IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 40-41/04

Rex

v

Napoleone Lata & Kalofiama Tovo

BEFORE THE HON CHIEF JUSTICE WEBSTER 

Heard at Nuku’alofa on 29 May 2006.

EXPANDED TRANSCRIPT OF ORAL DECISION GIVEN ON 29 MAY 2006.

Counsel: Prosecution: Mr Sisifa
Defence: Mr Tu’utafaiva

Napoleone Lata and Kalofiama Tovo were each charged under Regulations 13(2) and 23 of the Fisheries (Conservation and Management) Regulation 1994 with having in their possession on 18 February 2004 lobsters carrying eggs. Lata was charged with possession of 6 such lobsters and Tovo with possession of 1 such lobster.

Regulation 13 provides:

'PART IV – SPECIES CONSERVATION AND MANAGEMENT
Lobster (‘uo)

13.	(1)	In this regulation 'lobster' or '’uo' means a crusatacean [sic] of the genus Panulirus.

(2)	No person shall harm, take, have in his possession, sell or purchase –

(a) any lobster carrying eggs;

(b) any lobster the carapace of which is less than 7.5 centimetres when measured along the mid line from immediately behind the rostral horns to the rear edge as illustrated in Schedule 3 to these Regulations;

(c) any lobster the tail of which is less than 4.5 centimetres in width when measured between the lateral notches of the first tail segment with vernier calipers from the ventral side of the tail, as illustrated in Schedule 3 to these Regulations.

(3)	No person shall use destructive techniques to dig lobsters from their burrows.

(4)	No person shall remove the eggs from a lobster or take, have in his possession, sell or purchase a lobster from which the eggs have been removed.'

Regulation 23 provides that the penalty for contravention of Regulation 13 is a fine not exceeding $10,000 and forfeiture in accordance with section 42(1) of the Fisheries Act 1999.

There was only one witness for the prosecution, Mr ‘Ofa Moala, Fisheries Officer, Ministry of Fisheries, who had witnessed the accused allegedly in possession of the lobsters in question. The Police officer who subsequently arrested the accused did not give evidence. The accused did not give evidence themselves and called no witnesses. At the close of the evidence submissions in support of their respective cases were made by Counsel.

Starting at the end, as it were, of the defence submissions, the crucial point in this case in my view is that there was insufficient evidence to the required standard of being beyond reasonable doubt of possession by the accused of the lobsters in question. By possession I mean physical custody and control of the alleged lobsters, with knowledge that they were lobsters carrying eggs. This has to be established on the same basis and principles as set out in detail in R v Pohahau [2005] TOSC 3 (CR 72/02, 31.1.05) – albeit that was a drugs case.

The whole tone of the Fisheries Officer’s evidence was hesitant, and his evidence as I have noted it was:

'I can’t clearly recall now whose lobsters they were, between the two of them there were seven lobsters and Lata said the lobsters were his.'

I do not think that is sufficient to satisfy the Court beyond reasonable doubt and on that ground alone, I would find both accused not guilty.

In general I also accept the other points raised by Mr Tu’utafaiva for the defence about the failure to prove that the articles in question were indeed lobsters within the definition. He submitted that in the Tongan version of Regulation 13(1) the reference was to 'me’a mo’ui', meaning a living creature; and he referred to section 21 of the Interpretation Act, which provides:

'Application of English or Tongan versions in criminal trials.

21. If upon the trial of any person for an offence against any law of Tonga it is manifest that the Tongan and English versions of the section which the accused person is charged with violating differ in meaning, then, in deciding the question of the accused person's guilt or innocence the court shall be guided by what appears to be the true meaning and intent of the Tongan version.
(Amended by Act 28 of 1978)'

I accepted that the English and Tongan versions differed in meaning and that I should accordingly be guided by the true meaning and intent of the Tongan version, ie that Regulation 13 referred to living lobsters. There was no evidence that the lobsters were alive, indeed the context of the evidence suggested that they were not live.

I also accepted that, despite the Fisheries Officer being very experienced, there was no detailed evidence that in terms of the legal definition in Regulation 13(1) the lobsters were crustaceans of the genus Panulirus. This is particularly important because Regulation 14 deals in similar terms with another type of lobster, a slipper lobster or tapatapa of the genus Parribacus. In criminal cases sufficient detail must be established in evidence to prove beyond reasonable doubt that the offending articles fall within the provision in question.

It just is not enough in a criminal case for one witness to say they were lobsters carrying eggs, without more, especially as in the same breath he referred to the accused having undersize lobsters, though these were not mentioned in the indictments. I believe either the lobsters should have been produced, or they should have been photographed, or there should have been some description about how the witness knew or alleged they were carrying eggs.

It is not necessary to decide the preliminary point raised by Mr Tu’utafaiva about whether Regulation 13 has been overwritten by section 19(1)(a)(iii) & (7) of the Fisheries Management Act 2002 which empowers the Minister to prohibit certain activities by Notice in the Gazette. He submitted that was so in view of the words of the saving in section 105(2)(b):

'(b) all regulations and orders made under the Fisheries Act 1989 and in force at the date of commencement of this Act shall subject to such modifications and adaptations as may be necessary to bring them into conformity with this Act continue until such time as new regulations or orders are made under this Act.'

However there are separate powers to make regulations in section 101 of the 2002 Act, and no submissions that either specific new regulations or specific notices under section 19 had been made. So I would not have accepted that the 1994 Regulations had been superseded. My reading of Section 19 of the 2002 Act is that the power there is permissive, and unless it is exercised it does not cut off the regulations (if that is ever the legal effect of new regulations) unless new regulations are made. In any event the 2002 Act was only given Royal Assent on 12 February 2004, just a few days before these alleged offences, and there was no evidence or submissions that it had by 18 February 2004 been brought into force by a proclamation by His Majesty in Council under section 1(1).

I have to finish by saying it is very clear to me that the whole business of fisheries prosecutions of this nature needs a long hard look by both the Crown Law Office and the Ministry of Fisheries.

Given that these offences carry a fine of $10,000.00 in the Supreme Court, I consider that a much better standard of evidence is required. Prosecutions are unlikely to succeed if the sole witness does not turn out to have a clear recollection of the events and has not taken the trouble to refresh his memory; if he produces no records to the Court of the events and has not taken the trouble to have his office records with him; and if the witness has not taken any photos to show the lobsters in question and/or has not taken the trouble to bring the evidence to Court. If the lobsters are brought to Court for that purpose, my view is that a chain of custody since they were seized must be established in a similar manner to a drugs case.

I regret to say that I find it very disappointing that the Government employs a Fisheries Officer to enforce the Fisheries Regulations and his approach seems to me not at all professional. I am amazed that the time of the Supreme Court had been taken up on such an ill-prepared case. Fisheries prosecutions are no doubt serious. That is why the Minister had made these Regulations and they should be treated seriously by the Ministry. Training of Fisheries Officers in what is required to conduct in a successful prosecution of this nature is clearly needed.

I should also like to add that I do not understand why the Fisheries Officer had to get the Police to arrest the accused. I am glad to see, if I scan it quickly, that in the 2002 Act a Fisheries Officer does have powers of arrest and seizure, so that the evidence can be seized before it disappears, although in this case that would have made no difference.

Napoleone Lata and Kalofiama Tovo, I find you both not guilty and dismiss the charges.

R M Webster
Chief Justice

7 June 2006