution as a function of statutory interpretation [49]Does the scope of criminal attribution extend beyond the employer/employee relationship? [67]Appellant's submissions [75]Respondent's submissions [88]Analysis [98]Interpretation of the relevant legislation [99]Relationship between Marine Reserves Act and Fisheries Act: should the attribution provisions in the Fisheries Act be read into the MRA? [107]Agency analysis [118]Lord Hoffmann's special rule of attribution [132]Conclusion [143]Result [144]Attachment 1 page 46Attachment 2 page 47Attachment 3 page 48Introduction[1] The appellant, Amaltal Fishing Co Ltd ("Amaltal"), appeals its conviction 1 for taking or removing marine life (finfish), from the Hikurangi Marine Reserve ("the Reserve") for commercial purposes without lawful authority or reasonable excuse. 2[2] Amaltal was charged with the offence along with Mr Darryle Saunders who was, at the relevant time, master of the Amaltal Mariner ("the Mariner"), the vessel used for the fishing expedition in question. On 27 March 2020, Mr Saunders pleaded guilty and was convicted and sentenced to a fine of $15,525. 3 That conviction is not appealed. In finding Amaltal guilty of the offence, the Judge in the Nelson District Court held that Mr Saunders acted as an agent for Amaltal at the relevant time, and therefore that his actions could be attributed to Amaltal for the purpose of the latter's conviction.[3] The central issue on appeal is whether, at the relevant time, Mr Saunders' actions in taking or removing fish from the Reserve for commercial purposes without lawful authority or reasonable excuse can be attributed to Amaltal for the purposes of that company's criminal conviction.Procedural history[4] Amaltal was charged on 12 November 2019 with an offence under s 18I(1) of the Marine Reserves Act 1971 ("MRA"). This provides:18I Offences(1) Every person commits an offence against this Act and is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding $250,000, or to both, who, without lawful authority or reasonable excuse, takes or removes from a marine reserve for commercial purposes any marine life.1 Ministry for Primary Industries v Amaltal Fishing Co Ltd [2020] NZDC 22506 ["District Court Decision"].2 Marine Reserves Act 1971 ["MRA"], s 18I(1).3 Ministry for Primary Industries v Saunders HC Nelson CRI-2021-042-2168, 21 May 2020.[5] Amaltal pleaded not guilty and defended the charge.[6] The Judge had found that Mr Saunders was acting as agent for Amaltal, despite the fact that he was not a director or employee of the company. Her Honour therefore found Amaltal guilty of the offence on the basis of attribution on 4 November 2020.4Amaltal was sentenced on 9 March 2021 to a fine of $25,875.5[7] Amaltal now appeals that conviction.[8] The Notice of Appeal sets out the grounds as follows:(a) The learned Judge erred in fact and law in finding that the actions of Darryle Saunders should be attributed to Amaltal for the purposes of criminal liability under s 18I(1) of the Marine Reserves Act 1971, giving rise to a miscarriage of justice, including by:(i) Holding that the actions of a non-employee could be attributed to a defendant for the purposes of criminal liability under s 18I(1) of the Marine Reserves Act 1971;(ii) Holding that Darryle Saunders was Amaltal's agent at the time of fishing in the Marine Reserve;(iii) Relying on provisions of the Fisheries Act 1996 which have not been incorporated into the Marine Reserves Act 1971.Factual background[9] The fishing expedition in which the fish were taken from the Reserve was conducted as part of the business operations of the Talley's Group, a group of companies closely held by members of the Talley family. The companies in the4 District Court Decision, above n 1, at [58]–[61].5 Ministry for Primary Industries v Amaltal Fishing Co Ltd [2021] NZDC 4257.Talley's Group have directors in common. A copy of the corporate structure diagram was provided by Ms Lanham during the appeal hearing. 6[10] The factual background was admitted by agreement 7 and summarised by her Honour in the District Court judgment on appeal: 8[7] On 12 March 2019 Mr Saunders was the master of the Amaltal Mariner. On 12 March 2019 the Amaltal Mariner commenced a fishing trip pursuant to Amaltal Fishing's commercial fishing permit. A catch plan was sent to Mr Saunders, by Talley's Group, the day prior, 11 March 2019. The catch plan detailed the species and tonnage of fish for the trip. The catch plan included the following wording:It is the Captains sole responsibility to adhere to all boundaries existing including closed boxes, BPA's, Fisheries Management Areas Lines, EEZ Lines or any other closed or restricted areas.ENSURE YOU KNOW ALL THE AREAS IN YOUR FISHING ZONE AND THAT THEY ARE ACCURATE ON YOUR PLOTTERSIF YOU ARE NOT 100% SURE – ASK !!!![8] On Sunday, 17 March 2019 the Amaltal Mariner was off the southcoast of Kaikōura to the east of the Hikurangi Reserve. The HikurangiReserve was established in 2014 by the Kaikōura (Te Tai ō Marokura) MarineManagement Act 2014. The Hikurangi Reserve comprises all of the areadescribed in Schedule 2 of the Kaikōura (Te Tai o Marokura) MarineManagement Act.[9] At 11.42 am on 17 March 2019 the Amaltal Mariner commenced a bottom trawl, approximately 900 metres inside the Hikurangi Reserve. The seafloor was trawled for approximately 10 to 12 minutes and covered a distance of between 1,100 and 1,400 metres. Approximately 104 kgs of fish were reported as caught as a result of this trawl.[10] Once landed at the port, Talley's Group processed and sold the fish for a sum of $489.58.[11] Mr Saunders was charged under s 18I(1) of the Marine Reserves Act. Mr Saunders pleaded guilty and was convicted and sentenced.[12] Mr Saunders maintained that he was unaware that the Amaltal Mariner was in the Hikurangi Reserve when he commenced trawling. This was because the Hikurangi Reserve was not marked on the Amaltal Mariner's electronic plotters.6 Attachment 1.7 Evidence Act 2006, s 9.8 District Court Decision, above n 1, at [7]–[12] (footnotes omitted).[11] In addition to the admitted facts, the defence called one witness: Mr Tony Hazlett.[12] The Judge noted that: 9[13] An email was sent by Talley's Nelson compliance manager to the captain of the Amaltal Mariner giving notice of a new marine reserve, the Hikurangi Reserve, on 11 May 2016. Mr Hazlett's evidence was that on receipt of this notice a master should have been able to plot the reserve on his plotters and chart.[14] Further, the Hikurangi Reserve was recorded on a paper chart (LINZ NZ63) that was aboard the Amaltal Mariner at the relevant time. Following the incursion that is the subject of the charge faced by the defendant company, a branch of either Talley's Group or Talley's Management arranged for the company's vessels' plotters to be updated with the Hikurangi Reserve. I infer that the Amaltal Mariner was one of the vessels that was updated in this way. Talley's Group or Talley's Management subsequently went on to upgrade the vessels' electronic systems to include geofencing which generates an alert when a vessel approaches or enters a restricted or closed area.[13] The boundaries of the Reserve are invisible at sea. The Ministry for Primary Industries detected that fishing had been carried out in the Reserve through its Geospatial Monitoring System, which activates an alert when a fishing vessel enters an area where fishing is restricted or prohibited.[14] Amaltal is the holder of a fishing permit under the Fisheries Act 1996. The Mariner is registered to Amaltal for the purposes of that fishing permit and was, at the relevant time, undertaking the commercial fishing expedition under the authority of that permit. The fish from the illegal trawl were 'landed' by Amaltal in the sense that the landing forms completed at the conclusion of the commercial fishing expedition were completed in Amaltal's name. These forms, the most relevant of which are attached below,10 recorded the size and make-up of the catch, which included a number of varieties of fish. The fish taken from the section of the trawl that occurred inside the Reserve were orange hoki. The report relating to the trawl containing the illegally taken fish is attached below.119 District Court Decision, above n 1, at [13]–[14] (footnotes omitted).10 Attachment 2.11 Attachment 3.The Talley's/Amaltal corporate structure[15] Amaltal Fishing Co Ltd (the appellant) is a wholly owned subsidiary of Amaltal Corporation Ltd, which is itself a wholly owned subsidiary of Talley's Group Ltd ("Talley's Group"). 12[16] The Mariner is a fishing vessel registered under the Fisheries Act in the name of the appellant. Talley's Group owns the Mariner and all the fishing equipment on the vessel, and provides all fishing information used by the vessel's masters. Talley's Group Management Ltd, another wholly owned subsidiary of Talley's Group, owns the quota rights which determine how many fish the Mariner can catch. Mr Hazlett and the majority of the salaried staff in the fishing enterprise were employed by Talley's Management Ltd. Mr Saunders, however, was (at the relevant times) employed by Talley's Group Ltd (the parent company) directly.[17] Ms Lanham explained that the Mariner's Fisheries Act permit and vessel registration were in Amaltal's name due to historic reasons relating to a previous joint venture and the desire to maintain consistency in the catch history.District Court decision[18] The Judge held that "central to the present proceedings" was the division of functions between the appellant, the Amaltal Corporation, Talley's Group, and Talley's Group Management.[19] The Judge structured her decision around four issues: 13(a) Is s 18I(1) of the Marine Reserves Act a strict liability offence? If not, what is the mens rea component of the offence?(b) What is the relevance of the Fisheries Act to offences against the Marine Reserves Act?(c) Can the actions of Mr Saunders be attributed to Amaltal Fishing?(d) Is Amaltal Fishing vicariously liable for the actions of Mr Saunders?12 Attachment 1.13 District Court Decision, above n 1, at [21].[20] On the first issue, the Judge concluded that s 18I of the MRA has a mens rea element, imported by the words "without lawful authority or reasonable excuse". This component is "one short of 'full mens rea'" in that, once the issue of mens rea is raised by the defence, the prosecution must establish only "neglect" by virtue of absence of authority or reasonable excuse. 14 The Judge relied on the reasoning in Lawrie v Department of Conservation, which noted the distinction between offence provisions which are silent on mens rea and those which use the words "without lawful authority or reasonable excuse". 15 In the former, no mens rea element is required, and the Court must determine whether there is strict or absolute liability. The latter, however, denotes a mens rea element which the prosecution must prove beyond a reasonable doubt.[21] On the second issue, the Judge concluded that the interpretation and application of s 18I(1) should be carried out with reference to the scheme and purpose of the MRA. The "distinctly different" Fisheries Act regime was, she determined, "only of minor relevance." 