Mei Ying Su v Australian Fisheries Management Authority No 2

Federal Court of Australia|2008-10-03|Before: Reeves J

Introduction 24 The first central issue for determination is whether AFMA has established that the Mitra was being used for commercial fishing while it was in the AFZ. On this issue AFMA has relied upon observations made by Royal Australian Navy personnel shortly after they boarded the Mitra, in submitting that the inference should be drawn that the Mitra had been used for commercial fishing "some 3 - 4 hours" before it was boarded. These observations concerned the condition of the equipment on the Mitra, the presence of fish on the deck of the Mitra and the condition of some fish in the freezer of the Mitra. AFMA has also relied upon a number of inconsistencies which it says exist in the evidence of the Master, the Chief Engineer and the crew of the Mitra on this and other issues. 25 While much of the evidence at hearing was directed to this issue, I do not consider it necessary to do more than set out a summary of the main parts. This is because there is other independent, objective evidence which I consider establishes that it is unlikely that the Mitra could have been used for commercial fishing while it was in the AFZ. I will briefly refer to, and make some observations on, the evidence of the owners and of AFMA before turning to consider that independent and objective evidence.

The crew and the Master deny the Mitra was used for commercial fishing 26 There is no direct evidence that the Mitra was being used for commercial fishing while it was within the AFZ. In their interviews with AFMA personnel, conducted some days after they arrived in Darwin Harbour on 2 April 2008, and while they were in detention, the crew members of the Mitra variously stated: that the fishing nets had last been hauled onto the boat about 10 hours before the boat was boarded (according to Mr Song Shi Young); that the last episode of fishing had occurred on the afternoon of 29 March 2008 (according to Mr Xiao Hai Zheng), or that the last fishing occurred on the morning of 29 March 2008 when it was "nearly noon" (according to Mr Zheng Shi Xeng). 27 There are some obvious inconsistencies in these various versions. However, they are all consistent in claiming that the Mitra was last used for fishing before it began its run south. Moreover, they are all consistent in claiming that no fishing occurred in the 3 to 4 hour period before the Mitra was boarded, as is asserted by AFMA. 28 The Master said in evidence that he was certain that there had been no fishing in Australian waters at any time and that there had been no fishing for at least 24 hours before entering Australian waters. On its face, this evidence is inconsistent with the statements of the crew members who put this intervening period at between 10 and 18 hours. However, it is broadly consistent with the statements that the Master made in his interview with CPOB Manley soon after the Mitra was boarded and it becomes more consistent with the statements of the crew members when the explanations he gave in cross-examination are taken into account. The interview with CPOB Manley was conducted through an interpreter, using numbered interpreter cards. The relevant details appear in CPOB Manley's affidavit as follows: I then proceeded to ask the Master a number of further questions using the Indonesian and Taiwanese cards. Among the questions asked, and the Master's answers were: In response to being shown Indonesian card 21 and Taiwanese card 16 which both ask "How many days have you been in the area?", the Master responded one day. In response to being shown Taiwanese card 18 which asks "How many days have you fished here?", the Master indicated that he had not been fishing in this area. In response to being shown Taiwanese card 24 which asks "How long has your fishing equipment been in the water?", the Master responded not in this area. In response to being shown Taiwanese card 27 which asks "Have you caught any fish in the area?", the Master answered that he had not caught any fish in this area. In response to being shown Taiwanese card 31 which states "You are currently in Australian water", the Master disputed his position and claimed that the position on the vessel's GPS indicated that he was in Indonesian waters and not in the Australian area. In response to being shown Taiwanese card 33 which states "It is illegal to fish here without a license", the Master replied that he was not fishing here, but in Indonesian waters. In response to being shown Taiwanese card 34 which asks "Why are you in this area?", the Master responded that the engine was broken. In response to being shown Indonesian card 32 which asks "Which country's waters are you currently in?", the Master responded that he was in Indonesian waters, and pointed at the vessel's GPS indicating from the vessel's position up as Indonesian waters. … After the Master stated during the questioning that Mitra 2139's engine had broken, I asked him [h]ow long to repair the engine and he replied one day. I then repeated the question and asked "one day to repair engine?", to which the Master nodded his head and replied "yes". [emphasis added] 29 In his cross-examination by Mr Macliver (Counsel for AFMA), the Master explained what he meant by his statements (above) that he had been in the area "one day" and the engine was under repair "one day" as set out in the following excerpt of transcript: QUESTION: Mr Macliver: Could the witness be shown Mr Manley's affidavit? Mr Jang, can you look at the card marked number 34. It's page 24 to Mr Manley's affidavit, annexure RCM3. That asks does your engine work. ANSWER: The interpreter: I told them we still repairing. QUESTION: Mr Macliver: Yes, you told them the engine was broken? ANSWER: The interpreter: Yes, he told them they were still repairing. QUESTION: Mr Macliver: And did you also say that the engine had broken down and had been repaired for about a day? ANSWER: The interpreter: Yes. I tell them that we - the engine is broken and we have been repaired a day. A Chinese day is not been 24 hours. Chinese day is today. Chinese means - "one day" it means "today". MR MACLIVER: Thank you, Mr Jang. THE INTERPRETER: Yes, "a day" means "today". 30 Given that he had stopped at about midnight on 29 March 2008 and the Chief Engineer commenced work on the engine shortly thereafter, the Master's explanation that the engine had broken down and was being repaired "today" and not "one day" is plausible. AFMA submitted that this explanation should not be accepted, but did not call any evidence to challenge the claim the Master made (that 'one day' means 'today' in Chinese). I therefore reject AFMA's submission. 31 This exchange between the Master and Mr Macliver exhibits communications problems similar to others that arose during the hearing of this matter. It seems likely that such problems would have been present throughout the process, dating back to the time the Mitra was boarded. In my view these problems stem from language difficulties and cultural differences. Another example of the language difficulties arose in relation to the expression "broken down" and whether it meant "having problems with the engine" (burning a lot of oil for example), or whether it meant the engine was not operating at all. Another example of the cultural differences arose over the length of the Master's experience as the Master of the Mitra. He claimed he was appointed in 2004. He was challenged in cross-examination with a document obtained from the Taiwanese authorities that seemed to suggest that he was appointed in 1991. His explanation in cross-examination was to the effect that 2004 in the Western calendar was the equivalent of 1991 in the Taiwanese calendar. While AFMA maintained this attack on the Master's veracity during its initial closing submissions, it conceded in a subsequent set of submissions, by agreement with the owners, that the Master was correct. 32 The owners filed an affidavit by Ms Yu-Yen Chen. Ms Chen described in some detail the communications problems she witnessed the Master and the crew experiencing from, what she claimed was, incorrect interpretation. She said she thought these problems were further compounded by the technical language used in relation to commercial fishing. She also noted that the Master had a strong Taiwanese accent while other members of the crew were from two different provinces of China and had strong accents from the dialects they spoke.She gave various examples of what she said were "wrong translations" of words such as "charts" (she claimed that word would only be understood as "sea map" in Mandarin), "border", "EEZ", "bridge", "reluctant", "route" and "symbol". 33 While I am dealing with the question of the Master's credit, I should mention that AFMA also challenged the Chief Engineer's credit, in particular, in relation to his evidence about having worked on the engine of the Mitra for about five hours after it stopped. To do so, AFMA called Mr Ronald Halstead, a Marine Surveyor, to give some opinion evidence as to how long it would take to do the work that the Chief Engineer claimed he performed on the engine. Mr Halstead's evidence was to the effect that it would take approximately 15 hours to replace the piston rings on the two cylinders of the Mitra's engine. I reject this evidence. In my view, Mr Halstead did not have sufficient direct experience or knowledge of the relevant circumstances to allow him to express this opinion. He said in cross-examination that he last did any 'hands-on' work as an engineer on the engine of a boat in 1969 and most of his experience in the past 30 to 40 years has been in an administrative or managerial capacity. Further, he agreed in cross-examination that he has never replaced the piston rings on an engine of the same kind as the Mitra's engine and he also agreed that he had no knowledge of the Chief Engineer's skills as an engineer, or his speed of work. Having rejected this evidence, I see no reason not to accept the Chief Engineer's evidence that he worked on the Mitra's engine for about five hours after it stopped. 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.

