Australian Fisheries Management Authority v Su

NORTHERN TERRITORY DISTRICT REGISTRY NTD 19 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

REASONS FOR JUDGMENT MANSFIELD & BENNETT JJ: 9 The background is set out by the primary judge in his reasons for judgment: Mei Ying Su v Australian Fisheries Management Authority (No 2) (2008) 251 ALR 135 at [1]-[10]. In summary, the Mitra 2139 ('the Mitra') is a foreign fishing boat which is registered in Taiwan. The respondents were, at all relevant times, the owners of the Mitra. On 30 March 2008, the Mitra was boarded by personnel from a Royal Australian Navy patrol boat about 7 nautical miles inside the Australian Fishing Zone ('the AFZ'). If the Mitra had been used to commit any of the offences listed in s 106A of the Fisheries Management Act 1991 (Cth) ('the Fisheries Act'), the vessel, its equipment and catch were liable to be forfeited to the Commonwealth of Australia. The offence relevant to this appeal is having a foreign boat equipped for fishing in the AFZ (ss 101(1) and 101(2) of the Fisheries Act). It is not in dispute that the elements of the offence were made out. The physical element of the offence was being in possession of or in charge of a foreign boat, so equipped, in the AFZ. 10 The AFZ is defined to include the waters adjacent to Australia within the outer limits of the exclusive economic zone adjacent to the coast of Australia and the waters adjacent to each external territory within the outer limits of the exclusive economic zone adjacent to the coast of the external territory (s 4 of the Fisheries Act). The "exclusive economic zone" is an area defined in s 4 of the Fisheries Act by reference to the Seas and Submerged Lands Act 1973 (Cth) ('the SSL Act') and is governed by provisions of the United Nations Convention on the Law of the Sea. 11 It follows that the location of and the border of the AFZ are determined by law. 12 Strict liability applies to a contravention of s 101 of the Fisheries Act (s 101(2A)). However, the defence of mistake of fact under s 9.2 of the Criminal Code (Cth) ('the Criminal Code') is an available defence. That is, it is a defence if the Mitra was in the AFZ as a result of the Master (as the person in charge of the boat), having considered whether facts existed which constituted the physical element of the offence, being under a mistaken but reasonable belief about those facts and, had those facts existed, the conduct would not have constituted an offence. 13 The respondents' defence is that the Master of the Mitra plotted his position using the Geographical Positioning System ('GPS') unit onboard the Mitra. That GPS unit displayed a "red line" which the Master mistakenly believed represented the location of the border of the AFZ. The Master positioned the Mitra approximately 11.61 nautical miles north of that "red line", believing that this meant that the Mitra was approximately 11.61 nautical miles outside the AFZ. In fact, the Mitra was within the AFZ. There was a practical evidentiary onus on the respondents to raise that defence, as they did by calling evidence from the Master of the boat. Then the first appellant had the onus of disproving or negativing the defence on the balance of probabilities, having regard to the serious nature of the contraventions of the Fisheries Act alleged: see Olbers Co Ltd v Commonwealth of Australia (2004) 136 FCR 67 per French J at [65]. 14 The relevant findings of fact made by the primary judge are: · The Master made a fundamental mistake in thinking that the "red line" shown on his GPS unit represented the location of the AFZ border (at [71]). · Acting on that mistaken belief, he placed the Mitra at a position approximately 11.61 nautical miles north of the "red line" (at [71]). · He thought, mistakenly, that the Mitra would be north of, and therefore outside, the AFZ (at [71]). · The Master knew where he was located in relation to the "red line" and, in that sense, was not mistaken as to his geographic location (at [89]). · The Master's mistake was based upon the mistaken statement of the Taiwanese GPS unit supplier that the "red line" shown on the GPS unit represented the AFZ border and the only line that the Master saw was the "red line" (at [88]). · The Master had an actual belief that the "red line" represented the location of the AFZ border (at [100]).