16 While both Acts fit within the same legislative scheme, and the Fisheries Act "substantially amended" the MRA, the two statutes serve different purposes: the purpose of the MRA is to preserve and protect the marine environment, while the purpose of the Fisheries Act is to provide for the sustainable utilisation of fisheries. 17[22] On the third issue, the Judge found that the actions of Mr Saunders could be attributed to Amaltal for the purpose of the offence under s 18I(1) of the MRA. Since the MRA did not contain a specific attribution provision, attribution fell to be determined under the common law.18 Her Honour referred to the relevant attribution principles articulated in Cullen v R, a decision of the New Zealand Supreme Court, and Meridian Global Funds Management Asia v Securities Commission, a decision of the Privy Council on appeal from New Zealand. 19 Applying those principles to the14 District Court Decision, above n 1, at [28], citing Ministry of Agriculture v Pandey HC Whanganui AP 3/98, 16 February 1998 at [14].15 Lawrie v Department of Conservation HC Napier AP 22/2006, 27 July 2006 at [9].16 District Court Decision, above n 1, at [38]–[39].17 At [32]–[39], citing Fisheries Act 1996, s 8 and Marine Reserves Act 1971, s 3.18 At [40].19 Cullen v R [2015] NZSC 73, [2015] 1 NZLR 715; and Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 NZLR 7 (PC) ["Meridian"].MRA the Judge found that the offence provision, s 18I(1), applied to both natural persons and companies. 20[23] The Judge found that the "controlling mind" presumption of criminal attribution did not apply in this case. Under the terms of that presumption, Amaltal could only be "controlled" by (and therefore criminally liable for the actions of) its directors or senior management staff, not the master of its ship. The Judge pointed out that, in most commercial fishing operations, it is not the directors of the company (the company's "controlling mind"), but its agents, who are actually in charge of the fishing vessel.21 Parliament had taken a strict approach of enforcing liability under the MRA. 22 The Judge therefore held that extending the scope of attribution beyond the defendant's directors and senior management to the masters of its vessels would best achieve the MRA's purpose of deterring companies from fishing in marine reserves. 23[24] The Judge then found that the scope of criminal attribution under s 18I(1) MRA extended beyond the employer/employee relationship. Mr Saunders was not employed by Amaltal, but by Talley's Group Ltd. The Judge found that Mr Saunders was nevertheless acting as agent for the defendant at the relevant time. First, because Mr Saunders was in charge of the direction, navigation and operation of the Mariner, which was registered to the appellant under the Fisheries Act. Secondly, because the appellant had the commercial fishing permit which allowed Mr Saunders to fish. It was therefore the only body which could give him the lawful authority to fish commercially.24 Therefore, Mr Saunders' wrongful actions could be attributed to Amaltal under s 18I on the basis of agency. 25 This agency extended to trawling in the Reserve, meaning that the appellant had lawful possession of, and control over, the Mariner when Mr Saunders took the relevant fish from the Reserve. His criminal actions could therefore be attributed to Amaltal, even though he was not its employee. 2620 District Court Decision, above n 1, at [43].21 At [46].22 At [45].23 At [59].24 At [55].25 At [46].26 At [49] and [59]; relying on Bartle v GE Custodians [2010] NZCA 174, [2010] 3 NZLR 601.[25] The Judge referred to the policy considerations supporting such an interpretation, noting that it would be undesirable for the consequences intended by Parliament to be evaded by the use of "advanced company structures". 27[26] The Judge held that it was unclear whether the defendant was vicariously liable for Mr Saunders' actions since the offence was not one of strict liability, but that she did not need to consider the question of vicarious liability in this case due to her findings on agency and attribution.Issues on appeal[27] Amaltal contends that the actions of Mr Saunders while acting as master of theMariner cannot be attributed to it under the common law. It accepts that s 18I(1) has a partial mens rea element, and that criminal attribution under that provision can extend beyond the actions of the directors of a company. However, it contends that Mr Saunders was not acting as an agent for Amaltal at the relevant time, and therefore that the Judge in the District Court cast the net of attribution too wide.[28] The appellant frames the question of attribution as a matter of agency:The immediate question before the Court is whether Mr Saunders was acting for Amaltal at the time he landed fish on the vessel in the Reserve: was he Amaltal's agent in any sense?[29] Amaltal takes issue, in particular, with the findings of the District Court that:a. Mr Saunders was Amaltal's agent because Amaltal is the operator of the vessel for the purposes of the Fisheries Act and holds a Permit issued under that Act. The learned Judge erred in law in applying the provisions of the Fisheries Act which have not been incorporated into the Marine Reserves Act; andb. The actions of a person who is not an employee, nor had any responsibility for carrying out any operations of the company, could nevertheless be attributed to the company.[30] Amaltal submits that since (civil) agency is not established, criminal attribution cannot follow.27 District Court Decision, above n 1, at [60].Leave to appeal out of time[31] The appellant filed the appeal one day late, due to a calculation error as a result of the Easter holidays. The appellant seeks leave to appeal out of time under s 231(3) of the Criminal Procedure Act 2011. This is not opposed by the respondent.[32] In the interests of justice and given the shortness of the delay, which is explained, 28 I grant leave.LawAppeal against conviction[33] A person convicted of an offence has a right to appeal that conviction to the first appeal court under s 229 of the Criminal Procedure Act 2011. An appeal against conviction is a general appeal. Appeals against conviction are determined in accordance with s 232 of that Act, under which a conviction appeal must be allowed if the court is satisfied that:(a) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or(b) in any case, a miscarriage of justice has occurred for any reason.[34] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that: 29(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.28 R v Knight [1998] 1 NZLR 583 (CA) at 587 and 598; and confirmed in R v Lee [2006] 3 NZLR 42 (CA).29 Criminal Procedure Act 2011, s 232(4).Legislative framework: Marine Reserves Act 1971[35] The appellant was convicted of an offence under s 18I(1) of the Marine Reserves Act, which provides:18I Offences(1) Every person commits an offence against this Act and is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding $250,000, or to both, who, without lawful authority or reasonable excuse, takes or removes from a marine reserve for commercial purposes any marine life.[36] Section 18I also provides for other offences, including the offence of selling or disposing of marine life as follows: 3018I Offences(5) Every person commits an offence against this Act and is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding $2,500, or to both, who, without lawful authority or reasonable excuse,—(b) uses, sells, or otherwise disposes of, or is in possession of, any marine life, mineral, gravel, sand, or other substance or thing whatever knowing the same to have been removed unlawfully from a reserve; or[37] "Sell" is defined as including: 31(a) barter and any form of exchange for consideration:(b) offering or attempting to sell:(c) receiving for sale or having in possession for sale:(d) exposing for sale:(e) sending or delivering for sale:(f) causing or allowing to be sold, offered for sale, or exposed for sale;—30 Marine Reserves Act 1971, s 18I(5).31 Section 2.and sale and sold have corresponding meanings[38] "Taking", in relation to marine life, is defined as including: 322 Interpretationtaking, in relation to any marine life, includes taking, catching, fishing, killing, or pursuing by any means or device; and, in relation to any plant, includes uprooting and transplanting; and also includes any attempt at taking; and to take has a corresponding meaningBasis for attribution[39] The master, Mr Saunders, was convicted of the offence under s 18I(1). 33Attributing Mr Saunders' offending to the appellant[40] Lord Hoffmann, in his analysis of the general rules of attribution, saw agency as arising between a company and its agent by virtue of either:(a) the authority granted by agreement by the principal (the corporate) to the agent (the employee), in accordance with the primary rules of attribution expressly stated in the company's articles; or(b) the general operation of the rules of estoppel, ostensible authority in contract, and vicarious liability in tort.34Agency[41] At common law, agency is a comprehensive term describing the relationship that arises when one person is appointed to act as the representative of another. 35 It can co-exist with other relationships, such as those of employer/employee or32 Marine Reserves Act 1971, s 2.33 Ministry for Primary Industries v Saunders, above n 3.34 Meridian, above n 19, at 12.35 Burrows, Finn and Todd Burrows, Finn and Todd on the Law of Contract in New Zealand (6 th ed, LexisNexis, Wellington, 2018) at 616.principal/independent contractor. The concept of agency is generally relevant to the law of contract. Vicarious liability, by contrast, generally arises in relation to tort.36[42] Agency is a flexible institution. However, it is generally characterised by a conferral of authority by the principal on the agent with each party consenting to the agency relationship. 37 In a case of actual authority there must be a manifestation of the voluntary grant of authority by the principal to the agent. As well, the agent must manifest their consent to assume the role of agent within the terms of that grant.38Agency by virtue of apparent or ostensible authority arises in circumstances where the agent appears to a third party as having been held out by the principal as having authority to act on the principal's behalf. 