VU v MINISTRY OF FISHERIES SC 101/2010

VU v MINISTRY OF FISHERIES SC 101/2010 17 December 2010IN THE SUPREME COURT OF NEW ZEALANDSC 101/2010[2010] NZSC 162BETWEEN THIN THI VUApplicantAND MINISTRY OF FISHERIESRespondentCourt: Elias CJ, McGrath and William Young JJCounsel: P T R Heaslip for ApplicantB J Horsley for RespondentJudgment: 17 December 2010JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.[1] The applicant was found guilty in the District Court of being a party to offending committed by Huong Ly. Her appeal to the High Court against conviction was allowed by Duffy J,1 but on a further appeal to the Court of Appeal the conviction was reinstated.2 She now seeks leave to appeal.[2] The applicant's argument throughout has been that Mr Ly did not commit theoffence alleged. If he was guilty, the applicant was undoubtedly a party. So we will address the case in terms of whether Mr Ly committed the offence with which he was charged.[3] The charge against Mr Ly was laid under s 233(1) of the Fisheries Act 1996. The allegation was that he had obtained a benefit by knowingly possessing and procuring paua otherwise than in accordance with the Act. There were a number of1 Vu v Ministry of Fisheries HC Auckland CRI-2009-404-263, 18 May 2010.2 Ministry of Fisheries v Vu [2010] NZCA 469.bases upon which the prosecution maintained that Mr Ly's possession of the pauawas not in accordance with the Act, but for present purposes, only one of these requires discussion. This is the contention that Mr Ly was in contravention of s 192(5) which relevantly provides:(5) No person ... shall purchase, otherwise acquire, or be in possession of any fish ... for the purpose of sale, unless the fish ... was purchased or acquired from—(a) a commercial fisher ... ; or(b) a licensed fish receiver; or(c) a fish farmer.By way of context, we note that s 192(1) (which is addressed to commercial fishers) and s 192(2) (which is addressed to licensed fish receivers) also prohibit the purchase and possession of fish for purposes of sale unless, inter alia, they were acquired from particular categories of supplier.[4] Mr Ly's possession of the paua was for the purpose of sale and he had acquired the paua from an undercover fisheries officer who was not a commercial fisher, a licensed fish receiver or a fish farmer. So according to the Crown, he was acting in contravention of s 192(5) of the Act.[5] The defence relied on s 192(10) which relevantly provides:(10) This section does not apply in respect of—...(c) any transaction with the Crown ...The argument is that the undercover officer was an agent of the Crown and the salefrom the officer to Mr Ly was thus a "transaction with the Crown". And accordinglyhis acquisition of the paua was lawful, as was his subsequent possession of it.[6] On this point, Judge Epati in the District Court concluded that the purchase was not a transaction with the Crown. In the High Court, Duffy J disagreed. She held that the s 192(10)(c) exemption applied and thus allowed the appeal. The Court of Appeal reinstated the conviction. It concluded, in agreement with Duffy J, thatthe purchase was a transaction with the Crown. But it also held that what it called"the s 192(10)(c) defence" could only be invoked by a defendant who had "knowledge or reasonable belief that the other party to the transaction was the Crown".3 In reaching this conclusion, the Court recognised that on a literal reading, s 192(10)(c) took transactions with the Crown (and subsequent possession of fish acquired from the Crown) outside the scope of s 192 but concluded that so literal an approach would be unacceptably inimical to the purposes of the Act.[7] We think it clear that s 192(5) and 192(10)(c) should not be construed so as to provide a defence in the present case. To this extent we agree with the Court of Appeal and consider that the appeal has no prospects of success. But our preferred route to the conclusion that s 192(10)(c) does not provide a defence differs from that of the Court of Appeal.[8] There is no policy reason for construing the expression "transaction with the Crown" as encompassing the transaction in question in this case:(a) The purpose of "the transaction with the Crown" exception is obvious.The Crown sometimes has fish which have been either caught for research purposes or seized. Section 192(10)(c) is intended to facilitate the acquisition of such fish by third parties without those third parties committing offences under s 192. Such third parties will naturally wish to be sure that they are acquiring fish from a legitimate source and can only be confident of this if the supplier is a Crown employee or agent openly acting as such.(b) Section 192(10)(c) is not necessary for the purposes of protecting undercover fisheries officers from criminal liability as this is provided for by s 220(1).[9] In contradistinction, construing the expression "transaction with the Crown"as extending to the transaction in this case is inimical to the orderly administration of3 At [41].the Act and would be the sort of stultifying interpretation which courts rightly struggle to avoid.[10] The expression "transaction with the Crown" must take its meaning from therelevant context and purposes of the Act. It is plain beyond argument that the purpose of s 192(10)(c) is to provide for circumstances where the Crown, acting openly as such, disposes of fish. The purpose is not to immunise black market operators from criminal liability. So we are satisfied that s 192(10)(c) is engaged only by a purchase of fish where the supplier is a Crown employee or agent openly acting as such.[11] Under s 399(4) of the Crimes Act 1961, the applicant's sentence of homedetention which ceased to run when she applied to this Court for leave resumes with effect from today.Solicitors:Crown Law Office, Wellington