The observations of the boarding party 35 The boarding party consisted of six Royal Australian Navy personnel. CPOB Manley was the officer in charge. He was assisted by Messrs Bennett, Hughes, Peach, Schonewille and Wraight. 36 On the issue of the condition of the equipment and fish on the deck of the Mitra, various of the members of the boarding party said that they had observed that: the net on the rear deck of the Mitra was wet; there were fish caught in the net and fish on the deck around the net that were "wet", "soft" and "pliable"; there was mud on the net that was "soft" and "pliable"; and there was a small stingray on the deck that had traces of blood on its body which had not yet congealed and which was sticky when touched. AFMA tendered a number of photographs of the fish on the deck and of the fish in the Mitra's freezer. 37 In opposition to this evidence, there was evidence, particularly from the Master, that the net was wet because there was a deck hose in the area where the net was located and that hose was frequently used by the crew for ablutions. Further, in cross-examination of various of the members of the boarding party, Ms Kelly (Counsel for the owners) established that they each had very different ideas as to what the word "pliable" meant, ranging from: "the fish not drying out and therefore becoming firm and hard" (in the words of CPOB Manley), "when a finger is pressed into the flesh it leaves a sort of depression in the flesh" (in the words of Mr Schonewille), and "not entirely fresh, still sort of fresh in a way" (in the words of Mr Hughes). Mr Schonewille also said that the fish on the deck appeared to be "by-products" of a catch and that some of the fish had been caught up against the fish trays on the edge of the deck. 38 The evidence as to the condition of the fish in the freezer of the Mitra came from Mr Hughes and Mr Schonewille. They said that there were about six trays of fish in the freezer that appeared to be 'fresh', 'wet' and 'pliable'; and which had a 'shine on the skin', with 'no frost'. They said the heads of these fish had been cut off and that at the cut sites there was blood and raw flesh present. In addition, AFMA called Mr Peter Davies, an AFMA officer with extensive experience in the fishing industry including 10 years of experience owning and operating a prawn trawler. Mr Davies gave opinion evidence to the effect that he estimated that any fish placed in the freezer of the Mitra would be completely frozen within six to eight hours and that the smaller fish observed in the freezer would freeze in a period of "possibly less than two hours". He also said that because the fish were not in sealed plastic bags he would expect them to attain a coating of frost and that no such coating was shown on these fish. 39 In response to this evidence, the Master said that he only had one of the two freezer motors turned on at the time because the freezer was not full. The Master said that in his experience, with only one freezer motor turned on, it would take fifteen to twenty hours to start to see frost forming on these fish.

No clear and cogent evidence the Mitra used for commercial fishing 40 In my view, leaving aside the independent and objective evidence that I refer to below, none of this evidence is of a kind that persuades me on the balance of probabilities that the Mitra had been used for commercial fishing in the three to four hours prior to it being boarded. There are numerous reasons why a net on a fishing trawler might be wet, apart from use in commercial fishing (from sea spray, rain, or as suggested in this case by the Master, spray from the deck hose). Moreover, no evidence was called to establish how quickly the net may have dried out, particularly at night time. 41 As for the fish that were observed on the deck of the Mitra, in my view, the most that could be concluded from their "sort of fresh" condition is that the Mitra had been used for fishing at some time in the recent past, which was not denied by the crew members (who said it had been 10 to 18 hours before the boarding). AFMA did not call any evidence to establish any clear and cogent correlation between the condition of those fish and the period of time that they had been out of the sea. Finally, I consider the condition of the fish in the freezer of the Mitra falls into the same category. The evidence does not provide any clear and cogent correlation between the condition of the fish in the freezer and the relatively short period of time during which AFMA says the Mitra was used for commercial fishing. 42 AFMA made a number of other submissions going to inconsistencies in the evidence of the Master, the Chief Engineer and the crew. However, I do not consider it necessary to detail these submissions in light of the independent, objective evidence that I will turn to now. That evidence shows that in the five or six hours before it was boarded, the Mitra was not moving at a sufficient speed to engage in commercial fishing.

The VMS data - independent and objective evidence of the movements of the Mitra 43 After these proceedings were issued, the owners obtained the Mitra's vessel monitoring system ('VMS') data from the Taiwanese authorities and they tendered it in evidence. The VMS is a system used by various authorities around the world, including Australian authorities, to record the geographic co-ordinate positions of vessels, using satellites and computers. Among other things, the VMS data includes the longitude, latitude, date and Greenwich Mean Time ('GMT') of each vessel within the system. 44 The VMS data does not show the actual location of the vessel on a map, nor the speed at which the vessel is travelling - rather it shows its geographic coordinates from time to time. Nonetheless, it is possible, using the VMS data to plot the course of a vessel on a map and to calculate the average speed of the vessel's movement from point to point on that map. For the purpose of these proceedings, both parties employed experts to carry out these exercises and calculations. Mr Wayne Bateman was employed by the owners and Mr Robert Stroud was employed by AFMA. After these two experts had prepared their reports, I directed them under O 34A of the Federal Court Rules 1979 to consult with a view to coming to an agreement on any issues upon which they disagreed. As a result the parties filed a "Statement of Issues agreed by Expert Witnesses" ('The Agreed Experts' Statement') as signed by Mr Stroud. There were four areas of disagreement addressed in the Agreed Experts' Statement, all relating to the movements of the Mitra on 29 and 30 March 2008. On each of those areas of disagreement, the agreed position the two experts came to was that Mr Stroud's calculations were more accurate. 45 In his affidavit sworn on 19 May 2008, Mr Stroud detailed the movements of the Mitra on 29 and 30 March 2008. They can be summarised as follows: a. From 1630 local time on 29 March 2008 to 2330 local time on 29 March 2008 (7 hours), almost due south at between 8.3 and 9.5 knots. b. From 2330 hours local time on 29 March 2008 to 0007 hours local time on 30 March 2008 (37 minutes), in a south-south-easterly direction at 1.8 knots; c. From 0007 hours local time to 0430 hours local time on 30 March 2008 (4 hours 23 minutes), due east and then slightly south of due east at between 0.1 and 0.9 knots; and d. From 0430 hours local time to 0512 hours local time on 30 March 2008 (42 minutes), due west at between 0.2 and 0.4 knots. 46 In addition to the movements (above), in the Agreed Experts' Statement, Mr Bateman and Mr Stroud agreed that the Mitra crossed into the AFZ at 13:11:50 hours (GMT) (2241 hours local time). This occurred about 48 minutes before the end of the Mitra's course due south. I find Mr Stroud's evidence (above) to constitute an accurate summary of the Mitra's movements at these various times. 47 In their final submissions, AFMA conceded that the Mitra could not have been used for fishing while it was travelling south at average speeds in excess of 8 knots (between 1630 hours and 2330 hours local time on 29 March 2008), for the reason described below. Since the Mitra passed into the AFZ at 2241 hours local time, it follows that the only period during which the Mitra could have been used for commercial fishing in the AFZ was between 2330 hours local time on 29 March 2008 (when it ceased its voyage south) and 0512 hours local time on 30 March 2008 (when it was boarded).