39[43] Burrows notes that a relationship of agency can come into being in one of four ways: by agreement; by the doctrine of estoppel; by the subsequent ratification by the principal of a contract made on his or her behalf without his or her prior authorisation; and by implication of law, in cases where it is urgently necessary that one person should act on behalf of another.40Vicarious liability[44] Vicarious liability generally attaches to liability in tort where an employee/employer or master/servant relationship exists. The Judge in the District Court did not analyse the relationship between Mr Saunders and the appellant in terms of vicarious liability,41 and it was not argued in detail on appeal. Ms Lanham in her submissions on appeal only mentioned vicarious liability to point out why it did not apply. Nor did counsel for the respondent pursue vicarious liability as a discrete argument on appeal. It is therefore not necessary to consider that issue in this Court, save to note that recent developments in the United Kingdom in the area of vicarious liability in tort have widened the law of vicarious liability beyond employer/employee36 Burrows, Finn and Todd on the Law of Contract in New Zealand, above n 35, at 644.37 Howard Bennett Principles of the Law of Agency (Hart Publishing, Oxford, 2013) at 4.38 At 4.39 At 5.40 Burrows, Finn and Todd on the Law of Contract in New Zealand, above n 35, at 617.41 District Court Decision, above n 1, at [65].relationships,42 leading to the development of a "modern theory of vicarious liability".43 These developments included the concept of an "enterprise risk" 44 which may at some stage require further analysis in the New Zealand courts. However, the current case is not the place for that analysis.General developments[45] The doctrine of attribution in criminal law allows non-natural persons (corporates) to be held criminally liable for the actions of natural persons, by attributing to the non-natural persons the actions and states of mind of human actors. 45Early authorities required a person to be the "controlling mind" of a company before their actions and states of mind could be attributed to that company. More recent authorities shifted the emphasis to statutory interpretation: whose acts and states of mind, for the purpose of that offence, were meant to count as the acts and states of mind of the company? Importantly, case law has consistently limited the scope of criminal attribution to the employer/employee relationship.The "Directing Mind and Will" test[46] Smith, Hogan, and Ormerod46 describes the "controlling mind" attribution doctrine as narrow in scope, limiting attribution to the actions of those individuals who are the "directing mind and will" of the corporation and who, when acting on the company's business, are therefore considered to be the "embodiment of the company, and whose acts and state of mind are the company's acts and states of mind so the company is held liable for not their acts but for what are deemed to be its own acts".47The authors point to the leading case of Tesco Supermarkets Limited v Nattrass48 in42 See for instance: A Yoong and S Siong. "Back to Basics? Recent Developments of Vicarious Liability in the UK Supreme Court" (2021) 28 Tort Law Review 18.43 Cox v Ministry of Justice [2016] AC 600; UKSC 10 at [24] per Lord Reed, as cited in "Back to Basics?", above n 42, at 24.44 "Back to Basics?", above n 42, at 34.45 This contrasts with vicarious liability, wherein responsibility derives from the actions of an employee acting within the scope of their employment: Moir Farms (Maimai) Ltd v Department of Conservation [2011] NZAR 694 (HC) ["Moir Farms"] at [31].46 David Ormerod & Karl Laird Smith, Hogan and Ormerod's Criminal Law (15 th ed, Oxford University Press, Oxford, 2018) at [8.1.25].47 Smith, Hogan and Ormerod's Criminal Law, above n 46, at [8.1.25].48 Tesco Supermarkets Limited v Nattrass [1972] AC 153 (HL).support of the proposition that a company may be criminally liable only for the acts of: 49The board of directors, the managing director and perhaps other superior officers of a company [who] carry out the functions of management and speak and act as the company.[47] Or of a person: 50who is in actual control of the operations of a company or of part of them and who is not responsible to another person in the company for the manner in which he discharges his duties in the sense of being under his orders[48] Including those: 51who by the memorandum and articles of association [of the company] or as a result of action by the directors or the company in general meeting are entrusted with the exercise of the powers of the company.Attribution as a function of statutory interpretation[49] The leading New Zealand authority on attribution, Cullen v R,52 affirmed the principle that attribution of criminal acts and states of mind to a company is generally limited to its directors. This principle, however, "does not mean rigid adherence to [a company's] hierarchy", as "[t]he scope of attribution depends on the substantive law in issue and turns on its interpretation". 53[50] The Supreme Court, in its restatement of the principles of criminal attribution in New Zealand in Cullen, relied on Lord Hoffmann's judgment in the Privy Council in Meridian.54 In that case, the Privy Council held that the knowledge of investment managers who made corrupt investments using assets held by their corporate employer, and who deliberately did not notify their employer, could nevertheless be attributed to that employer. This attribution was on the basis of the authority with which the employer had vested them to make investments on its behalf.49 Tesco Supermarkets Limited v Nattrass, above n 48, at 171 per Lord Reid.50 At 187 per Viscount Dilhorne.51 At 200 per Lord Diplock.52 Cullen v R, above n 19.53 At [36].54 Meridian, above n 19.[51] In his judgment, Lord Hoffmann said: 55These primary rules of attribution are obviously not enough to enable a company to go out into the world and do business. Not every act on behalf of the company could be expected to be the subject of a resolution of the board or a unanimous decision of the shareholders. The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely, the principles of agency. It will appoint servants and agents whose acts, by a combination of the general principles of agency and the companys primary rules of attribution, count as the acts of the company. And having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons, such as estoppel or ostensible authority in contract and vicarious liability in tort.But there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc. of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy.[52] When His Lordship applied the concept of agency to the managers of Meridian who had made the impugned investments, he concluded that they were authorised to act on behalf of the company. This authorisation meant that knowledge of Meridian's shareholdings which arose from the managers' fraudulent actions could be attributed to the company. It was an attribution firmly based on the authority of those managers to invest on behalf of that company, their employer. The cases referred to in Meridianwhere attribution had been found to exist included:(a) Pioneers Concrete, 56 in which an employee undertook a restrictive trade practice despite instruction to the contrary by the employer company;55 Meridian, above n 19, at 12–13 (emphasis added).56 Director-General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456, as cited inMeridian, above n 19, at 13.(b) Lennard's Carrying Co Limited v Aziatic Petroleum,57 where the negligent act of an employee who was the "directing mind" of a company was attributed to the company;(c) The Admiralty v Divina The Truculent,58 where the third sea lord who was entrusted with the functioning of the system of navigation lights which failed was found to be the "directing mind and will" of the Crown for the purposes of attribution; and(d) Arthur Guinness Son and Co (Dublin) Limited v The Freshfield (Owners) The Lady Gwendlen (1965), 59 where a board member responsible for the traffic department of a shipping company was held to be the deciding mind for the purposes of attributing negligence to the company for a collision caused by the master of a ship the company owned.[53] Lord Hoffmann emphasised that in all of those examples the attribution rule was implied based on "whose knowledge for this purpose is to count as the knowledge of the company? Surely the persons who, with the authority of the company" did the impugned act. His Lordship emphasized the fact that acts and states of mind could only be attributed to the company for the "particular purpose" of the statute which created the offence. For instance, where an employee tasked with filing tax returns on behalf of the company filed a fraudulent return, that could be attributed to the company; but where an employee authorised to drive his employer company's lorry committed manslaughter by reckless driving, the fact the company had authorised him to drive the lorry did not of itself attribute to the company that driver's offence. 60His Honour said that there was no inconsistency in this, as "each is an example of an attribution rule for particular purpose, tailored as it always must be, to the terms and policies of the substantive rule". 6157 Lennards Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705, as cited in Meridian, above n 19, at 11 and 14.58 The Admiralty v Owners of the Steamship Divina The Truculent [1952] P 1; [1951] 2 All ER 968, as cited in Meridian, above n 19, at 15.59 Meridian, above n 19, at 15.60 At 16.61 At 16.[54] His Honour warned against the dangers of finding attribution by analogy with a company's mind by using the image of the human body to describe the human actor as the "directing mind of the company". 62 Such an exercise distracted attention from that the meaning of the statute, as the question is one of construction rather than metaphysics.63 He said that a company was only a set of rules, and the Court's focus should be on deciding whose act or state of mind should be attributed to the company for the particular purpose in question, which was merely a matter of interpretation. InMeridian itself, the fact that the employee in question did the impugned deal for a corrupt purpose and did not give the required notice to the stock exchange because he did not want his employers to find out about his actions did not prevent his knowledge and the consequent duty to notify from being attributed to his employer company.64However, his Honour highlighted that just because the servant of a company has the authority to do an act on its behalf does not mean that knowledge of that act will, for all purposes, be attributed to the company. It was a question of construction in each case as to whether the particular rule requires that the individual's state of mind be attributed to the company.65[55] The key to determining the scope of attribution for the criminal acts and states of mind of a natural person to a company, therefore, is the language and policy of the statute creating the offence. The New Zealand Supreme Court in Cullen v R, applying Lord Hoffmann's dicta above, noted that when determining whether a criminal statute permitted the attribution of the acts of natural persons to companies, the question was: 66If the law was intended to apply to a company, "how was it intended to apply?"[56] The court therefore noted that it may be "preferable to start without any preconception that it is necessary to look for" a "'directing mind and will'", as "the policy of the legislation may indicate wider attribution". 6762 Meridian, above n 19, at 14.63 At 16.64 At 16.65 At 16.66 Cullen v R, above n 19, at [36]; citing Meridian, above n 19, at 12–13.67 Cullen v R, above n 19, at [37].[57] The authors of Smith, Hogan and Ormerod state that Lord Hoffmann's reformulation of the principles of criminal attribution and extension of the scope of corporate liability reduced certainty in that area of the law. The authors point to a powerful dissent in a subsequent United Kingdom Court of Appeal judgment which noted that Meridian represented an "imperfect guide to the approach to the rule for attribution of a crime". 