R v Potter

[2015] TASSC 44

[2015] TASSC 44

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 R v Potter [2015] TASSC 44

PARTIES:  THE QUEEN
  v
  POTTER, Russell David
  MURES FISHING PTY LTD

FILE NO:  506/2012
DELIVERED ON:  16 September 2015
DELIVERED AT:  Hobart
HEARING DATE:  2 September 2015
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Evidence – General – Judicial notice – Matters not requiring proof – Miscellaneous matters – Legislative facts – Boundaries of New Caledonian Exclusive Economic Zone.

Evidence Act 2001 (Tas), s 144(1)(b).
Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280; Breen v Sneddon (1961) 106 CLR 406; Gerhardy v Brown (1985) 159 CLR 70; Maloney v The Queen (2013) 252 CLR 168, referred to.
Aust Dig Evidence [9]

REPRESENTATION:

Counsel:
             Crown:  D G Staelhi SC
             Accused Potter:  K Cuthbertson
             Accused Mures:        A Wyvill SC
Solicitors:
             Crown:  Director of Public Prosecutions (Commonwealth)
             Accused Mures:  Murdoch Clarke

Judgment Number:  [2015] TASSC 44
Number of paragraphs:  21

Serial No 44/2015

File No 506/2012

THE QUEEN v RUSSELL DAVID POTTER
and MURES FISHING PTY LTD

REASONS FOR DETERMINATION  BLOW CJ

16 September 2015

1. Each of the two accused, Russell Potter and Mures Fishing Pty Ltd, pleaded not guilty to 60 charges of dishonestly influencing a public official contrary to s 135.1(7) of the Criminal Code (Cth). Before the empanelment of the jury, I was asked to make a number of preliminary determinations pursuant to s 361A of the Criminal Code (Tas).  On 2 September 2015 I determined that it was neither necessary nor appropriate for me to determine "the actual position of the New Caledonian Exclusive Economic Zone as a matter of international law".  These are my reasons for that determination.

2. The Crown case, some aspects of which obviously were in dispute, can be summarised as follows. At all material times Mr Potter was the skipper of a fishing vessel named the Diana, and Mures was the owner of the Diana and the employer of Mr Potter. On occasions in the years 2008, 2009 and 2010, the Diana, skippered by Mr Potter, fished in the Capel Bank area of the South Pacific Ocean. In respect of each day of fishing, a report was sent by Mr Potter to the office of the Australian Fisheries Management Authority ("AFMA"), a Commonwealth Government instrumentality, in Canberra. Each such report recorded the longitude and latitude co-ordinates of the positions where the Diana's fishing was said to have started and finished on the day in question. On the 60 days to which the charges related, that information was dishonestly falsified, with the intention of influencing an AFMA official in the execution of her duty. It was falsified because the accused did not want AFMA to know that they had been fishing in an area that they believed or suspected to be within an Exclusive Economic Zone ("EEZ") of France, appurtenant to New Caledonia. Fishing in the EEZ was not permitted by AFMA permits that Mures held for the Diana and, in certain circumstances, amounted to an offence contrary to s 105C(1) of the Fisheries Management Act 1991 (Cth).

3. The accused did not concede that France had created an EEZ appurtenant to New Caledonia, nor that the boundaries of any such EEZ extended, or could have extended, as far as the Capel Bank area, where the Diana was alleged to have fished.  The status of the waters where the vessel fished was not directly relevant to the charges of dishonestly influencing a public official, but only to the issue of motive.  For the Crown to prove its case, it was not essential to prove that any waters comprised part of a French EEZ, as distinct from the high seas.  However any belief or suspicion on the part of the accused that waters where the Diana fished were, or might have been, within a French EEZ was relevant to the Crown's contention that the accused had a motive for making deliberately false statements in the reports to which the charges related.  Against that background, the Crown decided not to try to prove that an EEZ had been formally, validly or effectively created by France, nor that its boundaries extended as far as the Capel Bank area. 

4. However counsel for Mures informed me that it was part of the case for the accused that the waters in question were not within a French EEZ.  He submitted that I should determine that that was so.  He submitted, and I accepted, that issues as to the existence and boundaries of a French EEZ raised mixed questions of fact, French law, and public international law.  However he submitted that an issue as to the actual position of the New Caledonian EEZ was properly a matter for a "judge only" determination because the facts that needed to be established were not adjudicative facts but "legislative facts". 

5. At his request, and after hearing brief submissions from counsel for the Crown, I said that I would determine the issue "whether it is appropriate and necessary to determine as a judge-only issue the actual position of the New Caledonian EEZ as a matter of international law". 

6. Exclusive economic zones may be created in accordance with the United Nations Convention on the Law of the Sea.  That Convention has been ratified by both Australia and France.  The breadth of an EEZ is governed by Article 57 of that Convention, which reads:

   "The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured."

7. The waters above and around Capel Bank are more than 200 nautical miles from the New Caledonian mainland. However they are mostly within 200 nautical miles of an area which, for present purposes, I will refer to as South Bellona. The Convention gives France a right to have an EEZ that extends for 200 nautical miles from its islands.  However that right applies only in relation to islands, and not in relation to rocks. Provisions to that effect are made in Article 121 of the Convention, which reads as follows:

   "1   An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

   2   Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

   3   Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf."

8. If the landforms at South Bellona include any islands, then France was entitled to establish an EEZ with a boundary taking in most of Capel Bank, and some waters where the Diana was alleged to have been fishing.  But if those landforms amount to no more than rocks, all of that fishing occurred on the high seas.  Therefore in order to determine "the actual position of the New Caledonian EEZ", it would be necessary to determine whether the landforms in question were rocks or islands and, if they were islands, whether there had been an act of state by France that validly and effectively established an EEZ extending 200 nautical miles from those islands.

