A two-year legal battle between Fisheries and a Perth crayfish diver who is alleged to have gone over his catch limit is set to continue to drag on after a Supreme Court ruling on Thursday.
Bret Carter, who has recreationally dived for crayfish for 40 years, was diving with two friends in the Shoalwater Marine Park in November 2014 when he was questioned by Fisheries officers.
According to a Supreme Court of Western Australia judgement, two Fisheries officers witnessed Mr Carter's friend surface the water with a bag of crays.
The friend brought them on board the trio's boat, measured them and placed some back into the ocean.
Mr Carter, surfaced minutes later and claimed he went to do the same thing, but as he boarded the vessel, was intercepted by Fisheries officers.
He was found with 25 crayfish in his possession – 17 more than the legal daily limit of eight per person - and subsequently charged.
His charge of taking lobster in excess of the daily limit was thrown out by a Magistrates Court in 2016 with the judge determining Mr Carter had not yet 'taken' the lobsters when Fisheries intervened, but Fisheries appealed the decision to the Supreme Court.
They argued, under the Fish Resources Management Act, a lobster is considered 'taken' at the time it is snared.
Fisheries Recreational Fishing for Rock Lobsters guide states, "if diving for rock lobster, you must stop fishing immediately when the bag limit is reached" - which WAtoday understands was added after the incident.
Mr Carter, however, argued that he had not yet completed the process of 'taking' the lobster when Fisheries questioned him, and that not all the lobsters were his.
His friend gave evidence that he had placed six or seven lobsters in Mr Carter's catch bag while they were diving together, as he did not have his own bag.
"The respondent stated that he intended to sort the rock lobsters and select eight to keep," the judgement read.
Fisheries officer Natasha Demir said, in her opinion, a lobster was 'taken' once it was captured underwater and that an assessment of whether it is a protected lobster must be made within five minutes.
However, Mr Carter's friend who he dove with on the day said visibility was at five to ten feet and that they were unable to properly assess whether a rock lobster was protected (undersized) while in the water.
Judge Joseph McGrath found in favour of Fisheries and allowed the appeal, meaning the matter will return to the Magistrates Court to determine the outcome.
"The matter should be remitted to the Magistrates Court to determine the charge in the Prosecution Notice according to law and these reasons," he said.
"That will require a finding as to whether the respondent had 'taken' rock lobster in excess of the daily bag limit (being eight) or whether another fisherman had snared the rock lobster and placed the rock lobster into the blue catch bag which was in his possession."
The maximum penalty in WA for taking western rock lobster is a $10,000 fine.
Recfishwest chief executive Andrew Rowland said the rules for catching crays were very unclear and that Fisheries legal pursuit of Mr Carter was "absurd" and not in the public interest.
"A day out with friends catching crays and sharing a catch bag has turned into a legal nightmare which is still unresolved," he said.
"If the courts cannot understand the rules then what hope does the average fisher have?
"Recfishwest believe that people diving for crays should be afforded the same rules as those who use pots and be given a reasonable opportunity of five minutes to sort their catch when they return to the boat."