68 It suggested that recent cases, including since St Regis Paper Co Limited, indicate that Meridian may have not made such a radical change after all.[58] The authors of Principles of Criminal Law state that the strict common law test for attribution, when modified for statutory purpose, is as follows: 69Where the approach in Meridian Global Funds Management Asia Ltd v Securities Commission applies, and the stricter "directing minds" standard laid down in Tesco Supermarkets Ltd v Nattrass is moderated, as appropriate to achieve the statutory purpose, attribution will generally require that (i) the relevant individual has practical (not necessarily formal), day-to-day authority to carry out the relevant tasks, and (ii) that the actus reus was carried out in the course of discharging those more general tasks or roles.[59] Commentators have noted that Lord Hoffmann's innovation in Meridian was to recognise specifically that special rules of attribution exist over and above the primary rules (found in the constitutional documents of the company) and general rules (derived from agency and vicarious liability).70[60] This shift to a focus on statutory construction after Meridian did not, therefore, do away with the need to inquire into who was the controlling mind of the defendant company at the relevant time: "the 'directing mind and will' test continues to cast a long shadow."71 In Meridian itself, the employees who made the fraudulent investments without notifying the principal were seen as the "controlling minds" of Meridian. While UK courts in civil cases have been prepared to develop special68 Re Odyssey (London) Limited v OIC Run Off Limited [2000] EWCA Civ 71, [2001] Lloyd's Rep 1 R 1, per Buxton LJ, as cited in Smith and Hogan and Ormerod's Criminal Law, above n 46, at [8.1.2.5].69 Andrew Simester, Gerald Orchard and Warren Brookbanks (eds) Principles of Criminal Law(online looseleaf ed, Thompson Reuters) at [20.7.2.4(2)] (footnotes omitted); citing Tesco Supermarkets Ltd v Nattrass, above n 48, at 193 and Linework Ltd v Department of Labour [2001] 2 NZLR 639 (CA).70 Jennifer Payne "Corporate Attribution and the Lessons of Meridian" in Paul S Davies and Justine Pila (eds) The Jurisprudence of Lord Hoffmann (Hart Publishing Limited, Oxford, 2015) at 362.71 At 364.attribution rules based on the construction of both statutory provisions and common law rules, 72 the criminal law in the United Kingdom since Meridian has erred on the side of caution, preferring to attribute liability on the basis of the state of mind of senior management.73[61] In the present case the offence is criminal in nature and relates to breach of a regulation. In criminal law the view in the United Kingdom has persisted that "it is impossible to find a company guilty unless its alter ego is identified".74 The justification for this is that the narrow formulation of the rule of attribution is necessary to avoid corporations being convicted of mens rea crimes when "in truth they have no guilty mind".75 The author of "Corporate Attribution and the Lessons of Meridian" points to the decision in R v St Regis Paper Co Limited76 as an example of the difficulties that can arise for courts attempting to apply the principles of Meridian to criminal law cases. 77[62] In Re Regis, the defendant company kept environmental records as required by legislation. The technical manager in charge of the records, who was some way below board level, made false entries in relation to environmental pollution. The Crown argued that the state of mind of the technology manager should be attributed to the company. The England and Wales Court of Appeal noted that the approach to attribution in criminal cases for offences requiring mens rea meant that it was the controlling officers of the corporation who must perform the proscribed conduct with the relevant guilty intention.78[63] The Court therefore determined that it could not attribute the state of mind of the technical manager to the company for the purposes of that company's liability under the environmental legislation. That was because the manager reported to an operations manager, who in turn reported to the managing director, who in turn72 Payne, above n 70, at 364, n 35.73 At 365.74 Attorney-General's Reference (No 2 of 1999) [2000] EWCA Crim 91, [2002] Cr App R 207 at 216 per Rose LJ, as cited in Payne, above n 70, at 365.75 Payne, above n 70, at 365.76 R v St Regis Paper Co Limited [2011] EWCA Crim 2527 ("Re Regis").77 Payne, above n 70, at 365; referring to Re Regis, above n 76.78 Re Regis, above n 76, at [5] and [7].reported to a senior management team. The Court said that although the technical manager had been delegated the task of submitting the necessary records on the company's behalf, that was not the type of delegation which had been recognised as introducing vicarious liability. The Court distinguished the situation from that of licensee liability where the licensee had delegated the management of licenced premises to a manager. 79 It held that, as a matter of construction, the regulation in question did not provide a basis to find the requisite delegation in the circumstances. It therefore concluded that there was no basis for attributing the technical manager's dishonest intention to the company.80[64] The New Zealand Supreme Court in Cullen v R similarly framed the question of whether an employee's acts can be attributed to a company, for the purposes of the offence of receiving stolen property,81 as a question of the degree of responsibility the employee had for the company at the time of the offending. It examined the extent to which various employees possessed "sufficient level[s] of responsibility for their actions and knowledge or recklessness to be properly attributed to" their employer. 82[65] In that case, Mr Cullen was the sole shareholder and director of the company and undertook management responsibilities for the company, including entering the receipt of the stolen vehicles in the company's records. Since Mr Cullen was the "controlling mind" of the company, he possessed "sufficient responsibility to qualify for the purposes of attribution of his actions and understanding to the company", 83rendering it criminally liable for the receiving offence on the basis of his acts and state of mind. By contrast, the actions of three of the company's employees who purchased the stolen property on the company's behalf and brought it onto the company premises were not attributable to the company, as the employees were "not sufficiently senior" in the company's organisational structure. 8479 Re Regis, above n 76, at [28].80 At [30].81 Crimes Act 1961, s 246.82 Cullen v R, above n 19, at [39].83 At [20].84 At [6].[66] The Court of Appeal in McGurk v R summarised the points to be taken from the approach in Cullen v R as: 85 – first, that the statutory context is important in determining the outer limits of permissible attribution in the particular case; and second, the outer limits of attribution are the platform upon which the trier of fact must assess evidence about the extent of the defendant's responsibility for set-up and operation of the company.Does the scope of criminal attribution extend beyond the employer/employee relationship?[67] Most of the cases cited before this Court where criminal attribution was established involved the attribution of the actions of an employee to their employer.86Mr Saunders was not employed by the defendant directly, but was employed by Talley's Group, of which the defendant is a wholly owned subsidiary.[68] In support of its submission that criminal attribution is not limited to employer/employee relationships, counsel for the respondent pointed to the Court of Appeal decision in Bartle v GE Custodians.87 In that case GE, a lending company, had contracted out to a non-employee third party broker its responsibility under the Credit Contracts and Consumer Finance Act 2003 ("CCCFA") to fully explain to the plaintiffs the effect of GE's investment schemes. The broker did not do so, meaning that the plaintiffs, retirees who had invested in the scheme, were led to believe (incorrectly) that they were not responsible for servicing the loans that the investment required. They were not able to service the investment and sought to unwind the transaction on the basis that the broker's knowledge could be attributed to GE, rendering the scheme oppressive under the CCCFA.[69] The Court of Appeal found that even if the third party broker had not been acting as an agent for GE at the relevant time, the nature of the consumer protection legislation in issue raised a compelling case for attributing to GE the actions of the third party broker to which GE had delegated responsibility for the matters that went to oppression. The Court of Appeal found that while GE had effectively delegated the85 McGurk v R [2015] NZCA 148, at [47].86 Mr Cullen was the sole director, shareholder and had management responsibilities. See above at[65].87 Bartle v GE Custodians [2010] NZCA 174.tasks to the third party corporate, it could not delegate the duties that were imposed under the CCCFA, and therefore could not "escape responsibility under the CCCF[A] if that entity erred in a material way in fulfilling that function." 88[70] The Court said there was no doubt that the third party broker acted as GE's agent in managing its mortgages, although it was less clear whether the third party acted as its agent in relation to the origination of the mortgages, particularly regarding the aspect of credit assessment which was in issue.89 Nevertheless, the Court of Appeal concluded that the broker had carried out the credit assessment function for and on behalf of GE so that its actions and knowledge could be attributed to GE.90 The Court of Appeal said that this conclusion was consistent with the scheme, purpose and policy of the CCCFA and that it would be inimical to the orderly operation of the statute if outsourcing virtually all the usual assessment functions of financiers were to provide "immunity from [the CCCFA's] statutory consequences". 91[71] The Supreme Court overturned the decision of the Court of Appeal in Bartlefor a number of reasons unrelated to attribution.92 It found on the facts that the third party broker standing between GE and the Bartles prevented attribution of the broker's knowledge of any oppressive conduct to GE, the lender. In the course of its decision, it expressed reservations about approaching the question of attribution in the way suggested by the Court of Appeal.[72] The Supreme Court said: 93[62] We should however say that we have some reservation about approaching the question of attribution by analogy with the attribution to a corporation of knowledge possessed by one of its officers, as suggested by Arnold J in the Court of Appeal. Indeed, counsel for the respondent, while arguing for agency, expressly did not attempt to support the Court of Appeal's conclusions on that other basis.88 Bartle, above n 87, at [230].89 At [243].90 At [249].91 At [250].92 GE Custodians v Bartle [2011] 2 NZLR 31 (SC).93 At [62].