Ground one: mistake of fact or law? 15 The main issue in the appeal is whether there was a belief about facts which, had they existed, would have meant that the Master's conduct would not have constituted an offence under s 101 of the Fisheries Act. There is no dispute about the Master's asserted mistaken belief. There is a dispute about whether the mistaken belief constitutes a mistake of fact or a mistake of law. 16 It is clear from the primary judge's findings of fact that his Honour accepted that the Master did not judge his geographic position by reference to latitude and longitude, or by reference to the AFZ itself or to Australia's coastline. He judged it by reference to the position of the Mitra in relation to the "red line" as indicated on the GPS. The geographical position of the Mitra was north of the "red line" of the GPS. He believed that the "red line" represented the border of the AFZ. As a result, he believed that the geographical position of the Mitra was north of the AFZ. In that, he was mistaken. 17 The appellants (together, 'the Authority') agree that a mistake as to geographical location is a mistake of fact but submit that the Master was not under a mistake as to his geographical position in absolute terms, that is, where he was "on the planet". 18 A mistake as to the location of, or boundary of, the AFZ would be a mistake of law. There has been a declaration under the SSL Act as to the boundaries of the exclusive economic zone which, in turn, determines the boundaries of the AFZand the Mitra's location was within the boundaries so declared. The problem for the Authority is that the findings do not support the proposition that the mistake was one as to the location or boundary of the AFZ. That proposition is contrary to the primary judge's findings, drawn from the evidence and agreed facts. The Master's belief was not that he was entitled to be in the AFZ or that the AFZ was other than as proclaimed. Such mistakes would be mistakes of law. The Master's mistake was as to a fact that concerned the location of the Mitra in relation to the AFZ: the belief that the "red line" on the GPS represented the border of the AFZ led to that mistaken fact. 19 In the list of agreed issues the parties identified the issue in just that way. The issue is expressed as follows: The issues in relation to the availability of the defence of mistake in relation to an offence against subsection 101(2) are: (a) whether, before the Mitra came to be at a place within the AFZ, the Master considered whether or not certain facts existed, namely the position of the Mitra relative to the AFZ; (b) whether the Master was under a mistaken belief that the Mitra was at a place outside the AFZ; and (c) whether the Master's belief was reasonable. (The parties are agreed that, had the fact about which the Master entertained a mistaken belief existed, the Master's conduct would not have constituted an offence.) 20 The final sentence of that agreed issue recognises that a mistaken belief about the location of the boat in relation to the AFZ, provided it was a reasonable belief, would enliven the defence under s 9.2 of the Criminal Code. 21 The Master knew where he was located in relation to the "red line" and, in that sense, he was not mistaken as to his geographic location. He was, however, mistaken about where he was. His mistake was the geographical position of his own vessel in relation to the AFZ which he thought was represented by the "red line". He believed that he was at a place that was not within Australian waters. His belief was not, as the Authority submits, that the border was south of where it had been declared to be but that he was positioned north of the "red line" and that the "red line" on the GPS represented the border. 22 The GPS did display the Mitra's position by reference to latitude and longitude but there is no evidence that the Master understood his location by reference to that positioning. There is no evidence that he understood his geographic position by reference to the AFZ itself, rather than by reference to what he considered to be the boundary, as displayed on the GPS unit. The physical element about which he was mistaken was not the position of the AFZ but the position of his boat in relation to the AFZ which he thought was represented by that "red line". 23 As the Authority points out, determining whether a mistake is a mistake of fact or of law is notoriously difficult and the answer may be affected by how the mistake is described in the first place. In this case, the mistake was of a fact. It was a mistake as to the character of the "red line" which gave rise to a mistake as to the position of the Mitra in relation to the AFZ. 24 Had the mistaken fact existed such that the "red line" was coextensive with the boundary of the AFZ, as the Master believed, he would not have been within the AFZ and his conduct would not have constituted an offence. 25 The present case can be distinguished from Ostrowski v Palmer (2004) 218 CLR 493, where Mr Palmer believed that he was legally entitled to fish for rock lobster in the area in which he was fishing. The prohibited area was defined by regulation. Mr Palmer, as noted by McHugh J at [49], intended to fish for rock lobsters in the area and he knew that he was in that part of the Indian Ocean described in the table to the regulation in which the prohibited area was described. Importantly, as noted by McHugh J at [49]: 'Mr Palmer made no mistake as to any of the factual elements of the charge. His mistake was that he believed that the law of Western Australia did not prohibit or regulate fishing for rock lobsters in that area'. That mistake was not a mistake of fact but a mistake as to the operation of the law. In contrast, in Pearce v Stanton [1984] WAR 359, Mr Stanton who was also a rock lobster fisherman succeeded in a defence of an honest and reasonable but mistaken belief of fact. His belief was that the lobsters he was selling were of the correct size and were not undersized. That is, his mistaken belief was as to the existence of the fact which constituted one of the elements of a strict liability offence. It was not a mistaken belief as to the permitted minimum size of rock lobsters, which would have been a mistake of law. 26 The Master of the Mitra was mistaken as to an element of the offence: his position in relation to the AFZ. It was not, as submitted by the Authority, a belief based upon the boundary of the AFZ but a belief as to his own position relative to that boundary based on a mistake as to what the "red line" on the GPS represented. 27 This ground of appeal is rejected.