9. Ordinarily the facts on which judicial determinations are based are either facts established by evidence presented by the parties or matters of common knowledge, proof of which is not required: Evidence Act 2001, s 144. However it is sometimes appropriate for courts to inform themselves as to other facts for the purpose of determining the content of law or policy. Such facts are sometimes referred to as "constitutional facts" or "legislative facts".

10. For example, in Griffin v Constantine (1954) 91 CLR 136, which concerned a question whether a provision in a Commonwealth statute was a valid law of the Commonwealth, it was necessary to know something of the nature and history of methylated spirits, and the High Court considered it proper to look at books on the subject.

11. In Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280 at 292, Dixon CJ referred to that case and a number of other examples and said:

    "… if a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon to pronounce upon validity."

12. In Breen v Sneddon (1961) 106 CLR 406 at 411, Dixon CJ drew a distinction between constitutional facts and facts in issue between the parties to a case, saying this:

    "It is the distinction between, on the one hand, ordinary questions of fact which arise between the parties because one asserts and the other denies that events have occurred bringing one of them within some criterion of liability or excuse set up by the law and, on the other hand, matters of fact upon which under our peculiar federal system the constitutional validity of some general law may depend. Matters of the latter description cannot and do not form issues between parties to be tried like the former questions. They simply involve information which the Court should have in order to judge properly of the validity of this or that statute or of this or that application by the Executive Government of State or Commonwealth of some power or authority it asserts."

13. In Gerhardy v Brown (1985) 159 CLR 70 at 141-142, Brennan J (as he then was) used the term "statutory facts". That case concerned a question whether State legislation concerning aboriginal land rights was inconsistent with Commonwealth legislation and therefore invalid by reason of s 109 of the Constitution.  His Honour said:

    "When a court, in ascertaining the validity or scope of a law, considers matters of fact, it is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties. The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants. When the validity of a State law is attacked under s. 109 of the Constitution and the scope of the Commonwealth law with which it is thought to be inconsistent depends on matters of fact (which I shall call the statutory facts) the function of a court is analogous to its function in determining the constitutional validity of a law whose validity depends on matters of fact. …

    The court may, of course, invite and receive assistance from the parties to ascertain the statutory facts, but it is free also to inform itself from other sources."

14. In Maloney v The Queen (2013) 252 CLR 168, the High Court was required to determine whether a provision in a Queensland liquor statute was inconsistent with Commonwealth legislation and therefore invalid under s 109 of the Constitution. At [352], Gageler J commented, "Gerhardy illustrates that 'constitutional facts' form part of a larger genus. That larger genus has long been referred to in the United States as 'legislative facts'".

15. None of the cases that I have referred to were affected by the uniform evidence legislation. However it is significant that s 144(1)(b) of the Evidence Act appears to supersede the common law in relation to constitutional facts or legislative facts. Section 144 reads as follows:

    "(1)  Proof is not required about knowledge that is not reasonably open to question and is —

    (a)  common knowledge in the locality in which the proceeding is being held or generally; or

    (b)  capable of verification by reference to a document the authority of which cannot reasonably be questioned.

    (2)  The judge may acquire knowledge referred to in subsection (1) in any way the judge thinks fit.

    (3)  The court, including the jury if there is a jury, is to take knowledge referred to in subsection (1) into account.

    (4)  The judge is to give a party any opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced."

16. I was not informed of any Act of State on the part of the French government by which the creation or existence of an EEZ around New Caledonia was asserted.  I was informed that charts published by the Official French Naval Hydrographic and Oceanographic Service, known as SHOM, showed an EEZ with a boundary passing through the waters above Capel Bank 200 nautical miles south of South Bellona.  I was informed that the solicitors for Mures had obtained a report from an Australian academic who opined that the landforms at South Bellona were rocks, not islands, and that France was therefore not entitled to claim an EEZ that extended anywhere near Capel Bank.

17. I accept that, if there had been an act of state by France claiming an EEZ extending to the waters above Capel Bank, then any question of the validity of that act according to the principles of public international law would have had some slight similarity to a question of whether an executive act by a government of an Australian State was invalid because of a provision in the Commonwealth Constitution – one of the situations addressed by Dixon CJ in the passage I have quoted from Breen v Sneddon (above).

18. However the question of the boundaries of the New Caledonian EEZ was of peripheral relevance to this case.  At most, it might have been relevant to the Crown's contention that the accused had a motive for making deliberately false statements in the reports to which the charges related.  However any such relevance depended upon the extent of the knowledge of the accused, and there was no evidence that either Mr Potter or the lone director of Mures knew anything about the status of the South Bellona landforms, the SHOM charts, or any other matter relevant to the determination of the true boundaries of the New Caledonian EEZ, assuming there was one.

19. Furthermore, this was not a case where the Court was to be called upon to make a determination that was binding on the Crown otherwise than for the purposes of the proceedings against the two accused.  The facts relating to the status of the waters in the Capel Bank area were therefore just like any other facts that might become relevant in the context of criminal litigation, and were for the jury to determine. 

20. Furthermore, the inconsistency between the boundaries shown in the French charts and the opinion of the Australian academic strongly suggested that the issue as to "the actual position of the New Caledonian EEZ as a matter of international law" could not be resolved by resort to knowledge that, in the words of s 144(1)(b), was "capable of verification by reference to a document the authority of which cannot reasonably be questioned".

21. It was for those reasons that I determined that it was neither necessary nor appropriate for me to determine that issue.