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)

1. 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.

2. 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.

3. 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 out.

4. The error on the part of the prosecutor in the Court of Summary Jurisdiction, which, in turn, led to error on the part of the learned trial magistrate, arose from a misunderstanding as to the effect of s 12(1) of the Fisheries Management Act.  

5. By operation of s 12, the provisions of the Act and regulations (including s 100) made in relation to fishing in the AFZ or a fishery have application on the continental shelf of Australia beyond the AFZ in respect of sedentary organisms which, for present purposes, include trepang.  Section 12 provides:

   (1)If the Governor‑General is satisfied that a marine organism of any kind is, for the purposes of international law, part of the living natural resources of the Australian continental shelf because it is, for the purposes of international law, an organism belonging to a sedentary species, the Governor‑General may, by Proclamation, declare the organism to be a sedentary organism to which this Act applies.

   (2)Where by this Act (other than Part 5), or the regulations, provision is made in relation to fishing in the AFZ or a fishery, such provision, to the extent that it is capable of doing so, extends by force of this section to fishing for sedentary organisms, in or on any part of the Australian continental shelf not within the AFZ or the fishery as if they were within the AFZ or the fishery.

   (3)Without limiting the operation of subsection (2), a reference in that subsection to making provision in relation to fishing includes a reference to making provision in respect of:

   (a)the granting of fishing concessions, scientific permits and foreign master fishing licences; and

   (b)the prohibition or regulation of fishing; and

   (c)the powers of officers.

   (4)A reference in this section to the Australian continental shelf includes a reference to the waters above the Australian continental shelf.

6. By Proclamation dated 12 December 1995 the Governor-General made a relevant declaration under s 12 of the Act in relation to Beche-de-mer (or trepang). 

7. It will be noted that subsections 12(2) and (3) of the Act provide that the extension allows for the making of provision in relation to fishing in the area on the Australian continental shelf beyond the AFZ including making provision in respect of the prohibition or regulation of fishing. 

8. The effect of s 12 of the Act when read with s 100 is that a person will commit an offence if he or she uses a foreign boat for commercial fishing for sedentary organisms at a place in or on, or in the waters above, any part of the Australian continental shelf not within the AFZ.  In other words s 100 of the Act has, by virtue of s 12, operation on the continental shelf of Australia beyond the AFZ.  See generally Aco and Ors v The Queen [2008] NTSC 33.

9. It seems the prosecutor proceeded under a misapprehension that the effect of s 12 of the Act was to extend the boundaries of the AFZ which, of course, it does not.

10. The respondent concedes that the appeal should be allowed.

11. The appeal is allowed, the finding of guilt in respect of each appellant is set aside, the sentences imposed upon each appellant are set aside, the finding of a breach of bond made against the appellant, Gap Oma, is set aside and verdicts of not guilty are entered.

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