The requisite speeds to successfully trawl for fish 48 Like all fishing trawlers, the Mitra has a maximum and minimum range of speeds necessary to successfully trawl for fish. The evidence on this point came from the Master and from Mr Davies. The Master's evidence was that the Mitra generally needs to travel at a speed of 3 to 4 knots to successfully trawl for fish. The Master said that if the Mitra travelled at less than 3 knots, the nets would not be suspended at the correct angle behind the Mitra and no fish would be caught. On the other hand, he said that if the Mitra travelled at more than 4 knots, the nets would come too close to the surface and no fish would be caught. When asked about this issue in cross-examination, the Master steadfastly maintained that the Mitra had to be travelling at 3 to 4 knots to catch fish and he rejected the suggestion that it could travel at a slower speed, saying (through an interpreter): "not 1 or 2, otherwise the net won't open. Have to be 3 to 4". Mr Macliver asked the Master whether the Mitra's "fishing speed of between 3 to 4 nautical miles per hour [could] be a combination of the vessel's own speed plus the speed of any water current that it is travelling through?" He responded: "Yes. The GPS can show if the, like, current waters, for example, reduce the speed, yes". 49 I interpolate that the only evidence about the tide movements at, or shortly before, the Mitra was boarded came from Mr Jeffrey Davison, a Royal Australian Navy officer, who said in his affidavit that the "prevailing set (current) and rate of drift in the area was 220 [degrees] at 1 knot (1nm per hour). The wind and swell at the time of boarding of Mitra 2139 was negligible in that there was only light and variable Easterly winds up to about 5 knots with a maximum Southerly swell of up to 0.5 metre - in other words flat calm seas and beautiful weather. These conditions as to wind and swell but not current had been experienced for the previous 12 hours". 50 Mr Davies' evidence about the Mitra's requisite range of speeds for fishing was given in cross-examination by Ms Kelly. That evidence was transcribed as follows: QUESTION - Ms Kelly: And can you tell us, Mr Davies, when a commercial fishing vessel has its nets out the back and is trawling for its catch, what speed does the boat generally go? ANSWER - Mr Davies: Usually around three knots, depending on the power of the vessel, which is, for us, a brisk walking speed, but around three knots. QUESTION - Ms Kelly: A little bit more sometimes? ANSWER - Mr Davies: Bigger vessels may have the power to go slightly more than that, but they're limited by the hydrodynamics of the net. QUESTION - Ms Kelly: A little bit less sometimes? ANSWER - Mr Davies: Down to two and a half knots, I believe they would still hold their shape - the nets. QUESTION - Ms Kelly: But if you go below that optimum fishing speed, the nets collapse, do they? ANSWER - Mr Davies: Yes, and the boards - the otter boards would fall in and start to bog and cause hazards.' 51 In re-examination, Mr Davies said this: 'QUESTION - Mr Macliver: Mr Davies, you said in answer to a question from my learned friend that you consider the minimum trawling speed would be two and a half knots? ANSWER - Mr Davies: In my experience, that's as slow as I've ever seen equipment being able to maintain its shape, its integrity. QUESTION - Mr Macliver: And when you say a trawling speed of two and a half knots, are you talking about ground speed or speed through the water? ANSWER - Mr Davies: Speed through the water. 52 Based on this evidence, I find that the range of speeds necessary for the Mitra to successfully trawl for fish is between three and four knots, through the water.

Conclusion - the Mitra was not being used for commercial fishing in the AFZ 53 The evidence as to the effect that the tide had on the Mitra's speed and direction during the relevant period of 5 hours and 42 minutes (see above) is ambiguous. It is not clear to me whether Mr Davison's evidence that: "these conditions had been experienced for the previous twelve hours" is intended to refer to the prevailing current being at one knot, or the direction that the tidal current was flowing, or both, or neither. In my view it is unlikely that the tidal current was flowing in the same direction for the whole of the twelve hour period. However, even if I were to assume: (a) that the tide was flowing at one knot; (b) in the same direction; (c) for the whole twelve hour period described by Mr Davison; and (d) that this tidal current was therefore moving the Mitra forward through the water at one knot; the highest combined average speed that the Mitra would have reached through the water would have been 2.8 knots (that is, the 1.8 knots maximum speed shown on the VMS data and the 1 knot tidal current). This may have occurred in stage (b) (described in [46(b)] above). Otherwise, the Mitra would have been travelling at a maximum combined average speed of between 1.1 knots and 1.9 knots throughout this period (that is, in stages (c) described in [46(c)] above and (d) described in [46(d)] above). I therefore conclude that at no time during this 5 hour and 42 minute period was the Mitra travelling at the requisite average speed range through the water to allow it to successfully trawl for fish. 54 Of course, this leaves open the possibility that the Mitra moved at a higher speed during a part of one of these stages. However, because of the relatively low range of average speeds shown in the VMS data and the frequency at which those average speeds were plotted by Mr Stroud, I consider it most unlikely that the Mitra moved at between 3 to 4 knots for any sustained period such that it could have been used for commercial fishing. 55 On the contrary, based on the VMS data, it seems that during this entire period the speed and direction of the Mitra is more consistent with a sudden slowing at about 30 minutes before midnight on 29 March 2008, as would occur if the engine were turned off, and then a gradual loss of forward momentum and a drift under the influence of the tidal current very slowly eastward until the tide changed, and then a drift very slowly on the tide back in a west-south-westerly direction. This series of movements is generally consistent with the evidence of the Master and the crew (above) that the Mitra was not used for fishing during this period, instead the engine on the Mitra was inoperative as the engineers were working on it. Conversely, it is directly inconsistent with AFMA's submissions, based upon the observations made by the boarding party, that the Mitra had been used for commercial fishing at some time during the three to four hours prior to the boarding (since approximately 0100 hours local time when the VMS data shows it was generally drifting eastwards at between 0.1 and 0.9 knots). 56 It follows from all of this evidence, that AFMA has failed to establish on the balance of probabilities, by way of clear and cogent evidence, that the Mitra was being used for commercial fishing in the AFZ in contravention of s 100(2) of the Act.

DID THE MASTER MAKE A REASONABLE MISTAKE OF FACT? 57 The second central issue for determination is whether AFMA has established that the Mitra was not at a place within the AFZ as a result of a reasonable mistake of fact on the part of the Master under s 9.2 of the Criminal Code. On this issue AFMA submits that: a. The Master did not make a mistake about a fact, being his position, but rather he made a mistake about a matter of law, being the location of the AFZ border, or the AFZ itself; or b. If the Master did make a mistake about a fact, his mistaken belief was not reasonable in all the circumstances. Not surprisingly, the owners put the contrary of these two submissions. It is therefore necessary to consider the evidence as to the nature of the Master's mistake, whether that mistake was a mistake of fact or law, and, if it was a mistake of fact, whether it was a mistaken but reasonable belief within the terms of s 9.2 of the Criminal Code.

