The Chief Executive of The Ministry of Fisheries v United Fisheries Ltd

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeBaragwanath J,Ellen France JJ,Ellen France J
Judgment Date06 Aug 2010
Neutral Citation[2010] NZCA 356
Docket NumberCA314/2009

[2010] NZCA 356

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Glazebrook, Ellen Franceand Baragwanath JJ

CA314/2009

BETWEEN
The Chief Executive of the Ministry of Fisheries
Appellant
and
United Fisheries Limited
First Respondent

and

UFL Charters Limited
Second Respondent
Counsel:

A M Powell and K B Campbell for Appellant

F M R Cooke QC, J E Standage and M Sullivan for Respondents

Appeal against High Court decision which held that the search and seizure of material by Fisheries Officers under s199(2) Fisheries Act 1996 (powers of entry and search) was unlawful — United Fisheries Ltd was suspected of illegal trucking (taking fish in one QMA but declaring it had been caught by another) — a search was conducted under s192 without a warrant and information and computers containing privileged material were seized and the hard drives cloned- whether the Fisheries Officers had reasonable grounds to believe that evidence relating to the offence would be found at United Fisheries Ltd's premises — whether the searches were carried out lawfully.

Held: In terms of s199(2) FA the Fisheries Officers had reasonable grounds to believe that an offence had been committed and that evidence of the offence would have been located at the premises of U Ltd. The officer had not needed to detail specifically why there were reasonable grounds for the belief that things located on U Ltd's premises would be evidence – he had identified the target with sufficient clarity as required under s199(2)(b)(ii) FA.

The requirement under s199(2) FA and s21 New Zealand Bill of Rights Act 1990 (unreasonable search and seizure), was that searches were performed reasonably. The word search in the context of s199(2) imported more than a mere entry and examination; “Search” imported the power to look through the irrelevant for what would be evidence, but the power must be exercised reasonably. Section 199 FA did not spell out in detail how the search process was to be performed but the officer was permitted to examine any record, article, document or thing that was located on any premises where there was a reasonable ground to believe it would be evidence as to the commission of an offence. That applied to the physical computer and the information it contained. Section 206 FA provided a power to make or take copies; the computer should be treated as a thing. On that basis there was a power to clone the computer. Section 198A SPA, imported by ss 206(2) and 207(3) FA as well as the overarching common law, made it clear that privileged information may not be searched. Protection must extend to both relevant and irrelevant material that was arguably privileged. Where privileged information was involved, it would be appropriate for an independent barrister to supervise the search process and that keywords be used in the examination of the cloned material.

Appeal allowed. Matter remitted back to the High Court.

JUDGMENT OF THE COURT
  • A The appeal is allowed.

  • B The judgment of the High Court and the order for costs in that Court are set aside.

  • C We remit the case to the High Court with the directions contained at [80].

  • D We make no order as to costs in this Court or for costs to date in the High Court.

REASONS

Baragwanath J (dissenting in part)

[1]

Glazebrook and Ellen France JJ

[74]

Baragwanath J

Table of Contents

Para No

Factual and legal context

[3]

Entry, search and seizure: the statute

[8]

Entry, search and seizure: the facts

[9]

Background to the searches

[9]

Grounds for belief in commission of offence

[10]

Trip 1

[11]

Trip 2

[13]

Trip 3

[15]

First issue: were there grounds for belief that evidence relating to the commission of an offence would be found at United's premises?

[17]

The searches and seizures

[23]

The grounds of belief required of a fisheries officer proposing to undertake a search and whether the officers met the standard set by s 199(2)

[25]

The judgment

[26]

Submissions for United

[30]

Discussion

[31]

Second issue: was the search carried out lawfully?