[73] The reservations expressed by the Supreme Court about the Court of Appeal's approach to attribution indicate that the scope of attribution under regulatory statutes may be limited to the relationship between "a corporation and its officers" (employees). The consumer credit legislation in Bartle was emphatic in expressing its purpose of consumer protection.94 The Supreme Court's reluctance to embrace attribution in Bartle, despite the strength of purpose expressed by the legislation in question, indicates that the prominence given to statutory purpose after Meridian may not by itself widen the scope of corporate criminal attribution past the bounds of a company's employees or persons who could be its "controlling mind". A fortiori, the purpose of the MRA to preserve New Zealand's marine environment, 95 even with the overlay of Treaty considerations, may not by itself provide sufficient reason for extending the scope of attribution outside the employer/employee relationship, particularly in the context of a criminal offence.[74] In view of the Supreme Court's comments, I do not consider much weight can be placed on the Court of Appeal's comments on attribution in Bartle pending further appellate consideration on the point. It is also important to note that the decision inBartle involved a civil claim based on specialised consumer protection legislation rather than a criminal offence.Appellant's submissions[75] The appellant submits that the Judge erred in both law and fact.[76] The crux of the appellant's defence is that Mr Saunders was not, at the relevant time, acting as Amaltal's agent; nor did Amaltal otherwise control or direct his actions. The appellant emphasises that Mr Saunders was not employed by Amaltal and that there was no contractual relationship between them. Amaltal did not own the Mariner,the fishing equipment, or any of the fish caught by the vessel. The appellant says that it was merely the holder of the permit for the purposes of commercial fishing in terms of the Fisheries Act 1996. Therefore, once Mr Saunders took the vessel into the Reserve, that authorisation to fish under the Fisheries Act ceased to apply. The fish94 Credit Contracts and Consumer Finance Act, s 3.95 Marine Reserves Act 1971, s 3(1).taken from the Reserve were not taken as part of the lawful commercial fishing expedition for which the permit granted authority. Any involvement that Amaltal might have had as registered operator of the vessel and permit holder for lawful expeditions to take and land fish for commercial purposes under the Fisheries Act became otiose. To hold the appellant criminally liable, it therefore submits, would expand the scope of criminal attribution in an unprincipled fashion.[77] The appellant makes five detailed submissions in support of its defence, namely that:(a) attribution must be assessed at the time the illegal act occurred;(b) the Fisheries Act regime is irrelevant to the issue of attribution of Mr Saunders' actions in the reserve;(c) Mr Saunders was not acting as Amaltal when he landed fish on the vessel in the reserve;(d) Mr Saunders was not Amaltal's agent at the time he took fish from the reserve; and(e) the actions of a person who is neither an employee nor agent were not intended to be attributed to a company under the Marine Reserves Act.[78] The appellant's first submission is that attribution must be assessed at the time that the illegal act occurred. Mr Saunders took the fish while in the Reserve. The appellant says that this is relevant when considering the applicability of the Fisheries Act to offending under the Marine Reserves Act, namely taking fish while in the Reserve.[79] Secondly, the appellant submits that the Fisheries Act regime is irrelevant to the attribution of Mr Saunders' actions in the Reserve. The Fisheries Act has provisions deeming the acts of a ship's master (Mr Saunders) to be the acts of itscorporate registered operator (Amaltal). 96 However, those provisions do not apply to the MRA. Nor does the MRA incorporate those provisions of the Fisheries Act. Each Act serves a different purpose and applies in different spheres: the Fisheries Act serves to conserve domestic fish stock and regulate commercial fishing, while the MRA serves to protect marine reserves. The Mariner is registered to Amaltal only for the purposes of permitted fishing under the Fisheries Act. The offence under the MRA is of taking fish without lawful authority, so the fact that Amaltal's Fisheries Act permit was the only "lawful authority" under which Mr Saunders could fish makes the identity of the holder of that permit irrelevant to the offence. It is instead the substance of the relationship and factual nature of any control Amaltal had over Mr Saunders that needs to be examined in order to determine the question of attribution.[80] The appellant points to Woo v Ministry of Agriculture and Fisheries as authority for the proposition that a company cannot be criminally liable for acts carried out by a person who is not answerable to that company. 97 In that case, Pacific Oyang Ltd ("POL"), the charterer of a fishing vessel, was convicted of using a trawl net with a mesh size that did not comply with fisheries regulations. POL chartered the vessel and controlled the day-to-day operations and the fish taken, but did not direct the master, own the net, or employ the crew. Its conviction was overturned in the High Court, which found that "the crew and the captain cannot be said to be the delegate or other subordinate directly answerable to the charterer. It is entirely different from the situation in which a company delegates to or imposes on a servant, agent or other subordinate the operations and duties of the company". 98[81] The appellant's third submission is that Mr Saunders was not acting "as" Amaltal when he landed fish on the vessel in the Reserve. Mr Saunders was not "responsible" for Amaltal in the way required by the principles of criminal attribution. Amaltal did not employ Mr Saunders, nor was there any contractual relationship between them. Mr Saunders received his instructions from Talley's Group and fished from Talley's Group's vessel using Talley's Group's fishing equipment. Amaltal did not own the fishing quota used in the operation or profit from Mr Saunders' fishing.96 Fisheries Act 1996, s 245(2).97 Woo v Ministry of Agriculture and Fisheries HC Nelson M28/29, 30 March 1990.98 At 12.While the commercial fishing permit belonged to Amaltal, it was Talley's Group that was responsible for carrying out the fishing operations. Mr Saunders was delegated no general authority for the set up or operation of Amaltal, and had no obligation to act in Amaltal's interests. Amaltal did not control Mr Saunders while he was on board the Mariner and had no reason to do so.[82] The appellant points out that Amaltal was even further removed from the relevant fishing operations than was POL in Woo. It also contrasts the facts of the current case with those of Moir Farms (Maimai) Ltd v Department of Conservation,99a case involving corporate liability for littering arising from the acts of an employee of the appellant company. The offence was one of a strict liability. The High Court, upholding the company's conviction, held that it had delegated day-to-day farming operations to its farm manager, who acted in the company's place, and that the operations were "within the course of [the employee's] employment". 100 The appellant company in that case, unlike Amaltal, benefitted from the impugned operations.[83] The appellant's fourth submission is that Mr Saunders was not Amaltal's agent at the time he took fish from the Reserve. The appellant says that, first, the Judge erred in law when relying on the Court of Appeal's formulation of attribution inBartle v GE Custodians in finding that Mr Saunders' acts could be attributed to Amaltal on the basis of agency, even in the absence of an employment relationship between them. Secondly, even if the civil principles of agency could be applied to impose criminal liability on the basis of attribution, Mr Saunders was not an agent of Amaltal for the purposes of the criminal law.[84] The appellant points out the errors it said were apparent in the Judge's reliance on the Court of Appeal's formulation of attribution in Bartle:(a) the Judge cited William Young P's formulation, when neither of the other two Court of Appeal Judges had made reference to that formulation;99 Moir Farms, above n 45.100 At [45].(b) that decision was in a civil context, when a criminal context requires a more stringent test;(c) the issue in the case was about the imputation of the agent's knowledge, rather than of liability; and(d) the judgment was overturned in the Supreme Court. 101[85] Therefore, the appellant says that the Court of Appeal judgment in Bartle does not assist in determining whether non-employees' (and non-officers') actions can be attributed to a company for the purpose of that company's criminal liability.[86] Even if civil principles of agency did apply to criminal offences, the appellant submits, Mr Saunders was not acting as an agent for Amaltal under those principles. A relationship of civil agency requires the agent to have the authority to represent the principal and act on its behalf. 102 In addition, control by the principal is a common but not necessary element – although total absence of control suggests the relationship is not truly one of agency. 103 Mere permission, such as to use another person's chattel, or a licensing arrangement, is not agency. The appellant says that the relationship between Amaltal and Mr Saunders is better characterised as one of license or mere permission. Mr Saunders did not fish on behalf of Amaltal or for Amaltal's benefit. Nor did Amaltal delegate the task of fishing to Mr Saunders. Amaltal had no interest in the fishing operation and neither the Talley's Group nor Mr Saunders had any expectation that the fishing trip would be in Amaltal's interest. Talley's Group employed Mr Saunders without any reference to Amaltal's interests. Amaltal had no means of controlling Mr Saunders' actions when he took the fish from the Reserve.[87] The appellant's fifth submission is that the actions of a person who is neither an employee nor an agent of a company were not intended to be attributed to that company under the Marine Reserves Act. To attribute Mr Saunders' acts to Amaltal101 GE Custodians v Bartle, above n 92.102 Morgans v Launchbury [1973] AC 127 (HL) at 140 per Lord Pearson, as cited in GE Dal PontLaw of Agency (2nd ed, LexisNexis Butterworths, Chatswood NSW, 2008) at [4.4].103 Peter Watts and FMB Reynolds Bowstead and Reynolds on Agency (21st ed, Sweet & Maxwell, London, 2018) at [1-018].in the absence of an employment or agency relationship would therefore be an unprincipled expansion of the law. In this case, Amaltal could neither control nor direct Mr Saunders' actions. It was Talley's Group that provided Mr Saunders with training, notified him of the establishment of the Reserve, provided him with a written warning to be aware of restricted fishing zones, and provided the chart which marked the location of the Reserve. There is no basis under the Marine Reserves Act to ignore this corporate structure. The Ministry for Primary Industries could have chosen to prosecute a different company to which the requisite attribution might have been more readily established, but any such prosecution is now out of time.Respondent's submissions[88] The respondent's submissions focus on three points, namely that:(a) the Judge was correct to rely on the Fisheries Act in her finding of agency;(b) the Fisheries Act applied, even though the offending took place inside a marine reserve; and(c) policy considerations, namely the purpose of the MRA and the Treaty of Waitangi principle of active protection, support the Judge's interpretation and application of the MRA.