Judge refuses application to dismiss unlawful fishing charges
Friday, 18 September 2020
A skipper charged with fishing in a closed area has had an application to have the charges dismissed thrown out by a judge.
Amaltal and skipper Charles Shuttleworth are on trial in the Nelson District Court, each face 14 charges of trawling in an area closed to fishing in the Lord Howe Rise, in May 2018.
An application for the charges against Shuttleworth to be dismissed was raised on Thursday, with defence lawyer Tony Stallard citing the defence of an officially induced error.
Judge David Ruth said he had “no hesitation” in refusing the application on Friday afternoon.
**READ MORE:
* Skipper responsible for checking fishing permits, Amaltal says
* Fishing company and skipper on trial for alleged unlawful trawling in Tasman Sea
* Amaltal defends charge of illegal fishing in protected maritime reserve
**
“In the context of the suggestion this was an officially induced error, if that exists in New Zealand, the reality is it was a self-induced error.”
In giving his decision, Judge Ruth referred at length to an interview between Shuttleworth and Ministry for Primary Industries fisheries officer Craig Richardson that was conducted as part of the investigation in 2018 and had been played to the court on Thursday.
In the interview, Shuttleworth told Richardson: ”I didn’t intend to do it, it was a mistake on my part and I fully accept that.”
Since the incident, Amaltal has denied its vessel, the Amaltal Apollo deliberately fished in an unauthorised area and maintained it was a technical error based on out-of-date information given by the fisheries observer on board.
With the charges against Amaltal still to be heard, defence lawyer Jonathan Eaton QC asked that the case be adjourned for parties to discuss the next steps which Judge Ruth agreed to.
On Friday morning, Shuttleworth's defence lawyer Honor Lanham made submissions on the application for the charges to be dismissed, citing the defence of an officially induced error.
She said Amaltal were required to carry a fisheries observer on board, and MPI was prosecuting the skipper when it had supplied the observer with incorrect and out of date information and an “explicit instruction he was to rely on that information in order to do his duties onboard”.
Lanham said fisheries observer Myk Rushton gave evidence that he considered it his role on the vessel to “advise and assist” and he did that when he engaged in discussions around what areas to fish in.
“His own evidence is he agreed the area was open to fishing … and if he had the correct information they would not have fished in that area.”
Judge Ruth made it clear during Lanham’s submissions he did not agree with the defence’s position.
“The duty as to where they fished was the skipper’s responsibility and had he looked at his fishing permit, as he accepts in his interview, he would have found he was in the wrong place.”
Acting for the Ministry for Primary Industries, prosecutor Jackson Webber said there was no basis for the charges to be dismissed.
Rushton’s evidence was that he did not at any stage advise the captain where to fish.
Despite there being incorrect information on board, it was an accepted fact that the correct information about where to fish, found in the high seas fishing permit, was on the vessel.
“It was there on the bridge at all times, it was the vessel’s permit, he was the master of the vessel, he was aware of the permit, it was effectively in his possession, and he had been told to check the conditions of the permit against the plotter on a previous trip, and he was aware of the importance of doing that.”
Webber said Shuttleworth hadn’t checked the co-ordinates on the plotter against the high seas permit.
“He accepts it is an error on his part, he should have checked them and he didn’t.
“It can’t realistically be contended that his failure to do that was induced by Mr Rushton.”