Ground two: did the primary judge err in finding that the Master had an actual mistaken belief that the "red line" on the GPS represented the location of the border of the AFZ? 28 The Authority submits that, in concluding that the Master did have a mistaken belief that the "red line" shown on the vessel's GPS represented the border of the AFZ, the primary judge erred in assessing the credibility of the Master's evidence. The primary judge rejected the submission that the Master's claims should not be believed. The Authority relies upon some changes in the Master's evidence and that of the Chief Engineer over time, additional evidence given by the Master and the fact that the Mitra sailed roughly parallel to the AFZ boundary for approximately 18 hours prior to stopping where it did. The Authority also relies upon the fact that the Master said in his first affidavit that the closest he had ever been to Australian waters was 50 nautical miles but when he was sailing parallel to the AFZ he was less than 12 nautical miles from the AFZ. It submits that the primary judge failed to take these matters into account. The Authority submits that the parallel course with the AFZ border indicates that the Master did know where the border was. 29 Essentially the challenge is to the primary judge's finding that the Master and the Mitra's Chief Engineer were truthful witnesses. 30 The primary judge gave detailed consideration to the evidence in the context of a challenge to the credit of both the Master and the Mitra's Chief Engineer. His Honour said at [34]: Having seen the master and the chief engineer cross-examined in the witness box, and taking into account the various communications problems noted above, my impression was that most, if not all, of the apparent inconsistencies in their evidence arose from language difficulties and cultural differences. I consider that they were both doing their best when giving their evidence to accurately describe what had happened, whilst displaying some natural frustration about the communication problems that had beset them. 31 Much of the evidence before the primary judge, including evidence as to credit, went to the issue of whether the Mitra was engaged in commercial fishing in the AFZ. That is because the Authority sought to establish that the Master had, in fact, used the boat for commercial fishing in the AFZ, contrary to s 100 of the Fisheries Act. His Honour concluded that the Mitra had not been engaged in commercial fishing and there is no appeal from that finding. 32 His Honour specifically stated at [25] that he did not consider it necessary to do more than set out a summary of the evidence in relation to the question whether the Mitra was being used for commercial fishing at the time that it was in the AFZ because there was independent, objective evidence which his Honour considered established that it was unlikely that the Mitra was being used for commercial fishing. 33 The primary judge stated at [42] that, because of the independent, objective evidence supporting the conclusion that the Mitra was not engaged in commercial fishing, it was not necessary to state in detail submissions on inconsistencies in the evidence. That evidence, his Honour found, showed that whilst the boat was in fact in the AFZ it was not moving at a sufficient speed to engage in commercial fishing. 34 It is apparent that much of the criticism of the Master's evidence, the Chief Engineer's evidence and their credit was in connection with the issue of the engagement in commercial fishing. It is also apparent that the matter of the Mitra's course prior to and after entry into the AFZ was dealt with in that context (at [43]-[56]). When his Honour turned to the Master's mistake about the "red line", he referred at [66] and [67] to changes, and at [68] to inconsistencies, in the Master's evidence. His Honour said that the inconsistency related to 'an insignificant and peripheral aspect of the event'and that he did 'not consider this inconsistency to be of any moment'. 35 The contention of the Authority was that, in assessing the credibility of the Master, the primary judge failed to take into account relevant evidence. 36 As noted, his Honour did refer to certain inconsistencies in and changes to the Master's evidence, and he made the general observation we have set out at [30]. 37 Moreover, having generally accepted the Master's evidence when considering whether the boat had in the several hours preceding its boarding been used for commercial fishing, notwithstanding inconsistencies in his statements, his Honour also took into account further inconsistencies in those statements and his evidence as to the timing of first looking for, and seeing, the "red line". 38 It would only be in a clear case that the Court might disturb a finding of credit where the primary judge has taken into account a number of apparent inconsistencies in the versions of events given by a witness from time to time and has had the benefit of seeing and hearing the evidence: see, for example, Paterson v Paterson (1953) 89 CLR 212 per Dixon CJ and Kitto J at 219-25; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 per Gaudron, Gummow and Hayne JJ at [63]; Fox v Percy (2003) 214 CLR 118; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 per Kirby J at [67], and [90]-[100]; Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 496-7. That is the more so when, as here, the witness has told of events and subsequently gave evidence through an interpreter and the primary judge had the benefit of seeing that evidence given. 