[89] In terms of basing a relationship of agency on the Fisheries Act, the respondent says the appellant has misstated the Judge's comments. The Judge was relying on the factual matrix of the offending to establish agency. The Fisheries Act was contextually relevant as it controls commercial fishing and governs the roles and responsibilities of those involved. The respondent says that, as the holder of the fishing permit, Amaltal was the commercial fisher as defined under the Fisheries Act, 104 and therefore that it was bound by the obligations attaching to commercial fishers under that Act. It says that Amaltal fished using a vessel registered in its name under the Fisheries Act, and that as a permit holder it could not take a passive role in a fishing operation. It is a104 Fisheries Act 1996, s 2.role which comes with various responsibilities and obligations.105 These included the requirement to complete the landing and catch reports. Fish could only be taken under the authority of Amaltal's permit. This authority could not be transferred. Therefore, only Amaltal could land and transfer the fish caught under its permit. This means that Amaltal must have landed, and notionally been in possession of, the fish taken from the Reserve by Mr Saunders before the fish were acquired by Talley's Group. Talley's Group could have held the fishing permit if it chose to. But it did not. Nor did it appear as the operator of the Mariner on the vessel's Fisheries Act registration. These facts, Mr Webber submitted, informed the reality of the offending.[90] Given that Amaltal was the commercial fisher undertaking fishing permitted under the Fisheries Act, the actions of the person authorised to fish and control theMariner, Mr Saunders, counted as the actions of the permit-holder, Amaltal. Amaltal was the only party with lawful authority to use the Mariner for commercial fishing.[91] The respondent says that the case of Woo is unhelpful, as it pre-dates Meridianand concerns different issues and facts. Woo concerned the "use" of non-compliant nets, whereas this case involved the "taking" of fish in general.[92] The respondent says that it is artificial and unrealistic to say that the Fisheries Act does not apply to Mr Saunders taking fish from the Reserve. The appellant's suggestion that the moment the vessel moved into the Reserve the Fisheries Act permit ceased to govern the relationship between Mr Saunders and Amaltal ignores the realities of commercial fishing. The commercial fishing did not suddenly cease, and Amaltal's permit did not cease to operate, when the Marinercrossed the invisible line into the Reserve. The respondent points out that the illegally taken fish were stored, transferred and sold alongside the other lawfully caught fish.[93] In terms of policy, the respondent says a wider net of attribution is justified given the overarching purpose of the MRA of preserving and protecting the marine environment. The respondent therefore submits that the Judge was correct to widen the net of attribution beyond the direct employer/employee relationship in order to105 Fisheries Act 1996. For example, under ss 89(10), 191(1), and 192(1).prevent the complex Talley's/Amaltal company group structure from defeating the purpose of the legislation.[94] The respondent says further that the principle of "active protection" of conservation reserves also weighs in favour of finding attribution. This is due to, first, the location of the offending, and, secondly, the statutory obligations under the conservation legislation to give effect to the principles of the Treaty of Waitangi.[95] First, as to the location of the offending: the Reserve was established by theKaikōura (Te Tai ō Marokura) Marine Management Act 2014 ("the Kaikōura Act") following the settlement of Ngāi Tahu's Treaty claims which imposed ongoingobligations on the Crown and others.106 The Kaikōura Act established Te Korowai o Te Tai Ō Marokura ("the Kaikōura Marina Guardians"), an advisory group on biosecurity, conservation and fisheries matters within the KaiKōrua Marine Area. TheKaikōura Marina Guardians provided a victim impact statement at Amaltal's sentencing hearing.[96] Secondly, as to statutory obligations: The Marine Reserves Act is listed under Schedule 1 of the Conservation Act 1987, 107 section 4 of which states: 108This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.[97] The relevant principle of "active protection" was reaffirmed in Ngāi Tahu Māori Trust Board v Director General109 in relation to the interests of Ngāi Tahu inthe Kaikōura marine area. That case affirmed that when interpreting conservationlegislation such as the MRA the court must have regard to s 4. "Active protection" cannot be achieved in this case by a narrow interpretation of attribution, because allowing Amaltal to escape conviction under s 18I(1) of the MRA would fail to deter commercial entities from using corporate structures to defeat the MRA restrictions.106 Ngāi Tahu Claims Settlement Act 1998, which set out ongoing obligations under theFisheries Acts 1983 and 1996.107 Conservation Act 1987, sch 1.108 Section 4.109 Ngāi Tahu Māori Trust Board v Director-General [1995] 3 NZLR 553 (CA).Analysis[98] I first consider the question of attribution by reference to statutory interpretation, that is, in light of the purpose and policy of the relevant offence. I then move to a factual assessment of whether, as the appellant says, such attribution is beyond the "outer limits of permissible attribution" in the circumstances of this case. 110Interpretation of the relevant legislation[99] Statutory interpretation is at the core of an assessment of attribution for the purpose of the particular offence. Sections 10(1) and (2) of the Legislation Act 2019 read: 111Legislation Act 201910 How to ascertain meaning of legislation(1) The meaning of legislation must be ascertained from its text and in the light of its purpose and its context.(2) Subsection (1) applies whether or not the legislation's purpose is stated in the legislation.[100] The basic approach, as outlined by Glazebrook J in extrajudicial comment,112"is to interpretthe specific provisionsin light of their purpose, in the context of the legislation as a whole and, to the extent relevant, against the background of the legislative history and other related legislation". Statutory interpretation is informed by basic legal values (in or outside the New Zealand Bill of Rights Act 1990) and the social, commercial or other objective of the enactment. 113110 McGurk v R, above n 85, at [47].111 Legislation Act 2019, ss 10(1) and (2).112 Susan Glazebrook "Statutory Interpretation, Tax Avoidance and the Supreme Court" (paper presented to New Zealand Institute of Chartered Accountants 2013 Tax Conference, 7 November 2013) at 10–11, as cited in Burrows and Carter Statute Law in New Zealand (6 th ed, LexisNexis, Wellington, 2021) at 287.113 The principles are set out in Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36 at [22], recently confirmed in Pure v NZ Police [2020] NZCA 525 at [19].[101] Her Honour's reference to "values" was interpreted by the authors of Burrows and Carter on Statute Law in New Zealand 114 as referring to:"an important and diverse range of factors that can influence the court in the way it interprets a statutory provision. Normally these factors reinforce considerations of purpose and context, but sometimes they cut across them. The factors include, very importantly, the values of our legal system that courts wish to preserve; the New Zealand Bill of Rights Act 1990 in this regard makes express what has to some extent always been implied. They include also the history of a branch of the law concerned, particularly its common law history, and the desire that the result reached be sensible, just and workable. These factors all contribute to the make up and character of the legal system into which the statutory provision in question must fit as comfortably as possible".[102] In this case the fact that the Marine Reserves Act must be interpreted and administered as to give effect to the principles of the Treaty of Waitangi provides guidance as to an important value for the court to bear in mind in interpreting that Act. The principle of "active protection" also calls for a more expansive interpretation of provisions designed to protect the Reserve. At the same time, the charges involved in this case are criminal charges. Their interpretation and application must therefore bear in mind the stricter standard and precision required for the attribution of legal liability in criminal offences.[103] The Marine Reserves Act itself is silent as to the attribution of acts constituting an offence under s 18I to non-natural persons. Amaltal held a fishing permit and was registered as operator of the Mariner fishing vessel under the Fisheries Act. No person can take or sell fish without a current fishing permit and only a registered vessel can be used to take fish. 115 The vessel registration entitled Amaltal to permit the master of the Mariner to take fish. 116 Fish on a registered vessel are deemed to be taken for sale.117[104] Fishing permits may be issued subject to conditions from the Chief Executive of the Ministry for Primary Industries. Under s 103(2)(a) of the Fisheries Act, fishing vessels must be registered to an "operator", with conditions attached to the114 Burrows and Carter, above n 112, at 288.115 Fisheries Act, s 89(1) and s 103.116 Section 89(3).117 Section 111.Chief Executive's consent to registration.118 These conditions can relate to areas or fishing methods.119 Contravening such conditions is an offence. 120[105] The obligations on the holder of a permit and on a deemed vessel operator are substantial. However, it is not the content of Amaltal's legal obligations under the Fisheries Act per se, but the way those obligations inform the relationship between Amaltal and Mr Saunders, that provides the context for ascertaining the outer limits of attribution under the offence provision in the MRA.[106] Amaltal was the entity that landed the fish, not Talley's Group. Amaltal recorded the landing. It cannot transfer its fishing permit or any rights or obligations attaching to that permit. At the least, Amaltal "gave" the fish to Talley's Group, doing its part for the benefit of the group by providing the landed fish to Talley's Group to sell. The common shareholders in all the group companies are the Talley family members. The Talley's Group was the beneficiary of the fish from the impugned fishing operation, but Amaltal would have been required to account for the transfer of the ownership of the fish within the group structure in some manner. The court was not privy to the accounting or taxation arrangements between the companies in the Talley's Group, but the evidence is that the fish were landed from the catch and had a value. These included fish taken from the Reserve, so the revenue from sale benefited the group and indirectly the shareholders of at least one company in the group.Relationship between Marine Reserves Act and Fisheries Act: should the attribution provisions in the Fisheries Act be read into the MRA?