[46]

Third issue: relief

[65]

Decision

[71]

1

Claiming to exercise statutory powers, officers of the Ministry of Fisheries searched without warrant both land–based premises of the respondents United Fisheries Ltd (UFL) and UFL Charters Ltd (UFLCL) 1 (together United) and also the fishing vessel FV Kapitan Rusak, authorised to fish under UFLCL's permits in two adjoining quota management areas (QMAs). They suspected that the vessel had been engaged in illegal “trucking” : taking fish in one QMA but declaring it had been caught in another. Following the search, the master of the vessel and the manager of the onboard factory each pleaded guilty to three charges of making false or

misleading statements in statutory returns. 2 UFLCL, as holder of the permits under which the fishing was performed, admits that, unless it can establish the possible defence later mentioned, 3 it is both vicariously liable for the master's completion of false returns while at sea and strictly liable in relation to the incorrect statutory returns it filed based on the master's information. But it supports the decision of Mallon J in the High Court on the respondents' application for judicial review, 4 that each search was unlawful. This appeal is from that decision.
2

There are three issues. The first concerns the grounds of belief required of a fishery officer proposing to undertake such a search and whether the officers met the standard set by s 199(2) of the Fisheries Act 1996. The second is whether in terms of the Fisheries Act and the New Zealand Bill of Rights Act 1990 the search was carried out lawfully. The third concerns the relief to be granted by this Court.

Factual and legal context
3

New Zealand controls its fisheries resource by means of the quota management system (QMS) now contained in the Fisheries Act. It provides in relation to each species of fish (“stock”), in every QMA for that stock, a total allowable catch, shares in which are allocated to those who have bought or otherwise acquired their interest. Such shares entitle the holder to a form of catching right called Annual Catch Entitlement (ACE) which can be bought and sold independently of quota shares.

4

UFLCL owns ACE in respect of ling in the Southland (LIN5) and Sub– Antarctic (LIN6) QMAs. It holds permits to take almost 50 tonnes in the LIN5 QMA and 245 tonnes in LIN6. Because the catch yield in LIN5 makes it the favoured area for trawling operations, ACE in that QMA is more expensive than in LIN6.

5

As permit holder UFLCL authorised the Ukrainian operators of the Kapitan Rusak to fish under the authority of its permits. But by the Fisheries (Reporting) Regulations 2001 the permit holder is required itself to submit to the Ministry in respect of such fishing activity three types of return:

  • (a) a daily trawl catch effort and processing return (TCEPR); 5

  • (b) a catch landing return (CLR); 6

  • (c) a monthly harvest return (MHR). 7

If trucking has occurred each return will necessarily contain misleading statements.

6

Section 230 of the Fisheries Act states:

Neglect or refusal to supply particulars, and improper divulging of information

  • (1) Every person commits an offence who-

    • (b) makes any false or misleading statement, or omits any material information, in any communication, application, record, or return prescribed by or in accordance with this Act, or required for its administration. 8

Liability for such conduct is strict 9 but subject to a narrow affirmative defence that a conviction would be repugnant to justice. 10 UFLCL accepts that it is unlikely to succeed in such a defence.

7

Section 231 creates the more serious offence of knowingly making a false statement. 11

Entry, search and seizure: the statute
8

Powers of entry, search and seizure are conferred by the following sections of the Fisheries Act (emphasis is added):

199 Powers of entry and search

  • (1) In the course of the enforcement and administration of this Act, a fishery officer may, at any reasonable time,-

    • (a) stop, enter, or pass across any land in order to enter and examine any vessel…, or enter and examine any premises or place, or examine any record, document, article, and any gear, apparatus, device, or contents of any kind therein:

….

  • (2) If a fishery officer believes, on reasonable grounds,-

    • (a) that an offence is being or has been committed against this Act; and

    • (b) that -

      • (i) any fish … or thing used or intended to be used in contravention of this Act; or

      • (ii) any record or information required by or under this Act to be kept, completed, or provided; or

      • (iii) any article, record, document, or thing which there is reasonable ground to believe will be evidence as to the commission of an offence against this Act,-

may be concealed or located or held in any vessel, vehicle, conveyance of any kind, premises, place, parcel, package, record, or thing-

then, for the purpose of the enforcement of this Act, that officer may at any reasonable time enter or pass across any land in order to enter, examine, and search any such premises or place, or any such vessel, vehicle, or conveyance of any kind (by stopping or opening where necessary), and may examine and search (by stopping or opening where necessary) any such parcel, package, record, or thing.

  • A fishery officer may detain any vessel, vehicle, conveyance of any kind, parcel, package, record, document, article, gear, apparatus, device, container, fish, aquatic life, seaweed, or thing for such period as is reasonably necessary to enable the fishery officer to carry out an examination or search under this section.

206 Power to take copies of documents

  • (1) In exercising powers under this Act, a fishery officer may -

  • (a) make or take copies of any record or document, and for this purpose may...

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