The Master's mistake 58 The evidence detailing the mistake of fact made by the Master was obviously given by the Master himself. The background leading up to the mistake begins in October 2006, when a new 'Seafarer 12, 6th Generation' GPS ('Seafarer GPS') was installed on the Mitra. At the time of that installation, all the mapping information (geographical and political), including two electronic chart cards, was pre-programmed into the Seafarer GPS by the manufacturer. The Master said in the affidavit he affirmed on 30 April 2008 that he did not program the Seafarer GPS in any way because he did not know how to. In his affidavit affirmed on 20 May 2008 he said that the Taiwanese GPS supplier told him that: "There is a line inside the Seafarer GPS. You can view the line at 10-20 nautical mile view and that line is the Australian border line". 59 In fact, as has been established by the evidence in these proceedings, the line that the Taiwanese GPS supplier referred to represented the '10 degrees south line'. And, while it varied depending upon the location of the baselines from which it was measured, the Australian or AFZ border was in fact approximately 20 nautical miles further north of that 10 degrees south line. 60 The Master also said in his affidavit of 20 May 2008 that he generally only used a paper chart in two circumstances: when he was sailing from Taiwan to Indonesian waters and back he used an Indonesian chart; and when he was sailing to a pre-arranged point at sea to collect or drop off Chinese fishermen, he used a Chinese chart. Otherwise, he relied solely on the GPS when he was fishing. He said that the GPS was easy to use to input and plot the route on screen. 61 The Master said in his final affidavit affirmed on 28 May 2008 that there was a number of levels of view available within the GPS and they ranged from a 5 nautical mile view to a 100 nautical mile view. He said he generally used the 20 nautical mile view when travelling from Taiwan to Indonesian waters. Once in Indonesian waters, because there are many small islands in the Indonesian Archipelago, he said he believed it much safer to use a low nautical mile view so that the obstacles and details of the waters could be viewed. Thus, while fishing in Indonesian waters he usually used the "han sing tu" (navigation mode) at a 5 nautical mile view. He also gave evidence that the GPS contained an 'A - B line function', which allowed him to plot a route from point A to point B and to measure the distance between those two points. 62 In his affidavit affirmed on 30 April 2008 the Master described his trip south on 29 March 2008 in these terms: "As the Mitra was moving closer to Australian waters, a big red line appeared on the screen of the Mitra's navigation system. On the upper side of the red line, the chart was marked light blue. On the lower side of the red line, it was marked with green hatching". He said further: "I thought that this was the border between Indonesian waters and Australian waters. The line was located in the geographical area where I understood the border to be located. I did not have any other information to tell me where Australian waters began, only the red line. I looked to see if I could find any information on the ship but could not locate any". 63 In his affidavit affirmed on 20 May 2008, the Master clarified that in this latter statement he was actually describing what happened after the Mitra had been boarded, rather than when he was heading south. About what happened after the boarding he said: "I could not believe that I was in Australian water already so my first response was to find my Indonesian chart in the cabin to see whether there was an Australian border line on it that I might have missed. I was stopped by the officer who followed me to the cabin from the wheelhouse. I had found no information then." 64 Not surprisingly, the Master was asked in cross-examination whether he checked with any paper charts after he saw the "red line" on the GPS when he was heading south. His answer was that he did not, he said: "I believe the GPS with the red line. I didn't look at some other paper, you know, chart to be sure of anything." 65 The Master said in his affidavit affirmed on 30 April 2008, that at about 1130 hours local time on 29 March 2008 (this has been converted to local time since it emerged in his later affidavit that the times in this affidavit were given in Taiwanese time), he stopped the Mitra approximately 11 nautical miles north of the red line. He said: "I believed that this was a safe distance from Australian waters". He said that he did not know that he was in the AFZ until the boarding party boarded the Mitra and that he was very surprised and therefore argued with one of the officers in the boarding party, "[b]y pointing to the GPS screen showing the Mitra position above the red line". This is consistent with his interview with CPOB Manley shortly after the Mitra was boarded (see [29] above). 66 In his affidavit affirmed on 20 May 2008, the Master said with reference to the trip south: "During the escape sail on 29 March 2008, I used the 10 nautical mile view first and I could not see a line. I therefore switched to a 20 nautical mile view and then I could see a red line which had net-like lines underneath. I believed that the red line was the border line and so I stayed at this view". While he did not mention the 10 or 20 nautical mile views in this version, it is broadly consistent with his earlier version (above). 67 However, in his final affidavit affirmed on 28 May 2008 the Master said that before he began to sail south on 29 March 2008, he first checked for any dangers at the 5 nautical mile view and then "switched to a 10, then 20 nautical mile view to look for the 'border line'. At the 20 nautical mile view, [he] saw the red line that [he] believed to be the border". Further, he said in that affidavit that: "To ensure the border line was in view on the screen, I stayed at the 20 nautical mile view until the end of the sail. I measured the distance of the ship to the border line by using the A-B line function under navigation mode after I stopped the ship." 68 AFMA has pointed to the inconsistency between the first two versions (above) and this last version, on the timing of first looking for and seeing the 'red line'. However, since it relates to an insignificant and peripheral aspect of the event, I do not consider this inconsistency to be of any moment. 69 In his affidavit affirmed on 20 May 2008, the Master described the final stages of his voyage south as follows: "After a few hours of high speed sailing towards the red line, I saw on the GPS screen that the ship was getting close to the red line. I stopped the speed and then measured the distance of the ship position (A) to the red line (B) by moving the cross (cursor) on the screen to the red line and then pressing down the "A B" key on the GPS machine. The distance of the A - B line appeared on the bottom right corner of the screen as approximately 11 nautical miles." He also described his use of the A-B key in his affidavit of 28 May 2008. 70 The Master annexed to his affidavit dated 20 May 2008 (as annexure TSJ 3), a photograph of the GPS screen on the Mitra on the day of seizure with the A - B line and the distance of 11.61 nautical miles both clearly shown. This photograph is similar to a photograph annexed to the affidavit of CPOB Manley, the officer in charge of the boarding party, so I infer that it was taken by one of the Navy personnel shortly after boarding the Mitra. It provides clear evidence that the Master had used the 'A-B' key on the GPS to set his position 11.61 nautical miles north of the red line, as claimed. 71 Based on this evidence, I find that the Master's fundamental mistake was in thinking that the 'red line' shown on the GPS represented the location of the AFZ border. In making that mistake he adopted the mistaken statement of the Taiwanese GPS supplier, that the line inside the GPS at the 10 - 20 nautical mile view was the Australian or AFZ border. Acting on that mistaken belief, he placed the Mitra at a position approximately 11.61 nautical miles north of the 'red line', thereby mistakenly thinking that the Mitra would be north of the AFZ border and therefore outside the AFZ.

