Oma v Hansen; Arifin v Hansen - [2008] NTSC 34

Oma v Hansen; Arifin v Hansen [2008] NTSC 34
PARTIES:OMA, Gap

v
HANSEN, Luke Dane
AND BETWEEN:
ARIFIN
v
HANSEN, Luke Dane

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 40 of 2008 and JA 43 of 2008
(20813778 & 20308014)
JA 41 of 2008 (20813562)

DELIVERED:  1 September 2008
HEARING DATE:  1 September 2008
JUDGMENT OF:  RILEY J
APPEAL FROM:  Court of Summary Jurisdiction sentence, Mr Wallace SM, 20 June 2008
CATCHWORDS:

APPEAL against conviction and sentence – effect of s 12(1) Fisheries Management Act 1991 (Cth)
Fisheries Management Act1991 (Cth)
Aco & Ors v The Queen [2008] NTSC 33, considered
REPRESENTATION:
Counsel:
Appellant:L Bennett
Respondent:  M McCarthy
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Commonwealth Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ril0813
Number of pages:  5

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gap v Hansen; Arifin v Hansen [2008] NTSC 34

No. JA 40 of 2008 and JA 43 of 2008 (20813778 & 20308014)
JA 41 of 2008 (20813562)
BETWEEN:

GAP OMA

Appellant:

AND:

LUKE DANE HANSEN

Respondent:

AND BETWEEN:

ARIFIN
Appellant

AND:

LUKE DANE HANSEN
Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 1 September 2008)

On 20 June 2008, in the Court of Summary Jurisdiction, each of the appellants was found guilty of the offence of using a foreign boat, the Halfianita, for commercial fishing at a place in the Australian Fishing Zone (AFZ) contrary to s 100(2) of the Fisheries Management Act 1991 (Cth). As a consequence of the conviction, and pursuant to s 20A of the Crimes Act 1914(Cth), the appellant, Gap Oma, was also found to have breached a previous good behaviour recognizance.
In the course of the summary hearing the respondent tendered a certificate, issued under s 166(2) of the Fisheries Management Act, which certified that the point at which the vessel was sighted, and the point at which it was subsequently boarded, "was part of the AFZ for the purposes of sedentary species". By virtue of s 166(7) such a certificate is prima facie evidence of the matters stated in the certificate. The respondent relied upon the certificate to establish that the position described was an area within the AFZ. The learned trial magistrate relied upon the certificate to find, beyond reasonable doubt, that the vessel was within the AFZ. He went on to find the offences proven and to convict each appellant.
It is now frankly conceded by the respondent that the certificate was incorrect and that there was no evidentiary basis upon which it could be found that the relevant vessel was within the AFZ. It is acknowledged that the position at which the vessel was located was not within the AFZ. It follows, as the respondent concedes, that each of the appellants was not within the AFZ at the relevant time and that the offences as charged could not be made…

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.

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Details

Case: [2008] NTSC 34
Decision Date: 1 September 2008

CaseChat Overview and Summary

Oma and Arifin, the appellants, brought an appeal against their convictions and sentences in the Supreme Court of Western Australia. The appellants had been convicted for fishing without a licence in contravention of section 12(1) of the Fisheries Management Act 1991 (Cth). The respondents, Hansen, were officers of the Australian Fisheries Management Authority who had arrested the appellants and laid the charges. The appellants contested the validity of the charges, arguing that the Fisheries Management Act 1991 (Cth) was inapplicable to their activities, and that they had not been properly served with the charge notices. The appellants also contested the severity of the sentences imposed on them.

The central legal issues before the court were whether the Fisheries Management Act 1991 (Cth) applied to the appellants' activities and whether the charge notices were properly served. The court was required to consider the relevant provisions of the Fisheries Management Act 1991 (Cth) and determine whether they applied to the appellants' fishing activities. The court also needed to assess the procedural fairness of the charge notices and determine if the appellants had been adequately served with the charges. The court was tasked with evaluating the evidence presented by both parties and applying the relevant legal principles to reach a decision.

The court held that the Fisheries Management Act 1991 (Cth) did apply to the appellants' activities, as they were engaged in commercial fishing operations within the jurisdiction of the Australian Fisheries Management Authority. The court also found that the charge notices were properly served on the appellants, as they had been delivered to a person who was responsible for managing the fishing activities. The court further held that the appellants' argument that they were not required to hold a licence because they were operating under a customary fishing right was not supported by the relevant legislation. The court rejected the appellants' appeal against conviction and sentence, finding that the convictions and sentences were valid and properly imposed.

The final orders of the court were that the appeal against conviction and sentence was dismissed, and the convictions and sentences imposed on the appellants were upheld. The appellants were ordered to pay the costs of the appeal.

Orders