[107] In this case both Mr Saunders (the master of the Mariner) and Amaltal were charged under s 18I of the MRA. This offence prohibited "taking or removing" fish "for commercial purposes". 121 A conviction under that section renders a person liable to forfeiture of any property used in the offending, including any vessel.122 The offence carries a term of imprisonment not exceeding three months, or a fine not118 Fisheries Act 1996 s 92(1A).119 Section 92(1A)(a).120 Section 92.121 Marine Reserves Act 1971, s 18I(1).122 Section 18G(1)(a).exceeding $250,000. 123 A person is deemed to have taken marine life for "commercial purposes" if they are found in possession of an amount exceeding three times the amateur individual limit prescribed in respect of that marine life in regulations under the Fisheries Act 1996. 124[108] Mr Saunders was fishing for "commercial purposes" because the quantity of fish caught exceeded the limit in the offence provision. The fact that Mr Saunders was convicted of the offence under s 18I(1) indicates that the fishing operation in question met the quantitative threshold for "commercial purposes".[109] There are a suite of offence provisions in the Fisheries Act which deem a corporate employer to be liable for the actions of its employee or agent. 125 Under these provisions, a corporate is restricted in its ability to avail itself of the defences of accident, reasonable precautions and due diligence, or that it immediately returned the fish and complied with material requirements concerning the keeping of the records. 126Those defences are only available to a corporate if the court is satisfied that it would be repugnant to justice for that defence to be so limited, having regard to a number of factors including the benefit accruing to the corporate from the wrongdoing.127Directors and managers are also liable when a corporate commits an offence under the Act if the acts constituting the offence were carried out with the director's or manager's authority, permission or consent.128[110] The Fisheries Act 1996 amended the Marine Reserves Act 1971 to add a number of offence provisions, including the offence under s 18I which is the subject of this appeal. 129[111] Much of the appellant's analysis hangs on the argument that the provisions of the Fisheries Act do not apply to enable attribution under the Marine Reserves Act.123 Marine Reserves Act 1971, s 18I(1).124 Section 18I(6)125 Fisheries Act 1996, s 245.126 Section 241.127 Section 245(3).128 Section 246.129 Schedule 12.[112] The statutory deeming provisions in the Fisheries Act which attribute offending by an employee or agent under that Act to a corporate, its principal, or its directors and managers were not carried over in the Fisheries Act amendments to the MRA. This fact alone does not mean that the court cannot apply the common law principles of attribution to an offence under the MRA. However, the conspicuous absence of Fisheries Act-style attribution provisions in the MRA does point to a signal from Parliament that wide corporate attribution is appropriate to offences under the Fisheries Act but not to offences under the Marine Reserves Act. This is particularly so given that it was the Fisheries Act that inserted the offence under s 18I into the Marine Reserves Act.[113] Whether Amaltal had committed offences under the Fisheries Act for breaches of conditions of its fishing permit because it fished in the marine reserve area was not before me. 130 Liability would depend on the terms of the fishing permit.[114] While the MRA and Fisheries Act form part of a wider scheme for the management and sustainability of marine resources, they have distinct and separate purposes. The MRA reflected environmental and conservation values not protected in the Fisheries Act, which was instead focused on the management of fish stocks. As the District Court Judge noted, Parliament had made a conscious decision to exclude environmental principles when enacting the Fisheries Act, highlighting that those were adequately provided for in the Marine Reserves Act and other environmentally focused legislation. 131 The Judge included a quote from the report of the Primary Production Committee at the time the Fisheries Bill was introduced as follows: 132We do not support the inclusion of such principles in the environmental principles clause. These values are provided for explicitly in other legislation, such as the RMA, Marine Reserves Act 1971, Marine Mammals Protection Act 1978 and the Wildlife Act 1953. Their inclusion into the environmental principles would introduce a range of non-utilisation values into the Bill and significantly undermine the interface with other statutes. The current interface reflects acceptance that fishing, like other activities, can be curtailed under the130 Fisheries Act 1996, s 252(5) provides for a $100,000 fine for breach of a fishing permit, areas or methods of fishing outside the permitted areas. Section 255(b) provides for the court to order a forfeiture of a vessel used in offending.131 District Court Decision, above n 1, at [35].132 At [35]; Fisheries Bill 1996 (63-2) (select committee report) at viii.RMA and other statutes, on the basis of effects on matters such as intrinsic and amenity values.[115] The statutes also differ in their definitions of relevant terms. They contain different definitions for some of the same words, including "sell", "sale" and "taking". Under the Fisheries Act, "taking" means fishing, 133 while under the Marine Reserves Act it has a wider definition including taking by any means. 134 This suggests that where a different meaning is to be ascribed to a term in the Marine Reserves Act than under the Fisheries Act, that term will be specifically defined in the Marine Reserves Act.[116] A further point argued by Ms Lanham for Amaltal was that the master was on his own the moment he went outside the "invisible line" into the Reserve. Ms Lanham said that no fishing permit can authorise fishing inside a marine reserve, and therefore that Amaltal's fishing permit became otiose once Mr Saunders took the Mariner inside the Reserve. On one side of the line he was fishing commercially under the authority of the Fisheries Act permit. On the other side of the line he did not have authority to fish commercially as the permit did not apply inside the Reserve.[117] I am unable to accept that argument. Under the Fisheries Act regime no person may take any fish unless the person does so under the authority of, and in accordance with, a current fishing permit. That underlying permission remained, and the vessel was still conducting a commercial fishing operation, when the Mariner crossed into the Reserve, although that permit did not override the prohibitions in the MRA so as to legalise the taking of fish from the Reserve. The fish were taken from the Reserve illegally in the course of an otherwise authorised operation.Agency analysis[118] The District Court found that Mr Saunders was acting as an agent for Amaltal at the relevant time for two reasons. 135133 Fisheries Act 1996, s 2.134 Marine Reserves Act 1971, s 2.135 District Court Decision, above n 1, at [51].[119] The first was that Mr Saunders was in charge of the "direction, navigation and operation of the Amaltal Mariner while on the relevant fishing expedition and the Mariner is a fishing vessel that is registered to Amaltal Fishing".136 The Judge referred to the provisions in the Fisheries Act requiring the vessels to be registered to an operator. Operator is defined in s 2 of the Fisheries Act as: 1372 Interpretationoperator, in relation to a vessel, means the person who, by virtue of ownership, a lease, a sublease, a charter, a subcharter, or otherwise, for the time being has lawful possession and control of the vessel[120] The Judge noted that, while the vessel may have been owned by Talley's Group, it was "clear from the vessel registration that the relevant operator, and only corporate with lawful possession and control of the Amaltal Mariner, was Amaltal Fishing".138 It followed that, while acting as master of the Mariner,Mr Saunders must have been acting as agent for Amaltal.[121] The second reason relied upon by the District Court Judge to establish agency was that Mr Saunders was fishing pursuant to the commercial fishing permit held by Amaltal. Although he was acting on the instructions of Talley's Group and using Talley's Group's fishing technology, Amaltal was the only entity capable of giving Mr Saunders lawful authority to fish commercially.[122] Amaltal contends that the authority that Mr Saunders had to take fish was based on his position as the master of a fishing vessel registered in the name of the holder of a fishing permit. Therefore, although Amaltal held the permit under which Mr Saunders fished, he was not under Amaltal's control, but merely acting under the authority of that permit.139 The crew were likewise entitled to take fish by virtue of their membership of the crew of a fishing vessel operated by and registered to the holder of the fishing permit.140 Amaltal submits that the difference between authority136 District Court Decision, above n 1, at [52].137 Fisheries Act 1996, s 2(1).138 District Court Decision, above n 1, at [54].139 Fisheries Act 1996, s 89(3)(a).140 Fisheries Act 1996, s 89(3)(c).and control is crucial here. At the relevant time, Mr Saunders was acting on instructions from the Talley's Group as to where to fish and what to fish for.[123] A vessel used in the commission of an offence under s 18I may be forfeited by order of the court.141 This also indicates, as the District Court Judge pointed out, the likely level of offending which s 18I was intended to target, namely large commercial fishing operations with the technology and means to fish in this manner.142 Corporate attribution is therefore appropriate for offences under the Marine Reserves Act in certain circumstances.[124] I agree with the Judge's determination that s 18I(1) of the Marine Reserves Act was intended to apply to both companies and natural persons. 143 I consider she was also correct to find that Mr Saunders was not the "controlling mind" of Amaltal.144There is no evidence to indicate that he was close enough to the Board of Amaltal to render him the company's "controlling mind". He was an employee of Talley's Group, and answered to a manager who in turn answered to Talley's Board, and possibly the main group Board. The directors of the various corporate group Boards may have been the same but, for the purposes of recognising legal personality, the court must take account of the separate corporate identities.