39 The Authority pointed to a few matters which, it was contended, the primary judge had not expressly referred to. We are not persuaded that his Honour did not take them into account. They are all matters which are based in part upon the affidavits or oral evidence of the Master, to which the primary judge referred. His Honour, having formed his view about the Master's credibility and having explained why he formed that view, was not required to deal with each and every matter which might have pointed to a contrary conclusion. The matters identified by the Authority were not especially significant to the issue which his Honour was addressing: see, for example, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Mahoney JA at 271 and per McHugh JA at 274. The fact that his Honour did not expressly mention each and every one of them does not lead to the conclusion that he did not take them into account. That is particularly so when his Honour made findings related to each of the matters raised. His Honour made a finding about the length of time the engineers had been working on the boat (preferring the evidence of the Chief Engineer to that of another witness called by the Authority), which related closely to the asserted inconsistent material about the period the boat was drifting while repairs were undertaken. His Honour accepted that the Master relied upon information about how the AFZ was depicted on the GPS provided by the Taiwanese supplier of the GPS unit, which almost inevitably would have drawn his attention to the claim that the Master did not mention receiving that information as soon as he might have, and necessarily required him to consider the reasonableness of the Master's belief. Finally, the Authority referred to the fact that on 27 and 28 March 2008, the Mitra had moved for almost 18 hours on a course roughly parallel to the boundary of the AFZ and about 12 nautical miles to its north, whereas the Master had estimated that he had not been closer to the AFZ than 50 nautical miles. His Honour adverted to the evidence about the movements of the Mitra in the period preceding its moving into the AFZ, so again there is no reason to conclude that he overlooked the particular evidence referred to by the Authority in submissions on the appeal. 40 We are not satisfied that the primary judge failed to consider the matters relied on by the Authority to challenge the Master's credit and that of the Chief Engineer. We see no sufficient reason to interfere with his Honour's findings on credit.

Ground three: the defence under s 9.2 of the Criminal Code 41 The primary judge considered the reasonableness of the Master's actual mistaken belief as to the fact that the "red line" shown on the GPS represented the location of the AFZ border and that by positioning the Mitra north of that line it would be outside the AFZ. His Honour considered the authorities in the context of s 9.2 of the Criminal Code and set out at [106] four propositions with which the Authority does not take issue. They are that the word "reasonable" in s 9.2: (a) does not involve the hypothetical ordinary or reasonable person test; (b) requires that the belief be that of the accused; (c) requires the accused's belief to be objectively reasonable, ie. rational, based on reason, or capable of sustaining belief; and (d) requires the objective reasonableness of the accused's belief to be assessed by reference to the subjective circumstances in which the accused was placed, including the accused's personal attributes and the information available to him or her at the time. 42 The relevant ground in the notice of appeal is in the following terms: His Honour erred in considering whether the defence under section 9.2 of the Criminal Code was available to the Master in asking whether it was reasonable for the Master to proceed on his mistaken belief, and not whether the Master's belief was reasonable. 43 That is, the Authority contends that the primary judge asked himself the wrong question. 44 As the primary judge observed, propositions (c) and (d) needed to be addressed. His Honour, at [107], considered the issue to be the rationality of the Master's mistaken belief, by reference to his personal attributes and the information available to him at the time. At [109], his Honour rejected the Authority's submission that the circumstances reasonably required the Master to make inquiries that would have revealed his mistake, as that introduced into the assessment a consideration of the information that a reasonable person would have obtained by inquiry, rather than the information that the Master had actually obtained or had available to him at the time he formed his belief. His Honour considered that 'such a requirement would be likely to render nugatory the defence of mistake of fact under s 9.2 of the Criminal Code because the reasonable person's inquiries are, of necessity, almost always likely to reveal the mistake'. The Authority does not contend on appeal that that was an erroneous approach. 45 The primary judge then considered the two questions raised by the Authority's submissions, which, in his view, were relevant: 1. Was there any information (available to the Master) that should have alerted him to his mistake? 2. Did the Master fail to have regard to any information that would have revealed his mistake? 46 As to the first question, the primary judge took into account the Master's personal attributes and the information available to him. He considered the matters on which the Authority relied: · The Master should have realised that the "red line", as a straight line, did not reflect the border between Australian and Indonesian waters. · Cross-hatching on the GPS screen indicated that the "red line" was the border of the GPS chart and not the AFZ borderline. · Other charts within the GPS showed red lines. · Cross-hatching on the GPS chart is also present on the "north of the 50 nautical mile" view and the "20 nautical mile" view for the GPS charts covering other geographical areas. 47 His Honour rejected, for the detailed reasons that he gave, each of these factors as information that the Master must have actually considered at or before the time he formed his mistaken belief which should reasonably have alerted him to his mistake such that his mistaken belief was not rational or capable of being sustained. 