HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON AND KIEFEL JJMUSLIMIN APPELLANT
AND
THE QUEEN RESPONDENT
Muslimin v The Queen [2010] HCA 7
10 March 2010
D12/2009ORDER
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…
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CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
Established by:
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