Muslimin v The Queen - [2009] NTCCA 3

Muslimin v The Queen [2009] NTCCA 3
PARTIES:MUSLIMIN

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:No CA 10 of 2008 (20814583)
DELIVERED:  29 April 2009
HEARING DATES:  3–4 March 2009
JUDGMENT OF:  MARTIN (BR) CJ, ANGEL & MILDREN JJ
APPEAL FROM:  Supreme Court of the Northern Territory SCC No 20814583
CATCHWORDS:

CRIMINAL LAW -- INTERNATIONAL LAW -- APPEAL AGAINST SPECIAL FINDINGS -- APPEAL AGAINST CONVICTION
Statutory construction – fishing for sedentary species (trepang) – whether s 12(2) of the Fisheries Management Act 1991 (Cth) is capable of extending s 101 of the Act to waters above the Australian continental shelf not within the Australian Fishing Zone - laws of Australia – appeal dismissed.
Churchill and Lowe, The Law of the Sea (3^rd ed); Lumb, Australasian Legislation on Sedentary Resources on the Continental Shelf (1970-1971) 7 UQLJ 111; O’Connell, Sedentary Fisheries and the Australian Continental Shelf (1995) 59 AM J of Int Law 185; Pearce and Geddes, Statutory Interpretation in Australia (6^th ed, 2006).
Criminal Code (Cth) ss 10.3, 379; Evidence Act (NT) s 26L; Fisheries Management Act 1991 (Cth) division 5, part 6, ss 4, 7, 8, 12, 13, 15, 15A, 100, 101; Seas and Submerged Lands Act 1973 (Cth) ss 11, 12, 106A.
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982 (entered into force 16 November 1994), arts 19, 21, 25, 62, 68, 77, 78, 103.
Al-Kateb v Godwin (2004) 219 CLR 562; Bloxam v Fauer (1883) 8 PD 101; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Commonwealth v Yarmirr (2001) 208 CLR 1; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; New South Wales v The Commonwealth (1975) 135 CLR 337; Polites & Kandiliotes v The Commonwealth (1945) 70 CLR 60; Yamami v The Commonwealth (1938) NTJ 237, referred.
REPRESENTATION:
Counsel:
Appellant:A Wyvill
Respondent:  P Willee QC with L Taylor
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Commonwealth Director of Public Prosecutions
Judgment category classification:           A
Judgment ID Number:  Mar 0904
Number of pages:  42

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Muslimin v The Queen [2009] NTCCA 3

No. CA 10 of 2008 (20814583)
BETWEEN:

MUSLIMIN

Appellant

AND:

THE QUEEN

Respondent

CORAM: MARTIN (BR) CJ, ANGEL & MILDREN JJ
REASONS FOR JUDGMENT
(Delivered 29 April 2009)
Martin CJ:

I agree that the appeal should be dismissed for the reasons given by Mildren J. In addition, I wish to add the following observations.
The Fisheries Management Act (“the Act”) is an Act concerned with the management, exploitation and regulation of Australian Fisheries Resources. The Act contains a number of enforcement provisions, including those in Pt 6 Div 5 which are concerned with offences within the Australian Fishing Zone (“AFZ”). Section 101 is one of the provisions in Div 5.

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 [2009] NTCCA 3
Case: [2009] NTCCA 3
Decision Date: 29 April 2009

CaseChat Overview and Summary

The appeal concerned a conviction under section 101 of the *Fisheries Management Act 1991* (Cth) for possessing a foreign boat equipped for fishing for sedentary organisms in waters above the Australian continental shelf but outside the Australian Fishing Zone. The appellant, the master of an Indonesian-flagged vessel, was found with equipment capable of being used for fishing for trepang (Beche-de-mer). The vessel lacked the necessary Australian permits for such activity.

The central legal issue before the Full Court of the Federal Court of Australia was the proper construction of section 101 of the Act, specifically whether its prohibition on possessing fishing equipment for sedentary organisms extended to waters above the Australian continental shelf that were not within the Australian Fishing Zone. This involved considering the scope of Australian law in such areas and the interpretation of section 12(2) of the Act in relation to section 101.

The Court reasoned that the conviction was sound, finding that the appellant's admissions and the presence of the specific equipment on board were sufficient to establish the offence. The Court determined that section 101 of the Act, when read in conjunction with the relevant provisions concerning the application of Australian law to the continental shelf, applied to the circumstances. The presence of the equipment, capable of being used for fishing sedentary organisms, was sufficient, and the absence of actual fishing or immediate preparation to fish was not a defence. The Court concluded that the trial judge was not required to give specific directions to the jury regarding whether the equipment was indeed for fishing sedentary organisms, given the admissions made.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against conviction. On 14 October 2008 the appellant was found guilty of a charge that on or about 23 April 2008 at a place in the waters above a part of the Australian continental shelf not within the Australian Fishing Zone, had in his possession or in his charge a foreign boat, namely the Segara 07 equipped with nets, traps or other equipment for fishing for sedentary organisms contrary to s 101 of the Fisheries Management Act 1991 (Cth).Facts The appellant was the Master and in charge of the vessel the Segara 07 on 22 and 23 April 2008. The vessel was an Indonesian flagged vessel. It did not have a fishing license, port permit, treaty license, approval from the Australian Fisheries Management Authority (AFMA) or scientific permit from Australia that would have permitted fishing for sedentary organisms under s 101 of the Fisheries Management Act (Cth) (the Act). On 22 and 23 April 2008, the equipment on the vessel included an air compressor, an air accumulator tank, a quantity of air hose, three dive regulators, two dive masks, a pair of dive fins, a quantity of dive weights, two catch bags and 15 bags of salt. All of this equipment was capable of being used for the fishing of a class of sedentary organisms, namely Beche-de-mer, otherwise known as Trepang. The appellant and his crew left the waters surrounding West Timor in the Republic of Indonesia on 22 April 2008. At 10:00 am on 23 April 2008, the vessel crossed the seabed boundary between Australia and Indonesia and entered the waters above the Australian continental shelf. Shortly thereafter the vessel was detected by HMAS Broome. At about 10:50 am on 23 April 2008 it was boarded and inspected by crew from that vessel. There was no evidence that the appellant or the crew had used the equipment recently or were preparing to use the equipment. No Trepang was found onboard. Following the issue of a notice of apprehension later that day, the vessel was seized and the vessel and crew on board were taken to Darwin. In an electronically recorded interview between AFMA and the appellant, the appellant stated that he left Kupang and travelled with another smaller fishing vessel from Indonesia, the Seagara 08. Whilst outside the AFZ and the waters above the Australian continental shelf, the appellant lost contact with the smaller vessel. The appellant claimed that his intention was to look for this boat and that he was not fishing for or intending to fish for Trepang in the area when he was apprehended by the crew of the HMAS Broome. During the search of the vessel, two AFMA charts were found on board which were tendered as Exhibit D5. The charts were in both English and Indonesian and indicated that fishing for Trepang in the area above the Australian continental shelf was prohibited, but that motorised Indonesian fishing boats as well as sailing boats were able to fish in the area except for those species of fish that do not swim in the water, but permanently live on the seabed. There is nothing in Exhibit D5 to indicate that an offence may be committed merely by sailing in the waters above the Australian continental shelf whilst having equipment capable of being used for the fishing of sedentary species, as maintained by the Crown in this case.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances of this case, given the admissions of the appellant, there was no requirement for the learned trial Judge to give any directions to the jury on the question of whether or not the equipment in this case was equipment for fishing for sedentary organisms.Conclusion In my opinion, the appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

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