Muslimin v The Queen - [2010] HCA 7

HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON AND KIEFEL JJ
MUSLIMIN  APPELLANT
AND
THE QUEEN  RESPONDENT
Muslimin v The Queen [2010] HCA 7
10 March 2010
D12/2009
ORDER
1.        Appeal allowed.
2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of the Northern Territory made on 29 April 2009 and in its place order that:
(a)the appeal to that Court be allowed; and

(b)the appellant's conviction be quashed and a verdict of acquittal be entered.

On appeal from the Supreme Court of the Northern Territory
Representation
A Wyvill SC with S W Lee for the appellant (instructed by Northern Territory Legal Aid Commission)
P A Willee QC with L A Taylor for the respondent (instructed by Director of Public Prosecutions (Cth))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Muslimin v The Queen
Criminal law – Statutes – Extension of offence provision – Fisheries Management Act 1991 (Cth) ("Act"), s 101, created offence of, in certain circumstances, being in possession of foreign boat within Australian Fishing Zone ("AFZ") equipped with nets, traps or other equipment for fishing – Section 12(2) of Act stated that provisions in Act or regulations made in relation to fishing in AFZ extend, to extent capable of doing so, to fishing for sedentary organisms in or on any part of Australian continental shelf not within AFZ as if they were in AFZ – Section 4 of Act defined "fishing" as one or more forms of identified activity – Where appellant indicted for being in possession of, at a place in the waters above Australian continental shelf not within AFZ, foreign boat equipped with nets, traps or other equipment for fishing for sedentary organisms – Whether indictment disclosed offence – Whether s 12(2) extended operation of s 101 to waters above Australian continental shelf not within AFZ – Whether s 101 a provision made "in relation to fishing".
Words and phrases – "Australian Fishing Zone", "fishing", "in relation to".
Fisheries Management Act 1991 (Cth), ss 4, 12(2), 101.

FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ. The appellant, an Indonesian national, was charged in the Supreme Court of the Northern Territory with an offence against the Fisheries Management Act 1991 (Cth) ("the FMA"). The indictment alleged that in April 2008, at a place in the waters above a part of the Australian continental shelf not within the Australian Fishing Zone, the appellant had in his possession or in his charge a foreign boat equipped with nets, traps or other equipment for fishing for sedentary organisms. It was alleged that this was an offence under s 101(2) of the FMA.
At a preliminary hearing, held before a jury was empanelled, the appellant submitted that the indictment did not disclose an offence because, so he submitted, s 101 of the FMA did not apply outside the Australian Fishing Zone. That submission was rejected[1]. The appellant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Muslimin v The Queen

Details

AGLC: Muslimin v The Queen [2010] HCA 7
Case: [2010] HCA 7
Decision Date: 10 March 2010

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Muslimin against his conviction for possessing a foreign boat equipped with fishing gear within the Australian Fishing Zone. The prosecution's case was that the appellant was in possession of such a boat in waters above the Australian continental shelf, but outside the Australian Fishing Zone, equipped for fishing for sedentary organisms. The central dispute revolved around whether the relevant provisions of the *Fisheries Management Act 1991* (Cth) extended to the location where the alleged offence occurred.

The legal issues before the High Court were whether the indictment disclosed an offence, specifically whether section 12(2) of the *Fisheries Management Act 1991* extended the operation of section 101 to waters above the Australian continental shelf not within the Australian Fishing Zone, and whether section 101 constituted a provision made "in relation to fishing" for the purposes of section 12(2). Section 101 created the offence of possessing a foreign boat within the Australian Fishing Zone equipped with fishing gear, while section 12(2) provided that provisions relating to fishing in the Australian Fishing Zone extend to fishing for sedentary organisms on the Australian continental shelf outside that zone.

The High Court reasoned that section 12(2) operated to extend the application of provisions made "in relation to fishing" in the Australian Fishing Zone to the specified areas of the continental shelf. The Court determined that section 101, which prohibited the possession of foreign boats equipped for fishing within the Australian Fishing Zone, was indeed a provision made "in relation to fishing." Therefore, by operation of section 12(2), section 101 extended to the waters above the Australian continental shelf not within the Australian Fishing Zone. Consequently, the indictment, which alleged possession of a foreign boat equipped with fishing gear for sedentary organisms in such waters, did disclose an offence.

The High Court allowed the appeal, setting aside the order of the Court of Criminal Appeal of the Supreme Court of the Northern Territory. In its place, the High Court ordered that the appeal to the Court of Criminal Appeal be allowed, the appellant's conviction be quashed, and a verdict of acquittal be entered.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of the Northern Territory made on 29 April 2009 and in its place order that:

(a) the appeal to that Court be allowed; and

(b) the appellant's conviction be quashed and a verdict of acquittal be entered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ (dissent)

This being the proper construction of s 12(2), it is neither necessary nor appropriate to go on to consider whether extension of operation of a provision like s 101 to areas outside the Australian Fishing Zone would be consistent with international law generally or UNCLOS in particular.Conclusion and orders The indictment preferred against the appellant did not disclose an offence. Although that would ordinarily lead to an order that the indictment be quashed, the appellant did not seek that relief. Instead, the appellant sought orders allowing the appeal to this Court, setting aside the order of the Court of Criminal Appeal of the Supreme Court of the Northern Territory made on 29 April 2009 and in its place making orders that the appeal to the Court of Criminal Appeal be allowed, the appellant's conviction quashed, and a verdict of acquittal entered. The respondent did not submit that those orders were inappropriate. The orders sought by the appellant should be made.

Ratio Decidendi

Legal Principle Established

Established by:

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