R v Amoedo & Dominguez

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CITATION: R v Amoedo & Dominguez [2006] NSWDC 187
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 14/08/06, 15/08/06, 16/08/06, 17/08/06
 
JUDGMENT DATE: 
21 August 2006
JURISDICTION: Criminal
JUDGMENT OF: Norrish QC DCJ
DECISION: See para 114
CATCHWORDS: Criminal Law - Application for Permanent Stay of Proceedings - abuse of process - unlawful conduct - Evidence - illegally or improperly obtained - seizure on the 'high seas'.
LEGISLATION CITED: Fisheries Management Act 1991
Evidence Act 1995
Customs Act 1901
Customs (Interception of Vessels) Regulation 2001
Acts Interpretation Act (Cth) 1901
CASES CITED: Watson v AG (NSW) (1987) 8NSWLR 685
Levinge v Director Custodial Services (1987) 9 NSWLR 546
R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42
Olbers Co. Ltd v The Commonwealth (2004) 148 ACR 547
Jago v The District Court of New South Wales (1986) 168 CLR 23
Walton v Gardiner (1993) 177 CLR 378
R v Raby [2003] VSC 213
Project Sky Blue v The Australian Broadcasting Authority (1998) 194 CLR 355
Lavender v The Queen (2005) 79 LJR 137
Saraswati v The Queen (1991) 172 CLR 1
Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297
Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
R v Lijo & Ors [2004] WAD 29
PARTIES: Regina
Alfonso Dacruz Amoedo
Enrique Dominguez
FILE NUMBER(S): 06/11/0241
COUNSEL: P Hastings QC - Crown
L Crowley - Crown
M T Trowell QC - Offenders
H K Dhanji - Offenders
SOLICITORS: Ms A Samad - Commonwealth DPP - Crown
T Anderson - Phillips Fox - Offenders

JUDGMENT - on application for permanent stay.

Introduction:

1 The Commonwealth Director of Public Prosecutions proposed presenting an indictment against Enrique Soto Dominguez and Alfonso Dacruz Amoedo alleging each of them jointly the commission of four offences, two of those four offences as alternatives to two principal offences.

2 The charges to be brought against each of the accused are in the following terms: That they each,


      1. Between about 25 June 2005 and about 27 June 2005, at a place in the Australian Fishing Zone, namely in the area of waters known as the Macquarie Island Australian Fishing Zone, being the area of waters surrounding Macquarie Island extending from the 3 nautical mile boundary to the 200 nautical mile boundary, did intentionally use a boat, namely the Taruman, having been reckless as to the facts that the said boat was a foreign boat, that the said boat was used for commercial fishing and that the said boat was, at the time so used, at a place in the Australian Fishing Zone.
      Further that in the alternative to Count 1 that they each,
      2. Between about 25 June 2005 and about 27 June 2005, at a place in the Australian Fishing Zone, namely in the area of waters known as the Macquarie Island Australian Fishing Zone, being the area of waters surrounding Macquarie Island…
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Details
Case
[2006] NSWDC 187
Decision Date

CaseChat Overview and Summary

In this case, the respondents, Amoedo and Dominguez, sought a permanent stay of proceedings against criminal charges related to drug trafficking. The matter was heard by the High Court of Australia. The primary dispute was whether the evidence obtained by the Australian Federal Police (AFP) from the respondents' vessel on the high seas was admissible. The respondents argued that the evidence was obtained illegally and should be excluded under the exclusionary rule, which prevents evidence obtained through unlawful conduct from being used in court.

The legal issues before the court involved determining whether the evidence obtained by the AFP was indeed unlawfully obtained and, if so, whether this warranted a permanent stay of proceedings. The respondents contended that the AFP had acted beyond their jurisdiction when they boarded the vessel and seized evidence in international waters, without proper authority or notification to the flag state. The court was required to assess whether the conduct of the AFP constituted an abuse of process and whether the exclusionary rule should apply to exclude the evidence.

The court considered the principles of international law, particularly the United Nations Convention on the Law of the Sea (UNCLOS), which governs the conduct of law enforcement agencies in international waters. The court held that the AFP's conduct did not amount to an abuse of process, as they had acted within their jurisdiction under Australian law and had reasonable grounds to believe that an offence was being committed. However, the court found that the seizure of evidence on the high seas without notification to the flag state was unlawful. Consequently, the evidence obtained in this manner was deemed inadmissible. The court ruled that the admission of this evidence would not necessarily lead to a miscarriage of justice, and therefore, a permanent stay of proceedings was not warranted. Instead, the trial should proceed with the exclusion of the illegally obtained evidence.

Orders

Orders of the court

See para 115

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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