Was the Master's a mistake of law? 72 Having identified the nature of the Master's mistake, the next question I have to determine is whether that mistake was a mistake of fact or law. On this issue, AFMA submits that the Master made a mistake of law. It submits that this is so because the Master thought that the red line, in fact the 10 degrees south line, was the border of Australian waters and he was therefore mistaken as to the location of the Australian or AFZ border, which it says was a mistake of law. AFMA says the Master was not mistaken as to his geographic location, which could have been a mistake of fact. Accordingly it says that the Master's mistake was not a mistaken belief as to an element of the offences under ss 100 or 101 of the Act. Finally it says that the Master believed the advice he received when the Seafarer GPS was installed - that the red line was the boundary of Australian waters - and this advice was a statement as to the location of that boundary, a matter of law. 73 In making its submissions, AFMA relied heavily upon the High Court's decision in Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 ('Ostrowski'). In that case, Mr Palmer, the respondent, was the lessee of a commercial fishing licence which allowed him to fish for rock lobsters in a particular zone (Zone B) of a managed fishery in Western Australia. During November of 1998, Mr Palmer made a number of visits to the Fremantle office of the West Australian Fisheries Department ('Fisheries WA') to obtain information about the regulations relating to Zone B. He eventually obtained a copy of a number of documents, but none of those documents mentioned Regulation 34, which provided that: "A person who is the holder of a commercial fishing licence must not fish for rock lobsters at any time in the area described in the table to this regulation". The table identified an area in the vicinity of Quobba Point in Western Australia where commercial fishing licensees were not licensed to fish for rock lobster. Mr Palmer proceeded on the mistaken assumption that he had been fully advised as to the regulations specifying where he could fish. He remained ignorant of Regulation 34 relating to Quobba Point. 74 During February of 1999, Mr Palmer placed a number of rock lobster pots near Quobba Point within the waters described in the table to Regulation 34. He knew the true position of his pots and he intended to fish for rock lobster in that area, but he was not aware until he was informed by officers of Fisheries WA, that he was not able to fish legally in that area. Mr Palmer was subsequently charged with a breach of Regulation 34. In his defence, he claimed that he had been operating under a mistake of fact, within the terms of s 24 of the Western Australian Criminal Code Act 1913 (WA)('Criminal Code WA'). That section is similar in terms (although not identical) to s 9.2 of the Criminal Code. The Criminal Code WA also contains a provision (s 22) to the effect that ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence. S 22 is similar in terms to s 9.3 of the Criminal Code which provides: "A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence." 75 The High Court held that Mr Palmer was acting in ignorance of the law, namely that he did not know he could not legally fish at Quobba Point, rather than acting upon any mistake of fact. In their decision Gleeson CJ and Kirby J described Mr Palmer's predicament in these terms: "He knew he held a commercial fishing licence; he knew he was fishing for rock lobster; and he knew where he was fishing…What he did not know was that there was a regulation prohibiting his conduct. He was fishing where he intended to fish; he did not know there was a law against it" (at [6]). 76 In his decision, McHugh J emphasised that Mr Palmer did not make a mistake about a factual element of the charge but rather he made a mistake about the law as to where he could fish legally. He said (at [49]): "His mistake was that he believed that the law of Western Australia did not prohibit or regulate fishing for rock lobsters in that area. His mistaken belief was not a mistake as to a fact or "state of things", but a mistake as to the operation of the law. His case fell within s 22, not s 24, of the Criminal Code. It was ignorance of the law that caused him to make the mistake that he did...". Justices Callinan and Heydon came to a similar conclusion (at [90]). 77 It is of some significance to the present case that their Honours said the following circumstances may constitute a mistake of fact: "if, as a result of navigational error, [Mr Palmer] had been under an honest and reasonable, but mistaken, belief as to his location" (per Gleeson CJ and Kirby J at [11]), and "a mistake as to the location of his vessel or his lobster pots" (per Callinan and Heydon JJ at [90]). 78 In Handmer v Taylor [1971] VR 308 ('Handmer'), McInerney J had to consider whether a man who had felled timber in a "protected forest" was operating under a mistake belief on reasonable grounds. The expression "protected forest" was defined in the Forests Act 1958 (Vic) to include: "all unoccupied Crown land proclaimed as a protected forest … and every unused road and every water frontage as defined in ... the Land Act 1958". His Honour held that questions of whether a particular area of land is Crown land; or unoccupied; or a road or an unused road; or a water frontage; or reserved from sale; or vested in trustees; or a municipality; or leased or licensed; or a water reserve under the Land Act 1958 (Vic), are all questions of fact (at 309 - 310). 79 To similar effect, in Gibbon v Fitzmaurice (1986) 23 A Crim R 12 ('Gibbon')at 19, Nettlefold J said, without referring to authority, that "a mistake as to whether a given piece of land is inside or outside of the reserve boundary is a question of fact". In that case the Full Court was dealing with an offence involving an area of land reserved as a national park. 80 In support of his conclusions in Handmer, McInerney J referred to High Court decisions where various questions have been held to be questions of fact, as follows: (a) whether a divorce decree had been entered in court: see Thomas v The King (1937) 59 CLR 279 ('Thomas') at 286 per Latham CJ and at 307 per Dixon J.; and (b) whether an Act of Parliament had been passed or repealed (as distinct from the legal effect of it); whether or not a particular house was rent controlled; and the content of a Foreign law: see Iannella v French (1967) 119 CLR 84 ('Iannella') at 97 per Barwick CJ and at 115-116 per Windeyer J. However, some of these propositions are not without controversy. In Iannella, Taylor J said that he thought the first proposition in (b) above was "heresy of the first order" (see 101, with Owen J agreeing at 116). 81 In Thomas, Latham CJ went on to say (at 286) that a mistaken belief that the defendant's prior marriage had not been effectually dissolved would have been a mistake of law. This statement was referred to by McHugh J in Ostrowski following which his Honour concluded that "… it is no defence to a criminal charge that the defendant believed that his or her actions were not regulated by law or that his or her actions satisfied the provisions of a law" (at [45] - [46]). 82 The issue becomes more complicated where the mistake involves a compound event involving both fact and law. Again in Thomas, Dixon J (at 306) concluded that such compound mistakes will generally be classified as mistakes of fact. His Honour referred in support (at 306 - 307) to the observations of the Jessel MR in Eaglesfield v Marquis of Londonderry (1876) 4 Ch D 693 ('Eaglesfield')to the effect that a simple statement that a woman is "a single woman" is a statement of fact, but a series of statements that the woman had married, discovered the man she had married was a married man and that therefore the marriage was void, followed by a statement that "therefore she is a single woman", is a statement of law. McHugh J referred to this distinction in Ostrowski (at [43] fn 72). 83 In Power v Huffa (1976) 14 SASR 337 ('Power'), Bray CJ reached the opposite conclusion in dealing with the case of a woman who claimed she had been authorised by the Minister for Aboriginal Affairs to remain at the scene of a public protest. His Honour held that the woman's belief that the Minister's authority was lawful was a mistake of law, observing that "if one of the components vital to the total belief is a belief on a question of law …" then the mistaken belief is a mistake of law (at 344 - 346, with Jacobs J agreeing at 356). 84 Again in Ostrowski, McHugh J (at [35]) referred with apparent approval to the statement of Dixon J in Thomas (at 306), as did Callinan and Heydon JJ (at [87]). However, in a footnote to [35], McHugh J pointed to the decision of Gleeson CJ in Stratfield Municipal Council v Elvy (1992) 25 NSWLR 745 ('Elvy') at 751 (Clarke JA and Lee A-J concurring), which is to the opposite effect. In their decision in Ostrowski, Gleeson CJ and Kirby J (at [13]) decided that they did not need to address "the difficulties that are sometimes involved in distinguishing between mistakes of law and mistakes of fact." and referred to Elvy and Von Lieven v Stewart (1990) 21 NSWLR 52 ('Von Lieven') at 66 - 67. 85 In Elvy, Gleeson CJ was dealing with the failure by a member of a municipal council to declare a pecuniary interest before voting on a matter. His Honour was not willing to accept that members of a council, being aware of the primary facts giving rise to a pecuniary interest calling for disclosure, could determine for themselves whether they had to disclose and then claim that they were acting under a mistake of fact if they were wrong. He said, "Once one goes past the relevant primary facts, such questions of opinion and degree … as to what kind of interest one is obliged by statute to disclose; these are mixed questions of fact and law … [which] would not ordinarily constitute mistakes of fact". 86 In Von Lieven, the Court of Appeal of New South Wales held that the belief by a promoter of a scheme operated through a company, that it did not contravene any of the relevant codes was a mistake of law because it involved a mistaken belief as to the legal effect of the facts constituting the offence: see Clarke JA at 55 and Handley JA 66 - 67. 87 Finally, it is a commonplace proposition, stated in numerous authorities, that whether a particular thing or place answers a particular description in a statute is a question of law: see, for example, Iannella at 116 per Windeyer J. 88 Based upon these authorities, I consider that AFMA's submissions must be rejected. The Master mistakenly thought that the 'red line' shown on the GPS was the AFZ borderline and that by taking up a position approximately 11.61 nautical miles north of that 'red line', he would be outside the AFZ. This mistaken belief was in turn based upon the mistaken statement of the Taiwanese GPS supplier that the line inside the GPS was the Australian border line. The only line that the Master saw was the 'red line' and he assumed this was the line the Taiwanese GPS supplier was referring to. 89 In this sense I agree with one of AFMA's submissions, that is, the Master was not mistaken as to his geographic location. He knew where he was located in relation to the 'red line'; in fact he plotted it carefully using the A-B key on the GPS. However, he thought that by being in that location he would be outside the AFZ. Thus his mistake was, in a sense, the vicarious mistake of the Taiwanese GPS supplier, in thinking that the line in the GPS, or the 'red line', was the AFZ border. In determining whether the Master's mistake was one of law or fact, I therefore consider it is necessary to focus on the nature of the underlying mistake of the Taiwanese GPS supplier. 90 The Taiwanese GPS supplier's underlying mistake did not constitute a statement that the Master had a legal entitlement to do something, or was not acting unlawfully by doing something, as arose in Ostrowski, Power, Elvy, and Von Lieven. That is, it was not a statement as to the meaning or effect of a law drawn from a process of reasoning based upon a stated, or unstated, set of facts. It is therefore quite different to the example of a question of law, given by Jessel MR in Eaglesfield, where a person makes a series of statements about the marriage history of a particular woman and concludes with the statement as to legal effect of those statements: "therefore she is a single woman". Conversely, it is somewhat similar to the contrasting example of a question of fact, where a person simply states that a particular woman is "a single woman". 91 Furthermore, it was a statement about a particular physical phenomenon, namely the location of the Australian or AFZ border. It is therefore more akin to the questions of fact identified in Handmer as to whether an area of land was Crown land, or a part of a road, or a water frontage - here the question is whether an area of sea was part of the AFZ. It is also akin to the examples of mistakes of fact given in Ostrowski, as to the location of his vessel or his lobster pots, albeit that here it was the physical location of the AFZ border, rather than the Mitra's physical location. 92 It is very similar to the question of whether an area of land is inside a reserve boundary, which was stated to be a question of fact in Gibbon. This is undoubtedly so because the location of a boundary, such as the AFZ border, is the sort of thing that is usually determined (as it was in this case) by a process of measurement (in this case using a GPS). It is therefore usually proved by adducing evidence of that process of measurement or, as also occurred in this case, by tendering an official chart showing the AFZ border position. Of course, an official chart simply shows the final results of the process of measurement carried out by a relevant official. 93 In this case, there can be no suggestion of ignorance of the law as arose in Ostrowski. Unlike Mr Palmer, the Master knew he was not legally entitled to fish in or, with some irrelevant exceptions, to be in the AFZ. Indeed that is exactly what he was attempting to avoid by locating the Mitra where he did. Or, to state the matter within the specific terms of s 9.3 of the Criminal Code, the Master was not mistaken about or ignorant of the existence or content of the Act. 94 For these reasons, I consider that the Master's mistake was not a mistake of law. Rather, within the terms in s 9.2 of the Criminal Code, it was a mistake about whether or not a fact existed (the location of the AFZ border) which, if it had existed as he mistakenly thought (if the 'red line' were in fact the AFZ border), the Mitra's location would have been 11.6 nautical miles north of the AFZ border and therefore would not have constituted an offence under ss 101(2) or 100(2) of the Act. The fact that his mistake was based upon what he had been told by the Taiwanese GPS supplier does not alter this conclusion.