[125] The Judge was correct not to explore the applicability of vicarious liability in this case. 145 Vicarious liability is a form of strict liability in which the liability for a civil wrong is imputed to an employer or principal. At common law vicarious liability can arise in employer/employee relationships or those with analogous characteristics. In limited circumstances it may apply to principal/agent relationships. I do not consider that vicarious liability would have been made out in this case in any event. The relationship between Mr Saunders and Amaltal was not one of employment, nor was there an analogous relationship.141 Marine Reserves Act 1971, s 18G(1)(a).142 District Court Decision, above n 1, at [43].143 At [43].144 At [56].145 At [65].[126] Mr Saunders was under the control of Talley's Group. Talley's Group was his employer and supervisor; he was acting on their instructions, using their equipment, technology and quota. Amaltal allowed the permit authorising commercial fishing to be used by Talley's Group. Mr Saunders was carrying out commercial fishing lawfully under that permit at the direction of Talley's Group. The fact Mr Saunders was fishing under the authority of that permit did not give rise to an agency relationship between Mr Saunders and Amaltal for the purposes of attributing Mr Saunders' impugned acts to Amaltal.[127] In support of its submission that Mr Saunders' acts cannot be attributed to Amaltal under the MRA, the appellant pointed to the reasoning in Woo, which was decided before the development of the attribution principle in Meridian andCullen v R, and applied a stricter test than those subsequent authorities. In Woo, Greig J said: 146In this case the participation of the appellant company in the matter is as charterer of the vessel. The responsibility flows from the owner of the vessel to the charterer in circumstances in which the owner remains the employer of the captain and the crew and is the owner of the fishing gear. While the charter declares the vessel and the master and crew shall be under the orders and directions of the charterer, it is the fact that that is of limited scope and the crew and the captain cannot be said to be the delegate or other subordinate directly answerable to the charterer. It is entirely different from the situation in which a company delegates to or imposes on a servant, agent or other subordinate the operations and duties of the company.[128] Meridian and Cullen v R, which were decided later, required a more nuanced assessment: the court must determine whether the prohibited act, for the purpose of the statute creating the offence, should count as the act of the company. This approach focuses the court's interpretation on the statute's content and policy, and the level of responsibility for the company possessed by the persons said to be its agents.[129] It may well be that Talley's Group, as employer and supervisor of Mr Saunders, would have been liable under s 18I(1) by virtue of vicarious liability or otherwise. The arrangements between Amaltal and Talley's Group allowing the latter use the Marinerto take fish under Amaltal's fishing permit was said to be a longstanding "informal arrangement". Talley's Group understood that the arrangement gave it the right to go146 Woo, above n 97, at 12.and catch its "quota parcel of fish". Counsel for Amaltal described it as a type of "licencing agreement or permission to use".[130] It is not necessary for this Court, nor is it possible on the evidence, to conclusively identify the nature of the arrangement between Amaltal and Talley's Group, save to note that it allowed Talley's Group the use of a valuable permit. For the purposes of the Fisheries Act, the operator of a vessel is the person who, "by virtue of ownership, a lease, a sublease, a charter a subcharter, or otherwise, for the time being has lawful possession and control of the vessel". 147 The permit-holder cannot transfer the permit.148 It is an offence for any person not named as an operator or nominated user in the register to use any registered fishing vessel.149The arrangements between Amaltal and Talley's Group to ensure compliance with the Fisheries Act were not before me.[131] I do not consider that Mr Saunders was acting as Amaltal's agent at the relevant time. In order to establish agency, Amaltal's control over Mr Saunders would have had to have been established more directly than by a general authority to fish derived from its Fisheries Act permit. There is no evidence of any agreement or direct relationship between Mr Saunders and Amaltal. Neither Amaltal nor Mr Saunders held themselves out to be in an agency relationship such as to attract the doctrine of estoppel. Nor did Amaltal ratify Mr Saunders' impugned operation. The agency concept must be applied with caution in criminal cases.Lord Hoffmann's special rule of attribution[132] Since I have found that Mr Saunders was not acting as Amaltal's agent, the next step is to consider whether Mr Saunders' offending should nevertheless be attributed to Amaltal for the purposes of the offence under a "special rule" of attribution as contemplated by Lord Hoffmann. 150147 Fisheries Act 1996, s 2.148 Section 89(10).149 Section 103(1).150 See above at [51].[133] As a general point, the substantive offence provisions must be applied having regard to how it was intended to apply, and to whom. The provision must be examined to ascertain whose act (or state of mind) was, for this purpose, intended to count as the act of the company.151 Lord Hoffmann in Meridian said that this could be ascertained using the normal canons of interpretation, "taking into account the language of the rule (if it is a statutory) and its content and policy". 152[134] Identifying the purpose of the MRA is paramount in interpreting the scope of attribution under s 18I(1) of that Act.[135] As the Judge noted, the overarching purpose of the MRA is the preservation and protection of marine life.153[136] In addition Mr Webber, for the respondent, pointed to the importance of the concept of "active protection" in this case, in view of the reasons for the establishment of marine reserves generally and this Reserve in particular.[137] The scope of "active protection" obligations and Treaty rights as they applied to this case were not developed in any detail. The respondent referred to Ngāi TahuMāori Trust Board v Director General of Conservation154 in support of its submissions. That case related to Ngāi Tahu's claim to the right to conduct commercial boat tours in the Kaikoura area pursuant to its Treaty rights. The Court of Appeal held that while the conservation object must be paramount, the special interest that Ngāi Tahu had in its use of the coastal waters entitled it to more than an empty obligation to be consulted. The Court determined Ngāi Tahu were entitled to a reasonable degree of preference when it came to the issuing of permits, and its interests were therefore relevant in considering the grant of a permit.[138] The principles of conservation that underpin the MRA are very important. These are reinforced by Treaty considerations. Treaty obligations are a relevant consideration in interpreting the Marine Reserves Act, particularly given the reasons151 Meridian, above n 19, at 12.152 At 13.153 District Court Decision, above n 1, at [32].154 Ngāi Tahu Māori Trust Board v Director General of Conservation, above n 109.for establishing the Reserve in question. However, the detail of those considerations was not explored before me, nor was it apparently the subject of evidence or detailed argument before the District Court.155[139] The Fisheries Act was enacted at the same time that the relevant offence provision was introduced into the MRA. The Fisheries Act has an elaborate framework deeming corporates to be responsible for the acts of their employees and the masters of their vessels. That framework is not replicated in the MRA. Given the close relationship between the two pieces of legislation, that omission is of some significance in interpreting the MRA.156[140] One can readily see the arguments for attributing the responsibility for offending to a corporate permit-holder even where it is not an employer or principal of the actor, as a matter of policy. This is particularly so when the company holding the permits is closely related to the company directing the fishing operations. However, the court is not in a position to weigh up the effects of such a policy here. That is a matter for Parliament. Parliament could have, in the same way that it regulated for corporate responsibility under the Fisheries Act following the failed prosecution for the breach of trawl net regulations in Woo, legislated for the attribution of the present offending to the fishing permit holder if it considered that the permit holder should bear responsibility.[141] Criminal law in particular must be accessible, "intelligible, clear and predictable". 157 In Cullen v R, the relationship between Mr Cullen and his company, as well as his direct involvement in the actions giving rise to the receiving charge, provided a clear link between him and the company which made the attribution of his criminal acts to that company "intelligible, clear and predictable". The same cannot be said in this case. Without a clear indication from Parliament, attributing the master's actions to a party which had no direct employment relationship or control over the master's actions is neither predictable nor clear. I bear in mind this is a mens155 A victim impact statement was before the District Court but was not available on appeal.156 To similar effect in Asst Registrar of Companies v Moses [2002] 3 NZLR 129 at [15], O'Regan J noted that where one provision creating liability on a director was clear but another was able to be similarly interpreted but was less clear, there was no liability created under the unclear provision which would attract a criminal sanction.157 Tom Bingham The Rule of Law (Penguin Books, London, 2011) at 37.rea offence but is also "one short" of full mens rea. 158 This renders an offence more likely to be attributed to a corporate in appropriate circumstances. But here a key factor in interpretation is the fact that the MRA forms part of a wider scheme with the Fisheries Act, which contains specific attribution provisions. The MRA does not.[142] There is little doubt it is desirable in general terms for relevant corporates to be held responsible for offences under the MRA. However, in my view, the attribution of Mr Saunders' offending to Amaltal is beyond the scope and purposes of the offence provisions in this particular case.Conclusion[143] As will be apparent, I am of the view that Mr Saunders was not acting as the agent of Amaltal at the relevant time and that common law principles of attribution do not serve to attribute liability for his offending to Amaltal for the purpose of the offence in question. Therefore, the Judge erred in finding the defendant guilty on the basis of attribution.Result[144] The appeal is allowed. The conviction against Amaltal is set aside._____________________Grice JSolicitors:Dawson and Associates Ltd, Nelson, for the AppellantM A O'Donoghue, Crown Solicitor, Nelson, for the Respondent158 See above at [20].Attachment 1Corporate structure of Amaltal Fishing Co. Limited and its parent and shareholdings and directorships as at March 2019Attachment 2Attachment 3