48 At [122], the primary judge rephrased the second question: did the Master unreasonably fail to have regard to any information that was available to him at the time, which would have revealed his mistake, so that his mistaken belief was not rational or capable of sustaining belief? The two items of information relied on by the Authority were: 1. the charts present on the Mitra showing the AFZ borderline in the area where the Mitra was boarded; and 2. the availability of other Taiwanese fishing vessels by radio contact. 49 His Honour's view, as explained in some detail at [123]-[126], was that there was nothing in the circumstances that reasonably required the Master to have regard to those items of information or, specifically, to have cross-checked his GPS with a paper chart or by radio inquiry (at [124] and [126]). 50 The primary judge's ultimate conclusion, expressed at [128], was that it was reasonable for the Master to proceed as he did in all the circumstances on the mistaken belief that the "red line" was the AFZ borderline. The primary judge does couch his discussion in [122] to [127] in terms of the reasonableness of the Master's actions but his Honour is there dealing with the Authority's contentions that the Master should have done something more to test his belief. It does not affect the correctness of the starting point of his Honour's reasoning on this aspect, at [122], that the Master's actual mistaken belief was required to be reasonable in the requisite sense. 51 For those reasons, the primary judge properly identified the correct question to be addressed namely whether, in the particular circumstances, the belief of the Master that the Mitra was outside the AFZ was objectively a reasonable belief. His Honour did not ask or answer the wrong question in his consideration of the availability of the defence under s 9.2 of the Criminal Code. 52 His Honour concluded that, apart from his reading of the GPS, there was no other information which should have been considered by the Master and which would have shown that his belief was mistaken. He then concluded at [123] that it was reasonable that the Master relied on what he had been told by the Taiwanese supplier of the GPS unit. He said that the Authority did not really suggest otherwise. There was no submission that his Honour was wrong about that. Then his Honour rejected the contention of the Authority that the belief was not a reasonable one because the Master could have (but did not) cross check the GPS with a paper chart or by radio inquiry with another vessel. On that contention of the Authority, his Honour was also not satisfied that any such inquiries by the Master would have exposed to him that the Mitra was in the AFZ. Those steps in reasoning indicate that the correct question under s 9.2 of the Criminal Code was asked, and answered, including by addressing the particular matters put by the Authority in submissions on that question. 53 The Authority drew attention to the concluding remarks of the primary judge in his reasons at [128] to [130] concerning the reasonableness of the Master's actions. His Honour said that it was reasonable for the Master to proceed as he did in all the circumstances on the mistaken belief that the "red line" was the AFZ borderline, and said there were two factors which led him to that conclusion. The first was that, because the Mitra was not at the time being used for commercial fishing but merely drifting on the tide while the engineers were fixing its engine, the conduct was "objectively innocent" and there was no sensible reason why the Mitra might knowingly be in the AFZ in those circumstances. The second was that the conduct being "innocent", that is not deliberate, it is not an affront to the purposes of the Fisheries Act that the owners of the Mitra should be excused from criminal responsibility in the circumstances. 54 Were those remarks to have been part of the primary judge's reasoning leading to his conclusion that the defence under s 9.2 of the Criminal Code was available, the contention of the Authority that the primary judge took irrelevant considerations into account may have had merit. Those remarks, if not seen in their context, might be taken to indicate that the primary judge had asked the wrong question by focusing on whether the Master's conduct was reasonable rather than upon whether his mistaken belief was reasonable. 55 It is not necessary to read them that way, nor is such a reading consistent with the structure of the primary judge's reasons. The absence of any apparent reason why the Master may have allowed the vessel to drift into the AFZ, so exposing it to forfeiture, may well be a consideration relevant to whether his evidence was to be believed. It is inherently improbable that he would intentionally do so. Such an outcome would legitimately attract the proposition that such circumstances would not "affront" the purposes of the Fisheries Act. That is what s 9.2 of the Criminal Code provides. 56 However, we do not need to determine precisely what those final paragraphs of the reasons convey. They clearly do not comprise the critical part of his Honour's reasoning. The earlier section of the reasons addresses and resolves the availability of the defence under s 9.2 of the Criminal Code.

CONCLUSION 57 We consider that the appeal should be dismissed with costs. As is clear from these reasons, that outcome reflects the particular facts as found by the primary judge, concerning the nature of the Master's mistake (notwithstanding that he had access to the GPS showing the coordinates of the Mitra's position and to a chart showing the boundary of the AFZ) and the fact that the Mitra had for some time moved in a course roughly parallel to that boundary. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield and Bennett.

Counsel for the Applicant: Mr JD Allanson Sc and Mr PR Macliver

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondents: Ms J Kelly SC and Mr W Roper