Was the Master's mistake of fact reasonable? 95 Having identified the nature of the Master's mistake and having rejected AFMA's submissions that his mistake was a mistake of law, and instead having found it to be a mistake of fact, the final question I have to determine is whether the Master's mistake of fact was reasonable within the terms of s 9.2 of the Criminal Code. 96 On this question, AFMA submit that the Master's mistaken belief was not reasonable because: (a) his evidence that he held the mistaken belief was not credible; (b) there was a number of specific matters that should reasonably have alerted him to the fact the 'red line' was not the AFZ border; and (c) in all the circumstances known to him at the time he should reasonably have made enquiries which would have revealed his mistake.

Did the Master have a mistaken belief? 97 The first question raised by these submissions is: did the Master have an actual mistaken belief? I need to briefly refer to the legal principles on this issue before briefly considering the facts. 98 Both the terms of s 9.2 of the Criminal Code and authority dating as far back as Proudman v Dayman (1941) 67 CLR 536 ('Proudman v Dayman') require that the Master's mistake must constitute an affirmative belief as to the fact in question; inadvertence, a mere absence of knowledge, or not turning one's mind to the issue, is not sufficient: see Proudman at 541 per Dixon J, State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721 ('SRA') at 725 per Gleeson CJ, Clough v Rosevear (1997) 69 SASR 67 at 73 - 74 per Duggan J and CTM v The Queen [2008] HCA 25 ('CTM') at [7] per Gleeson CJ and Gummow, Crennan and Kiefel JJ. 99 AFMA's submission on this question proceeds from the proposition that I should not accept the Master as a witness of credit and should therefore not believe his claim that he thought that the 'red line' was the Australian, or AFZ, border. For the reasons I have given above, in considering whether the Mitra was used for commercial fishing and in considering the nature of the Master's mistake, I reject this submission. 100 Furthermore, for the same reasons, I find that the Master did have an actual belief that the 'red line' shown on the GPS represented the location of the AFZ border. In my view, this is not a case of inadvertence, or a mere absence of knowledge.

Was the Master's mistaken belief reasonable? 101 The next question raised by these submissions is: was the Master's actual mistaken belief, as stated, reasonable? On this question AFMA raises two specific questions: were there matters that should reasonably have alerted the Master to his mistake; and did the circumstances reasonably require the Master to make enquiries that would have revealed his mistake? To begin with, these questions require me to consider what the word 'reasonable' means and what it requires in the context of s 9.2 of the Criminal Code. 102 Section 9.2 of the Criminal Code reflects the so-called Proudman v Dayman defence at common law. So much is clear from the recommendations of the Criminal Law Officers Committee of the Standing Committee of the Attorneys-General contained in its report on the Model Criminal Code dated December 1992, which formed the basis of the Criminal Code that was eventually adopted by the Australian Parliament: see Criminal Law Officers Committee of the Standing Committee of the Attorneys-General, Final Report, December 1992, page 55, paragraph 307 Mistake of Fact (Strict Liability); Explanatory Memorandum, Criminal Code Bill 1994 (Cth) at page 1; and Commonwealth, Parliamentary Debates, Senate, Criminal Code Bill 1994, Second Reading, 30 June 1994, 2379-2382 (Senator Crowley, Minister for Family Services). The Committee's report also explains that the word 'honest' was deliberately excluded from ss 9.1 and 9.2 of the Criminal Code because it was considered redundant for offences where no fault element is involved: see page 55, paragraph 306. 103 Proudman v Dayman was a case involving a charge of permitting an unlicensed person to drive a motor vehicle. In that case, Dixon J said that: "An honest belief founded on reasonable grounds that he is licensed", afforded to the defendant "an excuse for doing what would otherwise be an offence" (at 540). The statement that the belief should be "founded on reasonable grounds" is consistent with what had earlier been said by Stephen J in R v Tolson (1889) 23 QBD 168 at 179. It was re-stated in those terms in the House of Lords in Sweet v Parsley [1970] AC 132 at 165, and in the High Court of Australia in He Kaw Teh at 558-559 per Wilson J and at 592 per Dawson J. 104 In the Criminal Code jurisdictions of Queensland, Western Australia and Tasmania, the defence of acting under an honest and reasonable, but mistaken belief, has been said to reflect the common law with "complete accuracy": see Thomas at 305 - 306 per Dixon J and CTM at [3] per Gleeson CJ and Gummow, Crennan and Kiefel JJ. Different judges of the Western Australian Court of Appeal (and the Full Court) have described the expression "honest and reasonable belief" (in s 24 of the West Australian Criminal Code) in the following terms: (a) "…it must be reasonable, which is to say that it must be based on his appreciation of primary objective fact which is in reason capable of sustaining the belief …", in GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183 at 187 per Burt CJ, Brinsden and Smith JJ; (b) "… a reasonable man or woman in the position of the defendant carrying out the same actions in the same circumstances may make the same mistake", in O'Brien v Ostrowski [1999] WASCA 184 at [108] per McKechnie J; (c) "It is that belief which must be reasonable; i.e., in all the circumstances it must have been reasonable for the accused person to hold the belief which, in this case, would render his conduct innocent"; and "….it is the actual belief of the accused with which the section is concerned, in judging reasonableness it will always be necessary to advert to the circumstances as they existed at the time in so far as they were known to the accused", in BRK v R [2001] WASCA 161 at [34] and [36] per Murray J. (d) "For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused belief must be reasonable (mixed element) … the mixed element is not wholly objective; reasonableness is not to be judged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself", in Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229 at [43] per McLure JA (with whom Roberts-Smith JA and Buss JA agreed). 105 The Queensland Court of Appeal considered the equivalent expression (in s 24 of the Queensland Criminal Code 1899 (Qld)) in R v Mrzljak (2005) 1 Qd R 308;(2004) 152 A Crim R 315; [2004] QCA 420, and described it as requiring: (a) "…a consideration of whether there were reasonable grounds for the belief, not what a reasonable person would have believed" per McMurdo P at [21]; (b) "…that the critical focus is on the offender rather than the theoretical reasonable person. It is the information available to the offender which must determine whether the belief was honest and also was reasonable …" per Williams JA at [53]; (c) that "[t]he section directs attention to the actual belief of the accused; nothing in its language invites reference to the reasonable man's putative belief. What must be considered, in my view, is the reasonableness of an accused's belief based on the circumstances as he perceived them to be", per Holmes JA at [81]. 106 From these authorities it is apparent 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 that the accused's belief be objectively reasonable i.e. 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. 107 In my view, the two specific questions raised by AFMA require particular consideration of the matters in (c) and (d) above i.e. the rationality of the Master's mistaken belief by reference to his personal attributes and the information available to him at the time. 108 The first question i.e. were there matters that should reasonably have alerted the Master to his mistake; in my view, quite properly calls for a consideration of the information the Master actually considered at or about the time he formed his mistaken belief, in assessing whether his mistaken belief was rational or capable of being sustained. In making that assessment it is necessary to have regard to the Master's personal attributes. At the same time, it is important to keep in mind that this assessment does not involve any consideration of the information a reasonable person would have considered in the circumstances. 109 However, in my view, AFMA's second question i.e. did the circumstances reasonably require the Master to make enquiries that would have revealed his mistake; is not consistent with the approach outlined in the authorities referred to above. It is inconsistent because it seeks to introduce into the assessment a consideration of the information a reasonable person would have obtained by enquiry, rather than the information the Master had actually obtained, or actually had available to him, at the time he formed his belief. Moreover, in my view, 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 enquiries are, of necessity, almost always likely to reveal the mistake. 110 In my view, therefore, the information the Master had actually obtained, or actually had available to him, at the time he formed his belief, is the only information that is relevant in assessing whether his mistaken belief was rational or capable of being sustained. This is not to say that it is impermissible to consider why the Master failed to have regard to certain information actually available to him when he formed his mistaken belief. It would seem that a question along the lines of: 'did the Master unreasonably fail to have regard to any information that was available to him at the time that would have revealed his mistake', would be permissible. Of course, in making that assessment it remains necessary to have regard to the Master's personal attributes. Since this may be what AFMA intends by its second question, I will consider this issue hereunder. But, first, I will deal with AFMA's first question.

Was there any information that should have alerted the Master to his mistake? 111 Before considering the information the Master actually considered in forming his mistaken belief, it is necessary to identify the relevant circumstances in which he was placed and his relevant attributes. It appears to be common ground between the parties that the relevant circumstances were that: the Mitra was heading at a fast speed due south; the Master knew he was approaching the AFZ border; the Master knew that the Mitra was not permitted to enter or pass through the AFZ without fishing gear stowed; and the Master had not been in the area before. 112 It also appears to be common ground between the parties that the relevant attributes the Master possessed were that he was experienced as a fisherman and as the Master of the Mitra and he had particular experience with the use of the GPS on the Mitra, including its electronic charts. Further, he was not able to read or speak English. 113 AFMA pointed to four items of information the Master must have actually considered at or before the time he formed his mistaken belief, which should reasonably have alerted him to the fact that the 'red line' was not the AFZ borderline or, in other words, that demonstrated that his mistaken belief was not rational or capable of being sustained. 114 First, AFMA submitted that the 'red line' (which was in fact the same as the ten degrees south line), was a continuous straight line. It submitted that the Master, with his 34 years experience as a sailor, 18 years experience as a Master and 3.5 years experience as Master of the Mitra, should have realised that the border between Indonesian and Australian waters was not a continuous straight line because it was dependent upon the distance between the respective coastlines. As a result, they submitted the Master should have been alerted to the possibility that the 'red line' was not the border between Indonesian and Australian waters. 115 In my view, this submission is misconceived. The boundary of Australian waters (and therefore the AFZ) and the boundary of Indonesian waters is not set by reference to the distance between the coastlines of Australia and Indonesia. Instead, the boundary of the AFZ (which is the same as Australia's Exclusive Economic Zone), is set by reference to a distance of no more than 200 nautical miles from the baselines from which Australia's territorial sea is measured, as described in the United Nations Convention on the Law of the Sea(see [12] above). In Australia's case those baselines were declared in the Commonwealth Government Gazette Number S 29dated 9 February 1983. Furthermore, the AFZ boundary is in fact a continuous straight line for large distances along its course as shown in the official charts, AUS 410 and AUS 311, tendered in evidence. I do not therefore consider that this was a matter that should reasonably have alerted the Master to the fact that the 'red line' was not the AFZ borderline. 116 Secondly, AFMA submitted that given the Master's experience as a Master and particularly his experience as the Master of the Mitra, he should have realised that the cross-hatching on the GPS screen (he was using on 29/30 March 2008) south of the 'red line' indicated that the 'red line' was the border of the GPS chart, rather than the AFZ borderline. AFMA says there was no other obvious purpose for this cross-hatching. 117 In his evidence, the Master said that he had not seen the cross-hatching on the GPS chart before 29 March 2008. I have no reason to disbelieve the Master on this evidence and that being so, I fail to see how this cross-hatching should reasonably have alerted the Master to his mistake. Its presence was just as consistent with signifying that part of the chart was Australian waters, as he mistakenly thought. Conversely, there was nothing in the nature of the cross-hatching which, in my view, should reasonably have alerted the Master to the fact that the 'red line' represented the boundary of the GPS chart. 118 Thirdly, AFMA submitted that there were other charts within the GPS that showed red lines and that this should reasonably have alerted the Master to the fact that the 'red line' shown on the GPS chart he was using on 29/30 March 2008 was not the AFZ borderline. While the Master admitted that he had seen red lines before, on other GPS charts he had used, he said in his affidavit affirmed on 28 May 2008, that he "… did not understand them as individual charts until I was told on the third day of the hearing of this proceedings. However, I have never seen them in navigation mode while sailing in Indonesian waters". Bearing in mind that the Master said elsewhere in his evidence that he had been using navigation mode on 29/30 March 2008, I do not consider that the presence of red lines on other GPS charts should reasonably have alerted him to the possibility that the 'red line' shown on the GPS chart he was using in navigation mode on 29/30 March 2008 was not the AFZ borderline. 119 Fourthly, AFMA submitted that cross-hatching similar to the cross-hatching shown on the GPS chart that the Master was using on 29/30 March 2008, is also present on the 'north of the 50 nautical mile' view for the GPS chart covering the area from the Philippines to Taiwan (as shown in tendered photograph 8 of the GPS screen views); and on the 20 nautical mile view for the GPS charts covering the area from Taiwan to Indonesia (as shown in tendered photograph 9 of the GPS screen views). AFMA submitted that since the Master gave evidence that he had used the 50 nautical mile view chart on occasions to check his position and that he had more often used the 20 nautical mile view chart, he must have seen this cross-hatching before. Accordingly, this should reasonably have alerted him to the fact that the cross-hatching on all of the GPS charts, including the one he was using on 29/30 March 2008 signified the boundaries of the GPS charts and therefore the 'red line' was not in fact the AFZ borderline. 120 In his affidavit affirmed on 28 May 2008, the Master comments on each of the tendered photographs of the GPS screen views, including photographs 8 and 9. Strangely, the Master does not expressly comment on the cross-hatching shown on the 50 nautical mile screen view (photograph 8). Instead, he says "I only ever used a up to [sic] 50 nautical mile view to quickly check the route for islands the Mitra might be approaching and then sail [sic] at a 5 nautical mile view most of the time". However, in the same affidavit he denied having ever seen the screen view shown on the 20 nautical mile screen view (photograph 9). I accept the Master's denial in this respect. As to the 50 nautical mile screen view (photograph 8), even if I were to infer from the Master's silence on this subject that he had seen the cross-hatching on the northern side of that chart, I do not consider this could constitute clear and cogent evidence that he should therefore have been alerted to the fact that the cross-hatching on all GPS charts, including the one he was using on 29/30 March 2008, signified the boundaries of the GPS charts and therefore the 'red line' was not in fact the AFZ borderline. In my view, there is no necessary logical connection between the two. 121 For these reasons, I reject all of AFMA's submissions that there was information the Master must have actually considered at or before the time he formed his mistaken belief which should reasonably have alerted the Master to his mistake, such that his mistaken belief was not rational or capable of being sustained.

Did the Master fail to have regard to any information that would have revealed his mistake? 122 It remains to consider AFMA's second question, in the form I consider permissible on the authorities. That question is: 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, such that his mistaken belief was not rational or capable of sustaining belief? In posing its second question, AFMA relied upon two items of information that it says were actually available to the Master at the time. They were: (a) the charts AUS 410 and 311 that were present on the Mitra - particularly the former which showed the AFZ borderline in the area where the Mitra was boarded; and (b) the availability of other Taiwanese fishing vessels by radio contact. 123 In my view the general answer to the Master's failure to have regard to these two items of information is that there was nothing in the circumstances that reasonably required him to do so. While he knew he was heading at speed towards the AFZ border, he knew he was not permitted to cross into the AFZ and he had not been in the area before, he was reasonably relying upon what he had been told by the Taiwanese GPS supplier about what he should do in such circumstances i.e. look for a line in the GPS. Once he found the 'red line' and assumed that was the line he had been told to look for, it was reasonable for him to continue to follow his usual practice of solely relying upon the GPS. 124 Indeed AFMA did not really suggest otherwise. The crux of its complaint was that the Master should have followed the precaution of cross checking his GPS with a paper chart, or by radio enquiry with another fishing vessel. 125 While it is true that a more cautious master might have taken one or both of these precautions, that is not the test. The test is whether it was reasonable for this Master in these circumstances to form the mistaken belief he did without such cross checking. 126 There is no suggestion the GPS was mal functioning, quite the opposite, he used it to precisely plot the position where he stopped the Mitra i.e. 11.61 nautical miles north of the 'red line'. Apart from an abundance of caution, there is, in my view, nothing in the circumstances that reasonably required the Master to cross check his GPS by having regard to these two items of information. 127 In any event, even if the Master did have regard to the Australian charts on board the Mitra, or did make radio contact with another Taiwanese fishing vessel, I do not consider that AFMA has established that he would most likely have been alerted to his mistaken belief that the 'red line' was the AFZ borderline, for the following reasons: (a) First, it is common ground that the Master could not read or speak English. It follows that he could not read the English writing on the charts, AUS 410 and AUS 311. (b) Secondly, even if it were to be assumed that the Master would be able to identify the AFZ borderline marked on chart AUS 410 without being able to read English, to make any use of that information he would have to first realise that the 'red line' on the GPS screen was not, in fact, the AFZ borderline as shown on this chart. Otherwise, it is most likely that he would have simply assumed that the AFZ borderline shown on chart AUS 410 was the same as the 'red line' shown on the GPS screen, as he mistakenly thought. In particular, he would have had to realise that the 'red line' was in fact the 10 degrees south line and then to realise that the 10 degrees south line shown on chart AUS 410 was not the same as the AFZ borderline shown on chart AUS 410. However, the Master's evidence, which I accept, was that he did not at any time realise that the 'red line' shown on the GPS screen was the 10 degrees south line. For these reasons, I do not consider that even if the Master could have identified the AFZ borderline on chart AUS 410, he would have been alerted to his mistaken belief that the 'red line' was the AFZ borderline. (c) Thirdly, and perhaps most significantly, the Master was not cross-examined about what, if any, use he could have made of these Australian charts, or about what, if any, radio enquiries he could have made of other Taiwanese vessels just before midnight on 29 March 2008. In the absence of such cross-examination, I am not willing to infer as AFMA says I should, that the Master could have used these charts to discover his mistake, or that he could have contacted someone at that time of night who would have been able to alert him to his mistake. The unfairness of drawing such inferences where the Master has not been given any opportunity to explain why I should not do so, is obvious. This is all the more so, where AFMA bears the onus of proving these matters on clear and cogent evidence.

CONCLUSION 128 In any assessment like this it is almost inevitable that different minds will come to different conclusions about the reasonableness of Master's conduct in the circumstances in which he found himself on 29/30 March 2008: see, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137] per Gummow J. However, not without some hesitation, I have concluded 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. 129 Apart from the many aspects mentioned earlier in these reasons, there are two factors that have influenced me more than others in reaching this conclusion. The first is the particular conduct which gave rise to the possible offences in this case. This was not, in my view, a case, where the Master was using the Mitra for commercial fishing in the AFZ and attempting to use the reasonable mistake of fact defence to excuse that conduct. Here, the primary conduct constituting the offence was the mere presence of the Mitra in the AFZ. Moreover, while it was in the AFZ, the Mitra was drifting on the tide while the engineers were fixing its engine. In my view, this conduct is objectively innocent. It is the very kind of innocent conduct to which the defence under s 9.2 of the Criminal Code is directed: see CTM at [3]-[4]. Indeed there is no sensible reason, apart from mistake, why the Master would have allowed the engineers to fix the Mitra's engine while it was drifting in the AFZ, knowing that it could be forfeited as a result. 130 The second factor relates to the first. Given the innocent nature of the conduct in question here, I do not consider it is an affront to the purposes of the Act, to hold that the owners should be excused from criminal responsibility in the circumstances. It is unlikely to lead to any significant erosion of AFMA's capacity to protect Australia's fishing resources, or to police the enforcement provisions of the Act. On the other hand, it is entirely consistent with the purpose of s 9.2 of the Criminal Code to hold that the defence of reasonable mistake of fact should be available to excuse it: see CTM at [7]. 131 For these reasons I find that AFMA has failed to prove, on the balance of probabilities, based upon clear and cogent evidence that the Mitra was not within the AFZ at the time as a result of a mistaken but reasonable belief of fact, on the part of the Master, under s 9.2 of the Criminal Code. 132 Accordingly I propose to make appropriate declarations in favour of the owners. I will hear the parties on the form of those orders and costs. I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Solicitor for the Respondents: Australian Government Solicitor

Fisheries Management Act 1991(Cth)ss 100, 101, 106E, 106G

Criminal Code Act 1995(Cth)ss 6.1, 9.2, 13

Western Australian Criminal Code Act 1913(WA)

WHO BEARS THE ONUS OF PROOF AND WHAT STANDARD OF PROOF APPLIES? 18 The two threshold evidentiary issues I need to consider before considering the two central issues are: who bears the onus of proof and what standard of proof applies to the two central issues? 19 On these evidentiary issues, AFMA submitted that: a) The owners have an evidentiary onus to raise the defence of mistake of fact under section 9.2 of the Criminal Code; b) The owners discharged that onus by adducing evidence from the Master to the effect that he was operating under a mistake of fact at the time; c) AFMA therefore bears the onus of negativing that defence; and d) AFMA is required to discharge that onus on the civil standard of the balance of probabilities. 20 In my view, AFMA has correctly identified who bears the onus of proof and, with one qualification, it has correctly identified the standard of proof that applies in determining the two central issues. Neither counsel referred me to s 13 of the Criminal Code which deals with the onus of proof in the prosecution of offences under the Criminal Code. Since AFMA has conceded that the owners have discharged their evidential onus (see 19(b) above), it follows from s 13 that AFMA bears the onus of disproving or negativing the defence of mistake of fact: see ss 13.3(2) and 13.1(2) respectively of the Criminal Code. 21 As to the question of the applicable standard of proof, AFMA relied upon the decision of French J. in Olbers v Commonwealth of Australia (No 4) [2004] FCA 229; 136 FCR 67 ('Olbers'). In Olbers, French J had to consider the same sections of the Act as have arisen for consideration in this case. In determining what approach he should take to the question of whether or not offences had been committed under ss 100 and 101 of the Act, his Honour observed (at [65]) that: "although these are civil proceedings a finding that offences had been committed is a serious matter and it is necessary that an appropriate degree of satisfaction be reached, albeit it is not necessary that I be satisfied beyond reasonable doubt that offences have been committed". 22 His Honour's observations are based upon Dixon J's often quoted observations in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and the long line of High Court authorities since then, including Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170. In that case, in the joint judgment of Mason CJ and Brennan, Deane, and Gaudron JJ their Honours observed that while "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove", such statements "should not, however, be understood as directed to the standard of proof" (at 170 - 171). Their Honours had earlier emphasised that the standard of proof in civil proceedings is the 'balance of probabilities', even where the matter sought to be proved involves criminal conduct. 23 Based on these authorities and given the concession made by AFMA, I will therefore proceed on the basis that AFMA bears the onus of establishing on the balance of probabilities that: (a) the Mitra was being used by a person or persons for commercial fishing in the AFZ in contravention of s 100(2); and (b) the Mitra was not within the AFZ at the time as a result of a mistake of fact on the part of the Master under s 9.2 of the Criminal Code. While the civil standard applies to the proof of these two issues, since they involve serious matters, namely contraventions of the Act, clear or cogent evidence is required to prove the alleged conduct.

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